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i II Federal Register / Vol. 70, No. 243 / Tuesday, December 20, 2005
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Contents Federal Register Vol. 70, No. 243
Tuesday, December 20, 2005
Agriculture Department PROPOSED RULES See Forest Service Air quality implementation plans: NOTICES Preparation, adoption, and submittal— Agency information collection activities; proposals, Volatile organic compounds; emissions reductions in submissions, and approvals, 75445–75446 ozone nonattainment and maintenance areas; comments, data, and information request, 75439– Centers for Disease Control and Prevention 75440 NOTICES Air quality implementation plans; approval and Meetings: promulgation; various States: Disease, Disability, and Injury Prevention and Control Iowa, 75440 Special Emphasis Panel, 75465 NOTICES Agency information collection activities; proposals, Commerce Department submissions, and approvals, 75457–75460 See Economic Development Administration See Industry and Security Bureau Federal Aviation Administration See International Trade Administration RULES See National Oceanic and Atmospheric Administration Air carrier certification and operations: See Patent and Trademark Office Hazardous materials training requirements Correction, 75396–75397 Commodity Futures Trading Commission Airworthiness directives: NOTICES Airbus, 75388–75390 Agency information collection activities; proposals, Dassault, 75386–75388 submissions, and approvals, 75452–75453 PZL-Bielsko, 75390–75392 Meetings; Sunshine Act, 75453 Class E airspace, 75392–75396 PROPOSED RULES Defense Department Airworthiness directives: RULES Boeing, 75426–75430 Acquisition regulations: McDonnell Douglas, 75430–75438 Contract financing, 75412–75414 Class E airspace, 75438–75439 Technical amendments, 75411 NOTICES PROPOSED RULES Agency information collection activities; proposals, Acquisition regulations: submissions, and approvals, 75527–75529 Contract pricing and cost accounting standards, 75440– Environmental statements; availability, etc.: 75444 National Environmental Policy Act; revision, 75529– NOTICES 75532 Civilian health and medical program of uniformed services (CHAMPUS): Federal Election Commission TRICARE program— RULES Mental health rate updates (2006 FY); correction, 75544 Bipartisan Campaign Reform Act; implementation: Federal Acquisition Regulation (FAR): Certain salaries and wages; State, district and local party Agency information collection activities; proposals, committee payment, 75379–75385 submissions, and approvals, 75453–75454 Economic Development Administration Federal Emergency Management Agency NOTICES NOTICES Adjustment assistance; applications, determinations: Agency information collection activities; proposals, La Rinascente Pasta, L.L.C, et al, 75446–75447 submissions, and approvals, 75468–75469 Disaster and emergency areas: Education Department Alaska, 75469–75470 NOTICES Indiana, 75470 Agency information collection activities; proposals, submissions, and approvals, 75454–75457 Federal Energy Regulatory Commission RULES Energy Department Public Utility Holding Company Act of 2005; See Federal Energy Regulatory Commission implementation: Public Utility Holding Company Act of 1935; repeal, Environmental Protection Agency 75592–75645 RULES Air pollution control; new motor vehicles and engines: Federal Railroad Administration On-board diagnostic requirements, 75403–75411 RULES Air quality implementation plans; approval and Railroad accidents/incidents; reports classifications and promulgation; various States: investigations: Iowa, 75399–75403 Monetary threshold (CY 2006); revision, 75414–75418
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NOTICES General Services Administration Agency information collection activities; proposals, NOTICES submissions, and approvals, 75533–75534 Federal Acquisition Regulation (FAR): Exemption petitions, etc.: Agency information collection activities; proposals, Burlington Northern & Santa Fe Railway Co., 75535 submissions, and approvals, 75453–75454 Traffic control systems; discontinuance or modification: Burlington Northern & Santa Fe Railway, 75535–75536 Health and Human Services Department Canadian Pacific Railway, 75536 See Centers for Disease Control and Prevention See Food and Drug Administration Federal Reserve System See Substance Abuse and Mental Health Services RULES Administration Extensions of Credit by Federal Reserve Banks (Regulation A): Homeland Security Department Primary credit rate, 75385–75386 See Federal Emergency Management Agency NOTICES See Transportation Security Administration Banks and bank holding companies: Change in bank control, 75460–75461 Industry and Security Bureau Formations, acquisitions, and mergers, 75461 NOTICES Export privileges, actions affecting: Federal Trade Commission Gao, Zhan, et al., 75447–75448 NOTICES Agency information collection activities; proposals, Interior Department submissions, and approvals, 75461–75465 See Fish and Wildlife Service Federal Transit Administration See Land Management Bureau See Reclamation Bureau NOTICES Fiscal year 2006 apportionments and allocations, 75648– International Trade Administration 75709 NOTICES Fish and Wildlife Service Antidumping: PROPOSED RULES Brake rotors from— Endangered and threatened species: China, 75448–75450 Critical habitat designations— Cased pencils from— Spikedace and loach minnow, 75546–75590 China, 75450 NOTICES Corrosion-resistant carbon steel flat products from— Comprehensive conservation plans; availability, etc.: Canada, 75451 Bon Secour National Wildlife Refuge, AL, 75471–75472 Shawangunk Grasslands National Wildlife Refuge, NY; International Trade Commission correction, 75544 NOTICES Endangered and threatened species: Import investigations: Recovery plans— Bearings from— Atlantic salmon; Gulf of Maine distinct population Various countries, 75482–75483 segment, 75473–75478 Pure magnesium from— Endangered and threatened species permit determinations, China, 75483 etc., 75472–75473 Superalloyed degassed chromium from— Environmental statements; notice of intent: Japan, 75483 Port of Vancouver’s Columbia Gateway Site; habitat conservation plan; public scoping meetings, 75478– Land Management Bureau 75480 NOTICES Meetings: Food and Drug Administration Resource Advisory Councils— RULES Mojave-Southern Great Basin, 75480–75481 Animal drugs, feeds, and related products: Sponsor name and address changes— National Aeronautics and Space Administration Pharmaceutical Ventures, Ltd., 75398 NOTICES NOTICES Federal Acquisition Regulation (FAR): Animal drugs, feeds, and related products: Agency information collection activities; proposals, Tilmicosin, 75465 submissions, and approvals, 75453–75454 Meetings: Regulatory Process for Pediatric Mechanical Circulatory National Archives and Records Administration Support Devices (Ventricular Assist Devices), 75465– NOTICES 75466 Agency information collection activities; proposals, submissions, and approvals, 75483–75484 Forest Service NOTICES National Highway Traffic Safety Administration Meetings: NOTICES Resource Advisory Committees— Motor vehicle safety standards: Modoc, 75446 Frontal New Car Assessment Program, 75536–75541
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National Oceanic and Atmospheric Administration Social Security Administration RULES NOTICES Fishery conservation and management: Agency information collection activities; proposals, Alaska; fisheries of Exclusive Economic Zone— submissions, and approvals, 75526–75527 Bering Sea and Aleutian Islands king and tanner crab, 75419–75422 Substance Abuse and Mental Health Services Northeastern United States fisheries— Administration Atlantic mackerel, squid, and butterfish, 75418 NOTICES NOTICES Endangered and threatened species: Agency information collection activities; proposals, Recovery plans— submissions, and approvals, 75466–75467 Atlantic salmon; Gulf of Maine distinct population Federal agency urine drug testing; certified laboratories segment, 75473–75478 meeting minimum standards, list, 75467–75468 Environmental statements; notice of intent: Port of Vancouver’s Columbia Gateway Site; habitat Transportation Department conservation plan; public scoping meetings, 75478– 75480 See Federal Aviation Administration See Federal Railroad Administration See Federal Transit Administration Nuclear Regulatory Commission See National Highway Traffic Safety Administration PROPOSED RULES Byproduct material; domestic licensing: Transportation Security Administration Industrial devices, agreement states’ organization, 75423– NOTICES 75426 Agency information collection activities; proposals, NOTICES submissions, and approvals, 75470–75471 Agency information collection activities; proposals, submissions, and approvals, 75484–75485 Environmental statements; availability, etc.: Treasury Department FPL Energy Seabrook, LLC, 75487–75488 NOTICES Meetings; Sunshine Act, 75488–75489 Agency information collection activities; proposals, Operating licenses, amendments; no significant hazards submissions, and approvals, 75541 considerations; biweekly notices, 75489–75500 Privacy Act; system of records, 75500–75501 Veterans Affairs Department Reports and guidance documents; availability, etc.: RULES Seismic considerations for the transition break size, Disabilities rating schedule: 75501–75502 Rheumatoid (atrophic) arthritis, mental disorders in Applications, hearings, determinations, etc.: epilepsies, and dementia, 75398–75399 Entergy Operations, Inc., 75485–75486 NOTICES Virginia Electric And Power Co., 75486–75487 Agency information collection activities; proposals, submissions, and approvals, 75541–75543 Patent and Trademark Office NOTICES Reports and guidance documents; availability, etc.: Separate Parts In This Issue Patent subject matter eligibility; interim guidelines for examination of patent applications, 75451–75452 Part II Interior Department, Fish and Wildlife Service, 75546– 75590 Reclamation Bureau NOTICES Environmental statements; notice of intent: Part III Los Vaqueros Reservoir Expansion Investigation, Contra Energy Department, Federal Energy Regulatory Costa County, CA, 75481–75482 Commission, 75592–75645
Part IV Securities and Exchange Commission Transportation Department, Federal Transit Administration, NOTICES 75648–75709 Agency information collection activities; proposals, submissions, and approvals, 75502–75504 Meetings; Sunshine Act, 75511–75512 Self-regulatory organizations; proposed rule changes: Reader Aids Chicago Board Options Exchange, Inc., 75512–75514 Consult the Reader Aids section at the end of this issue for Municipal Securities Rulemaking Board, 75514–75517 phone numbers, online resources, finding aids, reminders, National Association of Securities Dealers, Inc., 75517– and notice of recently enacted public laws. 75519 To subscribe to the Federal Register Table of Contents New York Stock Exchange, Inc., 75519–75525 LISTSERV electronic mailing list, go to http:// Pacific Exchange, Inc., 75525–75526 listserv.access.gpo.gov and select Online mailing list Applications, hearings, determinations, etc.: archives, FEDREGTOC-L, Join or leave the list (or change Lincoln National Life Insurance Co., et al., 75504–75511 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.
10 CFR Proposed Rules: 31...... 75423 11 CFR 106...... 75379 300...... 75379 12 CFR 201...... 75385 14 CFR 39 (3 documents) ...... 75386, 75388, 75390 71 (5 documents) ...... 75392, 75393, 75394, 75395 121...... 75396 145...... 75396 Proposed Rules: 39 (4 documents) ...... 75426, 75428, 75430, 75435 71...... 75438 18 CFR 365...... 75592 366...... 75592 21 CFR 510...... 75398 520...... 75398 38 CFR 4...... 75398 40 CFR 52...... 75399 70...... 75399 86...... 75403 Proposed Rules: 51...... 75439 52...... 75440 70...... 75440 48 CFR Ch. 2 ...... 75411 201...... 75411 213...... 75411 232...... 75412 Proposed Rules: 215...... 75440 230...... 75440 252...... 75440 253...... 75440 49 CFR 225...... 75414 50 CFR 648...... 75418 679...... 75419 680...... 75419 Proposed Rules: 17...... 75546
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Rules and Regulations Federal Register Vol. 70, No. 243
Tuesday, December 20, 2005
This section of the FEDERAL REGISTER 2002, Public Law 107–155, 116 Stat. 81 held that the regulations addressing the contains regulatory documents having general (2002) (‘‘BCRA’’), amended the Federal salaries and wages of covered applicability and legal effect, most of which Election Campaign Act of 1971, as employees survived both steps of the are keyed to and codified in the Code of amended (the ‘‘Act’’), 2 U.S.C. 431 et Chevron analysis, but that the regulation Federal Regulations, which is published under seq., in various respects. Under BCRA, failed for lack of a sufficient explanation 50 titles pursuant to 44 U.S.C. 1510. State party committees must pay the under the Administrative Procedure The Code of Federal Regulations is sold by salaries and wages of employees who Act. See Shays Appeal, 414 F.3d at 112. the Superintendent of Documents. Prices of spend more than 25 percent of their Before the Court of Appeals decision, new books are listed in the first FEDERAL compensated time per month on the Commission issued a Notice of REGISTER issue of each week. Federal-related activities entirely with Proposed Rulemaking to determine the Federal funds.1 2 U.S.C. 431(20)(A)(iv) appropriate mix of Federal and non- and 441i(b)(1). However, BCRA does not Federal funds that State party FEDERAL ELECTION COMMISSION address what type of funds State party committees must use to pay the salaries committees must use to pay the salaries and wages of covered employees. Notice 11 CFR Parts 106 and 300 and wages of employees who spend of Proposed Rulemaking on State, [Notice 2005–27] some, but not more than 25 percent, of District and Local Party Committee their compensated time per month on Payment of Certain Salaries and Wages, State, District, and Local Party Federal-related activities (‘‘covered 70 FR 23072 (May 4, 2005) (‘‘NPRM’’). Committee Payment of Certain Salaries employees’’). In 2002, the Commission The comment period closed on June 3, and Wages promulgated 11 CFR 106.7(c)(1), (c)(5) 2005. The Commission received and (d)(1), and 300.33(c)(2). Under these comments from nine commenters in AGENCY: Federal Election Commission. rules, State party committees were response to this NPRM. The ACTION: Final rules. permitted to pay the salaries or wages of Commission held a hearing on this rulemaking on August 4, 2005, at which SUMMARY: covered employees entirely with funds The Federal Election four commenters testified. Commission is amending its rules to that comply with State law. Id. In Shays v. Federal Election After the hearing, the Commission revise the method by which State, Commission, 337 F. Supp. 2d 28 (D.D.C. reopened the comment period until district and local party committees 2004) (‘‘Shays District’’), aff’d, 414 F.3d September 29, 2005. In reopening the (collectively ‘‘State party committees’’) 76 (DC Cir. 2005) (‘‘Shays Appeal’’), comment period, the Commission noted may pay salaries and wages of reh’g en banc denied (Oct. 21, 2005) that it was doing so ‘‘to allow all employees who spend 25 percent or less (No. 04–5352), the District Court interested persons to submit of their compensated time in a month considered a challenge to the information or comments that may be on Federal election activity or activity regulations that permitted State party useful in this rulemaking in light of the in connection with Federal elections committees to use all non-Federal funds Court of Appeals opinion.’’ Notice to (‘‘Federal-related activity’’ or ‘‘Federal- to pay the salaries and wages of covered Reopen Comment Period for related activities’’). These final rules employees. The District Court Rulemaking on State, District, and Local implement the decision of the U.S. recognized that the Commission’s Party Committee Payment of Certain Court of Appeals for the District of interpretation of 2 U.S.C. 431(20)(A)(iv) Salaries and Wages, 70 FR 51302 (Aug. Columbia Circuit in Shays v. FEC, and 441i(b)(1), did not violate the first 30, 2005). Five additional commenters which held that the Commission had step of Chevron U.S.A. Inc. v. Natural submitted comments during this period. not provided an adequate explanation Resources Defense Council, Inc., 467 The names of all commenters and their for its former rules under the U.S. 837 (1984) (‘‘Chevron’’), because written comments, as well as a Administrative Procedure Act. The Congress had not directly spoken on transcript of the public hearing are Commission is also changing its this issue. However, the District Court available at http://www.fec.gov/law/ requirements regarding the method _ _ held that the Commission’s law rulemakings.shtml#party salaries State party committees use to pay for interpretation was not a permissible under ‘‘State Party Payment of Salaries employees’ fringe benefits and clarifying reading of the statute under step two of and Wages.’’ its rules regarding the use of funds Under the Administrative Procedure Chevron.2 raised in joint Federal and non-Federal Shays District at 113–114. On July 15, 2005, the U.S. Court of Act, 5 U.S.C. 553(d), and the fundraising events. Further information Congressional Review of Agency Appeals for the District of Columbia is provided in the Supplementary Rulemaking Act, 5 U.S.C. 801(a)(1), Circuit affirmed the District Court’s Information that follows. agencies must submit final rules to the ruling on this regulation, but on Speaker of the House of Representatives DATES: Effective Date: These rules are different grounds. The Court of Appeals effective on January 19, 2006. and the President of the Senate and publish them in the Federal Register at FOR FURTHER INFORMATION CONTACT: Ms. 1 ‘‘Federal funds’’ are funds that are subject to the Mai T. Dinh, Assistant General Counsel, contribution limitations, source prohibitions, and least 30 calendar days before they take or Mr. Anthony T. Buckley, Attorney, reporting requirements of the Act. 11 CFR 300.2(g). effect. The final rules that follow were 2 999 E Street NW., Washington, DC The first step of the Chevron analysis, which transmitted to Congress on December courts use to review agency regulations, is whether 14, 2005. 20463, (202) 694–1650 or (800) 424– Congress has directly spoken to the precise 9530. questions at issue. The second step is whether the Explanation and Justification agency’s resolution of an issue not addressed in the SUPPLEMENTARY INFORMATION: The statute is based on a permissible construction of the The Court of Appeals’ decision allows Bipartisan Campaign Reform Act of statute. See Shays District at 51–52 (citing Chevron). the Commission to attempt to justify the
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rules allowing State party committees to would establish a fixed minimum of 25 FR 49064, 49079 (July 29, 2002) (‘‘Soft use wholly non-Federal funds for the percent that a State party committee Money E&J’’). As explained in the 2002 salaries and wages of covered would be required to allocate to its Soft Money E&J, the Commission employees. However, the decision also Federal account. The NPRM contained derived the four allocation ratios that indicates that a far more substantial proposed rules only for this approach. range from 15% to 36% by taking the record would be necessary to support The second proposal in the NPRM averages of the previous ballot these regulations. Shays Appeal at 112. would adopt an allocation percentage composition-based allocation Here, the Court found it ‘‘quite plausible directly proportional to the amount of percentages reported by State party that wealthy donors would swallow compensated time an employee spent committees in four representative costs for increased state and local on Federal-related activities in a given groupings of State party committees campaigning * * * [for] an army of month in relation to all compensated representing states of varying sizes and workers devoting more than a day a time in that same month. This proposal geographic locations. Id. This approach week to federal elections.’’ Id. would have resulted in different ratios was designed ‘‘to assure that activities Several commenters urged the for different employees. deemed allocable are not paid for with Commission to retain the rules allowing The third proposal would follow the a disproportionate amount of non- State party committees to pay the pre-BCRA rules by treating salaries and Federal funds.’’ Id. This approach salaries and wages of covered wages of covered employees as reflects the variability of State party employees with 100% non-Federal administrative costs. This proposal committee Federal spending from funds. They argued that there is no would subject the salaries and wages at election cycle to election cycle, evidence of abuse or circumvention of issue to the allocation ratios at 11 CFR depending on the types of Federal BCRA by dividing Federal-related 106.7(d)(2) that were developed as part offices that are on the ballot in one activities among many employees who of the BCRA soft money rulemaking. For election cycle versus another. For each devote no more than 25% of their the reasons stated below, the example, State party committees are time to Federal races. In fact, one Commission is adopting this allocation required to use 15% Federal funds for commenter testified that wealthy donors method for the salaries and wages of administrative expenses in election interested in Federal elections would covered employees. cycles where only Members of the U.S. not give a penny if apprised that no House of Representatives are on the B. 11 CFR 106.7(c)(1) and 300.33(c)(2) more than 25% of their donation would ballot in those states, versus 36% when Allocation of Salaries and Wages as be used for these purposes. This the offices of the President and U.S. Administrative Costs commenter also urged the Commission Senate are also on the ballot. to retain these rules for party The Commission is amending 11 CFR The Commission has concluded that committees that have under seven 106.7(c)(1) and adding new 11 CFR the use of these ratios will prevent employees because it would be difficult 300.33(d)(1)–(3),3 to require that State circumvention of the soft money rules, for such small committees to engage in party committees either: (1) Allocate the even though the ratios do not track the kind of evasion that concerned the salaries and wages of covered precisely the number of hours worked District Court. employees as administrative expenses, by employees. In addition, State party Thus, the record developed during or (2) pay these salaries and wages committees already use these allocation this rulemaking, including the entirely from a Federal account. Revised ratios for a variety of administrative comments submitted by the State and paragraph (c)(1) of section 106.7 sets costs and they allocated their local party committees or their forth these two options. New section employees’ salaries and wages as representatives, suggests that, in 300.33(d) addresses how State party administrative costs prior to BCRA’s general, State party committees may committees must pay the salaries, effective date. Thus, their familiarity face practical obstacles in trying to use wages, and fringe benefits of their and experience with the administrative the rule to circumvent BCRA in the way employees. Revised section 300.33(d)(1) costs allocation method will ease the the court feared. However, as explained mirrors the language in revised 11 CFR transition and implementation of the below, the Commission has an 106.7(c)(1). Revised section 300.33(d)(2) new rules regarding the salaries and alternative to the former rules that requires that State party committees pay wages of covered employees. The Commission received comments addresses the Court of Appeals’ the salaries, wages, and fringe benefits supporting partial application of the concerns about circumvention and has of employees who spend more than administrative cost allocation method. the virtues of familiarity, relative ease of 25% of their compensated time in a These commenters favored using the administration, and a reasonable given month on Federal-related administrative costs ratios in election relationship to the State party activities with only Federal funds. New cycles other than Presidential election committees’ level of Federal-related section 300.33(d)(3) states that State cycles. They argued that it would be activities. Consequently, the party committees may pay the salaries, inappropriate to apply Presidential Commission is not retaining the former wages, and fringe benefits of employees election cycle allocation ratios of 28% who spend no time in a given month on rules. Instead, it is amending 11 CFR and 36% because they would apply to Federal-related activities entirely with 106.7 and 300.33 to require State party employees who spend no more than funds that comply with State law.4 committees to allocate the salaries and 25% of their compensated time in a Allocation ratios for administrative wages of covered employees between given month on Federal-related costs in 11 CFR 106.7(d)(2)(i) through their Federal and non-Federal accounts activities. The Commission disagrees (iv) were modified during the BCRA soft as administrative costs. that such an application would be money rulemaking. Final Rules on I. Allocation of State Party Wages inappropriate. Prohibited and Excessive Contributions: Requiring a Federal allocation A. Introduction Non-Federal Funds or Soft Money, 67 percentage that is higher than the The NPRM presented three options corresponding percentage of Federal- 3 The Commission is redesignating current 11 for allocating the salaries and wages of CFR 300.33(d) as 11 CFR 300.33(e). related activity is not inconsistent with covered employees. The first proposal 4 Section 300.33(c) is amended so that it BCRA. Under 2 U.S.C. 431(20)(A)(iv), would adopt an allocation method that addresses only public communications. Congress mandated that a person who
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spends as little as 26% of his or her Federal funds, depending on whether Some commenters supported this compensated time in a month on there is a Senatorial candidate on the proposal. They asserted that setting a Federal-related activities must be paid ballot. Because the administrative costs fixed allocation ratio has the advantage entirely with Federal funds. Congress allocation ratios for State party of providing a clear and readily was silent on how State party committees will average at least 25% administered rule that would minimize committees should pay the salaries and over time, the allocation ratios will the burdens of compliance on State wages of covered employees. Congress achieve one of the goals of the fixed party committees and simplify was aware, however, that at the time it minimum 25% allocation ratio— enforcement for the Commission. Other enacted BCRA, State party committees ensuring that over time, State party commenters supported this proposal were required to allocate salaries and committees will use sufficient Federal only for election cycles when a wages of their employees as funds to pay for employee time that is Presidential candidate appears on the administrative costs. It is reasonable to spent on Federal-related activities— ballot. For election cycles in which conclude that Congress could have without imposing a new allocation there is no Presidential race, these expected that the Commission might regime on State party committees. commenters believed that it was more continue to treat the salaries and wages Furthermore, the Court of Appeals appropriate to use the same allocation of covered employees as allocable suggested its approval of this approach ratio as is used for administrative costs. administrative costs. when it noted that ‘‘the salary rule In contrast, some commenters Another commenter objected to appears particularly irrational given the objected to this proposal in its entirety. requiring allocation of covered FEC’s recognition that costs for voter One commenter argued that a fixed 25% employees’ salaries as administrative registration, get-out-the-vote drives, and allocation would introduce another step costs, maintaining that there is no generic party advertising—all matters, into an already complex process and rational relationship between the time like salaries, that the FEA definition required additional rules for actually spent by employees on Federal- determining how to manage payroll election activities and the amount of specifically addresses—may require allocation even when the activities ‘do operations over and above what is Federal money required to be used to already required for administrative fund those employees. Neither FECA not qualify’ as FEA. See 11 CFR 106.7(c)(5).’’ Shays Appeal at 112. expense allocation. Another commenter nor BCRA requires that the allocation stated that the proposed 25% allocation ratios be precisely proportional to the In addition to the changes to 11 CFR 106.7(c)(1) and 300.33(d), corresponding sweeps too broadly and unjustifiably amount of time spent on Federal-related interferes with the type of money State activities. It is sufficient that the changes are being made to two other and local committees may use to administrative costs allocation ratios regulations. Section 106.7(d)(1)(i) is compensate their employees who work generally reflect the overall level of being revised to state that these salaries substantially on non-Federal issues. State party committees’ Federal activity and wages must be paid wholly from the based on the percentage of Federal Federal account, or allocated as Although a fixed minimum 25% candidates on the ballot. administrative costs. Similarly, section allocation ratio on its face appears to be Other commenters who opposed the 106.7(c)(5) is being amended to make the simplest, most straightforward administrative costs allocation method clear that the salaries and wages of method for allocating salaries and wages were concerned that not enough Federal covered employees are not exempt from of covered employees, it is not, given funds would be used to pay employees allocation but rather are subject to the other regulations that govern how who spend 25% of their compensated allocation as administrative expenses. State party committees pay for their time per month on Federal-related Conforming changes are also being disbursements and experience with past activities during any year in which no made to 11 CFR 100.57(b), 106.7(e)(2) allocation methods. State party Presidential or Senatorial candidate is and 300.36(b)(2)(ii). committees are already required to on the ballot. They argued that the 15% apply an allocation scheme to their administrative costs allocation ratio for C. Alternative Allocation Methods administrative costs if they do not use those years would allow State party 1. Minimum Allocation of 25 Percent 100% Federal funds. Moreover, before committees to pay the remaining 10% of BCRA’s enactment, State party the employees’ compensated time spent An alternative in the NPRM’s committees were required to allocate on Federal-related activities with non- proposed rule text would have required their employees’ salaries and wages as Federal funds. According to these State party committees either (1) to administrative costs if they did not use commenters, this approach is allocate at least 25% of salaries and entirely Federal funds. By including the inconsistent with Congress’ overall wages of covered employees to a Federal salaries and wages of covered scheme of requiring Federal-related account, or (2) to pay those salaries and employees as administrative costs, State activities to be paid for with Federal wages entirely with funds from a party committees will use an allocation funds. Federal account. See proposed 11 CFR scheme with which they are familiar The Commission disagrees that using 106.7(c)(1)(i) and (ii), 70 FR at 23074. As and have experience applying. The the administrative costs allocation ratios stated in the NPRM, a minimum fixed minimum 25% allocation method is inconsistent with Congressional allocation percentage of 25% would would subject State party committees to intent. The average of the allocation ensure that State party committees use an additional and different allocation ratios of 15%, 21%, 28% and 36% is Federal funds to pay for all the ratio that would apply to only one 25%, and the weighted average based on compensated time covered employees category of their disbursements for the frequency that State party spend on Federal-related activity. 70 FR which they would have to monitor, committees would use the various ratios at 23073. In this way, this proposal was maintain records and report on a over a number of election cycles is over one way to prevent circumvention of the different form. To avoid creating yet 26%. Moreover, when there is a Act, which, according to the District another allocation method for State Presidential candidate on the ballot, Court and the Court of Appeals, the party committees to apply, the State party committees must pay the challenged rules failed to ensure. See Commission is not adopting a fixed salaries and wages of covered Shays District at 114; Shays Appeal at allocation ratio of 25% for salaries and employees with at least 28% or 36% 112. wages of covered employees.
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2. Allocation Directly Proportional to committees predicted incorrectly the plan. The Commission determined in Amount of Time Worked amount they spent on certain activities. AO 2003–11 that amounts spent on This proposal would adopt an Based on the comments and fringe benefits fell into the category of Commission experience with allocation allocation percentage for salaries and compensated time, and thus concluded methods, an allocation method directly wages of covered employees directly that the State party committee could use proportional to the amount of time proportional to the amount of entirely non-Federal funds to pay for the worked would be complex and likely to compensated time these employees fringe benefits under the rules for engender confusion, and would be spend on Federal-related activities in a payment of salaries and wages that were unduly burdensome to State party given month in relation to all in effect at that time. committees. For these reasons, the compensated time in that same month. Some commenters urged the Commission is not adopting this This proposal would probably have Commission to give State party allocation method. required State parties to use different committees the option of treating fringe percentages for different employees in a D. Employees Who Spend No benefits as administrative costs, while given month. The percentages would Compensated Time on Federal-Related other commenters urged the also be expected to vary for each Activities Commission to treat fringe benefits as compensated time. employee from month to month. In the NPRM, the Commission stated Most commenters agreed that a direct Because the salaries and wages of that it is continuing to interpret BCRA covered employees are treated as proportionality allocation scheme as allowing committees to pay the would be complicated, would require administrative costs under the revised salaries and wages of employees who rules at 11 CFR 106.7(c)(1) and (d)(1)(i), additional recordkeeping that could be spend no time in a given month on burdensome, and would be difficult to and fringe benefits are a form of Federal-related activities entirely with compensation, it is appropriate for State track, report, and enforce. The non-Federal funds. All commenters who party committees to treat fringe benefits commenters who supported this method addressed this issue supported this for covered employees as administrative only did so to the extent that this interpretation. Some of these costs. Accordingly, State party method would be an optional method commenters recommended that the committees must now treat fringe available to State party committees in Commission incorporate this benefits as they would salaries and lieu of another allocation method interpretation into its regulations, as wages, depending on the time spent per adopted by the Commission. some committees might otherwise month on Federal-related activities: State party committees must maintain interpret the Commission’s regulations Either by paying for them entirely from logs of employee time spent on Federal- as requiring them to allocate such the Federal account, or by allocating the related activities under current 11 CFR salaries and wages. Consequently, the 106.7(d)(1). These same logs could serve Commission is adding new 11 CFR costs of the fringe benefits as as the basis for allocating these 106.7(d)(1)(iii), which states that, administrative costs. Consistent with employees salaries and wages between notwithstanding section 106.7(d)(1)(i), the new rules’ approach to salaries and Federal and non-Federal funds. While salaries and wages paid for employees wages, the fringe benefits of employees in most cases such a method could be who spend none of their compensated who spend no time in a month on expected to produce an allocation that time in a given month on Federal Federal-related activity may be paid most closely matches the proportion of election activities or activities in with funds that comply with State law. employees’ time spent on Federal- connection with a Federal election may Revised 11 CFR 106.7(c)(1) and related activities, it suffers from a be paid entirely with non-Federal funds. 106.7(d)(1), and new 11 CFR 300.33(d) number of practical deficiencies. Under reflect that salaries, wages, and fringe the current system, the logs only serve II. Allocation of Fringe Benefits of benefits are treated the same. AO 2003– to distinguish covered employees from Employees 11 is hereby superseded to the extent it those over the 25% threshold. This The NPRM also sought comment on stated that State party committees may division has legal consequences, while whether the methods for allocating pay for fringe benefits of covered the particular percentage does not. salaries and wages should be applied to employees entirely with non-Federal It would also introduce into the fringe benefits of employees. funds. allocation scheme for State party Specifically, the NPRM sought comment III. Use of Funds Raised Through Joint committees the problems with on whether the rules should be Federal and Non-Federal Fundraising computing complicated allocation ratios amended to permit, but not require, Events that the Commission sought to eliminate State party committees to use the same for SSFs and nonconnected committees allocation rules for fringe benefits as are The NPRM sought comment on when it amended the allocation used for salaries and wages, instead of whether to amend 11 CFR 106.7(c)(4) to regulations in 11 CFR 106.6. See Final allocating fringe benefits as clarify that Federal funds raised through Rules on Political Committee Status, administrative costs. In Advisory a joint fundraising activity or a joint Definition of Contribution, and Opinion (‘‘AO’’) 2003–11, the fundraiser (collectively ‘‘joint Allocation for Separate Segregated Commission advised a State party fundraiser’’) may be used for Federal 5 Funds and Nonconnected Committees, committee that it may pay the costs of election activity. The statutory basis for 69 FR 68056, 68059 (Nov. 23, 2004). fringe benefits for covered employees section 106.7(c)(4) is 2 U.S.C. 441i(c), When the Commission examined the with non-Federal funds. Fringe benefits which reads: ‘‘An amount spent by a allocation scheme for SSFs and were described by the State party [national committee of a political party nonconnected committees, it found that committee as medical, dental, and or a State party committee] to raise it was difficult for these committees to prescription drug insurance coverage; funds that are used, in whole or in part, calculate a precise ratio because the coverage for short-term disability (wage for expenditures and disbursements for calculation was based on predicting loss) and long-term disability insurance 5 Joint fundraisers include events where a State accurately the amount of time spent on benefits; coverage for life insurance party committee raises both Federal and non- certain activities. The calculation was benefits; and employer matching Federal funds on its own, or together with another further complicated when these contributions to the 401(k) retirement organization under 11 CFR 102.17.
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a Federal election activity shall be made funds to other State party committees to a payroll company; (2) permitting from funds subject to the limitations, pay for their Federal election activities. allocation of fundraising costs among prohibitions, and reporting Furthermore, this interpretation of 2 Federal, non-Federal and Levin requirements of this Act.’’ In AO 2004– U.S.C. 441i(c) would create a new class accounts; and (3) providing guidance on 12, the Commission determined that a of Federal funds that must be used to how State party committees should State party committee could pay for pay for Federal election activity. This remedy a situation in which they make Federal election activity with Federal new class of Federal funds would be a mistake in estimating the amount of funds raised at events where the costs subject to fundraising restrictions that time an employee spends on Federal- of such events had been paid for with would not be applicable to other Federal related activities. The first two issues a combination of Federal and non- funds including those used to make are beyond the scope of this rulemaking. Federal funds, allocated through the use direct contributions to Federal Regarding the third issue, the of the funds received method. See 11 candidates. The Commission does not commenters noted that some State party CFR 106.6(d). believe that Congress intended these committees are required to pay their Some commenters supported anomalous results. salaries, wages, and fringe benefits in amending the rule to reflect the In order to avoid any confusion advance because of their vendor interpretation in AO 2004–12. These concerning fundraising costs, the contracts or payroll systems. Thus, these commenters argued that the current Commission is amending 11 CFR State party committees must estimate regulation, strictly interpreted, would 106.7(c)(4) to state specifically that State whether particular employees will have required State party committees to party committees may allocate the direct spend more or less than 25 percent of pay all of their fundraising expenses costs of joint fundraising between their their compensated time on Federal- with Federal dollars in order to use the Federal and non-Federal accounts related activity, and that these estimates Federal funds raised at a fundraiser to according to the funds received method are sometimes wrong. As a result, pay for Federal election activities. These described in 11 CFR 106.7(d)(4). All salaries, wages, and fringe benefits for commenters asserted that such a result other statements in section 106.7(c)(4) employees may sometimes be prepaid suggesting otherwise are being deleted. was unduly burdensome for, and unfair with an allocable mix of Federal and Corresponding changes are being to, State party committees. Other non-Federal funds (under the new rule), made to other Commission regulations. commenters who opposed any revision when they should be prepaid entirely Section 106.7(e)(4) and the contents of with Federal funds. Conversely, the argued that the regulation ‘‘captures one section 300.33(c)(3) are being removed, of the essential elements of BCRA: to salaries, wages, and fringe benefits for because neither indicates that direct other employees might be prepaid provide for clear separation between costs of fundraising may be allocated. hard money and soft money for the entirely with Federal funds when they Also, section 300.32(a)(3) is being could have been paid with an allocable funds to be used by state parties for amended to state that State party mix of Federal and non-Federal funds. Federal election activities.’’ They committees that raise Federal and non- The commenter sought guidance on asserted that 2 U.S.C. 441i(c) mandates Federal funds at a joint fundraiser, how a State party committee could such a rule and interpretation. where the Federal funds raised are to be remedy these situations after the fact. The Commission disagrees that 2 used for Federal election activity, must Commission regulations at 11 CFR U.S.C. 441i(c) requires this construction. either pay the direct costs of the 106.7(f) govern transfers from a non- The Commission interprets the statute fundraiser entirely with Federal funds, Federal to a Federal account, or from to require only that the costs of raising or must allocate the costs according to Federal and non-Federal accounts to an Federal funds to pay for Federal election the funds received method. That rule is allocation account, to cover allocable activities must be paid for with Federal also being revised to state explicitly that expenses. When a State party committee funds. Allocation and the use of the if a State party committee raises only uses a Federal or allocation account to funds received method accomplish this Federal funds at a fundraising activity it prepay salaries, wages, and fringe because they ensure that Federal funds must pay the entire direct costs of the benefits and later determines that these are used to raise Federal funds. Indeed, fundraising activity with Federal funds. amounts could have been paid from a with respect to the funds received The language in amended section non-Federal account, i.e. the salaries, method, the Commission has previously 300.32(a)(3) closely tracks the new wages, and fringe benefits for covered noted that it ‘‘provides the most language at section 106.7(c)(4). employees, the non-Federal account accurate basis for division of The Commission is also amending the may reimburse the Federal account or [fundraising] costs.’’ Explanation and description in 11 CFR 106.7(c)(4) of the allocation account within the 70-day Justification on Methods of Allocation what is included in the direct costs of time window in that rule. In contrast, Between Federal and Nonfederal fundraising to conform to the the salaries, wages, and fringe benefits Accounts; Payments; Reporting, 55 FR descriptions at 11 CFR 106.6(b)(1)(ii) of employees who spend more than 25 26058, 26065 (June 26, 1990). and 300.32(a)(3). This amendment is not percent of their compensated time per Further, interpreting 2 U.S.C. 441i(c) a substantive change; rather, the month on Federal-related activity are to mandate special fundraising rules Commission seeks to avoid any not allocable expenses and must be paid when raising Federal funds for Federal potential confusion by having two for entirely out of the Federal account. election activity would result in an different descriptions of ‘‘direct costs of When a State party committee uses a anomalous treatment of Federal funds fundraising’’ in its regulations. non-Federal or allocation account to raised at joint fundraisers. Under this prepay salaries, wages, and fringe interpretation, State party committees IV. Additional Issues benefits and later determines that these could not use Federal funds raised at a A commenter urged the Commission amounts must have been paid for from joint fundraiser to pay for Federal to address three issues not discussed in a Federal account, current regulations election activities directly, but they the NPRM. These issues are: (1) do not contemplate that the Federal could transfer the Federal funds to the Establishing a payroll holding account account can reimburse the non-Federal national party committee to pay for into which both Federal and non- account or allocation account within the Federal election activities in their own Federal funds are deposited for the sole 70-day time window. While the states; they could also transfer Federal purpose of transmitting payroll through Commission may consider such a
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transfer a mitigating factor, the use of § 100.57 [Amended] activities and that are not exempt party non-Federal funds to prepay salaries, I 2. In § 100.57, amend paragraph (b) activities, must be paid with Federal wages, and fringe benefits that are introductory text by removing funds or may be allocated between the required to be paid for with Federal ‘‘(consistent with 11 CFR 300.33(c)(3))’’. committee’s Federal and non-Federal funds is impermissible under accounts. Commission regulations. PART 106—ALLOCATIONS OF (d) Allocation percentages, ratios, and CANDIDATE AND COMMITTEE record-keeping. Certification of No Effect Pursuant to 5 ACTIVITIES (1) * * * U.S.C. 605(b) [Regulatory Flexibility (i) Except as provided in paragraph Act] I 3. The authority citation for part 106 (d)(1)(iii) of this section, salaries, wages, The Commission certifies that the continues to read as follows: and fringe benefits paid for employees attached final rules will not have a Authority: 2 U.S.C. 438(a)(8), 441a(b), who spend 25% or less of their significant economic impact on a 441a(g). compensated time in a given month on substantial number of small entities. I 4. Section 106.7 is amended by: Federal election activities or on The basis for this certification is that the I a. Revising paragraphs (c)(1), (c)(4), activities in connection with a Federal organizations affected by these final (c)(5), (d)(1)(i), and (d)(1)(ii): election must either be paid only from rules are State, district, and local party I b. Adding paragraph (d)(1)(iii); the Federal account or be allocated as committees, which are not ‘‘small I c. Removing ‘‘300.33(c)(2)’’ in administrative costs under paragraph entities’’ under 5 U.S.C. 601. These not- paragraph (e)(2) and adding in its place (d)(2) of this section. for-profit committees do not meet the ‘‘300.33(d)(2)’; and (ii) Salaries, wages, and fringe benefits definition of ‘‘small organization,’’ I d. Removing paragraph (e)(4). paid for employees who spend more which requires that the enterprise be Revisions and additions read as than 25% of their compensated time in independently owned and operated and follows: a given month on Federal election not dominant in its field. 5 U.S.C. § 106.7 Allocation of expenses between activities or on activities in connection 601(4). State party committees are not Federal and non-Federal accounts by party with a Federal election must be paid independently owned and operated committees, other than for Federal election only from a Federal account. See 11 CFR because they are not financed and activities. 300.33(d)(1), and paragraph (e)(2) of this controlled by a small identifiable group * * * * * section. of individuals, and they are affiliated (c) Costs allocable by State, district, (iii) Salaries, wages, and fringe with the larger national political party and local party committees between benefits paid for employees who spend organizations. In addition, the State Federal and non-Federal accounts. none of their compensated time in a party committees of the Democratic and (1) Salaries, wages, and fringe given month on Federal election Republican parties have a major benefits. State, district, and local party activities or on activities in connection controlling influence within the committees must either pay salaries, with a Federal election may be paid political arena of their State and are wages, and fringe benefits for employees entirely with funds that comply with thus dominant in their field. District who spend 25% or less of their time in State law. and local party committees are generally a given month on Federal election * * * * * considered affiliated with the State activity or activity in connection with a party committees and need not be Federal election with funds from their PART 300—NON-FEDERAL FUNDS considered separately. To the extent that Federal account, or with a combination I 5. The authority citation for part 300 any State party committees representing of funds from their Federal and non- continues to read as follows: minor political parties might be Federal accounts, in accordance with considered ‘‘small organizations,’’ the paragraph (d)(2) of this section. See 11 Authority: 2 U.S.C. 434(e), 438(a)(8), number affected by these final rules is CFR 300.33(d)(1). 441a(a), 441i, 453. not substantial. * * * * * I 6. Section 300.32 is amended by List of Subjects (4) Certain fundraising costs. State, revising paragraph (a)(3) to read as district, and local party committees may follows: 11 CFR Part 106 allocate the direct costs of joint Campaign funds, political committees fundraising programs or events between § 300.32 Expenditures and disbursements. and parties, reporting and their Federal and non-Federal accounts (a) Federal funds. *** recordkeeping requirements. according to the funds received method (3) State, district, and local party described in paragraph (d)(4) of this committees that raise Federal funds 11 CFR Part 300 section. The direct costs of a fundraising through an activity where only Federal Campaign funds, nonprofit program or event include expenses for funds are raised, must pay the direct organizations, political committees and the solicitation of funds and for the costs of such fundraising only with parties, political candidates, reporting planning and administration of actual Federal funds. State, district, and local and recordkeeping requirements. fundraising programs and events. party committees that raise Federal I For the reasons set out in the (5) Voter-drive activities that do not funds and non-Federal funds through a preamble, Subchapters A and C of qualify as Federal election activities and joint fundraising activity under 11 CFR Chapter 1 of title 11 of the Code of that are not party exempt activities. 106.7(d)(4) or a joint fundraiser under Federal Regulations are amended as Expenses for voter identification, voter 11 CFR 102.17, where the Federal funds follows: registration, and get-out-the-vote drives, are to be used, in whole or in part, for and any other activities that urge the Federal election activities, must either PART 100—SCOPE AND DEFINITIONS general public to register or vote, or that pay the direct costs of such fundraising promote or oppose a political party, only with Federal funds or allocate the I 1. The authority citation for part 100 without promoting or opposing a direct costs in accordance with the continues to read as follows: candidate or non-Federal candidate, that funds received method described in 11 Authority: 2 U.S.C. 431, 434, and 438(a)(8). do not qualify as Federal election CFR 106.7(d)(4). The direct costs of a
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fundraising program or event include Dated: December 14, 2005. increased from 5.50 percent to 5.75 expenses for the solicitation of funds Scott E. Thomas, percent under the secondary credit rate and for the planning and administration Chairman, Federal Election Commission. formula. The final amendments to of actual fundraising programs and [FR Doc. 05–24249 Filed 12–19–05; 8:45 am] Regulation A reflect these rate changes. events. BILLING CODE 6715–01–P The 25-basis-point increase in the * * * * * primary credit rate was associated with I 7. Section 300.33 is amended by: a similar increase in the target for the I a. Revising paragraph (c); FEDERAL RESERVE SYSTEM Federal funds rate (from 4.00 percent to 4.25 percent) approved by the Federal I b. Redesignating paragraph (d) as 12 CFR Part 201 Open Market Committee (Committee) paragraph (e) and removing ‘‘(d)(2)(i)’’ [Regulation A] and announced at the same time. A and adding ‘‘(e)(2)(i)’’ in its place in press release announcing these actions newly designated paragraph (e)(2)(ii); Extensions of Credit by Federal indicated that: and Reserve Banks Despite elevated energy prices and I c. Adding new paragraph (d). hurricane-related disruptions, the expansion AGENCY: Board of Governors of the Revisions and additions read as in economic activity appears solid. Core follows: Federal Reserve System. inflation has stayed relatively low in recent ACTION: Final rule. months and longer-term inflation § 300.33 Allocation of costs of Federal expectations remain contained. Nevertheless, election activity. SUMMARY: The Board of Governors of the possible increases in resource utilization as * * * * * Federal Reserve System (Board) has well as elevated energy prices have the (c) Costs of public communications. adopted final amendments to its potential to add to inflation pressures. Expenditures for public Regulation A to reflect the Board’s The Committee judges that some further communications as defined in 11 CFR approval of an increase in the primary measured policy firming is likely to be credit rate at each Federal Reserve Bank. needed to keep the risks to the attainment of 100.26 by State, district, and local party both sustainable economic growth and price committees and organizations that refer The secondary credit rate at each Reserve Bank automatically increased stability roughly in balance. In any event, the to a clearly identified candidate for Committee will respond to changes in Federal office and that promote, by formula as a result of the Board’s economic prospects as needed to foster these support, attack, or oppose any such primary credit rate action. objectives. candidate for Federal office must not be DATES: The amendments to part 201 Regulatory Flexibility Act Certification allocated between or among Federal, (Regulation A) are effective December non-Federal, and Levin accounts. Only 20, 2005. The rate changes for primary Pursuant to the Regulatory Flexibility Federal funds may be used. and secondary credit were effective on Act (5 U.S.C. 605(b)), the Board certifies (d) Costs of salaries, wages, and fringe the dates specified in 12 CFR 201.51, as that the new primary and secondary benefits. amended. credit rates will not have a significantly (1) Except as provided in paragraph FOR FURTHER INFORMATION CONTACT: adverse economic impact on a (d)(3) of this section, salaries, wages, Jennifer J. Johnson, Secretary of the substantial number of small entities and fringe benefits paid for employees Board (202/452–3259); for users of because the final rule does not impose who spend 25% or less of their Telecommunication Devices for the Deaf any additional requirements on entities compensated time in a given month on (TDD) only, contact 202/263–4869. affected by the regulation. SUPPLEMENTARY INFORMATION: The Federal election activities or on Administrative Procedure Act activities in connection with a Federal Federal Reserve Banks make primary election must either be paid only from and secondary credit available to The Board did not follow the the Federal account or be allocated as depository institutions as a backup provisions of 5 U.S.C. 553(b) relating to administrative costs under 11 CFR source of funding on a short-term basis, notice and public participation in 106.7(d)(2). usually overnight. The primary and connection with the adoption of these (2) Salaries, wages, and fringe benefits secondary credit rates are the interest amendments because the Board for good paid for employees who spend more rates that the twelve Federal Reserve cause determined that delaying than 25% of their compensated time in Banks charge for extensions of credit implementation of the new primary and a given month on Federal election under these programs. In accordance secondary credit rates in order to allow activities or on activities in connection with the Federal Reserve Act, the notice and public comment would be with a Federal election must be paid primary and secondary credit rates are unnecessary and contrary to the public only from a Federal account. established by the boards of directors of interest in fostering price stability and the Federal Reserve Banks, subject to sustainable economic growth. For these (3) Salaries, wages, and fringe benefits the review and determination of the paid for employees who spend none of same reasons, the Board also has not Board. provided 30 days prior notice of the their compensated time in a given The Board approved requests by the month on Federal election activities or effective date of the rule under section Reserve Banks to increase by 25 basis 553(d). on activities in connection with a points the primary credit rate in effect Federal election may be paid entirely at each of the twelve Federal Reserve List of Subjects in 12 CFR Part 201 with funds that comply with State law. Banks, thereby increasing from 5.00 See 11 CFR 106.7(c)(1) and (d)(1). percent to 5.25 percent the rate that Banks, Banking, Federal Reserve * * * * * each Reserve Bank charges for System, Reporting and recordkeeping. § 300.36 [Amended] extensions of primary credit. As a result Authority and Issuance of the Board’s action on the primary I 8. In § 300.36, amend paragraph credit rate, the rate that each Reserve I For the reasons set forth in the (b)(2)(ii) by removing ‘‘(d)’’ and adding Bank charges for extensions of preamble, the Board is amending 12 in its place ‘‘(e)’’. secondary credit automatically CFR Chapter II to read as follows:
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PART 201—EXTENSIONS OF CREDIT Authority: 12 U.S.C. 248(i)–(j), 343 et seq., § 201.51 Interest rates applicable to credit BY FEDERAL RESERVE BANKS 347a, 347b, 347c, 348 et seq., 357, 374, 374a, extended by a Federal Reserve Bank.1 (REGULATION A) and 461. (a) Primary credit. The interest rates for primary credit provided to I 1. The authority citation for part 201 I 2. In § 201.51, paragraphs (a) and (b) depository institutions under § 201.4(a) continues to read as follows: are revised to read as follows: are:
Federal Reserve Bank Rate Effective
Boston ...... 5.25 December 13, 2005. New York ...... 5.25 December 13, 2005. Philadelphia ...... 5.25 December 13, 2005. Cleveland ...... 5.25 December 13, 2005. Richmond ...... 5.25 December 13, 2005. Atlanta ...... 5.25 December 13, 2005. Chicago ...... 5.25 December 13, 2005. St. Louis ...... 5.25 December 14, 2005. Minneapolis ...... 5.25 December 13, 2005. Kansas City ...... 5.25 December 13, 2005. Dallas ...... 5.25 December 13, 2005. San Francisco ...... 5.25 December 13, 2005.
(b) Secondary credit. The interest depository institutions under 201.4(b) rates for secondary credit provided to are:
Federal Reserve Bank Rate Effective
Boston ...... 5.75 December 13, 2005. New York ...... 5.75 December 13, 2005. Philadelphia ...... 5.75 December 13, 2005. Cleveland ...... 5.75 December 13, 2005. Richmond ...... 5.75 December 13, 2005. Atlanta ...... 5.75 December 13, 2005. Chicago ...... 5.75 December 13, 2005. St. Louis ...... 5.75 December 14, 2005. Minneapolis ...... 5.75 December 13, 2005. Kansas City ...... 5.75 December 13, 2005. Dallas ...... 5.75 December 13, 2005. San Francisco ...... 5.75 December 13, 2005.
* * * * * ACTION: Final rule. Management Facility, U.S. Department By order of the Board of Governors of the of Transportation, 400 Seventh Street SUMMARY: The FAA is adopting a new SW., Nassif Building, Room PL–401, Federal Reserve System, December 14, 2005. airworthiness directive (AD) for certain Jennifer J. Johnson, Washington, DC. Dassault Model Falcon 2000 airplanes. Contact Dassault Falcon Jet, P.O. Box Secretary of the Board. This AD requires an inspection for the 2000, South Hackensack, New Jersey [FR Doc. E5–7512 Filed 12–19–05; 8:45 am] presence of fail-safe pins, nuts, and 07606, for service information identified BILLING CODE 6210–01–P washers on each engine, and in this AD. replacement of the fail-safe fastener FOR FURTHER INFORMATION CONTACT: Tom assembly with a new assembly if Rodriguez, Aerospace Engineer, DEPARTMENT OF TRANSPORTATION necessary. This AD results from a report International Branch, ANM–116, of a missing pin of a fail-safe fastener. Transport Airplane Directorate, FAA, Federal Aviation Administration We are issuing this AD to prevent 1601 Lind Avenue, SW., Renton, reduced structural integrity of an engine Washington 98055–4056; telephone 14 CFR Part 39 mount due to a missing pin of a fail-safe (425) 227–1137; fax (425) 227–1149. [Docket No. FAA–2005–22633; Directorate fastener, and possible separation of an SUPPLEMENTARY INFORMATION: Identifier 2005–NM–155–AD; Amendment engine from the airplane during flight. 39–14422; AD 2005–26–01] DATES: This AD becomes effective Examining the Docket January 24, 2006. You may examine the airworthiness RIN 2120–AA64 The Director of the Federal Register directive (AD) docket on the Internet at approved the incorporation by reference Airworthiness Directives; Dassault http://dms.dot.gov or in person at the of a certain publication listed in the AD Model Falcon 2000 Airplanes Docket Management Facility office as of January 24, 2006. between 9 a.m. and 5 p.m., Monday AGENCY: Federal Aviation ADDRESSES: You may examine the AD through Friday, except Federal holidays. Administration (FAA), Department of docket on the Internet at http:// The Docket Management Facility office Transportation (DOT). dms.dot.gov or in person at the Docket (telephone (800) 647–5227) is located on
1 The primary, secondary, and seasonal credit advances and discounts made under the primary, secondary, and seasonal credit programs, rates described in this section apply to both respectively.
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the plaza level of the Nassif Building at Regulatory Findings Unsafe Condition the street address stated in the (d) This AD results from a report of a We have determined that this AD will ADDRESSES section. missing pin of a fail-safe fastener. We are not have federalism implications under issuing this AD to prevent reduced structural Discussion Executive Order 13132. This AD will integrity of an engine mount due to a missing not have a substantial direct effect on pin of a fail-safe fastener, and possible The FAA issued a notice of proposed the States, on the relationship between separation of an engine from the airplane rulemaking (NPRM) to amend 14 CFR the national government and the States, during flight. part 39 to include an AD that would or on the distribution of power and Compliance apply to certain Dassault Model Falcon responsibilities among the various 2000 airplanes. That NPRM was (e) You are responsible for having the levels of government. actions required by this AD performed within published in the Federal Register on For the reasons discussed above, I the compliance times specified, unless the October 7, 2005 (70 FR 58634). That certify that this AD: actions have already been done. NPRM proposed to require an (1) Is not a ‘‘significant regulatory inspection for the presence of fail-safe Inspection and Replacement action’’ under Executive Order 12866; pins, nuts, and washers on each engine, (f) Before the accumulation of 3,750 total and replacement of the fail-safe fastener (2) Is not a ‘‘significant rule’’ under landings, or within 2 months after the assembly with a new assembly if DOT Regulatory Policies and Procedures effective date of this AD, whichever occurs later: Do a detailed inspection for the necessary. (44 FR 11034, February 26, 1979); and (3) Will not have a significant presence of fail-safe pins, nuts, and washers Comments on each engine, in accordance with the economic impact, positive or negative, Accomplishment Instructions of Dassault on a substantial number of small entities We provided the public the Service Bulletin F2000–301, dated February under the criteria of the Regulatory opportunity to participate in the 2, 2005. If any component is found missing Flexibility Act. at an attachment point, before further flight, development of this AD. We received no replace the fail-safe fastener assembly with a comments on the NPRM or on the We prepared a regulatory evaluation of the estimated costs to comply with new assembly, in accordance with the service determination of the cost to the public. bulletin. this AD and placed it in the AD docket. Conclusion See the ADDRESSES section for a location Note 1: For the purposes of this AD, a detailed inspection is: ‘‘An intensive to examine the regulatory evaluation. We have carefully reviewed the examination of a specific item, installation, available data and determined that air List of Subjects in 14 CFR Part 39 or assembly to detect damage, failure, or irregularity. Available lighting is normally safety and the public interest require Air transportation, Aircraft, Aviation supplemented with a direct source of good adopting the AD as proposed. safety, Incorporation by reference, lighting at an intensity deemed appropriate. Costs of Compliance Safety. Inspection aids such as mirror, magnifying lenses, etc., may be necessary. Surface This AD will affect about 149 Adoption of the Amendment cleaning and elaborate procedures may be airplanes of U.S. registry. The required required.’’ I Accordingly, under the authority (g) Inspections and replacements done in inspection will take about 1 work hour delegated to me by the Administrator, accordance with Chapter 54–003, dated per airplane, at an average labor rate of the FAA amends 14 CFR part 39 as December 2002, of the Dassault Falcon 2000 $65 per work hour. Based on these follows: Maintenance Manual are acceptable for figures, the estimated cost of the compliance with the requirements of inspection required by this AD for U.S. PART 39—AIRWORTHINESS paragraph (f) of this AD. operators is $9,685, or $65 per airplane. DIRECTIVES No Reporting Authority for This Rulemaking I 1. The authority citation for part 39 (h) Although the service bulletin continues to read as follows: referenced in this AD specifies to submit Title 49 of the United States Code certain information to the manufacturer, this specifies the FAA’s authority to issue Authority: 49 U.S.C. 106(g), 40113, 44701. AD does not include that requirement. rules on aviation safety. Subtitle I, § 39.13 [Amended] Alternative Methods of Compliance section 106, describes the authority of (AMOCs) the FAA Administrator. Subtitle VII, I 2. The Federal Aviation Aviation Programs, describes in more Administration (FAA) amends § 39.13 (i)(1) The Manager, International Branch, ANM–116, Transport Airplane Directorate, detail the scope of the Agency’s by adding the following new FAA, has the authority to approve AMOCs authority. airworthiness directive (AD): for this AD, if requested in accordance with We are issuing this rulemaking under 2005–26–01 Dassault Aviation: the procedures found in 14 CFR 39.19. the authority described in subtitle VII, Amendment 39–14422. Docket No. (2) Before using any AMOC approved in part A, subpart III, section 44701, FAA–2005–22633; Directorate Identifier accordance with § 39.19 on any airplane to 2005–NM–155–AD. which the AMOC applies, notify the ‘‘General requirements.’’ Under that appropriate principal inspector in the FAA section, Congress charges the FAA with Effective Date Flight Standards Certificate Holding District promoting safe flight of civil aircraft in (a) This AD becomes effective January 24, Office. air commerce by prescribing regulations 2006. for practices, methods, and procedures Related Information Affected ADs the Administrator finds necessary for (j) French airworthiness directive F–2005– safety in air commerce. This regulation (b) None. 018, dated February 2, 2005, also addresses the subject of this AD. is within the scope of that authority Applicability because it addresses an unsafe condition (c) This AD applies to Dassault Model Material Incorporated by Reference that is likely to exist or develop on Falcon 2000 airplanes, certificated in any (k) You must use Dassault Service Bulletin products identified in this rulemaking category; up to and including serial number F2000–301, dated February 2, 2005, to action. 212, excluding serial number 208. perform the actions that are required by this
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AD, unless the AD specifies otherwise. The dms.dot.gov or in person at the Docket the required actions refer to this same Director of the Federal Register approved the Management Facility, U.S. Department AOT with the number BWED/101/02. incorporation by reference of this document of Transportation, 400 Seventh Street Therefore, we have determined that in accordance with 5 U.S.C. 552(a) and 1 CFR SW., Nassif Building, room PL–401, referring to this AOT as ‘‘Airbus A300 part 51. Contact Dassault Falcon Jet, P.O. Box 2000, South Hackensack, New Jersey 07606, Washington, DC. B4, A310–200 All Operator Telex for a copy of this service information. You Contact EADS Airbus GmbH, Postfach BWED/101/02 (LBA Approval, may review copies at the Docket Management 95 01 09, 21111 Hamburg, Germany, for Reference M113–02–007), dated June Facility, U.S. Department of Transportation, service information identified in this 21, 2002,’’ will minimize confusion. 400 Seventh Street SW., room PL–401, Nassif AD. Building, Washington, DC; on the Internet at Conclusion FOR FURTHER INFORMATION CONTACT: Jon http://dms.dot.gov; or at the National We have carefully reviewed the Archives and Records Administration Hjelm, Aerospace Engineer, Airframe and Propulsion Branch, ANE–171, FAA, available data and determined that air (NARA). For information on the availability safety and the public interest require of this material at the NARA, call (202) 741– New York Aircraft Certification Office, 6030, or go to http://www.archives.gov/ 1600 Stewart Avenue, suite 410, adopting the AD with the change federal_register/code_of_federal_regulations/ Westbury, New York 11590; telephone described previously. We have ibr_locations.html. (516) 228–7323; fax (516) 794–5531. determined that this change will neither increase the economic burden on any Issued in Renton, Washington, on SUPPLEMENTARY INFORMATION: December 8, 2005. operator nor increase the scope of the AD. Michael Zielinski, Examining the Docket Acting Manager, Transport Airplane You may examine the airworthiness Costs of Compliance Directorate, Aircraft Certification Service. directive (AD) docket on the Internet at This AD affects about 6 airplanes of http://dms.dot.gov or in person at the [FR Doc. 05–24150 Filed 12–19–05; 8:45 am] U.S. registry. The actions take about 80 Docket Management Facility office BILLING CODE 4910–13–P work hours per airplane, at an average between 9 a.m. and 5 p.m., Monday labor rate of $65 per work hour. Based through Friday, except Federal holidays. on these figures, the estimated cost of DEPARTMENT OF TRANSPORTATION The Docket Management Facility office the AD for U.S. operators is $31,200, or (telephone (800) 647–5227) is located on $5,200 per airplane. Federal Aviation Administration the plaza level of the Nassif Building at the street address stated in the Authority for This Rulemaking 14 CFR Part 39 ADDRESSES section. Title 49 of the United States Code [Docket No. FAA–2005–22527; Directorate Discussion specifies the FAA’s authority to issue Identifier 2004–NM–04–AD; Amendment 39– rules on aviation safety. Subtitle I, 14420; AD 2005–25–27] The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR section 106, describes the authority of RIN 2120–AA64 part 39 to include an AD that would the FAA Administrator. Subtitle VII, apply to certain Airbus Model A300 B2 Aviation Programs, describes in more Airworthiness Directives; Airbus Model detail the scope of the Agency’s A300 B2 Series Airplanes; A300 B4– series airplanes, A300 B4–103 and B4– 203 airplanes, and A310–203 airplanes. authority. 103 and B4–203 Airplanes; and A310– We are issuing this rulemaking under 203 Airplanes That NPRM was published in the Federal Register on September 27, 2005 the authority described in subtitle VII, AGENCY: Federal Aviation (70 FR 56378). That NPRM proposed to part A, subpart III, section 44701, Administration (FAA), Department of require a one-time inspection for ‘‘General requirements.’’ Under that Transportation (DOT). missing or incorrect rivets in the entire section, Congress charges the FAA with ACTION: Final rule. structural area affected by conversion promoting safe flight of civil aircraft in from passenger-to-freight configuration, air commerce by prescribing regulations SUMMARY: The FAA is adopting a new and corrective action if necessary. for practices, methods, and procedures airworthiness directive (AD) for certain the Administrator finds necessary for Airbus Model A300 B2 series airplanes, Comments safety in air commerce. This regulation A300 B4–103 and B4–203 airplanes, and We provided the public the is within the scope of that authority A310–203 airplanes. This AD requires a opportunity to participate in the because it addresses an unsafe condition one-time inspection for missing or development of this AD. We received no that is likely to exist or develop on incorrect rivets in the structural area comments on the NPRM or on the products identified in this rulemaking affected by conversion from passenger determination of the cost to the public. action. to freight configuration, and corrective Regulatory Findings action if necessary. This AD results from Clarification of All Operator Telex a report of rivets missing from the (AOT) Reference We have determined that this AD will passenger-to-freight converted area. We We have clarified the reference to the not have federalism implications under are issuing this AD to prevent structural Airbus AOT, which was cited in the Executive Order 13132. This AD will failure of the main deck and main deck NPRM as Airbus AOT M113–02–007, not have a substantial direct effect on cargo door areas. dated June 21, 2002. The reference to the States, on the relationship between DATES: This AD becomes effective Airbus AOT M113–02–007 parallels the the national government and the States, January 24, 2006. citation for this AOT that was given in or on the distribution of power and The Director of the Federal Register German airworthiness directive 2002– responsibilities among the various approved the incorporation by reference 200, dated June 27, 2002, which also levels of government. of certain publications listed in the AD addresses the subject of this AD. For the reasons discussed above, I as of January 24, 2006. However, the service bulletins that are certify that this AD: ADDRESSES: You may examine the AD referenced as the appropriate source of (1) Is not a ‘‘significant regulatory docket on the Internet at http:// service information for accomplishing action’’ under Executive Order 12866;
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(2) Is not a ‘‘significant rule’’ under airplanes, and Model A310–203 airplanes; rivet: Before further flight, repair according to DOT Regulatory Policies and Procedures certificated in any category; as identified in a method approved by either the Manager, (44 FR 11034, February 26, 1979); and EADS Airbus A300 Alert Service Bulletin New York Aircraft Certification Office (ACO), (3) Will not have a significant DA–53–073, dated June 26, 2002; and EADS FAA; or the Luftfahrt-Bundesamt (LBA) (or Airbus A310 Alert Service Bulletin DA–53– economic impact, positive or negative, its delegated agent). 074, dated June 27, 2002; as applicable. on a substantial number of small entities No Reporting Required under the criteria of the Regulatory Unsafe Condition (h) Although the service bulletins Flexibility Act. (d) This AD was prompted by a report of referenced in this AD specify to submit We prepared a regulatory evaluation rivets missing from the structural area certain information to the manufacturer, this of the estimated costs to comply with affected by conversion from passenger-to- AD does not include that requirement. this AD and placed it in the AD docket. freight configuration. We are issuing this AD See the ADDRESSES section for a location to prevent structural failure of the main deck Alternative Methods of Compliance and main deck cargo door areas. to examine the regulatory evaluation. (AMOCs) Compliance List of Subjects in 14 CFR Part 39 (i)(1) The Manager, New York ACO, FAA, (e) You are responsible for having the has the authority to approve AMOCs for this Air transportation, Aircraft, Aviation actions required by this AD performed within AD, if requested in accordance with the safety, Incorporation by reference, the compliance times specified, unless the procedures found in 14 CFR 39.19. Safety. actions have already been done. (2) Before using any AMOC approved in accordance with § 39.19 on any airplane to Adoption of the Amendment Inspection which the AMOC applies, notify the (f) Within 300 flight cycles after the I appropriate principal inspector in the FAA Accordingly, under the authority effective date of this AD: Do a general visual delegated to me by the Administrator, inspection for missing or incorrect rivets in Flight Standards Certificate Holding District the FAA amends 14 CFR part 39 as the structural area affected by conversion Office. follows: from passenger-to-freight configuration Related Information identified in Airbus A300 B4, A310–200 All PART 39—AIRWORTHINESS Operator Telex Airbus BWED/101/02 (LBA (j) German airworthiness directive 2002– DIRECTIVES Approval, Reference M113–02–007), dated 200, dated June 27, 2002, also addresses the June 21, 2002. Do the inspections in subject of this AD. I 1. The authority citation for part 39 accordance with the Accomplishment Material Incorporated by Reference continues to read as follows: Instructions of EADS Alert Service Bulletin (k) You must use the service information Authority: 49 U.S.C. 106(g), 40113, 44701. DA–53–073, dated June 26, 2002; or EADS Airbus A310 Alert Service Bulletin DA–53– listed in Table 1 of this AD to perform the § 39.13 [Amended] 074, dated June 27, 2002; as applicable. actions that are required by this AD, unless the AD specifies otherwise. The Director of I 2. The Federal Aviation Note 1: For the purposes of this AD, a general visual inspection is: ‘‘A visual the Federal Register approved the Administration (FAA) amends § 39.13 examination of an interior or exterior area, incorporation by reference of these by adding the following new installation, or assembly to detect obvious documents in accordance with 5 U.S.C. airworthiness directive (AD): damage, failure, or irregularity. This level of 552(a) and 1 CFR part 51. Contact EADS 2005–25–27 Airbus: Amendment 39–14420. inspection is made from within touching Airbus GmbH, Postfach 95 01 09, 21111 Docket No. FAA–2005–22527; distance unless otherwise specified. A mirror Hamburg, Germany, for a copy of this service Directorate Identifier 2004–NM–04–AD. may be necessary to ensure visual access to information. You may review copies at the all surfaces in the inspection area. This level Docket Management Facility, U.S. Effective Date of inspection is made under normally Department of Transportation, 400 Seventh available lighting conditions such as (a) This AD becomes effective January 24, Street SW., room PL–401, Nassif Building, 2006. daylight, hangar lighting, flashlight, or droplight and may require removal or Washington, DC; on the Internet at http:// Affected ADs opening of access panels or doors. Stands, dms.dot.gov; or at the National Archives and (b) None. ladders, or platforms may be required to gain Records Administration (NARA). For proximity to the area being checked.’’ information on the availability of this Applicability material at the NARA, call (202) 741–6030, (c) This AD applies to Airbus Model A300 Corrective Action or go to http://www.archives.gov/ B2–1A, B2–1C, B2K–3C, and B2–203 (g) If any inspection required by paragraph federal_register/code_of_federal_regulations/ airplanes; Model A300 B4–103 and B4–203 (f) of this AD identifies a missing or incorrect ibr_locations.html.
TABLE 1.—MATERIAL INCORPORATED BY REFERENCE
Service document Date
Airbus A300 B2, A310–200 All Operator Telex BWED/101/02 (LBA Approval, Reference M113–02–007) ...... June 21, 2002. EADS Airbus A300 Alert Service Bulletin DA–53–073 ...... June 26, 2002. EADS Airbus A310 Alert Service Bulletin DA–53–074 ...... June 27, 2002.
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Issued in Renton, Washington, on dms.dot.gov. The docket number is determined that these minor December 8, 2005. FAA–2005–21836; Directorate Identifier corrections: Michael Zielinski, 2005–CE–36–AD. —Are consistent with the intent that Acting Manager, Transport Airplane FOR FURTHER INFORMATION CONTACT: was proposed in the NPRM for Directorate, Aircraft Certification Service. Gregory Davison, Aerospace Engineer, correcting the unsafe condition; and [FR Doc. 05–24049 Filed 12–19–05; 8:45 am] ACE–112, Small Airplane Directorate, —Do not add any additional burden BILLING CODE 4910–13–P 901 Locust, Room 301, Kansas City, upon the public than was already Missouri 64106; telephone: (816) 329– proposed in the NPRM. 4130; facsimile: (816) 329–4090. DEPARTMENT OF TRANSPORTATION Changes to 14 CFR Part 39—Effect on SUPPLEMENTARY INFORMATION: the AD Federal Aviation Administration Discussion How does the revision to 14 CFR part 39 affect this AD? On July 10, 2002, the What events have caused this AD? 14 CFR Part 39 FAA published a new version of 14 CFR The Civil Aviation Office, which is the part 39 (67 FR 47997, July 22, 2002), [Docket No. FAA–2005–21836; Directorate airworthiness authority for Poland, which governs the FAA’s AD system. Identifier 2005–CE–36–AD; Amendment 39– recently notified FAA that an unsafe This regulation now includes material 14415; AD 2005–25–22] condition may exist on all that relates to altered products, special RIN 2120–AA64 Przedsiebiorstwo Doswiadczalno- flight permits, and alternative methods Produkcyjne Szybownictwa ‘‘PZL- of compliance. This material previously Airworthiness Directives; Bielsko’’ Model SZD–50–3 ‘‘Puchacz’’ was included in each individual AD. Przedsiebiorstwo Doswiadczalno- gliders. The Civil Aviation Office Since this material is included in 14 Produkcyjne Szybownictwa ‘‘PZL- reports a broken turnbuckle on a glider CFR part 39, we will not include it in Bielsko’’ Model SZD–50–3 ‘‘Puchacz’’ performing rudder operations in flight. future AD actions. Gliders Specifically, material fatigue caused the end of the turnbuckle that connects the Costs of Compliance AGENCY: Federal Aviation Administration (FAA), DOT. rudder cable with rear seat, right-side How many gliders does this AD pedal to break. Occupants, because of ACTION: Final rule. impact? We estimate that this AD affects glider design, may have stepped on the 8 gliders in the U.S. registry. SUMMARY: The FAA adopts a new rudder cable while entering or exiting What is the cost impact of this AD on airworthiness directive (AD) for all the glider, putting stress on the owners/operators of the affected gliders? Przedsiebiorstwo Doswiadczalno- turnbuckle link. This may have We estimate the following costs to do Produkcyjne Szybownictwa ‘‘PZL- contributed to the material fatigue. this inspection: Bielsko’’ Model SZD–50–3 ‘‘Puchacz’’ What is the potential impact if FAA gliders. This AD requires you to perform took no action? Cracks or wear in the Total cost Total cost turnbuckle link could result in failure of Labor cost on U.S. a visual inspection of the turnbuckle per glider operators link for cracks or wear and replace if the rudder cable. This failure could lead cracks or wear is found. This action to loss of control of the glider. 1 workhour × only applies to those gliders where the Has FAA taken any action to this $65 = $65 ...... $65 $520 turnbuckle is directly connected to the point? We issued a proposal to amend pedal. This AD results from mandatory part 39 of the Federal Aviation We estimate the following costs to do continuing airworthiness information Regulations (14 CFR part 39) to include any necessary replacements that would (MCAI) issued by the airworthiness an AD that would apply to all ‘‘PZL- be required based on the results of this authority for Poland. We are issuing this Bielsko’’ Model SZD–50–3 ‘‘Puchacz’’ inspection. We have no way of AD to detect and correct cracks in the gliders. This proposal was published in determining the number of gliders that turnbuckle link, which could result in the Federal Register as a notice of may need this repair/replacement: failure of the rudder cable. This failure proposed rulemaking (NPRM) on could lead to loss of control of the August 10, 2005 (70 FR 46439). The Total cost Labor cost Parts cost per glider glider. NPRM proposed to detect and correct cracks in the turnbuckle link that could DATES: This AD becomes effective on 1 workhour × result in failure of the rudder cable. This $65 = $65 ...... $20 $85 January 27, 2006. failure could lead to loss of control of As of January 27, 2006, the Director of the glider. the Federal Register approved the Authority for This Rulemaking incorporation by reference of certain Comments What authority does FAA have for publications listed in the regulation. Was the public invited to comment? issuing this rulemaking action? Title 49 ADDRESSES: To get the service We provided the public the opportunity of the United States Code specifies the information identified in this AD, to participate in developing this AD. We FAA’s authority to issue rules on contact Allstar PZL Glider Sp. z o.o., received no comments on the proposal aviation safety. Subtitle I, section 106 ul.Ciexzynska 325, 43–300 Bielsko- or on the determination of the cost to describes the authority of the FAA Biala, Poland; telephone: 43 33 812 50 the public. Administrator. Subtitle VII, Aviation 26; facsimile: 48 33 812 37 39; Web site: Programs, describes in more detail the http://www.szd.com.pl. Conclusion scope of the agency’s authority. To view the AD docket, go to the What is FAA’s final determination on We are issuing this rulemaking under Docket Management Facility; U.S. this issue? We have carefully reviewed the authority described in subtitle VII, Department of Transportation, 400 the available data and determined that part A, subpart III, section 44701, Seventh Street, SW., Nassif Building, air safety and the public interest require ‘‘General requirements.’’ Under that Room PL–401, Washington, DC 20590– adopting the AD as proposed except for section, Congress charges the FAA with 001 or on the Internet at http:// minor editorial corrections. We have promoting safe flight of civil aircraft in
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air commerce by prescribing regulations We prepared a summary of the costs 2005–25–22 Przedsiebiorstwo for practices, methods, and procedures to comply with this AD (and other Doswiadczalno-Produkcyjne the Administrator finds necessary for information as included in the Szybownictwa ‘‘PZL-Bielsko’’: safety in air commerce. This regulation Regulatory Evaluation) and placed it in Amendment 39–14415; Docket No. is within the scope of that authority the AD Docket. You may get a copy of FAA–2005–21836; Directorate Identifier because it addresses an unsafe condition this summary by sending a request to us 2005–CE–36–AD. that is likely to exist or develop on at the address listed under ADDRESSES. When Does This AD Become Effective? products identified in this AD. Include ‘‘Docket No. FAA–2005–21836; (a) This AD becomes effective on January Regulatory Findings Directorate Identifier 2005–CE–36–AD’’ in your request. 27, 2006. Will this AD impact various entities? List of Subjects in 14 CFR Part 39 What Other ADs Are Affected by This We have determined that this AD will Action? not have federalism implications under Air transportation, Aircraft, Aviation (b) None. Executive Order 13132. This AD will safety, Incorporation by reference, not have a substantial direct effect on Safety. What Gliders Are Affected by This AD? the States, on the relationship between Adoption of the Amendment (c) This AD affects Model SZD–50–3 the national government and the States, ‘‘Puchacz’’ gliders, all serial numbers, that or on the distribution of power and I Accordingly, under the authority are certificated in any category. responsibilities among the various delegated to me by the Administrator, levels of government. the Federal Aviation Administration What Is the Unsafe Condition Presented in Will this AD involve a significant rule amends part 39 of the Federal Aviation This AD? or regulatory action? For the reasons Regulations (14 CFR part 39) as follows: (d) This AD is the result of a turnbuckle discussed above, I certify that this AD: link breaking in flight. The actions specified 1. Is not a ‘‘significant regulatory PART 39—AIRWORTHINESS in this AD are intended to detect and correct action’’ under Executive Order 12866; DIRECTIVES cracks in the turnbuckle link, which could 2. Is not a ‘‘significant rule’’ under the result in failure of the rudder cable. This I 1. The authority citation for part 39 DOT Regulatory Policies and Procedures failure could lead to loss of control of the continues to read as follows: (44 FR 11034, February 26, 1979); and glider. 3. Will not have a significant Authority: 49 U.S.C. 106(g), 40113, 44701. economic impact, positive or negative, What Must I Do To Address This Problem? on a substantial number of small entities § 39.13 [Amended] (e) To address this problem, you must do under the criteria of the Regulatory I 2. FAA amends § 39.13 by adding a the following on gliders where the Flexibility Act. new AD to read as follows: turnbuckle is directly connected to the pedal:
Actions Compliance Procedures
(1) Visually inspect the turnbuckle end for Initially within 25 hours time-in-service (TIS) Follow Allstar PZL Glider Ltd. Bulletin No. cracks or wear. Use a 10X magnifying glass. after January 27, 2006 (the effective date of BE–054/SZD–50–3/2003 ‘‘Puchacz,’’ as ap- The magnifying power in this AD takes prec- this AD), and repetitively thereafter at inter- proved by Civil Aviation Office Airworthi- edence over the magnifying power stated in vals not to exceed 50 hours TIS. ness Directive No. SP–0012–2004–A, dated Allstar PZL Glider Ltd. Bulletin No. BE–054/ February 5, 2004. SZD–50–3/2003 ‘‘Puchacz.’’ Inspection is not required on gliders where additional short ca- bles between the rear seat pedal and turn- buckle have been installed. (2) If cracks or wear is found during any in- Prior to further light after the inspection where Follow the procedures in the maintenance spection required by this AD, replace the cracks or wear is found. manual. turnbuckle end. The turnbuckle must have a steel end and support a maximum load of 6,100 newtons (converts to 1,371 pounds of force), following Allstar PZL Glider Ltd. Bul- letin No. BE–054/SZD–50–3/2003 ‘‘Puchacz.’’
May I Request an Alternative Method of Is There Other Information That Relates to bulletin in accordance with 5 U.S.C. 552(a) Compliance? This Subject? and 1 CFR part 51. To get a copy of this (f) You may request a different method of (g) Allstar PZL Glider Ltd. Bulletin No. BE– service information, contact Allstar PZL compliance or a different compliance time 054/SZD–50–3/2003 ‘‘Puchacz’’ and Civil Glider Sp. z o.o., ul.Ciexzynska 325, 43–300 Bielsko-Biala, Poland; telephone: 43 33 812 for this AD by following the procedures in 14 Aviation Office Airworthiness Directive No. 50 26; facsimile: 48 33 812 37 39; Web site: CFR 39.19. Unless FAA authorizes otherwise, SP–0012–2004–A, dated February 5, 2004, http://www.szd.com.pl. To review copies of send your request to your principal also address the subject of this AD. this service information, go to the National inspector. The principal inspector may add Does This AD Incorporate Any Material by Archives and Records Administration comments and will send your request to the Reference? (NARA). For information on the availability Manager, Standards Office, Small Airplane (h) You must do the actions required by of this material at NARA, go to: http:// Directorate, FAA. For information on any this AD following the instructions in Allstar www.archives.gov/federal_register/ already approved alternative methods of PZL Glider Ltd. Bulletin No. BE–054/SZD– code_of_federal_regulations/ compliance, contact Gregory Davison, 50–3/2003 ‘‘Puchacz,’’ as approved by Civil ibr_locations.html or call (202) 741–6030. To Aerospace Engineer, ACE–112, Small Aviation Office Airworthiness Directive No. view the AD docket, go to the Docket Airplane Directorate, 901 Locust, Room 301, SP–0012–2004–A, dated February 5, 2004. Management Facility; U.S. Department of Kansas City, Missouri 64106; telephone: The Director of the Federal Register approved Transportation, 400 Seventh Street, SW., (816) 329–4130; facsimile: (816) 329–4090. the incorporation by reference of this service Nassif Building, Room PL–401, Washington,
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DC 20590–001 or on the Internet at http:// AAL AK E5 Arctic Village, AK [Corrected] Koliganek Airport. The new approaches dms.dot.gov. The docket number is FAA– Arctic Village, AK are (1) Area Navigation (Global 2005–21836; Directorate Identifier 2005–CE– (Lat. 68°06′53″ N., long. 145°34′46″ W.) Positioning System) (RNAV (GPS)) 36–AD. That airspace extending upward from 700 Runway (RWY) 09, original; (2) RNAV Issued in Kansas City, Missouri, on feet above the surface within a 6.4-mile (GPS) RWY 27, original. Class E December 5, 2005. radius of the Arctic Village Airport and controlled airspace extending upward James E. Jackson, within 3 miles each side of the 040° bearing from 700 ft. and 1,200 ft. above the Acting Manager, Small Airplane Directorate, from the Arctic Village airport extending surface in the Koliganek Airport area is Aircraft Certification Service. from the 6.4-mile radius to 14.8 miles North revised by this action. Interested parties of the airport and that airspace extending were invited to participate in this [FR Doc. 05–23896 Filed 12–19–05; 8:45 am] upward from 1,200 ft. above the surface BILLING CODE 4910–13–P within a 65-mile radius of the airport. rulemaking proceeding by submitting written comments on the proposal to the * * * * * FAA. No public comments have been DEPARTMENT OF TRANSPORTATION Issued in Anchorage, AK, on December 13, received; thus the rule is adopted as 2005. proposed. Federal Aviation Administration Anthony M. Wylie, The area will be depicted on Manager, Safety, Area Flight Service aeronautical charts for pilot reference. 14 CFR Part 71 Operations. The coordinates for this airspace docket [FR Doc. 05–24231 Filed 12–19–05; 8:45 am] are based on North American Datum 83. [Docket No. FAA–2005–22021; Airspace BILLING CODE 4910–13–M The Class E airspace areas designated as Docket No. 04–AAL–06] 700/1,200 ft. transition areas are published in paragraph 6005 of FAA Establishment of Class E Airspace; DEPARTMENT OF TRANSPORTATION Order 7400.9N, Airspace Designations Arctic Village, AK and Reporting Points, dated September AGENCY: Federal Aviation Federal Aviation Administration 1, 2005, and effective September 15, Administration (FAA), DOT. 2005, which is incorporated by 14 CFR Part 71 ACTION: Final rule; correction. reference in 14 CFR 71.1. The Class E [Docket No. FAA–2005–22538; Airspace airspace designation listed in this SUMMARY: This action corrects an error Docket No. 05–AAL–30] document will be published in the airspace description contained in subsequently in the Order. a Final Rule that was published in the Revision of Class E Airspace; The Rule Federal Register on Thursday, Koliganek, AK November 17, 2005 (70 FR 69646). This amendment to 14 CFR part 71 AGENCY: Federal Aviation Airspace Docket No. 04–AAL–06. revises Class E airspace at Koliganek, Administration (FAA), DOT. Alaska. This Class E airspace is DATES: Effective Date: 0901 UTC, ACTION: Final rule. established to accommodate aircraft February 16, 2006. executing two new SIAPs, and will be FOR FURTHER INFORMATION CONTACT: Gary SUMMARY: This action revises Class E depicted on aeronautical charts for pilot Rolf, AAL–538G, Federal Aviation airspace at Koliganek, AK to provide reference. The intended effect of this Administration, 222 West 7th Avenue, adequate controlled airspace to contain rule is to provide adequate controlled Box 14, Anchorage, AK 99513–7587; aircraft executing two new Standard airspace for Instrument Flight Rule (IFR) telephone number (907) 271–5898; fax: Instrument Approach Procedures operations at Koliganek Airport, (907) 271–2850; e-mail: (SIAPs). This rule results in revised Koliganek, Alaska. [email protected]. Internet address: Class E airspace upward from 700 feet The FAA has determined that this http://www.alaska.faa.gov/at. (ft.) and 1,200 ft. above the surface at regulation only involves an established SUPPLEMENTARY INFORMATION: Koliganek Airport, AK. body of technical regulations for which DATES: Effective Date: 0901 UTC, frequent and routine amendments are History February 16, 2006. necessary to keep them operationally Federal Register Document 05–22771, FOR FURTHER INFORMATION CONTACT: Gary current. It, therefore—(1) is not a Airspace Docket No. 04–AAL–06, Rolf, AAL–538G, Federal Aviation ‘‘significant regulatory action’’ under published on Thursday, November 17, Administration, 222 West 7th Avenue, Executive Order 12866; (2) is not a 2005 (70 FR 69646), established Class E Box 14, Anchorage, AK 99513–7587; ‘‘significant rule’’ under DOT airspace at Arctic Village, AK. An error telephone number (907) 271–5898; fax: Regulatory Policies and Procedures (44 was discovered in the airspace (907) 271–2850; e-mail: FR 11034; February 26, 1979); and (3) description that misidentified the [email protected]. Internet address: does not warrant preparation of a airfield location. This action corrects http://www.alaska.faa.gov/at. regulatory evaluation as the anticipated that error. SUPPLEMENTARY INFORMATION: impact is so minimal. Since this a routine matter that will only affect air Correction to Final Rule History traffic procedures and air navigation, it I Accordingly, pursuant to the authority On Tuesday, October 25, 2005, the is certified that this rule will not have delegated to me, the airspace FAA proposed to amend part 71 of the a significant economic impact on a description of the Class E airspace Federal Aviation Regulations (14 CFR substantial number of small entities published in the Federal Register, part 71) to revise the Class E airspace under the criteria of the Regulatory Thursday, November 17, 2005 (70 FR upward from 700 ft. and 1,200 ft. above Flexibility Act. 69646), (FR Doc 05–22771, page 69646, the surface at Koliganek, AK (70 FR The FAA’s authority to issue rules column 3) is corrected as follows: 61583). The action was proposed in regarding aviation safety is found in order to create Class E airspace Title 49 of the United States Code. § 71.1 [Corrected] sufficient in size to contain aircraft Subtitle 1, section 106 describes the * * * * * while executing two new SIAPs for the authority of the FAA Administrator.
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Subtitle VII, Aviation Programs, Issued in Anchorage, AK, on Insert comments have been received; thus the describes in more detail the scope of the December 13, 2005. rule is adopted as proposed. The Notice agency’s authority. Anthony M. Wylie, of Proposed Rulemaking omitted an This rulemaking is promulgated Manager, Safety, Area Flight Service exemption to the airspace over Canada. Operations. It has been corrected in this document. under the authority described in subtitle [FR Doc. 05–24230 Filed 12–19–05; 8:45 am] The area will be depicted on VII, part A, subpart 1, section 40103, BILLING CODE 4910–13–P aeronautical charts for pilot reference. Sovereignty and use of airspace. Under The coordinates for this airspace docket that section, the FAA is charged with are based on North American Datum 83. prescribing regulations to ensure the DEPARTMENT OF TRANSPORTATION The Class E airspace areas designated as safe and efficient use of the navigable 700/1,200 ft. transition areas are airspace. This regulation is within the Federal Aviation Administration published in paragraph 6005 of FAA scope of that authority because it creates Order 7400.9N, Airspace Designations Class E airspace sufficient in size to 14 CFR Part 71 and Reporting Points, dated September contain aircraft executing instrument [Docket No. FAA–2005–22537; Airspace 1, 2005, and effective September 15, procedures for the Koliganek Airport Docket No. 05–AAL–29] 2005, which is incorporated by and represents the FAA’s continuing reference in 14 CFR 71.1. The Class E effort to safely and efficiently use the Establishment of Class E Airspace; airspace designation listed in this navigable airspace. Tok Junction, AK document will be published subsequently in the Order. List of Subjects in 14 CFR Part 71 AGENCY: Federal Aviation Administration (FAA), DOT. The Rule Airspace, Incorporation by reference, ACTION: Final rule. This amendment to 14 CFR part 71 Navigation (air). establishes Class E airspace at Tok SUMMARY: This action establishes Class Junction, Alaska. This Class E airspace Adoption of the Amendment E airspace at Tok Junction, AK to is established to accommodate aircraft provide adequate controlled airspace to executing two new SIAPs, and will be I In consideration of the foregoing, the contain aircraft executing two new depicted on aeronautical charts for pilot Federal Aviation Administration Standard Instrument Approach amends 14 CFR part 71 as follows: reference. The intended effect of this Procedures (SIAPs). This rule results in rule is to provide adequate controlled new Class E airspace upward from 700 PART 71—DESIGNATION OF CLASS A, airspace for Instrument Flight Rule (IFR) feet (ft.) and 1,200 ft. above the surface operations at Tok Junction Airport, Tok, CLASS B, CLASS C, CLASS D, AND at Tok Junction Airport, AK. CLASS E AIRSPACE AREAS; Alaska. EFFECTIVE DATE: 0901 UTC, February 16, The FAA has determined that this AIRWAYS; ROUTES; AND REPORTING 2006. regulation only involves an established POINTS FOR FURTHER INFORMATION CONTACT: Gary body of technical regulations for which Rolf, AAL–538G, Federal Aviation frequent and routine amendments are I 1. The authority citation for 14 CFR Administration, 222 West 7th Avenue, necessary to keep them operationally part 71 continues to read as follows: Box 14, Anchorage, AK 99513–7587; current. It, therefore: (1) Is not a Authority: 49 U.S.C. 106(g), 40103, 40113, telephone number (907) 271–5898; fax: ‘‘significant regulatory action’’ under 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– (907) 271–2850; e-mail: Executive Order 12866; (2) is not a 1963 Comp., p. 389. [email protected]. Internet address: ‘‘significant rule’’ under DOT http://www.alaska.faa.gov/at. Regulatory Policies and Procedures (44 § 71.1 [Amended] SUPPLEMENTARY INFORMATION: FR 11034; February 26, 1979); and (3) does not warrant preparation of a I 2. The incorporation by reference in History 14 CFR 71.1 of Federal Aviation regulatory evaluation as the anticipated On Tuesday, October 25, 2005, the Administration Order 7400.9N, impact is so minimal. Since this a FAA proposed to amend part 71 of the Airspace Designations and Reporting routine matter that will only affect air Federal Aviation Regulations (14 CFR Points, dated September 1, 2005, and traffic procedures and air navigation, it part 71) to establish Class E airspace is certified that this rule will not have effective September 15, 2005, is upward from 700 ft. and 1,200 ft. above a significant economic impact on a amended as follows: the surface at Tok Junction, AK (70 FR substantial number of small entities * * * * * 61587). The action was proposed in under the criteria of the Regulatory Paragraph 6005 Class E airspace extending order to create Class E airspace Flexibility Act. upward from 700 feet or more above the sufficient in size to contain aircraft The FAA’s authority to issue rules surface of the earth. while executing two new SIAPs for the regarding aviation safety is found in Tok Junction Airport. The new Title 49 of the United States Code. * * * * * approaches are (1) Area Navigation Subtitle 1, section 106 describes the AAL AK E5 Koliganek, AK [Revised] (Global Positioning System) (RNAV authority of the FAA Administrator. Koliganek Airport, AK (GPS)) Runway (RWY) 07, original; (2) Subtitle VII, Aviation Programs, (Lat. 59°43′36″ N., long. 157°5′34″ W.) RNAV (GPS) RWY 25, original. Class E describes in more detail the scope of the That airspace extending upward from 700 controlled airspace extending upward agency’s authority. feet above the surface within a 6.3-mile from 700 ft. and 1,200 ft. above the This rulemaking is promulgated radius of the Koliganek Airport and that surface in the Tok Junction Airport area under the authority described in subtitle airspace extending upward from 1,200 feet is established by this action. Interested VII, part A, subpart 1, section 40103, above the surface within a 45-mile radius of parties were invited to participate in Sovereignty and use of airspace. Under the Koliganek airport. this rulemaking proceeding by that section, the FAA is charged with submitting written comments on the prescribing regulations to ensure the * * * * * proposal to the FAA. No public safe and efficient use of the navigable
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airspace. This regulation is within the DEPARTMENT OF TRANSPORTATION published in paragraph 6005 of FAA scope of that authority because it creates Order 7400.9N, Airspace Designations Class E airspace sufficient in size to Federal Aviation Administration and Reporting Points, dated September contain aircraft executing instrument 1, 2005, and effective September 15, procedures for the Tok Junction Airport 14 CFR Part 71 2005, which is incorporated by reference in 14 CFR 71.1. The Class E and represents the FAA’s continuing [Docket No. FAA–2005–22536; Airspace effort to safely and efficiently use the Docket No. 05–AAL–25] airspace designation listed in this navigable airspace. document will be published Establishment of Class E Airspace; subsequently in the Order. List of Subjects in 14 CFR Part 71 Nondalton, AK The Rule Airspace, Incorporation by reference, AGENCY: Federal Aviation This amendment to 14 CFR part 71 Navigation (air). Administration (FAA), DOT. establishes Class E airspace at Adoption of the Amendment ACTION: Final rule. Nondalton, Alaska. This Class E airspace is established to accommodate SUMMARY: This action establishes Class I In consideration of the foregoing, the aircraft executing one new SIAP and a E airspace at Nondalton, AK to provide Federal Aviation Administration new DP, and will be depicted on adequate controlled airspace to contain amends 14 CFR part 71 as follows: aeronautical charts for pilot reference. aircraft executing one new Standard The intended effect of this rule is to Instrument Approach Procedure (SIAP) PART 71—DESIGNATION OF CLASS A, provide adequate controlled airspace for and one Departure Procedure (DP). This CLASS B, CLASS C, CLASS D, AND Instrument Flight Rule (IFR) operations rule results in new Class E airspace CLASS E AIRSPACE AREAS; at Nondalton Airport, Nondalton, upward from 700 feet (ft.) above the AIRWAYS; ROUTES; AND REPORTING Alaska. surface at Nondalton Airport, AK. POINTS DATES: Effective Date: 0901 UTC, The FAA has determined that this regulation only involves an established I February 16, 2006. 1. The authority citation for 14 CFR body of technical regulations for which FOR FURTHER INFORMATION CONTACT: Gary part 71 continues to read as follows: frequent and routine amendments are Rolf, AAL–538G, Federal Aviation Authority: 49 U.S.C. 106(g), 40103, 40113, necessary to keep them operationally Administration, 222 West 7th Avenue, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– current. It, therefore—(1) is not a Box 14, Anchorage, AK 99513–7587; 1963 Comp., p. 389. ‘‘significant regulatory action’’ under telephone number (907) 271–5898; fax: Executive Order 12866; (2) is not a (907) 271–2850; e-mail: § 71.1 [Amended] ‘‘significant rule’’ under DOT [email protected]. Internet address: Regulatory Policies and Procedures (44 I 2. The incorporation by reference in http://www.alaska.faa.gov/at. 14 CFR 71.1 of Federal Aviation FR 11034; February 26, 1979); and (3) SUPPLEMENTARY INFORMATION: does not warrant preparation of a Administration Order 7400.9N, regulatory evaluation as the anticipated Airspace Designations and Reporting History impact is so minimal. Since this a Points, dated September 1, 2005, and On Tuesday, October 25, 2005, the routine matter that will only affect air effective September 15, 2005, is FAA proposed to amend part 71 of the traffic procedures and air navigation, it amended as follows: Federal Aviation Regulations (14 CFR is certified that this rule will not have * * * * * part 71) to establish Class E airspace a significant economic impact on a upward from 700 ft. above the surface substantial number of small entities Paragraph 6005 Class E airspace extending at Nondalton, AK (70 FR 61586). The upward from 700 feet or more above the under the criteria of the Regulatory action was proposed in order to create Flexibility Act. surface of the earth. Class E airspace sufficient in size to * * * * * contain aircraft while executing one The FAA’s authority to issue rules regarding aviation safety is found in AAL AK E5 Tok Junction, AK [New] new SIAP and one new DP for the Nondalton Airport. The new approach Title 49 of the United States Code. Tok Junction Airport, AK is the Area Navigation (Global Subtitle 1, Section 106 describes the ° ′ ″ ° ′ ″ (Lat. 63 19 46 N., long. 142 57 13 W.) Positioning System) (RNAV (GPS)) authority of the FAA Administrator. That airspace extending upward from 700 Runway (RWY) 02, original. The DP is Subtitle VII, Aviation Programs, feet above the surface within a 6.7-mile the Iliamna One RNAV. Class E describes in more detail the scope of the radius of the Tok Junction Airport, and that controlled airspace extending upward agency’s authority. airspace extending upward from 1,200 feet from 700 ft. above the surface in the This rulemaking is promulgated above the surface within a 64.8-mile radius Nondalton Airport area is established by under the authority described in subtitle of the Tok Junction Airport, excluding the this action. Interested parties were VII, part A, subpart 1, section 40103, ° ′ airspace east of 141 00 W. invited to participate in this rulemaking Sovereignty and use of airspace. Under * * * * * proceeding by submitting written that section, the FAA is charged with Issued in Anchorage, AK, on December 13, comments on the proposal to the FAA. prescribing regulations to ensure the 2005. No public comments have been safe and efficient use of the navigable received; thus the rule is adopted as airspace. This regulation is within the Anthony M. Wylie, proposed. scope of that authority because it creates Manager, Safety, Area Flight Service The area will be depicted on Class E airspace sufficient in size to Operations. aeronautical charts for pilot reference. contain aircraft executing instrument [FR Doc. 05–24229 Filed 12–19–05; 8:45 am] The coordinates for this airspace docket procedures for the Nondalton Airport BILLING CODE 4910–13–P are based on North American Datum 83. and represents the FAA’s continuing The Class E airspace areas designated as effort to safely and efficiently use the 700/1,200 ft. transition areas are navigable airspace.
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List of Subjects in 14 CFR Part 71 SUMMARY: This action establishes Class The Rule E airspace at New Stuyahok, AK to Airspace, Incorporation by reference, This amendment to 14 CFR part 71 Navigation (air). provide adequate controlled airspace to contain aircraft executing two new establishes Class E airspace at New Adoption of the Amendment Standard Instrument Approach Stuyahok, Alaska. This Class E airspace is established to accommodate aircraft I In consideration of the foregoing, the Procedures (SIAPs). This rule results in new Class E airspace upward from 700 executing two new SIAPs, and will be Federal Aviation Administration depicted on aeronautical charts for pilot amends 14 CFR part 71 as follows: feet (ft.) above the surface at New Stuyahok Airport, AK. reference. The intended effect of this PART 71—DESIGNATION OF CLASS A, rule is to provide adequate controlled EFFECTIVE DATE: 0901 UTC, February 16, airspace for Instrument Flight Rule (IFR) CLASS B, CLASS C, CLASS D, AND 2006. CLASS E AIRSPACE AREAS; operations at New Stuyahok Airport, AIRWAYS; ROUTES; AND REPORTING FOR FURTHER INFORMATION CONTACT: Gary New Stuyahok, Alaska. POINTS Rolf, AAL–538G, Federal Aviation The FAA has determined that this Administration, 222 West 7th Avenue, regulation only involves an established I 1. The authority citation for 14 CFR Box 14, Anchorage, AK 99513–7587; body of technical regulations for which part 71 continues to read as follows: telephone number (907) 271–5898; fax: frequent and routine amendments are Authority: 49 U.S.C. 106(g), 40103, 40113, (907) 271–2850; e-mail: necessary to keep them operationally 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– [email protected]. Internet address: current. It, therefore (1) Is not a 1963 Comp., p. 389. http://www.alaska.faa.gov/at. ‘‘significant regulatory action’’ under § 71.1 [Amended] SUPPLEMENTARY INFORMATION: Executive Order 12866; (2) is not a I ‘‘significant rule’’ under DOT 2. The incorporation by reference in History 14 CFR 71.1 of Federal Aviation Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) Administration Order 7400.9N, On Tuesday, October 25, 2005, the does not warrant preparation of a Airspace Designations and Reporting FAA proposed to amend part 71 of the Points, dated September 1, 2005, and Federal Aviation Regulations (14 CFR regulatory evaluation as the anticipated effective September 15, 2005, is part 71) to establish Class E airspace impact is so minimal. Since this a amended as follows: upward from 700 ft. above the surface routine matter that will only affect air traffic procedures and air navigation, it * * * * * at New Stuyahok, AK (70 FR 61585). The action was proposed in order to is certified that this rule will not have Paragraph 6005 Class E airspace extending create Class E airspace sufficient in size a significant economic impact on a upward from 700 feet or more above the substantial number of small entities surface of the earth. to contain aircraft while executing two new SIAPs for the New Stuyahok under the criteria of the Regulatory * * * * * Airport. The new approaches are (1) Flexibility Act. AAL AK E5 Nondalton, AK [New] Area Navigation (Global Positioning The FAA’s authority to issue rules Nondalton Airport, AK System) (RNAV (GPS)) Runway (RWY) regarding aviation safety is found in (Lat. 59°58′49″ N., long. 154°50′21″ W.) 16, original; (2) RNAV (GPS) RWY 34, Title 49 of the United States Code. That airspace extending upward from 700 original. Class E controlled airspace Subtitle 1, section 106 describes the feet above the surface within a 6.3-mile extending upward from 700 ft. above the authority of the FAA Administrator. radius of the Nondalton Airport, and within surface in the New Stuyahok Airport Subtitle VII, Aviation Programs, 1 mile each side of the 214° bearing from the area is established by this action. describes in more detail the scope of the airport extending from the 6.3-mile radius to Interested parties were invited to agency’s authority. 9.9 miles southwest of the airport. participate in this rulemaking This rulemaking is promulgated * * * * * proceeding by submitting written under the authority described in subtitle Issued in Anchorage, AK, on December 13, comments on the proposal to the FAA. VII, part A, subpart 1, section 40103, 2005. No public comments have been Sovereignty and use of airspace. Under Anthony M. Wylie, received; thus the rule is adopted as that section, the FAA is charged with Manager, Safety, Area Flight Service proposed. A typographical error listing prescribing regulations to ensure the Operations. an incorrect FAA Docket Number was safe and efficient use of the navigable [FR Doc. 05–24227 Filed 12–19–05; 8:45 am] noted in the Notice of Proposed airspace. This regulation is within the Rulemaking. It has been corrected in BILLING CODE 4910–13–P scope of that authority because it creates this document. Class E airspace sufficient in size to The area will be depicted on contain aircraft executing instrument DEPARTMENT OF TRANSPORTATION aeronautical charts for pilot reference. procedures for the New Stuyahok The coordinates for this airspace docket Federal Aviation Administration Airport and represents the FAA’s are based on North American Datum 83. continuing effort to safely and The Class E airspace areas designated as efficiently use the navigable airspace. 14 CFR Part 71 700/1,200 ft. transition areas are [Docket No. FAA–2005–22535; Airspace published in paragraph 6005 of FAA List of Subjects in 14 CFR Part 71 Docket No. 05–AAL–24] Order 7400.9N, Airspace Designations Airspace, Incorporation by reference, and Reporting Points, dated September Navigation (air). Establishment of Class E Airspace; 1, 2005, and effective September 15, New Stuyahok, AK 2005, which is incorporated by Adoption of the Amendment AGENCY: Federal Aviation reference in 14 CFR 71.1. The Class E I Administration (FAA), DOT. airspace designation listed in this In consideration of the foregoing, the document will be published Federal Aviation Administration ACTION: Final rule. subsequently in the Order. amends 14 CFR part 71 as follows:
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PART 71—DESIGNATION OF CLASS A, DEPARTMENT OF TRANSPORTATION In addition, the rule added § 145.206 CLASS B, CLASS C, CLASS D, AND Notification of hazardous materials CLASS E AIRSPACE AREAS; Federal Aviation Administration authorizations. As explained in the AIRWAYS; ROUTES; AND REPORTING preamble of that rule, sections proposed POINTS 14 CFR Parts 121 and 145 as §§ 121.801 through 121.804 (subpart [Docket No.: FAA–2003–15085; Amendment Z) were renumbered as §§ 121.1001 I 1. The authority citation for 14 CFR Nos. 121–318 and 145–25] through 121.1007 in the final rule part 71 continues to read as follows: because other rules had been added to RIN 2120–AG75 part 121 since the NPRM was published. Authority: 49 U.S.C. 106(g), 40103, 40113, Section 145.206 (a) contained a cross 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– Hazardous Materials Training reference that was not correctly 1963 Comp., p. 389. Requirements; Correction updated. This document corrects that § 71.1 [Amended] AGENCY: Federal Aviation error. Administration (FAA), DOT. I 2. The incorporation by reference in List of Subjects ACTION: Final rule; correcting 14 CFR 71.1 of Federal Aviation CFR 14 CFR Part 121 Administration Order 7400.9N, amendment. Air carriers, Aircraft, Airmen, Airspace Designations and Reporting SUMMARY: This document corrects the Aviation safety, Charter flights, Points, dated September 1, 2005, and final rule, ‘‘Hazardous Materials Reporting and recordkeeping effective September 15, 2005, is Training Requirements’’ published in requirements, Safety, Transportation. amended as follows: the Federal Register of October 7, 2005. CFR 14 CFR Part 145 * * * * * DATES: Effective December 20, 2005. Aircraft, Aviation safety, Reporting Paragraph 6005 Class E airspace extending FOR FURTHER INFORMATION CONTACT: upward from 700 feet or more above the Janet McLaughlin, Office of Hazardous and recordkeeping requirements. surface of the earth. Materials, ADG–1, Federal Aviation The Amendment * * * * * Administration, 800 Independence Ave., SW., Washington, DC 20591; I In consideration of the foregoing, the AAL AK E5 New Stuyahok, AK [New] telephone (202) 267–8434. Federal Aviation Administration New Stuyahok Airport, AK SUPPLEMENTARY INFORMATION: On corrects chapter I of title 14, Code of (Lat. 59°27′00″ N., long. 157°19′42″ W.) October 7, 2005, the FAA published a Federal Regulations, as follows: That airspace extending upward from 700 final rule, ‘‘Hazardous Materials PART 121—OPERATING feet above the surface within a 6.2-mile Training Requirements’’ (70 FR 58796; REQUIREMENTS: DOMESTIC, FLAG, radius of the New Stuyahok Airport. Oct. 7, 2005). The rule added appendix AND SUPPLEMENTAL OPERATIONS * * * * * O to part 121 to prescribe the requirements for hazardous materials I 1. The authority citation for part 121 Issued in Anchorage, AK, on December 13, training under part 121, subpart Z, and continues to read as follows: 2005. part 135, subpart K. The appendix Authority: 49 U.S.C. 106(g), 40113, 40119, Anthony M. Wylie, contains two tables (one for will-carry 41706, 44101, 44701–44702, 44705, 44709– Manager, Safety, Area Flight Service certificate holders, and the other for 44711, 44713, 44716–44717, 44722, 44901, Operations. will-not-carry certificate holders) 44903–44904, 44912, 45101–45105, 46105, [FR Doc. 05–24226 Filed 12–19–05; 8:45 am] showing various categories of persons, 46301. BILLING CODE 4910–13–P defined by job function or I 2. Amend appendix O by revising responsibility, and the specified Table 1 and Table 2 to read as follows: category they must receive. In both tables, in the entry for ‘‘Provisions for Appendix O—Hazardous Materials passengers and crew,’’ there should not Training Requirements For Certificate have been an ‘‘X’’ in the column for Holders ‘‘Shippers.’’ * * * * *
TABLE 1.—OPERATORS THAT TRANSPORT HAZARDOUS MATERIAL—WILL-CARRY CERTIFICATE HOLDERS
Operators and Operators and ground-han- ground-han- dling agents Crew mem- Aspects of transport of hazardous mate- dling agent’s staff respon- Flight crew bers rials by air with which they must be famil- Shippers staff accepting sible for the Passenger- members and (other than iar, as a minimum (See Note 2) hazardous ma- handling, stor- handling staff load planners flight crew (See note 1) Will-carry terials age, and load- Will-carry Will-carry members) (See Note 3) ing of cargo Will-carry Will-carry and baggage Will-carry
General philosophy...... X X X X X X Limitations ...... X X X X X X General requirements for shippers ...... X X ...... Classification ...... X X ...... List of hazardous materials ...... X X ...... X ...... General packing requirements ...... X X ...... Labeling and marking...... X X X X X X
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TABLE 1.—OPERATORS THAT TRANSPORT HAZARDOUS MATERIAL—WILL-CARRY CERTIFICATE HOLDERS—Continued
Operators and Operators and ground-han- ground-han- dling agents Crew mem- Aspects of transport of hazardous mate- dling agent’s staff respon- Flight crew bers rials by air with which they must be famil- Shippers staff accepting sible for the Passenger- members and (other than iar, as a minimum (See Note 2) hazardous ma- handling, stor- handling staff load planners flight crew (See note 1) Will-carry terials age, and load- Will-carry Will-carry members) (See Note 3) ing of cargo Will-carry Will-carry and baggage Will-carry
Hazardous materials transport document and other relevant documentation ...... X X ...... Acceptance procedures ...... X ...... Recognition of undeclared hazardous materials ...... X X X X X X Storage and loading procedures ...... X X ...... X ...... Pilots’ notification...... X X ...... X ...... Provisions for passengers and crew ...... X X X X X Emergency procedures...... X X X X X X Note 1.—Depending on the responsibilities of the person, the aspects of training to be covered may vary from those shown in the table. Note 2.—When a person offers a consignment of hazmat, including COMAT, for or on behalf of the certificate holder, then the person must be trained in the certificate holder’s training program and comply with shipper responsibilities and training. If offering goods on another certificate holder’s equipment, the person must be trained in compliance with the training requirements in 49 CFR. All shippers of hazmat must be trained under 49 CFR. The shipper functions in 49 CFR mirror the training aspects that must be covered for any shipper offering hazmat for transport. Note 3.—When an operator, its subsidiary, or an agent of the operator is undertaking the responsibilities of acceptance staff, such as the pas- senger handling staff accepting small parcel cargo, the certificate holder, its subsidy, or the agent must be trained in the certificate holder’s train- ing program and comply with the acceptance staff training requirements.
TABLE 2.—OPERATORS THAT DO NOT TRANSPORT HAZARDOUS MATERIALS—WILL-NOT-CARRY CERTIFICATE HOLDERS
Operators and Operators and ground-han- ground-han- dling agent’s dling agents Crew mem- Aspects of transport of hazardous mate- staff accepting staff respon- Flight crew bers (other rials by air with which they must be famil- Shippers cargo other sible for the Passenger- members and than flight iar, as a minimum (See Note 2) than haz- handling, stor- handling staff load planners crew mem- (See Note 1) Will-not-carry ardous mate- age, and load- Will-not-carry Will-not-carry bers) rials ing of cargo Will-not-carry (See Note 3) and baggage Will-not-carry Will-not-carry
General philosophy...... X X X X X X Limitations ...... X X X X X X General requirements for shippers ...... X ...... Classification ...... X ...... List of hazardous materials ...... X ...... General packing requirements ...... X ...... Labeling and marking...... X X X X X X Hazardous materials transport document and other relevant documentation ...... X X ...... Acceptance procedures ...... Recognition of undeclared hazardous materials ...... X X X X X X Storage and loading procedures ...... Pilots’ notification ...... Provisions for passengers and Crew ...... X X X X X Emergency procedures...... X X X X X X Note 1—Depending on the responsibilities of the person, the aspects of training to be covered may vary from those shown in the table. Note 2—When a person offers a consignment of hazmat, including COMAT, for air transport for or on behalf of the certificate holder, then that person must be properly trained. All shippers of hazmat must be trained under 49 CFR. The shipper functions in 49 CFR mirror the training as- pects that must be covered for any shipper, including a will-not-carry certificate holder offering dangerous goods for transport, with the exception of recognition training. Recognition training is a separate FAA requirement in the certificate holder’s training program. Note 3—When an operator, its subsidiary, or an agent of the operator is undertaking the responsibilities of acceptance staff, such as the pas- senger handling staff accepting small parcel cargo, the certificate holder, its subsidiary, or the agent must be trained in the certificate holder’s training program and comply with the acceptance staff training requirements.
PART 145—REPAIR STATIONS § 145.206 [Amended] Issued in Washington, DC on December 14, 2005. I 4. Amend § 145.206 (a) by removing I Anthony F. Fazio, 3. The authority citation for part 145 the reference to ‘‘§ 121.905 (e)’’ and continues to read as follows: replacing it with ‘‘§ 121.1005 (e).’’ Director, Office of Rulemaking. Authority: 49 U.S.C. 106(g), 40113, 44701– [FR Doc. 05–24225 Filed 12–19–05; 8:45 am] 44702, 44707, 44717. BILLING CODE 4910–13–P
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DEPARTMENT OF HEALTH AND I Therefore, under the Federal Food, (2) No. 058034 for capsules containing HUMAN SERVICES Drug, and Cosmetic Act and under 100 or 250 mg chloramphenicol. authority delegated to the Commissioner (c) Special considerations. Federal Food and Drug Administration of Food and Drugs and redelegated to law prohibits the extralabel use of this the Center for Veterinary Medicine, 21 product in food-producing animals. 21 CFR Parts 510 and 520 CFR parts 510 and 520 are amended as (d) Conditions of use in dogs—(1) follows: Amount. 25 mg per pound of body New Animal Drugs; Change of weight every 6 hours. Sponsor; Chloramphenicol Capsules PART 510—NEW ANIMAL DRUGS (2) Indications for use. For treatment of bacterial pulmonary infections, AGENCY: Food and Drug Administration, I 1. The authority citation for 21 CFR bacterial infections of the urinary tract, HHS. part 510 continues to read as follows: ACTION: Final rule. bacterial enteritis, and bacterial Authority: 21 U.S.C. 321, 331, 351, 352, infections associated with canine SUMMARY: The Food and Drug 353, 360b, 371, 379e. distemper caused by susceptible Administration (FDA) is amending the I 2. Section 510.600 is amended in the organisms. animal drug regulations to reflect a table in paragraph (c)(1) by removing change of sponsor for a new animal drug the entry for ‘‘Nylos Trading Co., Inc.’’ (3) Limitations. Federal law restricts application (NADA) for and by alphabetically adding a new this drug to use by or on the order of chloramphenicol capsules from Nylos entry for ‘‘Pharmaceutical Ventures, a licensed veterinarian. Ltd.’’; and in the table in paragraph Trading Co., Inc., to Pharmaceutical Dated: December 8, 2005. Ventures, Ltd. (c)(2) by removing the entry for Bernadette A. Dunham, DATES: ‘‘027454’’ and by numerically adding a This rule is effective December Deputy Director, Office of New Animal Drug 20, 2005. new entry for ‘‘050057’’ to read as follows: Evaluation, Center for Veterinary Medicine. FOR FURTHER INFORMATION CONTACT: [FR Doc. 05–24270 Filed 12–19–05; 8:45 am] David R. Newkirk, Center for Veterinary § 510.600 Names, addresses, and drug BILLING CODE 4160–01–S Medicine (HFV–100), Food and Drug labeler codes of sponsors of approved Administration, 7500 Standish Pl., applications. Rockville, MD 20855, 301–827–6967, e- * * * * * DEPARTMENT OF VETERANS mail: [email protected]. (c) * * * AFFAIRS SUPPLEMENTARY INFORMATION: Nylos (1) * * * Trading Co., Inc., P.O. Box 2, Route 202, 38 CFR Part 4 Pomona, NY 10970, has informed FDA Firm name and address Drug labeler that it has transferred ownership of, and code RIN 2900–AM32 all rights and interest in, NADA 65–150 ***** Use of Diagnostic Code Numbers; for Chloramphenicol Capsules to Pharmaceutical Ventures, 050057 Schedule of Ratings-Neurological Pharmaceutical Ventures, Ltd., P.O. Box Ltd., P.O. Box D1400, Conditions and Convulsive Disorders D1400, Pomona, NY 10970. Pomona, NY 10970 Accordingly, the regulations are ***** AGENCY: Department of Veterans Affairs. amended in § 520.390b (21 CFR ACTION: Final rule. 520.390b) to reflect this change of (2) * * * sponsorship and a current format. In SUMMARY: This document amends the addition, FDA is taking this opportunity Drug labeler Department of Veterans Affairs (VA) code Firm name and address to revise § 520.390b to reflect the Schedule for Rating Disabilities by prohibition of extralabel use of ***** updating references to diagnostic codes chloramphenicol in food-producing 050057 Pharmaceutical Ventures, in two regulations. These amendments animals under 21 CFR 530.41. Ltd., P.O. Box D1400, are necessary to correct outdated Following these changes of Pomona, NY 10970 references in the Schedule for Rating sponsorship, Nylos Trading Co., Inc., is ***** Disabilities. no longer the sponsor of an approved DATES: Effective Date: December 20, application. Accordingly, 21 CFR PART 520—ORAL DOSAGE FORM 2005. 510.600(c) is being amended to remove NEW ANIMAL DRUGS the entries for Nylos Trading Co., Inc. FOR FURTHER INFORMATION CONTACT: This rule does not meet the definition I 3. The authority citation for 21 CFR Maya Ferrandino, Consultant, of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because part 520 continues to read as follows: Compensation and Pension Service, Policy and Regulations Staff, Veterans it is a rule of ‘‘particular applicability.’’ Authority: 21 U.S.C. 360b. Therefore, it is not subject to the Benefits Administration, 810 Vermont I 4. Revise § 520.390b to read as congressional review requirements in 5 Avenue, NW., Washington, DC 20420, follows: U.S.C. 801–808. (202) 273–7211. List of Subjects § 520.390b Chloramphenicol capsules. SUPPLEMENTARY INFORMATION: VA’s (a) Specifications. Each capsule Schedule for Rating Disabilities 21 CFR Part 510 contains 50, 100, 250, or 500 milligrams includes criteria for evaluating Administrative practice and (mg) chloramphenicol. disabilities by analogy where there is no procedure, Animal drugs, Labeling, (b) Sponsors. See sponsors in specific diagnostic code for the Reporting and recordkeeping § 510.600(c) of this chapter for use as in disability being evaluated. In 38 CFR requirements. paragraph (d) of this section. 4.27 and 38 CFR 4.124a, the rating (1) Nos. 000069, 000185, and 050057 criteria reference examples of diseases 21 CFR Part 520 for capsules containing 50, 100, 250, or that can be rated by analogy to certain Animal drugs. 500 mg chloramphenicol. specified diagnostic odes. Two of the
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diagnostic codes listed in 38 CFR 4.27 U.S.C. 601–612). Even so, the Secretary ENVIRONMENTAL PROTECTION and 4.124a, for rheumatoid (atrophic) hereby certifies that this final rule will AGENCY arthritis and for dementia, are outdated not have a significant economic impact due to changes to the diagnostic criteria on a substantial number of small entities 40 CFR Parts 52 and 70 for evaluating these diseases. Therefore, as they are defined in the Regulatory [EPA–R07–OAR–2005–IA–0006; FRL–8010– we are amending 38 CFR 4.27 and Flexibility Act. 9] 4.124a to replace outdated references with the current diagnostic codes for Unfunded Mandates Approval and Promulgation of ankylosing spondylitis, a disability Implementation Plans and Operating The Unfunded Mandates Reform Act similar to rheumatoid arthritis, and for Permits Program; State of Iowa dementia. of 1995 requires, at 2 U.S.C. 1532, that Section 4.27, Use of diagnostic code agencies prepare an assessment of AGENCY: Environmental Protection numbers, includes as an example: anticipated costs and benefits before Agency (EPA). ‘‘Thus, rheumatoid (atrophic) arthritis issuing any rule that may result in the ACTION: Direct final rule. rated as ankylosis of the lumbar spine expenditure by State, local, and tribal SUMMARY: EPA is approving the State should be coded 5002–5289.’’ However, governments, in the aggregate, or by the Implementation Plan (SIP) revision Diagnostic Code 5289 was removed private sector, of $100 million or more submitted by the state of Iowa. This from 38 CFR 4.71a, Schedule of ratings- (adjusted annually for inflation) in any revision includes the general musculoskeletal system, by a year. This final rule would have no such rulemaking that Iowa completes for the rulemaking published on August 27, effect on State, local, and tribal purpose of updating and clarifying 2003, at 68 FR 51454. Therefore, the governments, or on the private sector. various rules, and making other minor reference to 5289 for ankylosis of the Catalog of Federal Domestic Assistance revisions as generally described in this lumbar spine is outdated. We will Numbers: The Catalog of Federal Domestic document. EPA is also proposing replace the outdated reference to Assistance program numbers and titles for approval of revisions to the Iowa Diagnostic Code 5289 with the current this proposal are 64.104, Pension for Non- Operating Permits Program for the Diagnostic Code for ankylosing Service-Connected Disability for Veterans, purpose of updating and clarifying spondylitis, 5240, which is a disability and 64.109, Veterans Compensation for various rules included in the general similar to rheumatoid arthritis. Service-Connected Disability. rulemaking. These revisions add new Similarly, in § 4.124a, Schedule of definitions, as well as an administrative ratings-neurological conditions and List of Subjects in 38 CFR Part 4 correction to a previously submitted convulsive disorders, the paragraph rule. Approval of these revisions will discussing Mental Disorders in Disability benefits, Pensions, ensure consistency between the state Epilepsies which appears after Veterans. and Federally-approved rules, and Diagnostic Code 8914 includes Approved: December 14, 2005. ensure Federal enforceability of the references to Diagnostic Codes 9304 and Gordon H. Mansfield, State’s revised air program rules. 9307 for dementia: ‘‘(e.g., 9304 or Deputy Secretary of Veterans Affairs. 9307)’’ and ‘‘(e.g., Diagnostic Code 9304 DATES: This direct final rule will be effective February 21, 2006, without or 9307)’’. However, Diagnostic Code I For the reasons set out in the further notice, unless EPA receives 9307 was removed by a rulemaking preamble, 38 CFR part 4 is amended as adverse comment by January 19, 2006. published on October 8, 1996, at 61 FR set forth below: 52695. Therefore, the reference to If adverse comment is received, EPA Diagnostic Code 9307 currently in 38 PART 4—SCHEDULE FOR RATING will publish a timely withdrawal of the CFR 4.124a is outdated. We will remove DISABILITIES direct final rule in the Federal Register the reference to Diagnostic Code 9307 informing the public that the rule will and insert a reference to Diagnostic I 1. The authority citation for part 4 not take effect. Code 9326, which replaced Diagnostic continues to read as follows: ADDRESSES: Submit your comments, Code 9307. identified by Docket ID No. EPA–R07– Authority: 38 U.S.C. 1155, unless OAR–2005–IA–0006, by one of the Administrative Procedures Act otherwise noted. following methods: This final rule merely replaces § 4.27 [Amended] 1. http://www.regulations.gov. Follow inaccurate examples and does not alter the on-line instructions for submitting the content of the regulations. I 2. Amend § 4.27 by removing ‘‘5002– comments. Accordingly, there is a basis for 5289’’ and adding, in its place, ‘‘5002– 2. E-mail: Heather Hamilton at dispensing with prior notice and 5240’’. [email protected]. comment and the delayed effective date 3. Mail: Heather Hamilton, provisions of 5 U.S.C. 553. § 4.124a [Amended] Environmental Protection Agency, Air Planning and Development Branch, 901 Paperwork Reduction Act I 3. Amend § 4.124a following the North 5th Street, Kansas City, Kansas This document contains no provisions undesignated center heading ‘‘The 66101. constituting a collection of information Epilepsies’’ at the conclusion of the 4. Hand Delivery or Courier. Deliver under the Paperwork Reduction Act (44 table in the undesignated paragraph your comments to Heather Hamilton, U.S.C. 3501–3521). ‘‘Mental Disorders in Epilepsies’’ Environmental Protection Agency, Air remove ‘‘9307’’ and add in its place Planning and Development Branch, 901 Regulatory Flexibility Act ‘‘9326’’. North 5th Street, Kansas City, Kansas Because no notice of proposed 66101. rulemaking is required in connection [FR Doc. 05–24272 Filed 12–19–05; 8:45 am] Instructions: Direct your comments to with the adoption of this final rule, no BILLING CODE 8320–01–P Docket ID No. EPA–R07–OAR–2005– regulatory flexibility analysis is required IA–0006. EPA’s policy is that all under the Regulatory Flexibility Act (5 comments received will be included in
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the public docket without change and information by addressing the following Records of such SIP actions are may be made available online at questions: maintained in the Code of Federal http://www.regulations.gov, including What Is a SIP? Regulations (CFR) at title 40, part 52, any personal information provided, What Is the Federal Approval Process for entitled ‘‘Approval and Promulgation of unless the comment includes a SIP? Implementation Plans.’’ The actual state information claimed to be Confidential What Does Federal Approval of a State regulations which are approved are not Business Information (CBI) or other Regulation Mean to Me? reproduced in their entirety in the CFR information whose disclosure is What Is the Part 70 Operating Permits outright but are ‘‘incorporated by restricted by statute. Do not submit Program? reference,’’ which means that we have What Is the Federal Approval Process for through www.regulations.gov or e-mail an Operating Permits Program? approved a given state regulation with information that you consider to be CBI What Is Being Addressed in This a specific effective date. or otherwise protected. The Document? What Does Federal Approval of a State www.regulations.gov Web site is an Have the Requirements for Approval of a Regulation Mean to Me? ‘‘anonymous access’’ system, which SIP and a Part 70 Revision Been Met? means EPA will not know your identity What Action is EPA Taking? Enforcement of the state regulation or contact information unless you What Is a SIP? before and after it is incorporated into provide it in the body of your comment. the Federally-approved SIP is primarily If you send an e-mail comment directly Section 110 of the Clean Air Act a state responsibility. However, after the to EPA without going through (CAA) requires states to develop air regulation is Federally approved, we are www.regulations.gov, your e-mail pollution regulations and control authorized to take enforcement action address will be automatically captured strategies to ensure that state air quality against violators. Citizens are also and included as part of the comment meets the national ambient air quality offered legal recourse to address that is placed in the public docket and standards established by EPA. These violations as described in section 304 of made available on the Internet. If you ambient standards are established under the CAA. submit an electronic comment, EPA section 109 of the CAA, and they What Is the Part 70 Operating Permits recommends that you include your currently address six criteria pollutants. 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 Each Federally-approved SIP protects Electronic files should avoid the use of permits that contain all applicable air quality primarily by addressing air special characters, any form of requirements under the CAA. One pollution at its point of origin. These encryption, and be free of any defects or purpose of the part 70 operating permits SIPs can be extensive, containing state viruses. program is to improve enforcement by regulations or other enforceable Docket: All documents in the issuing each source a single permit that documents and supporting information electronic docket are listed in the consolidates all of the applicable CAA such as emission inventories, www.regulations.gov index. Although requirements into a Federally- monitoring networks, and modeling listed in the index, some information is enforceable document. By consolidating demonstrations. not publicly available, i.e., CBI or other all of the applicable requirements for a information whose disclosure is What Is the Federal Approval Process facility into one document, the source, restricted by statute. Certain other for a SIP? the public, and the permitting material, such as copyrighted material, In order for state regulations to be authorities can more easily determine is not placed on the Internet and will be incorporated into the Federally- what CAA requirements apply and how publicly available only in hard copy enforceable SIP, states must formally compliance with those requirements is form. Publicly available docket adopt the regulations and control determined. materials are available either strategies consistent with state and Sources required to obtain an electronically in http:// Federal requirements. This process operating permit under this program www.regulations.gov or in hard copy at generally includes a public notice, include ‘‘major’’ sources of air pollution the Environmental Protection Agency, public hearing, public comment period, and certain other sources specified in Air Planning and Development Branch, and a formal adoption by a state- the CAA or in our implementing 901 North 5th Street, Kansas City, authorized rulemaking body. regulations. For example, all sources Kansas 66101. The Regional Office’s Once a state rule, regulation, or regulated under the acid rain program, official hours of business are Monday control strategy is adopted, the state regardless of size, must obtain permits. through Friday, 8 to 4:30 excluding submits it to us for inclusion into the Examples of major sources include Federal holidays. The interested persons SIP. We must provide public notice and those that emit 100 tons per year or wanting to examine these documents seek additional public comment more of volatile organic compounds, should make an appointment with the regarding the proposed Federal action carbon monoxide, lead, sulfur dioxide, office at least 24 hours in advance. on the state submission. If adverse nitrogen dioxide, or PM10; those that FOR FURTHER INFORMATION CONTACT: comments are received, they must be emit 10 tons per year of any single Heather Hamilton at (913) 551–7039, or addressed prior to any final Federal hazardous air pollutant (HAP) by e-mail at [email protected]. action by us. (specifically listed under the CAA); or SUPPLEMENTARY INFORMATION: All state regulations and supporting those that emit 25 tons per year or more Throughout this document whenever information approved by EPA under of a combination of HAPs. ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean section 110 of the CAA are incorporated Revision to the state and local EPA. This section provides additional into the Federally-approved SIP. agencies operating permits program are
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also subject to public notice, comment, all emissions to the atmosphere (567– Quality Bureau, Iowa Department of and our approval. 22.1(2) ‘‘g’’) have been changed to state Natural Resources. that a permit must be obtained requiring The state of Iowa requested a revision What Is the Federal Approval Process emission reductions before a source may to the Title V Operating Permits for an Operating Permits Program? take credit for the reductions. This Program approved for state rule In order for state regulations to be revision further states that if a revisions updating CFR references to the included in the Federally-enforceable construction permit has been previously definitions located at 567–22.100 as Title V operating permits program, issued, all other conditions of the follows: EPA reference method, existing states must formally adopt regulations permit remain in effect. hazardous air pollutant sources, and consistent with state and Federal The Compliance Sampling Manual is hazardous air pollutant. Revisions to requirements. This process generally being revised to update procedures and update CFR references were also made includes a public notice, public hearing, to clarify and correct some of the at 567–22.101(2) Title V deferred public comment period, and a formal existing language in the manual. stationary sources, and 567–22.108(17) adoption by a state-authorized References to the CFR within the ‘‘a’’(2), reopening of Title V permits. rulemaking body. Compliance Sampling Manual have also A revision to 567–22.105(1), Duty to Once a state rule, regulation, or been updated with this change. apply, was made to reduce the number control strategy is adopted, the state A revision to IAC 567–20.2, as it of copies of Title V permit applications submits it to us for inclusion into the relates to open burning of untreated from four to three and to clarify where approved operating permits program. wood, adds a new definition of the applications should be sent. We must provide public notice and seek ‘‘untreated.’’ The definition relates to a The state submission also includes an additional public comment regarding rule that limits citizens from burning updated incorporation by reference of the proposed Federal action on the state matter that is treated and adversely EPA’s Acid Rain regulations. The state submission. If adverse comments are affects the environment. The definition rules, which were effective on July 13, received, they must be addressed prior does not relax the stringency of open 2005, are not a part of the SIP or the to any final Federal action by us. burning restrictions, but helps to limit Operating Permits Program; and, All state regulations and supporting emissions of pollutants which may therefore, we are not acting on this information approved by EPA under adversely affect air quality. revision to the Acid Rain regulations. section 502 of the CAA, including Additional definitions added at IAC On May 2, 2005, a rule was published revisions to the state program, are 567–20.2 are as follows: ‘‘biodiesel to add a comma to IAC 567–22.3(3), included in the Federally-approved fuel,’’ ‘‘diesel fuel,’’ ‘‘number 1 fuel oil,’’ Conditions of Approval. A comma was operating permits program. Records of and ‘‘number 2 fuel oil.’’ Included in the inserted between fuel specifications and such actions are maintained in the CFR definitions are references to the compliance testing to differentiate at Title 40, part 70, appendix A, entitled American Society for Testing and between the two conditions. This was ‘‘Approval Status of State and Local Material Specifications and information erroneously published as a Title V Operating Permits Programs.’’ with regard to the Environmental revision and is being corrected with this Protection Agency registration. revision. What Is Being Addressed in This An amendment was made to the Document? variance language as it relates to Have the Requirements for Approval of EPA is approving the State construction permits in IAC 567–21.2(3) a SIP Revision and Title V Program Implementation Plan (SIP) revisions ‘‘a.’’ This provision authorizes variances Revision Been Met? submitted by the state of Iowa which from state regulatory requirements for The state submittal has met the public include numerous minor revisions to the limited purpose of testing notice requirements for SIP submissions various rules. The revisions consist of alternative fuels. It does not allow in accordance with 40 CFR 51.102. The updating references to Federal rules, variances from permitting requirements submittal also satisfied the clarifying emissions reduction language for sources subject to major source completeness criteria of 40 CFR part 51, to permits, providing notification of permitting requirements. The revision appendix V. In addition, as explained ownership for construction permits, clearly states that the Iowa Department above and in more detail in the adding definitions, amending variance of Natural Resources (IDNR) may not technical support document which is language, and making minor revisions to grant variances for projects subject to part of this document, the revision the Compliance Sampling Manual. EPA certain Federal requirements. Although meets the substantive SIP requirements is also approving a new rule into the SIP we believe that this limited variance of the CAA, including section 110 and and Operating Permits Program at 567– provision for minor sources is implementing regulations. This revision 22.209 to set forth information with acceptable, we note that variances from is also consistent with applicable EPA regard to change of ownership for SIP requirements and minor source requirements in Title V of the Clean Air facilities with voluntary operating permit limits issued under SIPs are not Act and 40 CFR part 70. permits. EPA is approving revisions to recognized by EPA and do not change What Action Is EPA Taking? the Iowa Operating Permits Program to the underlying requirements unless update CFR references, and to update approved by EPA as revisions to the SIP. This revision includes rules processed information with regard to submitting An amendment to 567–22.1(3) ‘‘b’’ as ‘‘general rulemaking’’ that Iowa Title V permit applications. revises references to the Iowa Code completes for the purpose of updating Revisions to update the CFR (542B.1, and 542B.26) that provides and clarifying various rules, and making references were made to Iowa requirements for professional licensed other minor revisions as generally Administrative Code (IAC) 567–22.1(1) engineers and corporation employees described in this document. Revisions ‘‘b’’ New or reconstructed major sources submitting construction permit to the Iowa Operating Permits Program of hazardous air pollutants, and, 567– applications to IDNR. for the purpose of updating and 20.2 definition of ‘‘Volatile Organic Clarification has been made to IAC clarifying various rules are also Compound.’’ 567–22.3(8) (Ownership change of included in this rulemaking. This Requirements with regard to control permitted equipment) to include the revision adds new definitions, and a equipment which reduces or eliminates accurate mailing address of the Air new rule that applies to change of
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ownership for facilities with voluntary action also does not have federalism Under section 307(b)(1) of the Clean operating permits. One administrative implications because it does not have Air Act, petitions for judicial review of correction is being made to a previously substantial direct effects on the States, this action must be filed in the United submitted rule. EPA is revising the Iowa on the relationship between the States Court of Appeals for the SIP and Title V operating permit National Government and the States, or appropriate circuit by February 21, programs by approving the state rule on the distribution of power and 2006. Filing a petition for revisions. responsibilities among the various reconsideration by the Administrator of We are processing this revision to the levels of government, as specified in this final rule does not affect the finality Iowa State Implementation Plan and Executive Order 13132 (64 FR 43255, of this rule for the purposes of judicial Iowa Operating Permits as a direct final August 10, 1999). This action merely review nor does it extend the time action because these revisions make approves a state rule implementing a within which a petition for judicial routine changes to the existing rules Federal standard, and does not alter the review may be filed, and shall not which are noncontroversial. Therefore, relationship or the distribution of power postpone the effectiveness of such rule we do not anticipate any adverse and responsibilities established in the or action. This action may not be comments. Please note that if EPA CAA. This rule also is not subject to challenged later in proceedings to receives adverse comment on part of Executive Order 13045, ‘‘Protection of enforce its requirements. (See section this rule and if that part can be severed Children from Environmental Health 307(b)(2).) from the remainder of the rule, EPA may Risks and Safety Risks’’ (62 FR 19885, adopt as final those parts of the rule that April 23, 1997), because it is not List of Subjects are not the subject of an adverse economically significant. 40 CFR Part 52 comment. In reviewing state submissions, EPA’s role is to approve state choices, Environmental protection, Air Statutory and Executive Order Reviews provided that they meet the criteria of pollution control, Carbon monoxide, Under Executive Order 12866 (58 FR the CAA. In this context, in the absence Incorporation by reference, 51735, October 4, 1993), this action is of a prior existing requirement for the Intergovernmental relations, Lead, not a ‘‘significant regulatory action’’ and State to use voluntary consensus Nitrogen dioxide, Ozone, Particulate therefore is not subject to review by the standards (VCS), EPA has no authority matter, Reporting and recordkeeping Office of Management and Budget. For to disapprove a state submission for requirements, Sulfur oxides, Volatile this reason, this action is also not failure to use VCS. It would thus be organic compounds. subject to Executive Order 13211, inconsistent with applicable law for 40 CFR Part 70 ‘‘Actions Concerning Regulations That EPA, when it reviews a state Significantly Affect Energy Supply, submission, to use VCS in place of a Administrative practice and Distribution, or Use’’ (66 FR 28355, May state submission that otherwise satisfies procedure, Air pollution control, 22, 2001). This action merely approves the provisions of the CAA. Thus, the Intergovernmental relations, Operating state law as meeting Federal requirements of section 12(d) of the permits, Reporting and recordkeeping requirements and imposes no additional National Technology Transfer and requirements. requirements beyond those imposed by Advancement Act of 1995 (15 U.S.C. Dated: December 12, 2005. state law. Accordingly, the 272 note) do not apply. This rule does Administrator certifies that this rule not impose an information collection James B. Gulliford, will not have a significant economic burden under the provisions of the Regional Administrator, Region 7. impact on a substantial number of small Paperwork Reduction Act of 1995 (44 I Chapter I, title 40 of the Code of entities under the Regulatory Flexibility U.S.C. 3501 et seq.). Federal Regulations is amended as Act (5 U.S.C. 601 et seq.). Because this The Congressional Review Act, 5 follows: rule approves pre-existing requirements U.S.C. 801 et seq., as added by the Small under state law and does not impose Business Regulatory Enforcement PART 52—[AMENDED] any additional enforceable duty beyond Fairness Act of 1996, generally provides that required by state law, it does not that before a rule may take effect, the I 1. The authority citation for part 52 contain any unfunded mandate or agency promulgating the rule must continues to read as follows: significantly or uniquely affect small submit a rule report, which includes a Authority: 42 U.S.C. 7401 et seq. governments, as described in the copy of the rule, to each House of the Unfunded Mandates Reform Act of 1995 Congress and to the Comptroller General Subpart Q—Iowa (Pub. L. 104–4). of the United States. EPA will submit a This rule also does not have tribal report containing this rule and other I 2. In § 52.820 the table in paragraph implications because it will not have a required information to the U.S. Senate, (c) is amended by revising the entries substantial direct effect on one or more the U.S. House of Representatives, and for 567–20.2, 567–21.2, 567–22.1, 567– Indian tribes, on the relationship the Comptroller General of the United 22.3, 567–22.300, and 567–25.1 and by between the Federal Government and States prior to publication of the rule in adding an entry in numerical order for Indian tribes, or on the distribution of the Federal Register. A major rule 567–22.209 to read as follows: power and responsibilities between the cannot take effect until 60 days after it § 52.820 Identification of plan. Federal Government and Indian tribes, is published in the Federal Register. as specified by Executive Order 13175 This action is not a ‘‘major rule’’ as * * * * * (65 FR 67249, November 9, 2000). This defined by 5 U.S.C. 804(2). (c) * * *
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EPA—APPROVED IOWA REGULATIONS
State effec- Iowa citation Title tive date EPA approval date Explanation
Iowa Department of Natural Resources Environmental Protection Commission [567]
******* Chapter 20—Scope of Title—Definitions—Forms—Rules of Practice
******* 567–20.2 ...... Definitions ...... 9/21/05 12/20/05 [insert FR page The definitions for anaerobic la- number where the docu- goon, odor, odorous substance, ment begins] and odorous substance source are not SIP approved.
******* , Chapter 21—Compliance
******* 567–21.2 ...... Variances ...... 7/13/05 12/20/05 [insert FR page number where the docu- ment begins]
******* Chapter 22—Controlling Pollution 567–22.1 ...... Permits Required for New or Ex- 7/13/05 12/20/05 [insert FR page Subrules 22.1(2) and 22.1(2) ‘‘i’’ isting Stationary Sources. number where the docu- have a state effective date of 5/ ment begins] 23/01.
******* 567–22.3 ...... Issuing Permits ...... 7/13/05 12/20/05 [insert FR page Subrule 22.3(6) is not SIP ap- number where the docu- proved. ment begins]
******* 567–22.209 ...... Change of Ownership for Facili- 7/13/05 12/20/05 [insert FR page ties with Voluntary Operating number where the docu- Permits. ment begins] 567–22.300 ...... Operating Permit by Rule for 7/13/05 12/20/05 [insert FR page Subrule 22.300(7) ‘‘c’’ has a state Small Sources. number where the docu- effective date of 10/14/98. ment begins]
******* Chapter 25—Measurement of Emissions 567–25.1 ...... Testing and Sampling of New and 7/13/05 12/20/05 [insert FR page Existing Equipment. number where the docu- ment begins]
*******
* * * * * (h) The Iowa Department of Natural ENVIRONMENTAL PROTECTION Resources submitted for program AGENCY PART 70—[AMENDED] approval rules 567–22.100, 567– 22.101(2), 567–22.102, 567–22.105(1), 40 CFR Part 86 I 1. The authority citation for part 70 567–22.108(17)‘‘a’’(2), 567–22.209 and continues to read as follows: [FRL–8005–4] 567–22.300(12) on July 18, 2005. The Authority: 42 U.S.C. 7401 et seq. state effective date was July 13, 2005. RIN 2060–AJ77 These revisions to the Iowa program are Appendix A to Part 70—[Amended] approved effective February 21, 2006. Control of Air Pollution From New Motor Vehicles and New Motor Vehicle * * * * * I 2. Appendix A to part 70 is amended Engines; Modification of Federal On- by revising paragraph (h) under ‘‘Iowa’’ [FR Doc. 05–24259 Filed 12–19–05; 8:45 am] Board Diagnostic Regulations for: to read as follows: BILLING CODE 6560–50–P Light-Duty Vehicles, Light-Duty Appendix A to Part 70—Approval Trucks, Medium Duty Passenger Status of State and Local Operating Vehicles, Complete Heavy Duty Permits Programs Vehicles and Engines Intended for Use in Heavy Duty Vehicles Weighing * * * * * 14,000 Pounds GVWR or Less
Iowa AGENCY: Environmental Protection * * * * * Agency (EPA).
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ACTION: Final rule. absent those two withdrawn provisions, DC 20460. Dockets may be inspected became effective on August 18, 2003. from 8:30 a.m. to 4:30 p.m., Monday SUMMARY: EPA is finalizing certain The purpose of this action is to through Friday, except on government requirements associated with the finalize the portion of the direct final holidays. You can reach the Air Docket Federal on-board diagnostic (OBD) rule that was withdrawn with the by telephone at (202) 566–1742 and by system regulations. On June 17, 2003, revisions suggested by the commenters facsimile at (202) 566–1741. You may be EPA published both a direct final rule and to clarify several smaller issues that charged a reasonable fee for were raised by industry during the and a concurrent notice of proposed photocopying docket materials, as comment period. rulemaking (68 FR 35972 and 68 FR provided in 40 CFR Part 2. DATES: 35830 respectively) to amend and revise This final rule takes effect on February 21, 2006. FOR FURTHER INFORMATION CONTACT: certain provisions of the Federal OBD Arvon Mitcham, U.S. EPA, National ADDRESSES: All comments and materials regulations. EPA published the direct Vehicle and Fuels Emission Laboratory, relevant to today’s action are contained final rule believing that no adverse in Public Docket No. OAR–2003–0080 Certification and Compliance Division, comments would be received. However, (old legacy docket is A–2002–20) at 2000 Traverwood, Ann Arbor MI 48105; due to the receipt of an adverse EPA’s Air and Radiation Docket and telephone (734) 214–4522, e-mail comment, EPA published a partial Information Center (Air Docket) at the ‘‘[email protected].’’ withdrawal notice on August 14, 2003 following address: EPA Docket Center Regulated Entities: Entities potentially (68 FR 48561) withdrawing two specific (EPA/DC), Public Reading Room, Room regulated by this action are those which regulatory amendments included in the B102, EPA West Building, 1301 manufacture new motor vehicles and direct final rule. The direct final rule, Constitution Avenue, NW., Washington, engines.
Category Examples of regulated entities NAICS codes a SIC codes b
Industry ...... New motor vehicle and engine manufacturers ...... 33611, 3711 336112, 336120 a North American Industry Classification System (NAICS) Code. b Standard Industrial Classification (SIC) System Code.
This table is not intended to be V. Cost Effectiveness (Either select a desired date or use the exhaustive, but rather provides a guide VI. Statutory and Executive Order Reviews Search feature.) for readers regarding entities EPA is A. Executive Order 12866: Regulatory II. Introduction and Background now aware could potentially be Planning and Review B. Paperwork Reduction Act regulated by this action. Other types of On February 19, 1993, pursuant to C. Regulatory Flexibility Act Clean Air Act (CAA) section 202(m), 42 entities not listed in the table could also D. Unfunded Mandates Reform Act be regulated. To determine whether E. Executive Order 13132: Federalism U.S.C. 7521(m), EPA published a final your product is regulated by this action, F. Executive Order 13175: Consultation rulemaking (58 FR 9468) requiring you should carefully examine the and Coordination With Indian Tribal manufacturers of light-duty vehicles applicability criteria in § 86.005–17, Governments (LDVs) and light-duty trucks (LDTs) to § 86.1806–04 and § 86.1806–05 of title G. Executive Order 13045: Protection of install on-board diagnostic (OBD) 40 of the Code of Federal Regulations. Children From Environmental Health & systems on such vehicles beginning If you have questions regarding the Safety Risks with the 1994 model year. The H. Executive Order 13211: Actions That applicability of this action to a regulations promulgated in that final Significantly Affect Energy Supply, rulemaking require manufacturers to particular product, consult the person Distribution, or Use listed in the preceding FOR FURTHER I. National Technology Transfer and install OBD systems which monitor INFORMATION CONTACT section. Advancement Act emission control components for any J. Congressional Review Act malfunction or deterioration causing Table of Contents exceedance of certain emission I. Electronic Availability I. Electronic Availability thresholds, and alert the vehicle II. Introduction and Background operator to the need for repair. That III. Requirements of the Final Rule Today’s action is available electronically on the day of publication rulemaking also requires that, when a A. Use of SAE J1939 Communication malfunction occurs, diagnostic Protocol Beyond Model Year 2007 from EPA?s Federal Register Internet B. Applicable Phase-Ins for OBD System Web site listed below. Electronic copies information must be stored in the Monitoring Requirements for Federal of this preamble, regulatory language, vehicle’s computer to assist the Vehicles Certifying by Demonstrating and other documents associated with technician in diagnosis and repair. Compliance With California OBD II today’s final rule are available from the Additionally, this original OBD C. OBD System Design and Applicable EPA Office of Transportation and Air regulation provided an allowance for Malfunction Thresholds for Federal Quality Web site listed below shortly manufacturers to satisfy federal OBD Vehicles Certifying by Demonstrating after the rule is signed by the requirements through the 1998 model Compliance With California OBD II year by installing OBD systems IV. Other Issues Raised by Industry During Administrator. This service is free of charge, except any cost that you already satisfying the OBD II requirements the Comment Period promulgated by the California Air A. Production Vehicle Testing incur for connecting to the Internet. B. Enforcement Resources Board (CARB) pertaining to EPA Federal Register Web Site: http:// those model years. On December 22, C. Referencing the Final Version of CARB?s www.epa.gov/docs/fedrgstr/epa-air/. OBD II Regulations in Title 13 California 1998 (63 FR 70681), EPA revised the Code of Regulations § 1968.2 (13 CCR OTAQ’s Web site: http:// federal OBD regulations such that the 1968.2) www.epa.gov/otaq/url-fr.htm. allowance of compliance with the
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California OBD II regulations (excluding Manufacturers (AIAM) requesting J1939, SAE J1850, ISO 9141, and ISO anti-tampering provisions) extended clarification of certain aspects of the 14230–4. indefinitely, rather than applying only direct final rule. The Alliance and In addition, EPA also included a through the 1998 model year. In AIAM requested that their comments provision that, commencing in the 2008 addition, EPA updated the allowed not be considered ‘‘adverse’’ unless model year, would have required version to the most recently published their understanding of EPA’s intent was manufacturers to use this new version, at that time, CARB Mail-Out incorrect. The Alliance and AIAM communication protocol, ISO 15765–4.3 #97–24 (December 9, 1997). specifically expressed interest that EPA (500 kbps baud rate) for vehicles and On June 17, 2003, EPA published both clarify that the new OBD requirements, engines below 14,000 lbs. The currently a direct final rule and a concurrent as applied to Tier 2 vehicles, would be allowed communication protocols (SAE notice of proposed rulemaking (68 FR phased-in on the same schedule as J1939, SAE J1850, ISO 9141, and ISO 35972 and 68 FR 35830 respectively) to CARB’s LEV II program. As explained 14230–4) would have been eliminated amend and revise certain provisions of below, EPA believes it appropriate to for vehicles and engines below 14,000 the federal OBD regulations. Among clarify not only this phase-in lbs. Therefore, with the 2008 model other several minor revisions, this requirement but also to clarify what year, the other, currently-accepted action also updated the allowed version malfunction thresholds apply when protocols: SAE J1939, SAE J1850, ISO of the California OBD II regulations; and comparing LEV II and Tier 2 programs. 9141–2 and ISO 14230–4, would no updated the incorporation by reference The Alliance and AIAM also sought longer be accepted for all vehicles and of standardized practices developed by clarification from EPA as to whether engines below 14,000 lbs. and all manufacturers of vehicles and engines the Society of Automotive Engineers production testing for OBD would be (SAE) and the International below 14,000 lbs. would have been required and whether EPA was adopting Organization for Standardization (ISO) required to implement OBD systems CARB’s new enforcement specific to incorporate recently published using only ISO 15765–4.3 (500 kbps provisions relating to OBD. Because versions. This action also incorporated baud rate). EPA is further clarifying its intent and by reference a new standardized The Direct Final Rule did not protocol developed by the International does not disagree with commenters’ distinguish between medium-duty Organization for Standardization (ISO understanding, EPA did not consider vehicles (at or above 8500 and 14000 15765–4.3) and established a future these comments adverse. Finally, the pounds GVWR) and light-duty vehicles date, model year 2008, by which this Alliance and AIAM requested that EPA and trucks (below 8500 pounds). While protocol would be the only acceptable reference the final version of CARB’s no one objected to this provision as it protocol. OBD II regulations contained in Title 13 applied to light-duty vehicles and EPA received comments from the California Code of Regulations 1968.2 trucks, EMA and Cummins commented Engine Manufacturers Association (13 CCR 1968.2)), as modified, approved that this provision would (EMA) and Cummins that the direct and filed on April 21, 2003. At the time, unintentionally eliminate the use of final rule did not continue to allow the EPA referenced the latest version of the SAE J1939 for vehicles and engines use of the heavy-duty communication CARB OBD II regulations contained in between 8500 and 14000 pounds protocol, SAE J1939, as currently CARB Mail-Out MSCD #02–11 (October GVWR. EPA believes that it is allowed under the Federal OBD and 7, 2002) to allow manufacturer OBD reasonable to allow medium-duty CARB OBD II requirements, beyond the certification according to the optional engine and vehicle manufacturers 2007 model year for vehicles that are compliance provisions in paragraph (j) between 8500 and 14000 pounds GVWR not optionally certified to CARB’s of the Federal OBD Regulations. This to continue to use communication 1968.2 OBD II requirements. EMA final action will address those protocol SAE J1939 beyond the 2008 commented that the direct final rule comments as well. model year along with the new protocol. required that 2008 and later model year Therefore, EPA is finalizing a III. Requirements of the Final Rule heavy-duty engines and vehicles under provision requiring that the only 14,000 lbs. GVWR that are certified to A. Use of SAE J1939 Communication allowable protocols will be ISO 15765– the Federal OBD technical monitoring Protocol Beyond Model Year 2007 4.3 (500 kbps baud rate) for vehicles requirements must use the ISO 15765– 8500 pounds GVWR and below and 4.3 communication protocol. EMA and In the June 17, 2003 Direct Final Rule, either SAE J1939 or ISO 15765–4.3 (500 Cummins commented that this is not EPA incorporated by reference a new, kbps baud rate) for vehicles 8500 to consistent with CARB’s requirements optional standardized communication 14000 pounds GVWR beginning with for medium duty vehicles (between protocol, ISO 15765–4.3:2001, the 2008 MY. Accordingly, with the 8500 and 14,000 lbs. GVWR), nor is it December 14, 2001, ‘‘Road Vehicles- 2008 model year, the other currently- consistent with the existing Diagnostics on Controller Area Network accepted protocols SAE J1850, ISO communication protocols developed for (CAN)—Part 4: Requirements for 9141–2 and ISO 14230–4, would no the unique operational characteristics of emission-related systems’’ at 500 longer be accepted. heavy-duty vehicles. As a result, EPA kilobytes per second (kbps) baud rate, withdrew the portion of the direct final that can be used by manufacturers to B. Applicable Phase-Ins for OBD System rule establishing the requirement that by design OBD systems. The standardized Monitoring Requirements for Federal model year 2008, ISO 15765–4.3 would communication protocols provide a Vehicles Certifying by Demonstrating be the only acceptable protocol. This uniform language structure that Compliance With California OBD II final action addresses the comments of facilitates compatibility between OBD II EPA received comment from the EMA and Cummins and finalizes equipped vehicles and OBD II-related Alliance and AIAM regarding the revised regulations incorporating those equipment. Manufacturers of light-duty certification of federal Tier 2 vehicles to comments. vehicles and trucks are planning to California OBD II regulations that In addition, EPA received comments implement this new protocol on reference California LEV II standards. from the Alliance of Automobile vehicles, and some have done so as CARB’s regulations phase-in additional Manufacturers (‘‘the Alliance’’) and the early as the 2003 MY, in addition to the OBD requirements to coincide with the Association of International Automobile existing communication protocols: SAE phase-in of LEV II vehicles. Beginning
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in the 2004 model year, CARB phases in generally the same time frame as the underlying standards under the OBD II new OBD II requirements to coincide California fleet, using the phase-in of regulations was not tied to the type of with the LEV II requirements at 25, 50, the final Tier 2 standards as a general California vehicle (e.g. TLEV, LEV, 75, and 100 percent over four model surrogate to the phase-in of LEV II ULEV, etc) being certified. However, years. The new OBD II requirements are standards, recognizing that there is because the revised California OBD II for: NOX conversion capability (Title 13 likely to be considerable standards have different multiples based CCR 1968.2 (e)(1.2.2)), secondary air correspondence between vehicles on the type of California LEV II vehicle monitoring (Title 13 CCR 1968.2 certified to LEV II standards in being certified, and because LEV II (e)(5.2.3)), continuous oxygen sensor California to vehicles certified to final emission bins are not identical to the monitoring (Title 13 CCR 1968.2 Tier 2 standards federally. emission bins for the federal Tier 2 (e)(7.3.1)(B)(ii) and (e)(7.3.2)(B)(ii)), cold EPA agrees with the comments made program,1 EPA needs to clarify the start emission reduction strategy by the Alliance and AIAM that we manner in which the thresholds in monitoring (Title 13 CCR 1968.2 reiterate our intentions to maintain the California’s OBDII requirements should (e)(11.1.1)), crankshaft and camshaft current policy that allows OEMs to be incorporated into the federal alignment for variable valve timing phase-in CARB’s new OBD II requirements. Therefore, EPA is adding (VVT)- and timing belt/chain-equipped monitoring requirements on the same regulatory language to clarify this issue. vehicles (Title 13 CCR 1968.2 schedule for vehicles sold outside of EPA is clarifying that vehicles (e)(16.1.2)), and MIL illumination for California (for those vehicles certified certified to Federal Tier II emissions comprehensive component by EPA to the ‘‘50 State’’ or ‘‘49 State’’ standards but complying with Federal malfunctions on SULEV II applications standards). Therefore, the phase-in of OBD by showing compliance with only if they cause emissions increase CARB’s LEV II OBD II requirements for CARB OBD II regulations are subject to equal to or greater than 25% (Title 13 the monitors outlined above generally all OBD monitoring requirements CCR 1968.2 (e)(16.4.2)(A)). should meet the same phase-in and be applicable to LEV II applications These provisions create some phased in with the Federal Tier 2 final (subject to the phase-in discussed confusion for vehicles that are certifying emission standards at 25, 50, 75, and above), but shall use Tier 2 emissions to Federal emission requirements during 100 percent as specified in EPA’s Tier standards for the purposes of those four years but using the option of 2 regulation over four model years and determining malfunction thresholds as meeting federal OBD requirements by shall apply to vehicles sold outside of described below. CARB has similar demonstrating compliance with California. EPA recognizes that there provisions in their OBD II regulations California’s OBDII regulations. Since may not be exact correspondence contained in Title 13 CCR 1968.2 EPA’s regulations do not reference between the levels of LEV II vehicles (c)(20), and (e)(18.1.3) but these California’s LEV II regulations, the sold in California and the levels of provisions only relate to vehicles and provisions of California’s OBD II corresponding vehicles sold federally, engines certified for use in California regulations that distinguish LEV II and thus is not requiring exact (i.e., California-only or 50-state vehicles vehicles do not directly correspond to correspondence to the phase-in levels and engines). federal regulations; in particular, EPA’s for final Tier 2 standards, but EPA is Where the Federal standards Tier 2 regulations. expecting relatively similar levels correspond directly to California The Alliance and AIAM commented during the phase-in years. standards, this operation is simple, as that EPA’s Direct Final Rule was not the manufacture would simply use the clear on how OBD requirements that C. OBD System Design and Applicable thresholds in the OBD II regulations that apply only to LEV II vehicles would be Malfunction Thresholds for Federal correspond to the California LEV II applied to vehicles certified to EPA’s Vehicles Certifying by Demonstrating vehicle type (e.g. ULEV, SULEV) Tier 2 emissions standards. The Compliance With California OBD II matching the Federal bin to which the Alliance and AIAM further commented In reviewing the comments from the federal vehicle is certified. As noted that it has been EPA’s policy in the past Alliance/AIAM discussed above, EPA above, there is one instance where an to require the same OBD requirements realized that it may not be clear in some EPA Tier 2 bin does not have a for a specific model vehicle produced cases what the applicable OBD corresponding CARB LEV II Program for sale outside of California as those malfunction threshold is for Federal emissions category and the emission that apply in that model year for that vehicles certifying to Federal OBD standards serving as the basis for model vehicle in California. The requirements by showing compliance calculating the malfunction thresholds Alliance and AIAM asked EPA to with CARB OBD II regulations. are not identical. Tier 2 Bin 4 NMOG confirm their position on this policy Traditionally, OEMs certifying to EPA standard of 0.07 g/mi, and NOX and to issue guidance as appropriate to emissions standards but optionally standard of 0.04 g/mi and CO standard verify EPA’s position. complying with CARB OBD II of 2.1 g/mi, has no corresponding CARB EPA’s Tier 2 standards follow a requirements would use the applicable LEV II Program’ emissions category. phase-in that is similar to the phase-in CARB OBD II malfunction thresholds This Tier 2 bin falls between the CARB of LEV II controls in California. Tier 2 (i.e., 1.75 times the applicable standard) LEV II Program LEV II emissions standards begin for all vehicles in the as a multiplier for the applicable EPA category ( 0.09 g/mi NMOG, NOX 2004 model year but have a phase-in of emission thresholds. Although this standard of 0.07 g/mi and CO standard final Tier 2 vehicle emission standards optional compliance allowed of 2.1 g/mi) and the ULEV II emissions of 25, 50, 75, and 100 percent in the manufacturers to certify a CARB OBD II category (0.055 g/mi NMOG, 0.07 g/mi 2004, 2005 2006 and 2007 model years, system on a federal vehicle, the NOX, 2.1 g/mi CO). Using the NMOG respectively, and a corresponding applicable EPA emission standards phase-out for interim non-Tier 2 vehicle must be applied, in lieu of the California 1 There is one instance where an EPA Tier 2 bin emission standards of 75, 50, 25, and emission standards, when certifying a does not have a corresponding CARB LEV II 0% over those four model years. This Federal vehicle or engine. This was emissions category, (bin 4), and two other instances concerning OBD where the EPA and CARB allows the phase-in of the new possible in the past without further emission standards for individual criteria pollutants California OBD II requirements to be clarification because the relationship of are not identical: The NOx standard for Tier 2 Bin phased-in to the federal fleet in the malfunction thresholds to the 3 and the CO standards for Tier 2 Bin 2.
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criteria pollutant as an example, the table below highlights this dilemma (all numbers in grams per mile):
Tier 2 Full California LEV Useful Life Federal CARB II Full Useful California Federal Tier 2 bin number NMOG OBD NMOG OBD II NMOG Life NMOG LEV II emission threshold threshold emission emissions standards standards category
5 ...... 0.09 0 .1575 0.1575 0.09 LEV II. 4 ...... 0.07 0 .1225 ...... 3 ...... 0.055 0.09625 0 .09625 0.055 ULEVII.
Therefore, we are clarifying in this IV. Other Issues Raised by Industry before pursuing enforcement actions. final rule the method and the During the Comment Period However, EPA will continue to use all available information, including, but not appropriate malfunction threshold A. Production Vehicle Testing values for a vehicle or engine certified limited to, any information collected by to Tier 2 Bin 4 but optionally complying The Alliance and AIAM commented CARB in making our compliance and with CARB OBD II which is to use the that the CARB OBDII regulations require enforcement determinations. manufacturers to conduct production Tier 2 Bin 4 emission standards and the vehicle testing. The Alliance and AIAM C. Referencing the Final Version of CARB ULEV II multiplicative factors for requested that EPA clarify that CARB’s OBD II Regulations in Title 13 all pollutants except NOX, (e.g., 1.75 production vehicle testing would not be California Code of Regulations 1968.2 times the standard for NMOG, CO and required on federal vehicles certified to (13 CCR 1968.2) PM catalyst monitoring, 1.5 times the the CARB OBDII regulations. As an The Alliance and AIAM requested standard for all other monitors except alternative, vehicle manufacturers said that EPA reference the final version of comprehensive components) and the they would provide EPA copies of the CARB’s OBD II regulations contained in SULEV II multiplicative emission final production vehicle evaluation Title 13 California Code of Regulations factors for NOX (e.g. for LDVs, 3.5 times reports that are provided to CARB as 1968.2 (13 CCR 1968.2) under paragraph the NOX emission standard for model part of their certification process. (j) of the Federal OBD regulations years 2005 and 2006 and 2.5 times the EPA agrees with the Alliance and allowing optional compliance with NOX emission standard for model year AIAM comments that federal OBD CARB OBD II requirements. The final 2007 and beyond for catalyst regulations do not explicitly require version of CARB’s OBD II Regulations monitoring; 2.5 times the emission manufacturers to conduct production Title 13 California Code of Regulations vehicle testing. However, manufacturers standard for all other NOX monitors 1968.2 (13 CCR 1968.2) was approved except comprehensive components) to who intend to meet the Federal OBD by the California Office of determine the appropriate OBD requirements by meeting the CARB Administrative Law (OAL) and filed malfunction threshold. OBDII requirements may be required to with the California Secretary of State on submit the same information that is April 23, 2003. In addition, there are two instances submitted to CARB in order for EPA to where the EPA Tier 2 and CARB LEV II The EPA agrees with this make its own determinations of recommendation and will reference emission standards for individual compliance. As a result, although EPA criteria pollutants are not identical: The CARB?s OBD II Regulations Title 13 will not require the manufacturers to California Code of Regulations 1968.2 NO standard for Tier 2 Bin 3, which is X conduct production vehicle testing, the (13 CCR 1968.2) (April 23, 2003) in 0.03 g/mi, compared the 0.07 g/mi EPA may use the reports from the paragraph (j) of the Federal OBD standard for ULEVs, and the CO production vehicle testing program to regulations in this regulatory action. standard for Tier 2 Bin 2, which is 2.1 assess in-use compliance. This is g/mile, compared to 1.0 g/mile for consistent with EPA policy to use all V. Cost Effectiveness SULEVs. available information from the field to The purpose of this rulemaking is to To resolve these issues, vehicles assess in-use compliance, of which the clarify existing provisions of EPA’s OBD certified to Tier 2, Bin 3 emissions manufacturers are aware. regulations. As a result, there are no cost standards shall utilize the Tier 2 Bin 3 B. Enforcement effectiveness issues for this action. NOX emission standards and the CARB The Alliance and AIAM requested VI. Statutory and Executive Order SULEV II multiplicative factors to that EPA clarify that the new Reviews determine the appropriate OBD enforcement provisions finalized in the A. Executive Order 12866: Regulatory malfunction threshold. Vehicles CARB OBDII regulations (section Planning and Review certified to Tier 2, Bin 2 emissions 1968.5) are not being adopted by EPA standards shall utilize the Tier 2 Bin 2 and that EPA will continue to conduct Under Executive Order 12866 (58 FR CO emission standards and the CARB independent evaluations before 51735, October 4, 1993), the Agency is SULEV II multiplicative factors to determining enforcement actions. required to determine whether this determine the appropriate OBD EPA agrees with the Alliance and regulatory action would be ‘‘significant’’ malfunction threshold. For vehicles AIAM that our Direct Final Rule did not and therefore subject to review by the certified to federal bin 7 and higher, adopt the enforcement provisions Office of Management and Budget manufacturers must use the multipliers enacted by CARB. EPA has no current (OMB) and the requirements of the for Cal LEV II vehicles and the federal intent to adopt such provisions. We will Executive Order. The order defines a standards to determine their thresholds. continue to conduct our own ‘‘significant regulatory action’’ as any independent assessments and regulatory action that is likely to result evaluations of manufacturer compliance in a rule that may:
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(1) Have an annual effect on the information; and transmit or otherwise clarifying that those manufacturers that economy of $100 million or more or disclose the information. choose to optionally certify their federal adversely affect in a material way the An agency may not conduct or vehicles to CARB’s OBD II regulations economy, a sector of the economy, sponsor, and a person is not required to may do so based on the same phase-in productivity, competition, jobs, the respond to a collection of information of OBD II as allowed within California. environment, public health or safety, or unless it displays a currently valid OMB However, because in a very few state, local, or tribal governments or control number. The OMB control instances the emission standard levels communities; numbers for EPA’s regulations in 40 of LEV II and Tier 2 do not completely (2) Create a serious inconsistency or CFR are listed in 40 CFR part 9. match, we are also clarifying within the otherwise interfere with an action taken C. Regulatory Flexibility Act regulations what emission malfunction or planned by another agency; thresholds and emission levels apply to (3) Materially alter the budgetary The RFA generally requires an agency federal vehicles certified as meeting the impact of entitlements, grants, user fees, to prepare an initial regulatory OBD II regulations. or loan programs or the rights and flexibility analysis of any proposed rule We are also adding reference to the obligations of recipients thereof; or, subject to notice and comment final CARB ‘‘Mail-out’’ number for (4) Raise novel legal or policy issues rulemaking requirements under the CARB’s OBD II regulation as finalized. arising out of legal mandates, the Administrative Procedure Act or any In addition, we have added clarification President’s priorities, or the principles other statute unless the agency certifies of whether EPA was adopting some of set forth in the Executive Order. that the rule will not have a significant CARB’s ancillary OBD II regulations Pursuant to the terms of Executive economic impact on a substantial such as the testing requirements on Order 12866, we have determined that number of small entities. Small entities production vehicles and CARB’s unique this rule is not a ‘‘significant regulatory include small businesses, small in-use testing and enforcement action.’’ organizations, and small governmental requirements. By today’s action we are jurisdictions. B. Paperwork Reduction Act clarifying that EPA did not adopt such For purposes of assessing the impacts requirements by the direct final rule and Today’s action does not impose any of today’s final rule on small entities, is not otherwise doing so. new information collection burden. The small entity is defined as: (1) Those modifications noted above do not businesses meeting the definition D. Unfunded Mandates Reform Act change the information collection provided by the Small Business Title II of the Unfunded Mandates requirements submitted to and Administration (2) a small governmental Reform Act of 1995 (UMRA), Public approved by OMB in association with jurisdiction that is a government of a Law 104–4, establishes requirements for the OBD final rulemakings (58 FR 9468, city, county, town, school district or Federal agencies to assess the effects of February 19, 1993; and 59 FR 38372, special district with a population of less their regulatory actions on state, local, July 28, 1994 under the provisions of than 50,000; and (3) a small and tribal governments, and the private the Paperwork Reduction Act, 44 U.S.C. organization that is any not-for-profit sector. Under section 202 of the UMRA, 3501 et seq. However, the Office of enterprise which is independently we generally must prepare a written Management and Budget (OMB) has owned and operated and is not statement, including a cost-benefit previously approved the information dominant in its field. analysis, for proposed and final rules collection requirements contained in the After considering the economic with ‘‘Federal mandates’’ that may existing regulations (64 FR 23906) under impacts of today’s rule on small entities, result in expenditures to state, local, the provisions of the Paperwork I certify that this action will not have a and tribal governments, in the aggregate, Reduction Act, 44 U.S.C. 3501 et seq. significant economic impact on a or to the private sector, of $100 million and has assigned OMB control number substantial number of small entities. or more for any single year. Before 2060–0104, EPA ICR number 0783.47. A Today’s action provides clarification promulgating a rule for which a written copy of the OMB approved Information and correct reference information and statement is needed, section 205 of the Collection Requests (ICR) may be does not add new regulatory burden on UMRA generally requires us to identify obtained from Susan Auby, Collection small entities. Periodically EPA must and consider a reasonable number of Strategies Division; U.S. Environmental update its regulations to incorporate by regulatory alternatives and adopt the Protection Agency (2822T); 1200 reference any new applicable least costly, most cost-effective, or least Pennsylvania Ave., NW., Washington, communication protocols (including burdensome alternative that achieves DC 20460 or by calling (202) 566–1672. those set forth by the SAE and the ISO) the objectives of the rule. The Burden means the total time, effort, or to be used by the OBD system. EPA had provisions of section 205 do not apply financial resources expended by persons unnecessarily deleted the allowance of when they are inconsistent with to generate, maintain, retain, or disclose a certain SAE protocol for 2007 and applicable law. Moreover, section 205 or provide information to or for a later model year heavy-duty vehicles in allows us to adopt an alternative that is Federal agency. This includes the time a previous rulemaking and by today’s not the least costly, most cost-effective, needed to review instructions; develop, final rule that protocol is placed back or least burdensome alternative if we acquire, install, and utilize technology into the regulation. provide an explanation in the final rule and systems for the purposes of Second, the phase-in of the new OBD of why such an alternative was adopted. collecting, validating, and verifying II regulations in California is tied to a Before we establish any regulatory information, processing and phase in of their new emission requirement that may significantly or maintaining information, and disclosing standards called LEV II (the second uniquely affect small governments, and providing information; adjust the round of low-emission vehicle including tribal governments, we must existing ways to comply with any standards) that commence in the 2004 develop a small government plan previously applicable instructions and model year. EPA’s Tier 2 emission pursuant to section 203 of the UMRA. requirements; train personnel to be able standards (that also commences in 2004) Such a plan must provide for notifying to respond to a collection of are phased in with a similar schedule as potentially affected small governments, information; search data sources; LEV II and therefore, based on and enabling officials of affected small complete and review the collection of manufacturers’ request, we are governments to have meaningful and
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timely input in the development of our affected state and local officials notice G. Executive Order 13045: Protection of regulatory proposals with significant and an opportunity for appropriate Children From Environmental Health & federal intergovernmental mandates. participation in the development of the Safety Risks The plan must also provide for regulation. If the preemption is not Executive Order 13045, ‘‘Protection of informing, educating, and advising based on express or implied statutory Children From Environmental Health small governments on compliance with authority, we also must consult, to the Risks and Safety Risks’’ (62 FR 19885, the regulatory requirements. extent practicable, with appropriate April 23, 1997) applies to any rule that This rule contains no federal state and local officials regarding the 1) is determined to be ‘‘economically mandates for state, local, or tribal conflict between state law and federally significant’’ as defined under Executive governments as defined by the protected interests within the agency’s provisions of Title II of the UMRA. The Order 12866, and 2) concerns an area of regulatory responsibility. environmental health or safety risk that rule imposes no enforceable duties on This rule does not have federalism any of these governmental entities. Nor we have reason to believe may have a implications. It will not have substantial disproportionate effect on children. If does this rule have any Federal direct effects on the states, on the mandates that may result in the the regulatory action meets both criteria, relationship between the national section 5–501 of the Executive Order expenditures of $100 million or more in government and the states, or on the any year by the private sector as also directs us to evaluate the environmental distribution of power and health or safety effects of the planned defined by the provisions of Title II of responsibilities among the various the UMRA. Nothing in the rule will rule on children, and explain why the levels of government, as specified in planned regulation is preferable to other significantly or uniquely affect small Executive Order 13132. This rule governments. potentially effective and reasonably updates provisions of an earlier rule that feasible alternatives considered by us. E. Executive Order 13132: Federalism adopted national standards relating to EPA interprets E.O. 13045 as applying Executive Order 13132, entitled OBD systems and the ability of only to those regulatory actions that are ‘‘Federalism’’ (64 FR 43255, August 10, manufacturers to demonstrate Federal based on health or safety risks, such that 1999), requires us to develop an compliance based on demonstration of the analysis required under section 5– accountable process to ensure compliance with California OBD II 501 of the Order has the potential to ‘‘meaningful and timely input by state regulations. The requirements of the influence the regulation. This final rule and local officials in the development of rule will be enforced by the Federal is not subject to E.O. 13045 because it regulatory policies that have federalism government at the national level. Thus, is based on technology performance and implications.’’ ‘‘Policies that have the requirements of section 6 of the not on health or safety risks. Executive Order do not apply to this federalism implications’’ is defined in H. Executive Order 13211: Actions That the Executive Order to include rule. Significantly Affect Energy Supply, regulations that have ‘‘substantial direct F. Executive Order 13175: Consultation Distribution, or Use effects on the states, on the relationship and Coordination With Indian Tribal between the national government and Governments This rule is not subject to Executive the states, or on the distribution of Order 13211, ‘‘Actions Concerning power and responsibilities among the Executive Order 13175, entitled Regulations That Significantly Affect various levels of government’’. ‘‘Consultation and Coordination with Energy Supply, Distribution, or Use’’ (66 Under section 6 of Executive Order Indian Tribal Governments’’ (65 FR FR 28355 (May 22, 2001)) because it is 13132, we may not issue a regulation 67249, November 6, 2000), requires EPA not a significant regulatory action under that has federalism implications, that to develop an accountable process to Executive Order 12866. imposes substantial direct compliance ensure ‘‘meaningful and timely input by I. National Technology Transfer and costs, and that is not required by statute, tribal officials in the development of Advancement Act unless the Federal government provides regulatory policies that have tribal the funds necessary to pay the direct implications.’’ This rule does not have Section 12(d) of the National compliance costs incurred by state and tribal implications, as specified in Technology Transfer and Advancement local governments, or we consult with Executive Order 13175. Today’s rule Act of 1995 (NTTAA), section 12(d) of state and local officials early in the would not uniquely affect the Public Law 104–113, directs us to use process of developing the proposed communities of American Indian tribal voluntary consensus standards in our regulation. We also may not issue a governments since the motor vehicle regulatory activities unless it would be regulation that has federalism fuel and other related requirements for inconsistent with applicable law or implications and that preempts state private businesses in today’s rule have otherwise impractical. Voluntary law, unless the Agency consults with national applicability. Furthermore, consensus standards are technical state and local officials early in the today’s rule does not impose any direct standards (e.g., materials specifications, process of developing the proposed compliance costs on these communities test methods, sampling procedures, and regulation. and no circumstances specific to such business practices) developed or Section 4 of the Executive Order communities exist that will cause an adopted by voluntary consensus contains additional requirements for impact on these communities beyond standards bodies. The NTTAA directs rules that preempt state or local law, those discussed in the other sections of us to provide Congress, through OMB, even if those rules do not have today’s document. explanations when we decide not to use federalism implications (i.e., the rules This rule does not significantly or available and applicable voluntary will not have substantial direct effects uniquely affect the communities of consensus standards. on the states, on the relationship Indian tribal governments. As noted This final rule references technical between the national government and above, this rule will be implemented at standards adopted by us through the states, or on the distribution of the Federal level and imposes previous rulemakings. Specifically, this power and responsibilities among the compliance obligations and options on rule references technical standards various levels of government). Those private industry. Thus, Executive Order developed by the Society of Automotive requirements include providing all 13175 does not apply to this rule. Engineers (SAE) and the International
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Standards Organization (ISO) related to 2000 requirements for Emission-related and crankshaft, applies only to vehicles the design and function of On-Board systems’’, (June 1, 2000) in paragraph equipped with variable valve timing. Diagnostic (OBD) systems on motor (h)(2)(ii) of this section will at that time * * * * * vehicles and engines below 14,000 no longer be accepted. (l) Thresholds for California OBD II pounds gross vehice weight rating, for * * * * * Compliance Option. For the purposes of which today’s action applies. No new (j) California OBDII compliance complying with the provisions set forth technical standards are established in option. For heavy-duty engines above in paragraph (j), vehicles certified today’s rule. weighing 14,000 pounds GVWR or less, to Tier 2 standards shall utilize Statutory and Legal Authority demonstration of compliance with multiplicative factors from the California OBD II requirements (Title 13 California vehicle type (i.e. LEV II, Statutory authority for today’s final California Code of Regulations § 1968.2 ULEV II) corresponding to the Tier 2 to rule comes from the Clean Air Act, 42 (13 CCR 1968.2)), as modified, approved which the vehicles are certified. U.S.C. 7401 et seq., in particular, section and filed on April 21, 2003, shall satisfy Vehicles certified to Tier 2, Bin 4 202(m) of the Act (42 U.S.C. 7521(m)). the requirements of this section, except emissions standards shall utilize the List of Subjects in 40 CFR Part 86 that compliance with 13 CCR Tier 2 Bin 4 emission standards and the 1968.2(e)(4.2.2)(C), pertaining to 0.02 CARB ULEV II multiplicative factors to Environmental Protection, inch evaporative leak detection, and 13 determine the appropriate OBD Incorporation by reference, CCR 1968.2(d)(1.4), pertaining to malfunction threshold for all pollutants Administrative practice and procedure, tampering protection, are not required except NO Motor vehicle pollution, On-board X, for which they shall utilize to satisfy the requirements of this diagnostics. that CARB SULEV II multiplicative section. Also, the deficiency provisions factors. Vehicles certified to Tier 2, Bin Dated: November 29, 2005. of 13 CCR 1968.2(i) do not apply. The 3 emissions standards shall utilize the Stephen L. Johnson, deficiency provisions of paragraph (i) of Tier 2 Bin 3 emission standards and the Administrator. this section and the evaporative leak CARB ULEV II multiplicative factors to I For the reasons set out in the detection requirement of paragraph determine the appropriate OBD preamble, part 86 of title 40 of the Code (b)(4) of this section apply to malfunction threshold for all pollutants of Federal Regulations is amended as manufacturers selecting this paragraph except NOX, for which they shall utilize follows: for demonstrating compliance. In that CARB SULEV II multiplicative addition, demonstration of compliance factors. Vehicles certified to Tier 2, Bin PART 86—CONTROL OF EMISSIONS with 13 CCR 1968.2(e)(16.2.1)(C), to the 2 emissions standards shall utilize the FROM NEW AND IN-USE HIGHWAY extent it applies to the verification of Tier 2 Bin 2 emission standards and the VEHICLES AND ENGINES proper alignment between the camshaft CARB SULEV II multiplicative factors to and crankshaft, applies only to vehicles I 1. The authority citation for part 86 determine the appropriate OBD equipped with variable valve timing. continues to read as follows: malfunction threshold. Vehicles * * * * * certified to Tier 2 Bin 7 or higher shall Authority: 42 U.S.C. 7401–7671q. I 3. Section 86.1806–04 is amended by utilize the CARB LEV II multiplicative I 2. Section 86.005–17 is amended by revising paragraph (j) and adding factors to determine the appropriate adding paragraph (h)(3) and revising paragraph (l) to read as follows: OBD malfunction threshold. paragraph (j) to read as follows: * * * * * § 86.1806–04 On-board diagnostics. * * * * * I 4. Section 86.1806–05 is amended by * * * * * adding paragraphs (h)(3) and (m) and § 86.005–17 On-board diagnostics. (j) California OBDII compliance revising paragraph (j) to read as follows: * * * * * option. For heavy-duty engines (h) * * * weighing 14,000 pounds GVWR or less, § 86.1806–05 On-board diagnostics. (3) Beginning with the 2008 model demonstration of compliance with * * * * * year and beyond, ISO 15765–4.3:2001 California OBD II requirements (Title 13 (h) * * * ‘‘Road Vehicles-Diagnostics on California Code of Regulations § 1968.2 (3) Beginning with the 2008 model Controller Area Network (CAN)—Part 4: (13 CCR 1968.2)), as modified, approved year and beyond, ISO 15765–4.3: 2001 Requirements for emission-related and filed on April 21, 2003, shall satisfy ‘‘Road Vehicles-Diagnostics on systems’’, (December 14, 2001) shall be the requirements of this section, except Controller Area Network (CAN)—Part 4: the only acceptable protocol used for that compliance with 13 CCR Requirements for emission-related standardized on-board to off-board 1968.2(e)(4.2.2)(C), pertaining to 0.02 systems’’, (December 14, 2001) shall be communications for vehicles below inch evaporative leak detection, and 13 the only acceptable protocol used for 8500 pounds. For vehicles 8500 to CCR 1968.2(d)(1.4), pertaining to standardized on-board to off-board 14000 pounds ISO 15765–4.3 or the tampering protection, are not required communications for vehicles below SAE J1939 series of standards (SAE to satisfy the requirements of this 8500 pounds. For vehicles 8500 to J1939–11, J1939–13, J1939–21, J1939– section. Also, the deficiency provisions 14000 pounds ISO 15765–4.3 or the 31, J1939–71, J1939–73, J1939–81). All of 13 CCR 1968.2(i) do not apply. The SAE J1939 series of standards (SAE other standardized on-board to off-board deficiency provisions of paragraph (i) of J1939–11, J1939–13, J1939–21, J1939– communications protocols: SAE J1850 this section and the evaporative leak 31, J1939–71, J1939–73, J1939–81). All ‘‘Class B Data Communication Network detection requirement of paragraph other standardized on-board to off-board Interface,’’ (Revised, May 2001) in (b)(4) of this section apply to communications protocols: SAE J1850 (h)(1)(i), ISO 9141–2 ‘‘Road vehicles— manufacturers selecting this paragraph ‘‘Class B Data Communication Network Diagnostic systems—Part 2: CARB for demonstrating compliance. In Interface,’’ (Revised, May 2001) in requirements for interchange of digital addition, demonstration of compliance paragraph (h)(1)(i), ISO 9141–2 ‘‘Road information,’’ (February 1, 1994) in with 13 CCR 1968.2(e)(16.2.1)(C), to the vehicles—Diagnostic systems—Part 2: (h)(2)(i), and ISO 14230–4 ‘‘Road extent it applies to the verification of CARB requirements for interchange of vehicles—Diagnostic systems—KWP proper alignment between the camshaft digital information,’’ (February 1, 1994)
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in (h)(2)(i), and ISO 14230–4 ‘‘Road certified to Tier 2 Bin 7 or higher shall Acquisition Regulation Supplement to vehicles—Diagnostic systems—KWP utilize the CARB LEV II multiplicative add references to DoD guidance on 2000 requirements for Emission-related factors to determine the appropriate contracting officers’ representatives and systems’’, (June 1, 2000) in paragraph OBD malfunction threshold. DoD purchase, travel, and fuel card (h)(2)(ii) of this section will at that time [FR Doc. 05–23669 Filed 12–19–05; 8:45 am] programs. no longer be accepted BILLING CODE 6560–50–P DATES: * * * * * Effective Date: December 20, (j) California OBDII compliance 2005. option. For heavy-duty engines DEPARTMENT OF DEFENSE FOR FURTHER INFORMATION CONTACT: Ms. weighing 14,000 pounds GVWR or less, Robin Schulze, Defense Acquisition demonstration of compliance with 48 CFR Chapter 2 Regulations System, California OBD II requirements (Title 13 OUSD(AT&L)DPAP(DAR), IMD 3C132, California Code of Regulations 1968.2 Defense Federal Acquisition 3062 Defense Pentagon, Washington, DC (13 CCR 1968.2)), as modified, approved Regulation Supplement; Technical 20301–3062. Telephone (703) 602–0326; and filed on April 21, 2003, shall satisfy Amendment facsimile (703) 602–0350. the requirements of this section, except that compliance with 13 CCR AGENCY: Department of Defense (DoD). List of Subjects in 48 CFR Parts 201 and 1968.2(e)(4.2.2)(C), pertaining to 0.02 ACTION: Final rule. 213 inch evaporative leak detection, and 13 SUMMARY: DoD is revising the name of CCR 1968.2(d)(1.4), pertaining to Government procurement. 48 CFR Chapter 2 from ‘‘Department of tampering protection, are not required Defense’’ to ‘‘Defense Acquisition Michele P. Peterson, to satisfy the requirements of this Regulations System, Department of Editor, Defense Acquisition Regulations section. Also, the deficiency provisions Defense.’’ This change will facilitate the System. of 13 CCR 1968.2(i) do not apply. The Government’s implementation of the deficiency provisions of paragraph (i) of I Federal Document Management System, Therefore, 48 CFR parts 201 and 213 this section and the evaporative leak as it will permit the DoD regulations are amended as follows: detection requirement of paragraph issued under 48 CFR Chapter 2 to be I 1. The authority citation for 48 CFR (b)(4) of this section apply to indexed separately from other DoD parts 201 and 213 continues to read as manufacturers selecting this paragraph regulations. follows: for demonstrating compliance. In addition, demonstration of compliance DATES: Effective Date: December 30, Authority: 41 U.S.C. 421 and 48 CFR with 13 CCR 1968.2(e)(16.2.1)(C), to the 2005. Chapter 1. extent it applies to the verification of FOR FURTHER INFORMATION CONTACT: Ms. proper alignment between the camshaft PART 201—FEDERAL ACQUISITION Michele Peterson, Defense Acquisition REGULATIONS SYSTEM and crankshaft, applies only to vehicles Regulations System, equipped with variable valve timing. OUSD(AT&L)DPAP(DAR), IMD 3C132, I * * * * * 3062 Defense Pentagon, Washington, DC 2. Section 201.602–2 is amended by (m) Thresholds for California OBD II 20301–3062. Telephone (703) 602–0311; revising the introductory text to read as Compliance Option. For the purposes of facsimile (703) 602–0350. follows: complying with the provisions set forth 201.602–2 Responsibilities. above in paragraph (j), vehicles certified List of Subjects in 48 CFR Chapter 2 to Tier 2 standards shall utilize Government procurement. Contracting officers may designate qualified personnel as their authorized multiplicative factors from the Michele P. Peterson, California vehicle type (i.e. LEV II, representatives to assist in the technical Editor, Defense Acquisition Regulations monitoring or administration of a ULEV II) corresponding to the Tier 2 to System. which the vehicles are certified. contract. Follow the procedures at PGI I Vehicles certified to Tier 2, Bin 4 Therefore, under the authority of 41 201.602–2. A contracting officer’s emissions standards shall utilize the U.S.C. 421 and 48 CFR Chapter 1, 48 representative (COR)— CFR Chapter 2 is amended by revising Tier 2 Bin 4 emission standards and the * * * * * CARB ULEV II multiplicative factors to the name of the chapter to read determine the appropriate OBD ‘‘Defense Acquisition Regulations PART 213—SIMPLIFIED ACQUISITION malfunction threshold for all pollutants System, Department of Defense’. PROCEDURES except NOX, for which they shall utilize [FR Doc. 05–24220 Filed 12–19–05; 8:45 am] that CARB SULEV II multiplicative BILLING CODE 5001–08–P I 3. Section 213.301 is amended by factors. Vehicles certified to Tier 2, Bin adding paragraph (4) to read as follows: 3 emissions standards shall utilize the Tier 2 Bin 3 emission standards and the DEPARTMENT OF DEFENSE 213.301 Governmentwide commercial CARB ULEV II multiplicative factors to purchase card. determine the appropriate OBD 48 CFR Parts 201 and 213 * * * * * malfunction threshold for all pollutants Defense Federal Acquisition (4) Guidance on DoD purchase, travel, except NOX, for which they shall utilize and fuel card programs is available at that CARB SULEV II multiplicative Regulation Supplement; Technical Amendments http://www.acq.osd.mil/dpap/pcard/ factors. Vehicles certified to Tier 2, Bin pcardguidebook.htm. Additional 2 emissions standards shall utilize the AGENCY: Department of Defense (DoD). guidance on the fuel card program is Tier 2 Bin 2 emission standards and the ACTION: Final rule. available at http://www.desc.dla.mil. CARB SULEV II multiplicative factors to determine the appropriate OBD SUMMARY: DoD is making technical [FR Doc. 05–24221 Filed 12–19–05; 8:45 am] malfunction threshold. Vehicles amendments to the Defense Federal BILLING CODE 5001–08–P
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DEPARTMENT OF DEFENSE accounts in approvals of financing B. Regulatory Flexibility Act requests. These issues are adequately DoD certifies that this final rule will 48 CFR Part 232 addressed in the FAR. • not have a significant economic impact [DFARS Case 2003–D043] Deletion of text at 232.206(d) on on a substantial number of small entities instructions for distribution of financing within the meaning of the Regulatory Defense Federal Acquisition payments to multiple appropriations Flexibility Act, 5 U.S.C. 601, et seq., Regulation Supplement; Contract accounts. Guidance on this subject is because the rule updates, streamlines, Financing now included in section 204.7108 of the and clarifies DFARS text, but makes no new DFARS companion resource, AGENCY: Department of Defense (DoD). significant change to DoD contract Procedures, Guidance, and Information financing policy. ACTION: Final rule. (PGI), available at http:// www.acq.osd.mil/dpap/dars/pgi. C. Paperwork Reduction Act SUMMARY: DoD has issued a final rule • Amendment of 232.404(a)(9) to amending the Defense Federal The Paperwork Reduction Act does increase, from $500 to $2,500, the dollar not apply, because the rule does not Acquisition Regulation Supplement value at or below which the (DFARS) to update text pertaining to impose any information collection requirements of FAR Subpart 32.4, requirements that require the approval contract financing. This rule is a result Advance Payments for Non-Commercial of a transformation initiative undertaken of the Office of Management and Budget Items, do not apply to high school and under 44 U.S.C. 3501, et seq. by DoD to dramatically change the college publications for military purpose and content of the DFARS. recruitment efforts. List of Subjects in 48 CFR Part 232 EFFECTIVE DATE • : December 20, 2005. Clarification of text at 232.501–3(b) Government procurement. FOR FURTHER INFORMATION CONTACT: Mr. on limitation of the Government’s Bill Sain, Defense Acquisition liability when the contract price exceeds Michele P. Peterson, Regulations System, the funds obligated under the contract. Editor, Defense Acquisition Regulations OUSD(AT&L)DPAP(DAR), IMD 3C132, • Deletion of unnecessary text at System. 3062 Defense Pentagon, Washington, DC 232.605(b) regarding integrated I Therefore, 48 CFR part 232 is 20301–3062. Telephone (703) 602–0293; accounting at DoD installations. amended as follows: facsimile (703) 602–0350. Please cite • Relocation of text on payment due I 1. The authority citation for 48 CFR DFARS Case 2003–D043. dates, from 232.905(1) and (2), to part 232 continues to read as follows: SUPPLEMENTARY INFORMATION: 232.904 and 232.906, respectively. • Authority: 41 U.S.C. 421 and 48 CFR Deletion of unnecessary text at Chapter 1. A. Background 232.905(f)(6) on electronic notification DFARS Transformation is a major to the payment office of Government PART 232—CONTRACT FINANCING DoD initiative to dramatically change acceptance and approval. Electronic the purpose and content of the DFARS. submission and processing of payment I 2. Section 232.007 is added to read as The objective is to improve the requests is addressed in Subpart 232.70. follows: • efficiency and effectiveness of the Addition of text at 232.906(a)(i) to 232.007 Contract financing payments. acquisition process, while allowing the address the requirement for contracting acquisition workforce the flexibility to officers to insert the standard due date (a) DoD policy is to make contract innovate. The transformed DFARS will for interim payments on cost- financing payments as quickly as contain only requirements of law, DoD- reimbursement contracts for services. possible. Generally, the contracting wide policies, delegations of FAR • Deletion of unnecessary text at officer shall insert the standard due authorities, deviations from FAR 232.1007 on specifying amounts to be dates of 7 days for progress payments, requirements, and policies/procedures charged to foreign military sales and 14 days for performance-based that have a significant effect beyond the accounts. payments and interim payments on internal operating procedures of DoD or • Deletion of text at 232.1108 on cost-type contracts, in the appropriate a significant cost or administrative mandatory use of the Governmentwide paragraphs of the respective payment impact on contractors or offerors. commercial purchase card. This issue is clauses. For interim payments on cost- Additional information on the DFARS addressed in 213.270. reimbursement contracts for services, Transformation initiative is available at • Deletion of informational and see 232.906(a)(i). http://www.acq.osd.mil/dpap/dars/ procedural text at 232.070(c), 232.409– (b) The contracting officer should dfars/transformation/index.htm. 1, 232.410, 232.501–2, 232.606, 232.610, coordinate contract financing payment This final rule is a result of the 232.670, and 232.671. This text has been terms with offices that will be involved DFARS Transformation initiative. The relocated to the new DFARS companion in the payment process to ensure that DFARS changes include— resource, Procedures, Guidance, and specified terms can be met. Where • Relocation of text addressing Information (PGI), available at http:// justified, the contracting officer may general contract financing payment www.acq.osd.mil/dpap/dars/pgi. insert a due date greater than, but not issues from 232.906 to 232.007. DoD published a proposed rule at 70 less than, the standard. In determining • Deletion of unnecessary text at FR 23827 on May 5, 2005. No comments payment terms, consider— 232.071 on the composition and were received in response to the (i) Geographical separation; responsibilities of the DoD Contract proposed rule. DoD has adopted the (ii) Workload; Finance Committee, and deletion of proposed rule as a final rule, with minor (iii) Contractor ability to submit a references to the Committee at editorial changes at 232.007(a) and proper request; and 232.070(a) and 232.617(a). 232.906(a)(ii). (iv) Other factors that could affect • Deletion of text at 232.108 on This rule was not subject to Office of timing of payment. financial consultation, and deletion of Management and Budget review under I 3. Section 232.070 is amended by text at 232.207 on specifying amounts to Executive Order 12866, dated revising paragraphs (a) and (c) to read as be charged to foreign military sales September 30, 1993. follows:
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232.070 Responsibilities. I 13. Section 232.501–3 is amended by I 20. Section 232.670 is revised to read (a) The Director of Defense revising paragraph (b) introductory text as follows: to read as follows: Procurement and Acquisition Policy, 232.670 Transfer of responsibility for debt Office of the Under Secretary of Defense 232.501–3 Contract price. collection. (Acquisition, Technology, and Logistics) Follow the procedures at PGI 232.670 (OUSD(AT&L)DPAP) is responsible for (b) The contracting officer may approve progress payments when the for transferring responsibility for debt ensuring uniform administration of DoD collection. contract financing, including DoD contract price exceeds the funds I 21. Section 232.671 is revised to read contract financing policies and obligated under the contract, provided as follows: important related procedures. Agency the contract limits the Government’s discretion under FAR part 32 is at the liability to the lesser of— 232.671 Bankruptcy reporting. DoD level and is not delegated to the * * * * * Follow the procedures at PGI 232.671 departments and agencies. Proposals by 232.503–15 [Amended] for bankruptcy reporting. the departments and agencies, to I 22. Section 232.903 is revised to read I exercise agency discretion, shall be 14. Section 232.503–15 is amended in as follows: submitted to OUSD(AT&L)DPAP. paragraph (d) introductory text, in the * * * * * first sentence, by removing ‘‘252.242– 232.903 Responsibilities. (c) See PGI 232.070(c) for information 7004(f)(7)’’ and adding in its place DoD policy is to assist small on department/agency contract ‘‘252.242–7004(e)(7)’’. disadvantaged business concerns by paying them as quickly as possible after financing offices. 232.605 [Amended] invoices are received and before normal 232.071 [Removed and Reserved] I 15. Section 232.605 is amended in payment due dates established in the paragraph (b) by removing the second I 4. Section 232.071 is removed and contract (see 232.906(a)). sentence. I reserved. 23. Section 232.904 is added to read I 16. Section 232.606 is revised to read as follows: 232.108 [Removed] as follows: 232.904 Determining payment due dates. I 5. Section 232.108 is removed. 232.606 Debt determination and collection. (d) In most cases, Government 232.206 [Amended] When transferring a case to the acceptance or approval can occur within the 7-day constructive acceptance I contract financing office, follow the 6. Section 232.206 is amended by procedures at PGI 232.606. period specified in the FAR Prompt removing paragraph (d). I 17. Section 232.610 is revised to read Payment clauses. Government payment of construction progress payments can, 232.207 [Removed] as follows: in most cases, be made within the 14- I 7. Section 232.207 is removed. 232.610 Demand for payment of contract day period allowed by the Prompt I 8. The heading of Subpart 232.4 is debt. Payment for Construction Contracts revised to read as follows: When issuing a demand for payment clause. While the contracting officer of a contract debt, follow the procedures may specify a longer period because the Subpart 232.4—Advance Payments for at PGI 232.610. period specified in the contract is not Non-Commercial Items reasonable or practical, such change 232.616 [Amended] should be coordinated with the 232.404 [Amended] I 18. Section 232.616 is amended by Government offices responsible for I 9. Section 232.404 is amended in removing ‘‘(232.108(1))’’ and adding in acceptance or approval and for paragraph (a)(9) by removing ‘‘$500’’ its place ‘‘(see 232.070(c))’’. payment. Reasons for specifying a longer period include but are not and adding in its place ‘‘$2,500’’. I 19. Section 232.617 is revised to read limited to: the nature of the work or I 10. Section 232.409–1 is revised to as follows: read as follows: supplies or services, inspection or 232.617 Contract clause. testing requirements, shipping and 232.409–1 Recommendation for approval. (a) The Director of Defense acceptance terms, and resources Follow the procedures at PGI Procurement and Acquisition Policy, available at the acceptance activity. A 232.409–1 for preparation of the Office of the Under Secretary of Defense constructive acceptance period of less documents required by FAR 32.409–1(e) (Acquisition, Technology, and than the cited 7 or 14 days is not and (f). Logistics), may exempt the contracts in authorized. I 11. Section 232.410 is revised to read FAR 32.617(a)(2) through (5) and other 232.905 [Removed] contracts, in exceptional circumstances, as follows: I 24. Section 232.905 is removed. from the administrative interest charges I 25. Section 232.906 is revised to read 232.410 Findings, determination, and required by this subpart. as follows: authorization. (7) Other exceptions are— If an advance payment procedure is (A) Contracts for instructions of 232.906 Making payments. used without a special bank account, military or ROTC personnel at civilian (a)(i) Generally, the contracting officer follow the procedures at PGI 232.410. schools, colleges, and universities; shall insert the standard due date of 14 I 12. Section 232.501–2 is revised to (B) Basic agreements with telephone days for interim payments on cost- read as follows: companies for communications services reimbursement contracts for services in and facilities, and purchases under such the clause at FAR 52.232–25, Prompt 232.501–2 Unusual progress payments. agreements; and Payment, when using the clause with its Follow the procedures at PGI (C) Transportation contracts with Alternate I. 232.501–2 for approval of unusual common carriers for common carrier (ii) The restrictions of FAR 32.906 progress payments. services. prohibiting early payment do not apply
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to invoice payments made to small accidents/incidents from $6,700 to data by having the threshold keep pace disadvantaged business concerns. $7,700, and applies to accidents and with equipment and labor costs so that However, contractors shall not be incidents involving railroad property each year the equivalent group of entitled to interest penalties if the damage that occur on or after January 1, accidents is included in the reportable Government fails to make early 2006. accident counts. payment. DATES: Effective Date: This final rule is Approximately three years have 232.1007 and 232.1108 [Removed] effective January 1, 2006. passed since the rail equipment FOR FURTHER INFORMATION CONTACT: 26. Sections 232.1007 and 232.1108 accident/incident reporting threshold Arnel Rivera, Staff Director, Systems are removed. was last reviewed and revised. 67 FR Support Division, RRS–22, Mail Stop 79533 (Dec. 30, 2002). At that time, FRA [FR Doc. 05–24218 Filed 12–19–05; 8:45 am] 17, FRA, 1120 Vermont Ave., NW., published an interim final rule carrying BILLING CODE 5001–08–P Washington, DC 20590 (telephone 202– over the $6,700 threshold from calendar 493–1331) or Roberta Stewart, Trial year 2002 to 2003 and subsequent years Attorney, Office of Chief Counsel, RCC– until adoption of a new threshold. 49 DEPARTMENT OF TRANSPORTATION 12, Mail Stop 10, FRA, 1120 Vermont CFR 225.19(c). FRA last revised the Ave., NW., Washington, DC 20590 monetary threshold formula in 1996. 61 Federal Railroad Administration (telephone 202–493–6027). FR 30940 (June 18, 1996); 61 FR 60632 SUPPLEMENTARY INFORMATION: (November 29, 1996). The calendar year 49 CFR Part 225 2002 threshold has been retained Background [FRA–2005–20680, Notice No. 2] because the BLS ceased publishing FRA published a Notice of Proposed certain data required to compute the RIN 2130–AB65 Rulemaking (NPRM) on April 19, 2005 wage component of the calculation, i.e., (70 FR 20333), proposing to amend the Revision of Method for Calculating the average hourly earnings of formula for calculating the rail Monetary Threshold for Reporting Rail production workers for Class I railroads equipment accident/incident monetary Equipment Accidents/Incidents; and the National Railroad Passenger reporting threshold, and requested Announcement of Reporting Threshold Corporation (Amtrak), due to inadequate comments. The NPRM proposed to for Calendar Year 2006 sampling data. Specifically, the Class I substitute railroad employee wage data railroads and Amtrak did not provide AGENCY: Federal Railroad collected by the STB for obsolete BLS the monthly hours and earnings data for Administration (FRA), Department of data that is no longer collected. This production workers that BLS needed to Transportation (DOT). final rule adopts the proposed formula, publish these numbers for calendar year ACTION: Final rule. and establishes a new monetary 2002. BLS did not foresee a better threshold for calendar year 2006. response rate in future years and, as a SUMMARY: FRA is amending a portion of A ‘‘rail equipment accident/incident’’ result, changed its methodology and the the accident reporting regulations. is a collision, derailment, fire, information that it publishes. Therefore, Specifically, FRA is amending the explosion, act of God, or other event it was not possible for FRA to calculate method for calculating the monetary involving the operation of railroad on- a new threshold for calendar years 2003 threshold for reporting rail equipment track equipment (standing or moving) and beyond based on the existing accidents/incidents. The amendment is that causes reportable damages greater formula. necessary because, in 2001, the Bureau than the reporting threshold for the year of Labor Statistics (BLS) ceased in which the event occurs to railroad Congress has given FRA some collecting and publishing railroad wage on-track equipment, signals, tracks, direction for modifying the procedure data used by FRA in the calculation. track structures, or roadbed, including for calculating the threshold in 49 Consequently, FRA has had to seek a labor costs and the costs for acquiring U.S.C. 20901(b): ‘‘[i]n establishing or new source of publicly-available data. In new equipment and materials. 49 CFR changing a monetary threshold for the the new formula, FRA uses wage data 225.19(c). Each rail equipment accident/ reporting of a railroad accident or collected and maintained by the Surface incident must be reported to FRA using incident, * * * damage cost Transportation Board (STB) in place of the Rail Equipment Accident/Incident calculations’’ shall be based ‘‘only on the unavailable BLS wage data. As Report (Form FRA F 6180.54). 49 CFR publicly available information obtained equipment data remain available from 225.19(b) and (c). As revised, effective from (A) the Bureau of Labor Statistics; the BLS, there is no change to the source in 1997, paragraphs (c) and (e) of 49 or (B) another department, agency or of the equipment component of the CFR 225.19 provide that the dollar instrumentality of the United States reporting threshold. The purpose of the figure that constitutes the reporting Government if the information has been rule is to ensure and maintain threshold for rail equipment accidents/ collected through objective, statistically comparability between different years of incidents will be adjusted, if necessary, sound survey methods or has been accident data by having the threshold every year in accordance with the previously subject to a public notice and keep pace with any increases or procedures outlined in appendix B to comment process in a proceeding of a decreases in equipment and labor costs part 225, to reflect any cost increases or Government department, agency or so that each year accidents involving the decreases. 61 FR 30942, 30969 (June 18, instrumentality.’’ Congress allows an same minimum amount of railroad 1996); 61 FR 60632, 60634 (Nov. 29, exception to this general rule only if the property damage are included in the 1996); 61 FR 67477, 67490 (Dec. 23, necessary data are not available from the reportable accident counts. 1996). sources described, and only after public In addition, FRA is using the newly FRA has periodically adjusted the notice and comment. established formula to calculate a new reporting threshold based on the prices Pursuant to this 1992 direction from accident/incident monetary reporting of a market basket of railroad labor and Congress, FRA issued an NPRM earlier threshold for calendar year 2006. This materials. The purpose of these this year proposing a new method for final rule increases the monetary adjustments has been to maintain the calculation of the monetary reporting threshold for reporting rail equipment comparability between different years of threshold. 70 FR 20333 (April 19, 2005).
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Proposal To further ascertain the suitability of Where: Currently, the accident/incident STB wage data as a substitute for Tnew = New threshold. reporting threshold adjustment is unavailable BLS wage data, FRA Tprior = Prior threshold. With calculated utilizing two components. recalculated the 1997 to 2002 reporting reference to the threshold, ‘‘prior’’ refers The first component is the average thresholds using STB data. This a to the previous threshold rounded to the hourly earnings for Class I railroads and posteriori comparison of STB- and BLS- nearest $100, as reported in the Federal Amtrak workers. BLS was collecting based thresholds showed STB data are Register. these data and reporting them under a reasonable substitute. The analysis Wnew = New average hourly wage rate, LABSTAT Series Report, Standard also showed that weighting the wage in dollars. Wprior = Prior average hourly wage rate, Industrial Code (SIC) 4011 for Class I component by 40% and the equipment component by 60%, rather than the 50/ in dollars. Railroad Average Hourly Earnings, Enew = New equipment average PPI Series ID EEU41401106, Not Seasonally 50 current weights, produced a threshold that better approximated the value. Adjusted. These data are no longer existing threshold. The STB-based Eprior = Prior equipment average PPI available from BLS. value. In order to update the reporting threshold, however, does increase at a faster rate than the BLS-based threshold. With reference to wages and threshold, FRA has searched for a new equipment, ‘‘prior’’ refers to the source of the wage component used in With 40/60 weights on wages and equipment, the new reporting threshold previous wage and equipment averages the reporting threshold formula. FRA used to calculate the prior threshold, found that railroads report wage data to formula changes to: Tnew = Tprior * [1 + Tprior. ‘‘Prior’’ does not necessarily the STB, and proposed to use these data ¥ refer to the wage and equipment as an alternative to the obsolete BLS 0.4(Wnew Wprior)/Wprior + 0.6(Enew¥Eprior)/100] averages for the immediately preceding data. The Class I railroads and Amtrak year (although it may if the threshold is report hours of service and where the broad definitions of the variables remain the same as before but calculated annually). In calculating the compensation data quarterly to the STB, threshold, the goal is to capture the on Form A—STB Wage Statistics. Form the underlying definitions of ‘‘Wnew’’ and ‘‘Wprior’’ are revised to reflect the change between the old wage and A organizes hours of service and use of STB wage data. equipment prices and the new prices for compensation by five reporting groups: In applying this new formula to these inputs. Executives, Officials, and Staff periodically update the reporting Assistants (Group No. 100); Professional New Reporting Threshold for Calendar threshold, FRA proposed using the Year 2006 and Administrative (Group No. 200); latest data that would be available when Maintenance of Way and Structures the threshold is updated, instead of an The equation used to calculate the (Group No. 300); Maintenance of average based on yearly data. As the reporting threshold measures the Equipment and Stores (Group No. 400); threshold is typically calculated in the changes in railroad wages and and Transportation, other than train and second half of the calendar year, and equipment costs over a period of time, engine (Group No. 500). By dividing the STB wage data are due 30 days after the and updates the previous reporting compensation by the corresponding close of a quarter, the latest STB data threshold by these amounts. The values hours of service, the wage rate for any available will be second-quarter data. for Wprior and Eprior are those that reporting group can be found. In the The calculation for the 2006 threshold were used to calculate the 2002–2005 NPRM, FRA proposed to use the average will use the second-quarter 2005 wage monetary reporting threshold. wage rate of reporting Groups No. 300 data from the STB. For equipment costs, The value for Wnew is derived from and 400 as a substitute for BLS wage FRA is continuing to use the STB wage data collected on Form A— data. corresponding BLS railroad equipment STB Wage Statistics. Railroads report FRA believes that the STB wage data index in the equation. As the equipment earnings to the STB quarterly on this are a suitable substitute for several index is reported monthly rather than form. FRA uses second-quarter data reasons. Most significantly, the data quarterly, the average for the months of reported for the Maintenance of Way directly measure the wages for the two April, May, and June will be inputted and Structures Group (Group No. 300), groups of employees whose skills are into the threshold calculation. The and the Maintenance of Equipment and most used in repairing or replacing newly calculated threshold reflects the Stores Group (Group No. 400). A wage damaged railroad equipment. In changes in wages and equipment from rate is calculated by dividing the contrast, BLS wage data were a broader the last time the threshold was updated compensation paid to employees in measure of all Class I railroad and to the present. these groups by their corresponding Amtrak employee wages. Alternative As proposed in the NPRM, the service hours, using the ‘‘Time Worked BLS wage data currently available also procedure for adjusting the threshold is and Paid for at Straight Times Rates’’ provide only broad measures. STB data shown in the formula below. category. The wage rates for these two are, additionally, consistent with Additionally, the NPRM proposed that groups are averaged to produce a Congressional requirements set forth in the weights in the threshold formula be composite wage, which is then weighted 49 U.S.C. 20901(b). The STB data are adjusted from 50% on wages and 50% by 40% in the threshold calculation. publicly available, although currently on equipment, to 40% on wages and The value for Enew is derived from only in paper hardcopy, and the 60% on equipment. It was found that BLS equipment index numbers that are information is statistically sound. STB the 40/60 weights produced a better used to measure changes in equipment data are derived from a process that is approximation of the original accident costs. The equipment index is reported virtually a census of Class I railroads threshold when the threshold was under LABSTAT Series Report, and Amtrak (though the occasional calculated using STB wage data. Producer Price Index (PPI) for railroad may be late in reporting) and Commodities, Series ID WPU144 for should therefore represent a more New Formula Railroad Equipment. As the index accurate and statistically valid account Tnew = Tprior * [1 + numbers are reported monthly, the of railroad wages than the BLS wage 0.4(Wnew¥Wprior)/Wprior + index numbers for the months of April, data. 0.6(Enew¥Eprior)/100] May, and June are averaged to produce
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a second-quarter equipment index by 100 to place them in the same Thus, the specific inputs to the number. The index numbers are divided decimal form as the wage rates. equation are:
Tprior Wnew Wprior Enew Eprior
$6700 $21.05563 $20.61668 160.16667 135.6000
Using the above figures, the 30 days before its effective date as is and therefore also the frequency of calculated Tnew, new threshold, is ordinarily required by 5 U.S.C. 553(d). required reporting, is generally $7,744.64, which is rounded to the All interested parties have had notice of proportional to the size of the railroad. nearest $100 for a final new reporting the provisions of this final rule since the A railroad that employs thousands of threshold of $7,700. The new threshold publication of the NPRM on April 19, employees and operates trains millions is $1,000 more than the previous 2005 (70 FR 20333), more than 30 days of miles is exposed to greater risks than threshold, which had been last prior to the effective date of this rule. one whose operation is substantially calculated for CY 2002. The equipment smaller. Small railroads may go for cost component of the reporting Final Rule months at a time without having a threshold increased the most, rising The formula to calculate the monetary reportable occurrence of any type, and from about 136 to 160. accident reporting threshold is adopted even longer without having a rail Appendix B is revised to show the as proposed. Further, FRA has gathered equipment accident/incident. For new procedure and formula used by the necessary data, has calculated a new example, current FRA data indicate that FRA for determining the reporting threshold using the adopted formula, 2,738 rail equipment accidents/ threshold. Additionally, § 225.19(e) is and is establishing the revised threshold incidents were reported in 2002, with amended to reflect that the accident dollar amount at $7,700. This revised small railroads reporting 255 of them. In reporting threshold for calendar year threshold is effective beginning January 2003, 2,992 rail equipment accidents/ 2006 is $7,700. Consistent with 1, 2006. incidents were reported, and small § 225.19(c), this reporting threshold will railroads reported 271 of them. Data for be adjusted annually. Regulatory Impact and Notices 2004 show that 3,296 rail equipment Comments Executive Order 12866 and DOT accidents/incidents were reported, with Regulatory Policies and Procedures small railroads reporting 309 of them. In No comments were received in each of those three calendar years, small response to the NPRM. This rule has been evaluated in railroads reported ten percent or less of accordance with existing policies and Notice and Comment Issues the total number of rail equipment procedures, and determined to be non- accidents/incidents. FRA notes that In this final rule, FRA is taking two significant under both Executive Order these data are accurate as of the date of steps. First, FRA is revising the method 12866 and DOT policies and procedures issuance of this final rule, and are for calculating the reporting threshold (44 FR 11034; Feb. 26, 1979). subject to minor changes due to and adopting a new formula, after notice Regulatory Flexibility Act of 1980 and additional reporting. and comment. Second, FRA is using Executive Order 13272 Absent this rulemaking (i.e., any that new formula to calculate the increase in the monetary reporting monetary reporting threshold for The Regulatory Flexibility Act of 1980 threshold), the number of reportable calendar year 2006. The new threshold, (5 U.S.C. 601–612) requires a review of accidents/incidents would increase, as based on the revised formula, is not proposed and final rules to assess their keeping the 2002–2005 threshold in subject to notice and comment. FRA impact on small entities, unless the place would not allow it to keep pace finds that the current cost data inserted Secretary certifies that the rule will not with the increasing dollar amounts of into this adopted formula and the cost have a significant economic impact on wages and rail equipment repair costs. data that they replace were obtained a substantial number of small entities. Therefore, this rule will be neutral in from reliable Federal government Pursuant to Section 312 of the Small effect. Increasing the reporting threshold sources. FRA also finds that this rule Business Regulatory Enforcement will slightly decrease the recordkeeping imposes no additional burden, but Fairness Act of 1996 (Pub. L. 104–121), burden for railroads over time. Any rather provides a benefit by permitting FRA has issued a final policy that recordkeeping burden would not be the valid comparison of accident data formally establishes ‘‘small entities’’ as significant, and would affect the large over time. Accordingly, FRA concludes including railroads that meet the line- railroads more than the small entities, that notice and comment procedures haulage revenue requirements of a Class due to the higher proportion of with respect to the recalculation of the III railroad. 49 CFR part 209, app. C. For reportable rail equipment accidents/ monetary reporting threshold are other entities, the same dollar limit in incidents experienced by large entities. impracticable, unnecessary, and revenues governs whether a railroad, contrary to the public interest. By contractor, or other respondent is a Paperwork Reduction Act of 1995 simply inserting values derived from small entity. Id. There are no new information reliable data into a formula adopted About 630 of the approximately 680 collection requirements associated with after notice and comment, FRA is not railroads in the United States are this final rule. Therefore, no estimate of exercising discretion in a way that could considered small entities by FRA. FRA a public reporting burden is required. be informed by further public comment. certifies that this final rule will have no As a consequence, FRA is proceeding significant economic impact on a Federalism Implications directly to this final rule with respect to substantial number of small entities. To Executive Order 13132, entitled, the recalculation of the monetary the extent that this rule has any impact ‘‘Federalism,’’ issued on August 4, 1999, reporting threshold. on small entities, the impact will be requires that each agency ‘‘in a For similar reasons, there is good neutral or insignificant. The frequency separately identified portion of the cause for not publishing the rule at least of rail equipment accidents/incidents, preamble to the regulation as it is to be
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issued in the Federal Register, provides that such regulations incorporate 65, Number 70; Pages 19477–78) or you to the Director of the Office of requirements specifically set forth in may visit http://dms.dot.gov. Management and Budget a federalism law).’’ Section 202 of the Act (2 U.S.C. List of Subjects in 49 CFR Part 225 summary impact statement, which 1532) further requires that ‘‘before consists of a description of the extent of promulgating any general notice of Investigations, Penalties, Railroad the agency’s prior consultation with proposed rulemaking that is likely to safety, Reporting and recordkeeping State and local officials, a summary of result in the promulgation of any rule requirements. the nature of their concerns and the that includes any Federal mandate that The Rule agency’s position supporting the need to may result in expenditure by State, issue the regulation, and a statement of local, and tribal governments, in the I In consideration of the foregoing, FRA the extent to which the concerns of the aggregate, or by the private sector, of is amending part 225, chapter II, subtitle State and local officials have been met [$120,700,000 or more (as adjusted for B of title 49, Code of Federal ***.’’ This rulemaking action has inflation)] in any 1 year and before Regulations as follows: been analyzed in accordance with the promulgating any final rule for which a principles and criteria contained in general notice of proposed rulemaking PART 225—[AMENDED] Executive Order 13132. This rule will was published, the agency shall prepare I 1. The authority citation for part 225 not have a substantial direct effect on a written statement’’ detailing the effect continues to read as follows: States, on the relationship between the on State, local, and tribal governments National Government and the States, or and the private sector. The final rule Authority: 49 U.S.C. 103, 322(a), 20103, on the distribution of power and the will not result in the expenditure, in the 20107, 20901–02, 21301, 21302, 21311; 28 U.S.C. 2461, note; 49 CFR 1.49. responsibilities among the various aggregate, of $120,700,000 or more in levels of government, as specified in the any one year, and thus preparation of I 2. Amending § 225.19 by revising the Executive Order 13132. Accordingly, such a statement is not required. first sentence of paragraph (c) and FRA has determined that this rule will revising paragraph (e) to read as follows: not have sufficient federalism Energy Impact implications to warrant consultation § 225.19 Primary groups of accidents/ Executive Order 13211 requires incidents. with State and local officials or the Federal agencies to prepare a Statement preparation of a federalism assessment. of Energy Effects for any ‘‘significant * * * * * Accordingly, a federalism assessment energy action.’’ 66 FR 28355 ( May 22, (c) Group II—Rail equipment. Rail has not been prepared. 2001). Under the Executive Order, a equipment accidents/incidents are collisions, derailments, fires, Environmental Impact ‘‘significant energy action’’ is defined as any action by an agency (normally explosions, acts of God, and other FRA has evaluated this regulation in events involving the operation of on- accordance with its ‘‘Procedures for published in the Federal Register) that promulgates or is expected to lead to the track equipment (standing or moving) Considering Environmental Impacts’’ that result in damages higher than the (FRA’s Procedures) (64 FR 28545, May promulgation of a final rule or regulation, including notices of inquiry, current reporting threshold (i.e., $6,700 26, 1999) as required by the National for calendar years 2002 through 2005, Environmental Policy Act (42 U.S.C. advance notices of proposed rulemaking, and notices of proposed and $7,700 for calendar year 2006) to 4321 et seq.), other environmental railroad on-track equipment, signals, statutes, Executive Orders, and related rulemaking: (1)(i) That is a significant regulatory action under Executive Order tracks, track structures, or roadbed, regulatory requirements. FRA has including labor costs and the costs for determined that this regulation is not a 12866 or any successor order, and (ii) is likely to have a significant adverse effect acquiring new equipment and material. major FRA action (requiring the *** preparation of an environmental impact on the supply, distribution, or use of * * * * * statement or environmental assessment) energy; or (2) that is designated by the (e) The reporting threshold is $6,700 because it is categorically excluded from Administrator of the Office of for calendar years 2002 through 2005 detailed environmental review pursuant Information and Regulatory Affairs as a and $7,700 for calendar year 2006. The to section 4(c)(20) of FRA’s Procedures. significant energy action. FRA has procedure for determining the reporting 64 FR 28545, 28547, May 26, 1999. In evaluated this final rule in accordance threshold for calendar years 2006 and accordance with section 4(c) and (e) of with Executive Order 13211. FRA has beyond appears as paragraphs 1–8 of FRA’s Procedures, the agency has determined that this final rule is not appendix B to part 225. further concluded that no extraordinary likely to have a significant adverse effect circumstances exist with respect to this on the supply, distribution, or use of I 3. Revise appendix B to part 225 in its regulation that might trigger the need for energy. Consequently, FRA has entirety to read as follows: a more detailed environmental review. determined that this regulatory action is As a result, FRA finds that this not a ‘‘significant energy action’’ within Appendix B to Part 225—Procedure for regulation is not a major Federal action the meaning of Executive Order 13211. Determining Reporting Threshold significantly affecting the quality of the Privacy Act 1. Wage data used in the calculation are human environment. collected from railroads by the Surface Anyone is able to search the Transportation Board (STB) on Form A—STB Unfunded Mandates Reform Act of 1995 electronic form of all our comments Wage Statistics. Rail equipment data from the Pursuant to Section 201 of the received into any of our dockets by the U.S. Department of Labor, Bureau of Labor Unfunded Mandates Reform Act of 1995 name of the individual submitting the Statistics (BLS), LABSTAT Series reports are (Pub. L. 104–4, 2 U.S.C. 1531), each comment (or signing the comment, if used in the calculation. The equation used to adjust the reporting threshold has two Federal agency ‘‘shall, unless otherwise submitted on behalf of an association, components: (a) The average hourly earnings prohibited by law, assess the effects of business, labor union, etc.). You may of certain railroad maintenance employees as Federal regulatory actions on State, review DOT’s complete Privacy Act reported to the STB by the Class I railroads local, and tribal governments, and the Statement in the Federal Register and Amtrak; and (b) an overall rail private sector (other than to the extent published on April 11, 2000 (Volume equipment cost index determined by the
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BLS. The wage component is weighted by DEPARTMENT OF COMMERCE TABLE. 1 Loligo SQUID QUARTERLY 40% and the equipment component by 60%. ALLOCATIONS 2. For the wage component, the average of National Oceanic and Atmospheric the data from Form A—STB Wage Statistics Administration Research Quarter Percent Metric for Group No. 300 (Maintenance of Way and Tons1 Set-aside Structures) and Group No. 400 (Maintenance 50 CFR Part 648 of Equipment and Stores) employees is used. I (Jan- 33.23 5,564.3 N/A 3. For the equipment component, Mar) [Docket No. 041221358–5065–02; I.D. LABSTAT Series Report, Producer Price II (Apr- 17.61 2,948.8 N/A 121205E] Jun) Index (PPI) Series WPU 144 for Railroad III (Jul- 17.30 2,896.9 N/A Equipment is used. Fisheries of the Northeastern United Sep) 4. In the month of October, second-quarter States; Atlantic Mackerel, Squid, and IV (Oct- 31.86 5,334.9 N/A wage data are obtained from the STB. For Butterfish Fisheries; Closure of the Dec) equipment costs, the corresponding BLS Quarter IV Fishery for Loligo Squid Total 100 16,744.9 255.1 railroad equipment indices for the second quarter are obtained. As the equipment index 1Quarterly allocations after 255.1 mt re- AGENCY: National Marine Fisheries is reported monthly rather than quarterly, the search set-aside deduction. Service (NMFS), National Oceanic and average for the months of April, May and Section 648.22 requires NMFS to June is used for the threshold calculation. Atmospheric Administration (NOAA), close the directed Loligo squid fishery in 5. The wage data are reported in terms of Commerce. the EEZ when 80 percent of the dollars earned per hour, while the equipment ACTION: Temporary rule; closure. cost data are indexed to a base year of 1982. quarterly allocation is harvested in 6. The procedure for adjusting the Quarters I, II and III, and when 95 SUMMARY: NMFS announces that the percent of the total annual DAH has reporting threshold is shown in the formula directed fishery for Loligo squid in the below. The wage component appears as a been harvested. NMFS is further Exclusive Economic Zone (EEZ) will be fractional change relative to the prior year, required to notify, in advance of the closed effective 0001hrs local time, while the equipment component is a closure, the Executive Directors of the December 18, 2005. Vessels issued a difference of two percentages which must be Mid-Atlantic, New England, and South divided by 100 to present it in a consistent Federal permit to harvest Loligo squid Atlantic Fishery Management Councils; fractional form. After performing the may not retain or land more than 2,500 mail notification of the closure to all calculation, the result is rounded to the lb (1.13 mt) of Loligo squid per trip for holders of Loligo squid permits at least nearest $100. the remainder of the year (through 72 hours before the effective date of the 7. The weightings result from using STB December 31, 2005). This action is closure; provide adequate notice of the wage data and BLS equipment cost data to necessary to prevent the fishery from closure to recreational participants in produce a reasonable estimation of the exceeding its annual quota and allow for the fishery; and publish notification of reporting threshold that was calculated using effective management of this stock. the closure in the Federal Register. The the threshold formula in effect immediately DATES: Effective 0001 hours, December Administrator, Northeast Region, before calendar year 2006, a formula that 18, 2005, through 2400 hours, December NMFS, based on dealer reports and assumed damage repair costs, at levels at or 31, 2005. other available information, has near the threshold, were split approximately determined that 95 percent of the total evenly between labor and materials. FOR FURTHER INFORMATION CONTACT: Don DAH for Loligo squid has been 8. Formula: Frei, Fishery Management Specialist, harvested. Therefore, effective 0001 New Threshold = Prior Threshold × [1 + 978–281–9221, fax 978–281–9135, e- hours, December 18, 2005, the directed 0.4(Wnew—Wprior)/Wprior + 0.6(Enew mail [email protected]. fishery for Loligo squid is closed and ¥ Eprior)/100] SUPPLEMENTARY INFORMATION: vessels issued Federal permits for Loligo Where: Regulations governing the Loligo squid squid may not retain or land more than Wnew = New average hourly wage rate ($). fishery are found at 50 CFR part 648. 2,500 lb (1.13 mt) of Loligo. Such vessels Wprior = Prior average hourly wage rate ($). The regulations require specifications may not land more than 2,500 lb (1.13 Enew = New equipment average PPI value. for maximum sustainable yield, initial mt) of Loligo during a calendar day. The Eprior = Prior equipment average PPI value. optimum yield, allowable biological directed fishery will reopen effective Issued in Washington, DC, on December catch, domestic annual harvest (DAH), 0001 hours, January 1, 2006, when the 14, 2005. domestic annual processing, joint 2006 quota becomes available. Clifford C. Eby, venture processing and total allowable Classification Deputy Administrator, Federal Railroad levels of foreign fishing for the species Administration. managed under the Atlantic Mackerel, This action is required by 50 CFR part [FR Doc. 05–24267 Filed 12–19–05; 8:45 am] Squid, and Butterfish Fishery 648 and is exempt from review under BILLING CODE 4910–06–P Management Plan. The procedures for Executive Order 12866. setting the annual initial specifications Authority: 16 U.S.C. 1801 et seq. are described in § 648.21. Dated: December 14, 2005. The 2005 specification of DAH for Alan D. Risenhoover, Loligo squid was set at 16,872.4 mt (70 FR 21971, April 28, 2005). This amount Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. is allocated by quarter, as shown below. [FR Doc. 05–24266 Filed 12–15–05; 2:38 pm] BILLING CODE 3510–22–S
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DEPARTMENT OF COMMERCE published a proposed rule to implement at § 680.5(a)(2)(i)(A); therefore, this is Amendments 18 and 19 on October 29, not a new requirement. National Oceanic and Atmospheric 2004 (69 FR 63200). NMFS approved Paragraph (g)(3)(iii) is amended by Administration Amendments 18 and 19 on November removing the words ‘‘and indicate the 19, 2004. NMFS published a final rule confirmation number of the original 50 CFR Parts 679 and 680 to implement Amendments 18 and 19 PTR’’ from the last line of the paragraph. [Docket No. 040831251–5309–05; I.D. on March 2, 2005 (70 FR 10174). NMFS Paragraph (g)(4)(i) is revised by 082504A] published a final rule (70 FR 13097; removing the last sentence from the RIN 0648–AS47 March 18, 2005) to correct OMB control paragraph. Removal of the confirmation numbers provided in the final rule number is necessary because in actual Fisheries of the Exclusive Economic dated March 2, 2005 (70 FR 10174). PTR use, NMFS discovered that the Zone Off Alaska; Allocating Bering Sea NMFS also published a final rule (70 FR confirmation number was not needed and Aleutian Islands King and Tanner 33390; June 8, 2005) to correct certain for recordkeeping and that the Crab Fishery Resources; Correction regulations in the final rule dated March confirmation number caused confusion. 2, 2005 (70 FR 10174). The heading for paragraph (k)(1) is AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Need for Corrections amended by removing ‘‘Fish or fish product other than crab onboard’’ and Atmospheric Administration (NOAA), NMFS seeks to ensure the final rule replacing it with ‘‘Fish or fish product Commerce. (March 2, 2005; 70 FR 10174) conforms onboard.’’ Early in the planning stages, ACTION: Final rule; correcting to the statutory requirements and intent the PTR was not to be used for crab. amendment. of the Program, to provide clarification Later on, the decision was made to use regarding the Program’s regulatory the PTR to record crab product; SUMMARY: NMFS issues this final rule, requirements, and to correct minor however, this regulatory heading was correcting amendment to the regulations technical errors. governing the Bering Sea and Aleutian inadvertently not changed. 1. Statutory Conformance Corrections Islands crab fisheries. This action is Section 680.5 Recordkeeping and necessary to clarify procedures and to These corrections are made to Reporting correct discrepancies provided in a sections of the rule that do not currently previous rulemaking. This final rule is conform to the statutory requirements of Paragraph (b)(2) is amended by intended to promote the goals and the Program. This correction ensures removing ‘‘An RCR must’’ and adding in objectives of the Fishery Management that the final rule conforms to statutory its place ‘‘An RCR and his or her Plan for Bering Sea/Aleutian Islands requirements. designee(s) must’’. (BSAI) King and Tanner Crabs (FMP), Paragraph (b)(3) is removed and the Magnuson-Stevens Fishery Section 680.20 Arbitration System reserved. Only the RCR and his or her Conservation and Management Act Paragraph (a)(1) is amended by designees must apply for a password. (Magnuson-Stevens Act), and other removing ‘‘June 30, 2005’’ and adding in The information contained in this applicable law. its place ‘‘June 30, 2008’’. This paragraph has been included in the DATES: Effective December 20, 2005. correction ensures that the final rule eLanding report (see paragraph (d)(7)). FOR FURTHER INFORMATION CONTACT: conforms to statutory requirements. Because it is the same information, only Patsy A. Bearden, 907–586–7008 or Paragraph (h)(5)(iv) is amended by requested in a different place, this [email protected]. removing ‘‘arbitration proceedings as change does not add new information. provided’’ and adding in its place The heading of paragraph (c)(1) is SUPPLEMENTARY INFORMATION: ‘‘arbitration proceedings except as amended by removing ‘‘IERS Background provided’’. application for user ID’’ and adding in In January 2004, the U.S. Congress Section 680.40 Quota Share (QS), its place ‘‘IERS processor registration.’’ amended section 313(j) of the Processor QS (PQS), Individual Fishing The three agencies involved in the IERS Magnuson-Stevens Act through the Quota (IFQ), and Individual Processor determined to change the name of the Consolidated Appropriations Act of Quota (IPQ) Issuance form, and the changed forms 2004 (Pub. L. 108–199, section 801). As subsequently posted on the Internet. Paragraph (c)(4)(vi) is amended by This change inadvertently was not amended, section 313(j)(1) requires the removing ‘‘equation: Adj. Factor’’ and Secretary of Commerce to approve and reflected in the regulatory text. This adding in its place ‘‘equation: Adj. revision ensures that the regulations are implement by regulation the Crab Amount.’’ Rationalization Program (Program), as it uniform with the form. was approved by the North Pacific 2. Regulatory Intent Corrections and Paragraph (c)(1)(i) is amended to Fishery Management Council (Council) Clarifications reflect actual practice that an RCR and between June 2002 and April 2003, and These corrections are clarifications designee(s) of the RCR must submit an all trailing amendments, including those that explain regulatory changes that are application for User ID, instead of ‘‘the reported to Congress on May 6, 2003. In more substantive than typographical/ crab IFQ permit holder, crab IFQ hired June 2004, the Council consolidated its editorial type corrections. master, IPQ permit holder, or person actions on the Program into the Council who harvested Adak or CDQ crab.’’ In motion, which is contained in its Section 679.5 Recordkeeping and addition, the web page address and entirety in Amendment 18. Reporting Requirements (R&R) specific reference to the landing Additionally, in June 2004, the Council Paragraph (a)(1)(iv)(C) is added to reporting system, eLandings, are added. developed Amendment 19, which state that any catcher vessel that is using The name of the form required to obtain represents minor changes necessary to pot gear in the CR crab fisheries must a User ID is changed to read ‘‘IERS implement the Program. The Notice of use a combined groundfish/IFQ logbook processor registration’’ in the heading Availability for these amendments was to record all CR crab. This note was for paragraph (c)(1) and in paragraph published in the Federal Register on inadvertently omitted from the crab (c)(1)(i). September 1, 2004 (69 FR 53397). NMFS final rule. This regulatory text is found
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Paragraph (c)(1)(ii) is amended to change is necessary to align the Section 680.42 Limitations on Use of clarify how the IERS processor regulations with actual practice. QS, PQS, IFQ, and IPQ registration information will be Paragraphs (a)(2)(i)(A), (B), and (C) are processed. The form must be signed and Section 680.23 Equipment and Operational Requirements changed to correct inadvertent mailed to the address on the form in typographical errors. addition to submittal by Internet. Paragraph (b)(4) is amended by Paragraph (a)(2)(i)(A) is amended by Changes to paragraphs (c)(1)(i) and (ii) removing ‘‘by the State in which the removing ‘‘2.0% = 240,00’’ and adding are necessary to indicate that only the product is landed’’ and adding in its in its place ‘‘2.0% = 240,000’’. RCR and his/her designees submit place ‘‘by a state in which CR crab is landing data; therefore, only these Paragraph (a)(2)(i)(B) is amended by landed’’. Current regulations require removing ‘‘2.0% = 600,00’’ and adding participants are required to submit an that a catcher/processor offload crab IERS processor registration form. These in its place ‘‘2.0% = 600,000’’. product and weigh that product on a Paragraph (a)(2)(i)(C) is amended by changes also clarify that applicants may scale approved by the state in which the obtain IERS processor registration forms removing ‘‘2.0% = 120,00’’ and adding crab is landed. Rationale for this change from the NMFS Alaska Region home in its place ‘‘2.0% = 120,000’’. is as follows. In some cases, crab page. Paragraph (a)(3)(ii) is amended by The heading for paragraph (c)(2) is catcher/processors may offload product removing ‘‘(a)(2)(i)’’ and adding in its amended by removing ‘‘Contents of in more than one state. Because scale place ‘‘(a)(3)(i)’’. IERS application for user ID’’ and approval requirements are similar and Paragraph (a)(4)(ii) is amended by adding in its place ‘‘Contents of IERS adequate in all states, it does not make removing ‘‘(a)(2)(i)’’ and adding in its processor registration.’’ sense for a catcher/processor to be place ‘‘(a)(4)(i)’’. required to have the offload scale The introductory paragraph (c)(2) is Table 9 to Part 680 amended by removing ‘‘The IERS approved by more than one state. application for user ID’’ and adding in Regulations at § 680.23(b)(4) are revised Table 9 is amended by removing its place ‘‘The application for IERS to allow a crab catcher/processor to use ‘‘totally’’ from Column B for BST and processor registration.’’ a scale approved by any state where CR adding in its place ‘‘total’’. crab is landed. Paragraph (d)(4)(i) is amended by Classification removing ‘‘within 6 hours of the end of Section 680.42 Limitations on Use of The Administrator, Alaska Region, each weekly reporting period’’ and QS, PQS, IFQ, and IPQ adding in its place ‘‘by Tuesday noon NMFS (Regional Administrator), has after the end of each weekly reporting Paragraph (b)(3)(iii) is amended by determined that this final rule is period.’’ The time limit for submitting removing ‘‘QS or IFQ’’ and adding in its necessary for the conservation and this catcher/processor report in existing place ‘‘PQS.’’ This corrects an management of the BSAI crab fisheries. regulatory text actually means the report inadvertent error. The Regional Administrator also has would need to be submitted between determined that this final rule is Paragraph (c)(2) is amended by midnight and 6:00; this is because the consistent with the Magnuson-Stevens removing ‘‘CPC QS used’’ and adding in weekly reporting period ends at 2400 hr, Act and other applicable laws. its place ‘‘CPC IFQ used’’. This corrects Alaska local time. In addition to the This final rule has been determined to an inadvertent error. inconvenience to the regulated be not significant for the purposes of community, this is also difficult for Paragraph (c)(4) is amended by Executive Order 12866. NMFS, because the Internet server isn’t removing ‘‘IFQ’’ in two places and Pursuant to 5 U.S.C. 553 (b)(B), the processing return receipts during that adding in its place ‘‘CVO or CPO IFQ.’’ Assistant Administrator for Fisheries, time, and no staff are available for This corrects an inadvertent error. NOAA (AA) finds good cause to waive prior notice and an opportunity for technical support. The original Figures 16 and 17 to Part 679 paragraph does not reflect the intent of public comment on this action, as notice the time limit for submitting of the crab Figures 16 and 17 to Part 679 are and comment would be impracticable, landing report, which was intended to removed. These figures relate to the unnecessary, and contrary to the public match the time limit for submitting the License Limitation Program boundaries interest. Through this action, NOAA groundfish weekly production report. that were revised in the crab final rule. seeks to ensure that the final rule This revision fixes that problem. The removal of these figures clarifies conforms to the statutory requirements Paragraph (d)(7)(i) is amended by potential confusion. and intent of the Program, provide removing ‘‘RCR permit number’’ and clarification regarding the Program’s adding in its place ‘‘RCR permit 3. Technical Corrections regulatory requirements and correct minor technical errors. Prior notice and number, IFQ permit number, and IPQ The following typographical and an opportunity for public comment on permit number, as appropriate.’’ The editorial corrections are made in this this action would be impracticable, regulations currently request the IFQ rule. permit number and IPQ permit number unnecessary, and contrary to the public in paragraph (b)(3). In actual practice Section 679.5 Recordkeeping and interest for the following reasons. the IFQ and IPQ permit number are Reporting (R&R) First, corrections are necessary to requested in the landing report. In ensure the rule’s conformance with the addition, no other person than the RCR Paragraph (l)(1)(iii)(B) is amended by Program’s statutory requirements. and his/her designees need to obtain a removing ‘‘Table 14’’ and adding in its Accordingly, NMFS has no discretion as password; therefore, with this action, place ‘‘Tables 14a and 14b.’’ to whether to implement them. As such, paragraph (b)(3) is removed and Section 680.20 Arbitration System prior notice and an opportunity for reserved. public comment are unnecessary as the Paragraph (d)(7)(xxi) is amended by Paragraph (h)(3)(iv) is amended by agency has no choice but to ensure its removing ‘‘scale weight of live crab in removing ‘‘a crab fishery’’ and adding in regulations are consistent with the pounds;’’ and adding in its place ‘‘sold its place ‘‘each crab fishery.’’ This statute. Second, corrections and weight of live crab in pounds.’’ This change is necessary for clarification. clarifications to ensure the rules
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compliance with the intent of the (3) * * * Program are necessary to ensure (iii) If any information on the original (ii) The user must print, sign, and consistency and to accurately describe PTR changes prior to the first submit the application to the address the various provisions of the destination of the shipment, submit a provided on the registration form. A regulations. Prior notice and an revised PTR by facsimile or electronic user ID will be activated after a signed opportunity for public comment on file to OLE, Juneau, AK (907–586–7313), registration form is received. The these measures are impracticable and by 1200 hours, A.l.t., on the Tuesday signature of an applicant on the form contrary to the public interest due to the following the end of the applicable means that the applicant agrees to use ongoing nature of the fisheries. Finally, weekly reporting period in which the access privileges to the IERS for the editorial changes made by this rule change occurred. purposes of submitting legitimate are non-substantive. As a result, prior (4) * * * (i) Original or revised PTR. Whether a fishery landing reports and to safeguard notice and an opportunity for comment submittal is an original or revised PTR. the user ID and password to prevent on these changes are unnecessary. (k) * * * their use by unauthorized persons. In Because prior notice and opportunity (1) Fish or fish product onboard. * * addition, signature of the RCR ensures for public comment are not required for * that the applicant is authorized to this rule by 5 U.S.C. 553, or any other * * * * * submit landing reports for the processor law, the analytical requirements of the (l) * ** permit number(s) listed. Regulatory Flexibility Act, 5 U.S.C. 601 (1) * * * * * * * * et seq., are inapplicable. (iii) * * * The changes made by this rule are not (B) Port of landing and port code from (2) Contents of the IERS processor subject to the 30-day delay in effective Tables 14a and 14b to this part; registration. The application for IERS date requirement of 5 U.S.C. 553(d). The * * * * * processor registration must contain the waiver of the 30-day delay in effective following information: * * * date requirement of 5 U.S.C. 553(d) is PART 679—[AMENDED] * * * * * necessary to provide the regulated I 3. Remove Figures 16 and 17 to Part § 680.5 [Corrected] community with timely, adequate and 679. accurate information with which to I 6. Correct § 680.5(d) as follows: prosecute the ongoing fisheries. PART 680—SHELLFISH FISHERIES OF I a. In paragraph (d)(4)(i), remove List of Subjects in 50 CFR Parts 679 and THE EXCLUSIVE ECONOMIC ZONE ‘‘within 6 hours of the end’’ and add in 680 OFF ALASKA its place ‘‘by Tuesday noon after the end’’; I 4. The authority citation for part 680 Alaska, Fisheries, Reporting and I recordkeeping requirements. continues to read as follows: b. In paragraph (d)(7)(i), remove ‘‘RCR permit number’’ and add in its place Dated: December 5, 2005. Authority: 16 U.S.C. 1862. ‘‘RCR permit number, IFQ permit I 5. In § 680.5, revise paragraph (b)(2), James W. Balsiger, number, and IPQ permit number, as (c)(1) paragraph heading, (c)(1)(i), Acting Deputy Assistant Administrator for appropriate;’’ and (c)(1)(ii), (c)(2) paragraph heading and Regulatory Programs, National Marine I c. In paragraph (d)(7)(xxi), remove Fisheries Service. first sentence, and remove and reserve paragraph (b)(3) to read as follows: ‘‘Scale weight of live crab in pounds’’ I For the reasons discussed in the and add in its place ‘‘Sold weight of live preamble, 50 CFR parts 679 and 680 are § 680.5 Recordkeeping and reporting crab in pounds.’’ corrected by making the following (R&R). correcting amendments: * * * * * § 680.20 [Corrected] (b) * * * I 7. Correct § 680.20 as follows: PART 679—FISHERIES OF THE (2) An RCR and his or her designee(s) I a. Paragraph (a)(1), remove ‘‘June 30, EXCLUSIVE ECONOMIC ZONE OFF must enter his or her authorized user ID 2005’’ and add in its place ‘‘June 30, ALASKA and password to access the IERS. 2008’’; I * * * * * 1. The authority citation for part 679 I b. Paragraph (h)(3)(iv)(A), remove ‘‘a continues to read as follows: (c) * * * (1) IERS processor registration. (i) crab QS fishery’’ and add in its place Authority: 16 U.S.C. 773 et seq., 1801 et Before an RCR and his or her designee(s) ‘‘each crab fishery’’; and seq., and 3631 et seq.; Title II of Division C, can use the eLandings system to report I c. Paragraph (h)(5)(iv), remove Pub. L. 105–277; Sec. 3027, Pub. L. 106–31, landings, he/she must request 113 Stat. 57; 16 U.S.C. 1540(f). ‘‘arbitration proceeding as provided’’ authorization to use the system, reserve and add in its place ‘‘arbitration I 2. In § 679.5, add paragraph a particular user ID, and receive a proceeding except as provided’’. (a)(1)(iv)(C); revise the heading for password. Each RCR and his or her paragraph (k)(1) and revise paragraphs designee(s) must provide information § 680.23 [Corrected] (g)(3)(iii), (g)(4)(i), and (l)(1)(iii)(B) to needed to process account access into I 8. In § 680.23, paragraph (b)(4), read as follows: the IERS by completing an IERS remove ‘‘approved by the State in which § 679.5 Recordkeeping and reporting Processor Registration at http:// the product is landed’’ and add in its (R&R). www.fakr.noaa.gov/sustainablefisheries/ place ‘‘approved by a state in which CR (a) * * * crab/crfaq.htm. Upon receiving the crab is landed’’. (1) * * * signed registration, the IERS will (iv) * * * validate that all required information is § 680.40 [Corrected] (C) Any catcher vessel that is using submitted, that the information entered I 9. In § 680.40, paragraph (c)(4)(vi), pot gear in the CR crab fisheries must is in correct format, and that the remove ‘‘Adj. Factor’’ and add in its use a combined groundfish/IFQ logbook requested user ID is not already in use. place ‘‘Adj. Amount.’’ to record all CR crab. The IERS will generate a PDF document § 680.42 [Corrected] * * * * * from the information entered by the (g) * * * applicant. I 10. Correct § 680.42 as follows:
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I a. Paragraph (a)(3)(ii), remove I d. Paragraph (c)(2), remove ‘‘CPC QS I 11. In § 680.42, correct table entries in ‘‘(a)(2)(i)’’ and add in its place used’’ and add in its place ‘‘CPC IFQ paragraphs (a)(2)(i)(A), (B), and (C) to ‘‘(a)(3)(i)’’; used;’’ and read as follows: I b. Paragraph (a)(4)(ii), remove I e. Paragraph (c)(4), remove ‘‘IFQ’’ in § 680.42 Limitations on use of QS, PQS, ‘‘(a)(2)(i)’’ and add in its place two places and add in its place ‘‘CVO IFQ, and IPQ. ‘‘(a)(4)(i);’’ or CPO IFQ.’’ (a) * * * I c. Paragraph (b)(3)(iii), remove ‘‘QS or (2) * * * IFQ’’ and add in its place ‘‘PQS;’’ (ii) * * *
CVC/CPC Use Fishery CVO/CPO Use Cap in QS Cap in QS Units Units
(A) Percent of the initial QS pool for BBR 1.0 %= 3,880,000 2.0% = 240,000 (B) Percent of the initial QS pool for BSS 1.0% = 9,700,000 2.0% = 600,000 (C) Percent of the initial QS pool for BST 1.0% = 1,940,000 2.0% = 120,000 *****
I 12. In Table 9 to Part 680, correct the Table 9 to Part 680 Initial Issuance of entry for Bering Sea Tanner crab (BST) Crab PQS by Crab QS Fishery to read as follows:
Column B: The Regional Administrator shall calculate PQS for any qualified person Column A: For each crab QS fishery based on that person’s total legal purchase of crab in each of the crab QS fisheries for any ...
*****
Bering Sea Tanner Crab (BST) Equivalent to 50 percent of the total legally processed crab in the Bering Sea snow crab fishery during the qualifying years established for that fishery, and 50 percent of the total legally processed crab in the Bristol Bay red king crab fishery during the qualifying years established for that fishery. *****
[FR Doc. 05–24152 Filed 12–19–04; 8:45 am] BILLING CODE 3510–22–S
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Proposed Rules Federal Register Vol. 70, No. 243
Tuesday, December 20, 2005
This section of the FEDERAL REGISTER Please include PRM–31–5 in the subject located in ADAMS, contact the NRC contains notices to the public of the proposed line of your comments. Comments Public Document Room (PDR) Reference issuance of rules and regulations. The submitted in writing or in electronic staff at 1–800–397–4209, 301–415–4737 purpose of these notices is to give interested form will be made available to the or by e-mail to [email protected]. persons an opportunity to participate in the public for inspection. Because your rule making prior to the adoption of the final FOR FURTHER INFORMATION CONTACT: rules. comments will not be edited to remove Michael T. Lesar, Office of any identifying or contact information, Administration, U.S. Nuclear Regulatory the NRC cautions you against including Commission, Washington, DC 20555. NUCLEAR REGULATORY personal information such as social Telephone: 301 415–7163 or Toll Fee: COMMISSION security numbers and birth dates in 1–800–368–5642 or e-mail: [email protected]. your submission. Mail comments to: SUPPLEMENTARY INFORMATION: 10 CFR Part 31 Secretary, U.S. Nuclear Regulatory Background [PRM–31–5] Commission, Washington, DC 20555– 0001, ATTN: Rulemakings and On December 18, 2000, (65 FR 79162), Organization of Agreement States; Adjudications Staff. the NRC issued a final rule that Petition for Rulemaking E-mail comments to: [email protected]. If amended the requirements applicable to you do not receive a reply e-mail certain generally licensed industrial AGENCY: Nuclear Regulatory confirming that we have received your devices containing byproduct material. Commission. comments, contact us directly at (301) The final rule, among other actions, ACTION: Petition for rulemaking; request 415–1966. You may also submit included more explicit provisions for a for comment. comments via the NRC’s rulemaking registration and accounting program. Web site at http://ruleforum.llnl.gov. The final rule also modified the SUMMARY: The Nuclear Regulatory Address questions about our rulemaking quarterly transfer reporting Commission (NRC) has received a Web site to Carol Gallagher (301) 415– requirements for manufacturers and petition for rulemaking filed by the 5905; e-mail [email protected]. Comments initial distributors of these industrial Organization of Agreement States can also be submitted via the Federal devices. (OAS). The petitioner is requesting that eRulemaking Portal http:// Section 274b of the Atomic Energy the NRC amend its regulations to www.regulations.gov. Act (Act) provides for agreements under require specific licensing for devices Hand deliver comments to: 11555 which the NRC relinquishes and a State that are currently regulated by a Rockville Pike, Rockville, Maryland assumes regulatory responsibility for the combination of general licensing and 20852, between 7:30 a.m. and 4:15 p.m. use of byproduct, source and small registration, and to revise the Federal workdays. (Telephone (301) quantities of special nuclear material compatibility category for 10 CFR 31.6 415–1966). within a State. The December 18, 2000, from ‘‘B’’ to ‘‘C’’. The petitioner believes Fax comments to: Secretary, U.S. final rule was a matter of compatibility that these actions are needed to Nuclear Regulatory Commission at (301) under the Policy Statement on establish a higher national standard of 415–1101. Adequacy and Compatibility of regulation for higher risk generally Publicly available documents related Agreement Statements issued licensed (GL) devices, and to allow to this petition may be viewed September 3, 1997 (62 FR 46517). The retention of a tool used by Agreement electronically on the public computers provisions of 10 CFR 31.5 and 31.6 were States to track the location and located at the NRC’s Public Document designated as Category B because the movement of device manufacturers and Room (PDR), O1 F21, One White Flint provisions affected a program element service providers in their State. North, 11555 Rockville Pike, Rockville, with significant transboundary This action also addresses a request Maryland. The PDR reproduction implications. filed by the Bureau of Radiation Control contractor will copy documents for a (BRC) of the Florida Department of fee. Selected documents, including Petitioner’s Issue Health for the NRC to change the comments, may be viewed and The petitioner believes that certain compatibility category of 10 CFR downloaded electronically via the NRC devices containing higher level of 31.5(c)(13)(I) from category ‘‘B’’ to rulemaking Web site at http:// activity, which are currently regulated category ‘‘C’’. Florida BRC believes that ruleforum.llnl.gov. under a general license in 10 CFR 31.5, NRC regulations are less stringent and Publicly available documents created would be best regulated under a specific that assigning a compatibility category or received at the NRC after November license in 10 CFR part 30. The petitioner ‘‘B’’ will require the State to reduce its 1, 1999, are available electronically at states that multiple Agreement States current health, safety, and security the NRC’s Electronic Reading Room at have already established more stringent regulatory control of GL devices. http://www.nrc.gov/reading-rm/ requirements for GL devices to address DATES: Submit comments by March 6, adams.html. From this site, the public accountability problems, source melt 2006. Comments received after this date can gain entry into the NRC’s incidents and other issues related to will be considered if it is practical to do Agencywide Document Access and such devices in their States, and that the so, but assurance of consideration Management System (ADAMS), which decision by the NRC to revise the cannot be given except as to comments provides text and image files of NRC’s compatibility category of 10 CFR 31.5 received on or before this date. public documents. If you do not have from ‘‘D’’ to ‘‘B’’ will require these ADDRESSES: You may submit comments access to ADAMS or if there are Agreement States to reduce their current by any one of the following methods. problems in accessing the documents regulatory control of GL devices in order
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to be compatible with less stringent licensees maintaining control over and sector and minimal interaction with NRC regulations. The petitioner states accountability for devices containing regulator. also that the NRC decision to revise the radioactive material provided their Petitioner’s Proposal compatibility category of 10 CFR 31.6 recommendations to the NRC. One of from ‘‘C’’ to ‘‘B’’ removes the ability of the recommendations was that the NRC The OAS proposes the following Agreement States to directly track the establish a registration program for GL amendments to 10 CFR part 31, and movement of many individuals and devices containing specific isotopes changes in compatibility category. companies servicing GL devices and above certain quantity limits that posed 1. Section 31.5 (a) would be revised thus indirectly verify the location of a comparatively higher risk of exposure to read as follows: these devices. The petitioner asserts that to the public or property damage. (a) A general license is hereby issued regulation of GL devices containing The petitioner states that on to commercial and industrial firms and higher levels of activity should be under December 18, 2000, the NRC issued a research, educational and medical more rather than less regulatory final rule, effective on February 16, institutions, individuals in the conduct oversight to further enhance the 2001, that revised portions of 10 CFR of their business, and Federal, State or accountability and security of these parts 30, 31, and 32 to add new local government agencies to acquire, devices. requirements for manufacturers, receive, possess, use or transfer, in accordance with the provisions of Petitioner’s Interest distributors and users of GL devices. The combined changes were called the paragraphs (b), (c) and (d) of this The petitioner is a non-profit, ‘‘Generally Licensed Device Rule,’’ section, byproduct material contained in voluntary, scientific and professional which included a revision that devices designed and manufactured for society incorporated in the District of established a new registration program the purpose of detecting, measuring, Columbia. The membership of the OAS for certain GL devices in 10 CFR gauging or controlling thickness, consists of State radiation control 31.5(c)(13) that was based on the earlier density, level, interface location, program directors and staff from the 33 recommendations of the working group. radiation, leakage, or qualitative or Agreement States who are responsible In addition, the petitioner states the quantitative chemical composition or for implementation of their respective NRC changed the compatibility category for producing light or an ionized radioactive material programs. The for 10 CFR 31.5 from ‘‘D’’ to ‘‘B’’ and for atmosphere, provided each device purpose of the OAS is to provide a 10 CFR 31.6 from ‘‘C’’ to ‘‘B’’. contains less than 370 MBq (10 mCi) of mechanism for the Agreement States to Agreement States were given until cesium-137, 3.7 MBq (0.1 mCi) of work with each other and with the NRC February 16, 2004 to adopt the new strontium-90, 37 MBq (1 mCi) of cobalt- on regulatory issues associated with regulations. 60 or 37 MBq (1 mCi) of americium-241 their respective agreements. or any other transuranic element (i.e., The petitioner offers that Agreement The petitioner states that in a letter dated July 28, 2004, the NRC presented element with atomic number greater States are those States that have entered than uranium (92)), based on the into an Agreement with the NRC under the results of a survey of Agreement State compliance with adopting the new activity indicated on the label. section 274b. of the Act. The Agreement 2. In § 31.5 paragraph (c)(13) would be States regulate most types of radioactive Generally Licensed Device Rule which showed that 12 of the 33 Agreement deleted in its entirety. material, including reactor fission 3. Revise the compatibility category of States had not adopted the new GL byproducts, source material (uranium § 31.6 from ‘‘B’’ to ‘‘C’’. and thorium) and special nuclear device requirements. materials in quantities not sufficient to The petitioner states further that Petitioner’s Justification form a critical mass, in accordance with during the May 2004 National OAS stated that the newly formed the compatibility requirements of the Conference on Radiation Control and OAS Rulemaking and Compatibility Act. The petitioner notes that NRC the September 2004 Organization of Committee surveyed the 33 Agreement periodically reviews the performance of Agreement States annual meeting, the State radiation control programs to each Agreement State to assure adequate Agreement States discussed problem determine the reaction to the change in protection of public health and safety areas associated with the current system compatibility of 10 CFR 31.5 and 31.6 and compatibility with its regulatory of regulating certain devices under a and the potential to specifically license requirements. general license. These problem areas devices currently regulated under a The petitioner further states that include: general license. Thirty-one States • Agreement States issue radioactive The compatibility change from ‘‘D’’ responded to the survey, as follows: material licenses, promulgate to ‘‘B’’ in 10 CFR 31.5 limits States that • Eighty-seven percent of the regulations and enforce these choose to be more restrictive in responding States disagree with the CY regulations under the authority of each regulating GL devices. 2000 Commission decision to revise the • individual state’s laws. The Agreement The compatibility change from ‘‘C’’ compatibility category of 10 CFR 31.5 States exercise their licensing and to ‘‘B’’ in 10 CFR 31.6 allows device and 31.6 (27 of 31 States). enforcement programs under direction manufacturers/service providers to • Ninety percent of the responding of their governors in a manner that is service devices in Agreement States for States currently allow a specific license compatible with the licensing programs less than 180 days without obtaining for devices that may be generally of the NRC. The 33 existing Agreement reciprocity or notifying State radiation licensed (28 of 31 states). States currently license and regulate control programs at a time when State • Ninety-seven percent of the approximately 16,800 radioactive programs believe enhanced tracking is responding States support the OAS material licenses, whereas the NRC required. taking action in this area (30 of 31 regulates approximately 4,400 licenses. • New materials security states). requirements have not been factored The OAS believes that requiring History of Issue into general license device regulations. specific licensing of the higher risk In July 1996, the joint NRC-Agreement • Low awareness of regulatory gauging devices identified by the 1995 State Working Group, approved by the requirements by some general licensees NRC-Agreement State joint working Commission to evaluate problems with due to high turnover in the industrial group can further enhance control and
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accountability of GL devices. OAS states implement the proposed changes with promulgating rules to address these that while the GL device rule was an limited impact on regulatory agencies issues, with the exception of the new improvement over past regulation of and licensees, resulting in improved registration requirements that would these devices, there are still on-going regulation and control of radioactive force it to adopt less stringent problems with the regulation of GL materials. registration and accountability standards for certain GL devices gauging devices, including: Florida’s Request • Low awareness of regulatory containing radioactive material. requirements by general licensees. In addition to requesting comment on Florida notes that NRC’s procedures • No routine inspection of GL devices the petition by the OAS, NRC is seeking in Management Directive 5.9, for for compliance with requirements. comment on a request by the Florida categorizing program elements or • No regulatory review prior to BRC. The issues raised in Florida’s regulations, states that to be included in purchase. request are closely related to those in Category ‘‘B’’, an NRC program element • Continued incidents involving loss the OAS petition, so NRC is seeking is to be one that applies to activities that of control of real or suspected GL comment on both the OAS petition and have direct and significant effects in devices. the Florida request at the same time. multiple jurisdictions (emphasis added). OAS believes that specific licensing of Florida, an Agreement State, Examples include: transportation higher activity GL gauging devices requested that the NRC change the requirements, approval of products that would provide the following compatibility category of 10 CFR are distributed nationwide, and advantages: 31.5(c)(13)(I) from category ‘‘B’’ to ‘‘C’’. definitions of products. Florida believes 1. Allow regulatory review (through Florida believes that the decision of the registration of additional GL devices the license application process) of whether and how to register additional would not have a direct and significant higher-activity device purchases prior to types and quantities of generally (GL) effect in multiple jurisdictions. receipt. devices beyond what the NRC requires Florida asserts that States and the 2. Increase security of the higher risk should be a decision left to the State NRC have had different GL gauging devices to minimize the with the authority for regulating the requirements for years with little possibility of these devices being used devices. Florida states that it has had discussion of any transboundary in malicious acts. well-established requirements for the problems, and that any actions 3. Increase licensee awareness of registration and regulation of GL devices concerning the registration of additional regulatory requirements by virtue of the for many years before the NRC adopted GL devices in Florida would be between specific license application process and regulations to register certain GL the State and individuals in Florida. periodic inspections. devices. Florida states that NRC’s According to Florida, this registration 4. Improve licensee control of devices, decision to assign a compatibility process does not have any direct and which may reduce the number of category ‘‘B’’ for 10 CFR 31.5(c)(13)(I), significant effect on device potential orphan sources. will require it to reduce its current manufacturers or distributors, the Petitioner’s Conclusion health, safety, and security regulatory transportation of the devices, the control of GL devices in order to be requirements for approval, or the The OAS understands and agrees with compatible with the less stringent NRC movement of devices into or out of the desire of the Commission and device regulations. Florida. manufacturers for more uniform Florida states that they issue and In the request, Florida cites its ability regulation of devices within the NRC currently regulate over 1500 radioactive to register, inventory, and inspect all GL and Agreement States. At the same time, material licenses, promulgate devices, as providing many benefits for the Agreement States’ desire to assure regulations and enforce these the safety and security of its citizens better accountability for sources and regulations under the authority of and visitors and therefore to move to devices that are within the states’ Chapter 404, Florida Statutes, and NRC’s registration scheme would jurisdiction. The Agreement States Chapter 64 E–5, Florida Administrative require it to cease to be able to register believe that the manufacture and Code. Florida notes that the NRC and account for over 1,000 radioactive distribution of the devices is best periodically reviews the performance of sources in GL devices currently being addressed uniformly by the methods its programs, thereby assuring regulated. Florida believes that its described in this petition. Therefore, the compatibility with the NRC’s regulatory ability to continue to register all GL OAS is proposing that 10 CFR 31.5 be requirements. devices clearly meets the essential amended to require specific licensing Florida requires registration of all GL objective of NRC’s Generally Licensed for devices that are currently regulated devices with the exception of some Device Rule. by a combination of general licensing tritium exit signs. Their program Florida notes also that NRC’s and registration. This action would includes source registration, fees, categorization criteria further states that establish a higher national standard of annual inventories and inspections. for a program element to be included in regulation for identified higher risk Florida is concerned that the Category ‘‘C’’, it should be one that the devices. In addition, the OAS is December 18, 2000, final rule, effective essential objective should be adopted by proposing that the compatibility on February 16, 2001, revised portions an Agreement State to avoid conflicts, category for 10 CFR 31.6 be revised from of 10 CFR parts 30, 31, and 32 to add duplications, or gaps in the regulation of ‘‘B’’ to ‘‘C’’ to allow retention of a tool new requirements for manufacturers, agreement material on a nationwide used by States to track the location and distributors and users of GL devices, basis and that, if not adopted, would movement of device manufacturers and and that part of the revision established result in an undesirable consequence. service providers in their State. This a new registration program for certain Florida believes that 10 CFR would allow Agreement States the GL devices in 10 CFR 31.5 )(13) and 31.5(c)(13)(I) meets the criteria for, and opportunity to assess and monitor the assigned a compatibility category of should be categorized as, compatibility radiation safety programs of device ‘‘B’’. According to Florida, it has category ‘‘C’’ in accordance with NRC manufacturer representatives working instituted a number of changes required Management Directive 5.9. within the State. The OAS believes the by the rule as legally binding license Dated at Rockville, Maryland, this 14th day NRC and Agreement States can conditions and also is working on of December, 2005.
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For the Nuclear Regulatory Commission. 400 Seventh Street, SW., Washington, Discussion Annette L. Vietti-Cook, DC, between 9 a.m. and 5 p.m., Monday On March 22, 1999, we issued AD 99– Secretary of the Commission. through Friday, except Federal holidays. 07–12, amendment 39–11097 (64 FR [FR Doc. 05–24250 Filed 12–19–05; 8:45 am] Contact Boeing Commercial 15298, March 31, 1999), for certain BILLING CODE 7590–01–P Airplanes, P.O. Box 3707, Seattle, Boeing Model 747–100, –200, and –300 Washington 98124–2207, for service series airplanes. That AD requires information identified in this proposed repetitive inspections to detect cracking DEPARTMENT OF TRANSPORTATION AD. of certain lower lobe fuselage frames, FOR FURTHER INFORMATION CONTACT: Ivan and repair if necessary. That AD Federal Aviation Administration Li, Aerospace Engineer, Airframe resulted from reports indicating that Branch, ANM–120S, FAA, Seattle fatigue cracks were found in lower lobe 14 CFR Part 39 Aircraft Certification Office, 1601 Lind frames on the left side of the fuselage. [Docket No. FAA–2005–23358; Directorate Avenue, SW., Renton, Washington We issued that AD to detect and correct Identifier 2005–NM–206–AD] 98055–4056; telephone (425) 917–6437; fatigue cracking of certain lower lobe fuselage frames, which could lead to RIN 2120–AA64 fax (425) 917–6590. fatigue cracks in the fuselage skin, and SUPPLEMENTARY INFORMATION: Airworthiness Directives; Boeing consequent rapid decompression of the Model 747–100, 747–100B, 747–100B Comments Invited airplane. SUD, 747–200B, 747–300, 747–400, We invite you to submit any relevant Actions Since Existing AD Was Issued 747–400D, and 747SR Series Airplanes written data, views, or arguments Since we issued AD 99–07–12, the AGENCY: Federal Aviation regarding this proposed AD. Send your manufacturer has issued new service Administration (FAA), Department of comments to an address listed in the information that expands the Transportation (DOT). ADDRESSES section. Include the docket applicability to include 747–400 and number ‘‘Docket No. FAA–2005–23358; ACTION: Notice of proposed rulemaking –400D series airplanes, line numbers Directorate Identifier 2005–NM–206– (NPRM). 696 to 1152 inclusive. AD’’ at the beginning of your comments. SUMMARY: The FAA proposes to We specifically invite comments on the Relevant Service Information supersede an existing airworthiness overall regulatory, economic, We have reviewed Boeing Alert directive (AD) that applies to certain environmental, and energy aspects of Service Bulletin 747–53A2408, Revision 747–100, –200, and –300 series the proposed AD. We will consider all 1, dated April 4, 2002 (the original airplanes. The existing AD currently comments received by the closing date revision of that alert service bulletin, requires repetitive inspections to detect and may amend the proposed AD in dated April 25, 1996, was referenced as cracking of certain lower lobe fuselage light of those comments. the appropriate source of service frames, and repair if necessary. This We will post all comments we information for accomplishing the proposed AD would retain all the receive, without change, to http:// required actions in AD 99–07–12). The requirements of the existing AD, and dms.dot.gov, including any personal procedures in Revision 1 of the alert add airplanes to the applicability. This information you provide. We will also service bulletin are essentially the same proposed AD results from reports post a report summarizing each as the procedures in the original indicating that fatigue cracks were substantive verbal contact with FAA revision for the airplanes affected by AD found in lower lobe frames on the left personnel concerning this proposed AD. 99–07–12 (identified in the service side of the fuselage. We are proposing Using the search function of that Web bulletin as Group 1 airplanes). These this AD to detect and correct fatigue site, anyone can find and read the procedures include repetitive cracking of certain lower lobe fuselage comments in any of our dockets, inspections to detect cracking of certain frames, which could lead to fatigue including the name of the individual lower lobe fuselage frames, and repair if cracks in the fuselage skin, and who sent the comment (or signed the necessary. For the 747–400 and –400D consequent rapid decompression of the comment on behalf of an association, series airplanes that are added to the airplane. business, labor union, etc.). You may effectivity of the service bulletin DATES: We must receive comments on review the DOT’s complete Privacy Act (identified as Group 2 airplanes), the this proposed AD by February 3, 2006. Statement in the Federal Register service bulletin specifies contacting the ADDRESSES: Use one of the following published on April 11, 2000 (65 FR manufacturer for information about how addresses to submit comments on this 19477–78), or you can visit http:// to repair frames that have crack damage. proposed AD. dms.dot.gov. • FAA’s Determination and Requirements DOT Docket Web site: Go to Examining the Docket of the Proposed AD http://dms.dot.gov and follow the instructions for sending your comments You may examine the AD docket on We have evaluated all pertinent electronically. the Internet at http://dms.dot.gov, or in information and identified an unsafe • Government-wide rulemaking Web person at the Docket Management condition that is likely to develop on site: Go to http://www.regulations.gov Facility office between 9 a.m. and 5 other airplanes of the same type design. and follow the instructions for sending p.m., Monday through Friday, except For this reason, we are proposing this your comments electronically. Federal holidays. The Docket AD, which would supersede AD 99–07– • Mail: Docket Management Facility; Management Facility office (telephone 12 and would retain the requirements of U.S. Department of Transportation, 400 (800) 647–5227) is located on the plaza the existing AD. This proposed AD also Seventh Street SW., Nassif Building, level of the Nassif Building at the DOT would add airplanes to the applicability room PL–401, Washington, DC 20590. street address stated in the ADDRESSES and require accomplishing the actions • Fax: (202) 493–2251. section. Comments will be available in specified in the service bulletin • Hand Delivery: Room PL–401 on the AD docket shortly after the Docket described previously, except as the plaza level of the Nassif Building, Management System receives them. discussed under ‘‘Difference Between
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the Proposed AD and the Service have changed in this proposed AD, as Aviation Programs, describes in more Bulletin.’’ listed in the following table: detail the scope of the Agency’s authority. Difference Between the Proposed AD REVISED PARAGRAPH IDENTIFIERS We are issuing this rulemaking under and the Service Bulletin the authority described in Subtitle VII, The service bulletin specifies to Requrement in AD Corresponding Part A, Subpart III, Section 44701, contact the manufacturer for requirement in this ‘‘General requirements.’’ Under that 99–07–12 proposed AD instructions on how to repair certain section, Congress charges the FAA with conditions, but this proposed AD would Paragraph (a) ...... Paragraph (f). promoting safe flight of civil aircraft in require repairing those conditions in Paragraph (b) ...... Paragraph (g). air commerce by prescribing regulations one of the following ways: Paragraph (c) ...... Paragraph (h). for practices, methods, and procedures • Using a method that we approve; or Paragraph (d) ...... Paragraph (i). the Administrator finds necessary for • Using data that meet the safety in air commerce. This regulation certification basis of the airplane, and Interim Action is within the scope of that authority that have been approved by an This is considered to be interim because it addresses an unsafe condition Authorized Representative for the that is likely to exist or develop on Boeing Commercial Airplanes action only until the accomplishment of AD 2005–20–30 for Boeing Model 747– products identified in this rulemaking Delegation Option Authorization action. Organization whom we have authorized 100, 747–100B, 747–100B SUD, 747– to make those findings. 200B, and 747–300, and 747SR series Regulatory Findings airplanes. AD 2005–20–30 requires a We have determined that this Explanation of Change to Applicability detailed inspection to detect cracks in proposed AD would not have federalism the Section 46 lower lobe frames, and We have revised the applicability of implications under Executive Order repair if necessary, in accordance with the AD to identify the model 13132. This proposed AD would not Boeing Service Bulletin 747–53–2349, designations as published in the most have a substantial direct effect on the Revision 2, dated April 3, 2003. The recent type certificate data sheet for the States, on the relationship between the initial inspection required by AD 2005– affected model. national Government and the States, or 20–30 is required prior to the on the distribution of power and Clarification of Alternative Method of accumulation of 22,000 total flight responsibilities among the various Compliance (AMOC) Paragraph cycles. We find that earlier inspection levels of government. (i.e., prior to accumulation of 15,000 We have revised this action to clarify For the reasons discussed above, I total flight cycles) of the lower lobe the appropriate procedure for notifying certify that the proposed regulation: frames is warranted, as proposed by this the principal inspector before using any 1. Is not a ‘‘significant regulatory AD. approved AMOC on any airplane to action’’ under Executive Order 12866; This is also considered to be interim which the AMOC applies. 2. Is not a ‘‘significant rule’’ under the action for Boeing Model 747–400 and DOT Regulatory Policies and Procedures Clarification of Inspection Terminology 747–400D airplanes only until the (44 FR 11034, February 26, 1979); and In this proposed AD, the ‘‘detailed accomplishment of an action similar to 3. Will not have a significant visual inspection’’ specified in the AD 2005–20–30 for these airplanes. On economic impact, positive or negative, Boeing service bulletin is referred to as September 16, 2005, we issued NPRM on a substantial number of small entities a ‘‘detailed inspection.’’ We have also Docket No. FAA–2005–22526 (70 FR under the criteria of the Regulatory changed references to a ‘‘detailed visual 56860, September 29, 2005), Directorate Flexibility Act. inspection’’ in the existing AD to refer Identifier 2005–NM–008–AD. That We prepared a regulatory evaluation to a ‘‘detailed inspection.’’ We have NPRM proposes to require repetitive of the estimated costs to comply with included the definition for a detailed inspections for cracking of certain this proposed AD and placed it in the inspection in a note in the proposed AD. fuselage internal structure, and repair if AD docket. See the ADDRESSES section necessary. Explanation of Change to Certain for a location to examine the regulatory References to Other AD Costs of Compliance evaluation. AD 99–07–12 refers to AD 93–08–12 There are about 681 airplanes of the List of Subjects in 14 CFR Part 39 amendment 39–8559 (58 FR 27927, May affected design in the worldwide fleet. Air transportation, Aircraft, Aviation 12, 1993), in the section titled ‘‘Interim This proposed AD would affect about 99 safety, Safety. Action,’’ and in paragraphs (a) and (d), airplanes of U.S. registry. and Note 3 of that AD. Since we issued The actions that are required by AD The Proposed Amendment AD 99–07–12 we have superseded AD 99–07–12 and retained in this proposed Accordingly, under the authority 93–08–12 with AD 2005–20–30 AD take about 2 work hours per delegated to me by the Administrator, amendment 39–14327 (70 FR 59252, airplane, at an average labor rate of $65 the FAA proposes to amend 14 CFR part October 12, 2005). Therefore, this per work hour. Based on these figures, 39 as follows: proposed AD refers to AD 2005–20–30 the estimated cost of both the retained rather than to AD 93–08–12. and proposed actions for U.S. operators PART 39—AIRWORTHINESS is $12,870, or $130 per airplane, per DIRECTIVES Changes to Paragraph Identifiers in inspection cycle. Existing AD 1. The authority citation for part 39 This proposed AD would retain all Authority for This Rulemaking continues to read as follows: requirements of AD 99–07–12. Since AD Title 49 of the United States Code Authority: 49 U.S.C. 106(g), 40113, 44701. 99–07–12 was issued, the AD format has specifies the FAA’s authority to issue been revised, and certain paragraphs rules on aviation safety. Subtitle I, § 39.13 [Amended] have been rearranged. As a result, the Section 106, describes the authority of 2. The Federal Aviation corresponding paragraph identifiers the FAA Administrator. Subtitle VII, Administration (FAA) amends § 39.13
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by removing amendment 39–11097 (64 Bulletin 747–53–2349, Revision 2, dated Flight Standards Certificate Holding District FR 15298, March 31, 1999) and adding April 3, 2003. The initial inspection is Office. the following new airworthiness required prior to the accumulation of 22,000 (3) An AMOC that provides an acceptable directive (AD): total flight cycles; or within 1,000 flight level of safety may be used for any repair cycles after June 11, 1993 (the effective date required by this AD, if it is approved by an Boeing: Docket No. FAA–2005–23358; of AD 93–08–12, amendment 39–8559), or Authorized Representative for the Boeing Directorate Identifier 2005–NM–206–AD. November 16, 2005 (the effective date of AD Commercial Airplanes Delegation Option Authorization Organization who has been Comments Due Date 2005–20–30), depending on previous inspections accomplished; whichever occurs authorized by the Manager, Seattle ACO, to (a) The FAA must receive comments on later. make those findings. For a repair method to this AD action by February 3, 2006. be approved, the repair must meet the Note 2: For the purposes of this AD, a Affected ADs certification basis of the airplane. detailed inspection is: ‘‘An intensive (4) AMOCs approved previously in (b) This AD supersedes AD 99–07–12. examination of a specific item, installation, accordance with AD 99–07–12, amendment Applicability or assembly to detect damage, failure, or 39–11097, are approved as AMOCs for the irregularity. Available lighting is normally corresponding provisions of this AD. (c) This AD applies to Boeing Model 747– supplemented with a direct source of good 100, 747–100B, 747–100B SUD, 747–200B, Issued in Renton, Washington, on lighting at an intensity deemed appropriate. December 13, 2005. 747–300, 747–400, 747–400D, and 747SR Inspection aids such as mirror, magnifying series airplanes, certificated in any category, lenses, etc., may be necessary. Surface Ali Bahrami, as identified in Boeing Alert Service Bulletin cleaning and elaborate procedures may be Manager, Transport Airplane Directorate, 747–53A2408, Revision 1, dated April 4, required.’’ Aircraft Certification Service. 2002. [FR Doc. 05–24242 Filed 12–19–05; 8:45 am] Unsafe Condition Repetitive Inspections BILLING CODE 4910–13–P (d) This AD results from reports indicating (g) If no cracking is detected during the that fatigue cracks were found in lower lobe inspection required by paragraph (f) of this frames on the left side of the fuselage. We are AD, repeat the inspection thereafter at DEPARTMENT OF TRANSPORTATION issuing this AD to detect and correct fatigue intervals not to exceed 3,000 flight cycles. cracking of certain lower lobe fuselage Corrective Actions Federal Aviation Administration frames, which could lead to fatigue cracks in the fuselage skin, and consequent rapid (h) If any cracking is detected during any 14 CFR Part 39 decompression of the airplane. inspection required by paragraph (f) of this AD, prior to further flight, accomplish [Docket No. FAA–2005–23357; Directorate Compliance paragraphs (h)(1) and (h)(2) of this AD: Identifier 2005–NM–207–AD] (e) You are responsible for having the (1) Within 20 inches of the crack location RIN 2120–AA64 actions required by this AD performed within on the frame, perform a detailed inspection of the adjacent structure to detect cracking. the compliance times specified, unless the Airworthiness Directives; Boeing actions have already been done. If any cracking is detected during any detailed inspection done in accordance with Model 777–200 Series Airplanes Restatement of the Requirements of AD 99– paragraph (f) or (h)(1) of this AD, prior to 07–12, With Additional Information for AGENCY: Federal Aviation further flight, repair in accordance with Administration (FAA), Department of Group 2 Airplanes paragraph (h)(1)(i) or (h)(1)(ii) of this AD, as Transportation (DOT). Initial Inspections applicable. (i) For Group 1 airplanes: Using a method ACTION: Notice of proposed rulemaking (f) For airplanes on which the initial approved in accordance with the procedures (NPRM). detailed internal inspection of the Section 46 specified in paragraph (j) of this AD. The lower lobe frames required by paragraph Boeing 747 Structural Repair Manual, Subject SUMMARY: The FAA proposes to adopt a (f)(2) or (i)(2) of AD 2005–20–30, amendment 53–10–04, Figure 67 or 90, is one approved new airworthiness directive (AD) for 39–14327, has not been accomplished: method. certain Boeing Model 777–200 series Perform a detailed visual inspection to detect (ii) For Group 2 airplanes: Using a method cracking of the lower lobe fuselage frames airplanes. This proposed AD would approved in accordance with the procedures from Body Station 1820 to Body Station require installing a new washer between specified in paragraph (j) of this AD. 2100, in accordance with the the lower wing surface and the jam nut (2) Repeat the inspection required by Accomplishment Instructions of Boeing Alert of the sump drain valve assembly. This paragraph (f) of this AD thereafter at intervals Service Bulletin 747–53A2408, dated April not to exceed 3,000 flight cycles. proposed AD results from fuel system 25, 1996; or Boeing Alert Service Bulletin reviews conducted by the manufacturer. 747–53A2408, Revision 1, dated April 4, Optional Terminating Inspection We are proposing this AD to prevent 2002; as applicable; at the later of the (i) Accomplishment of the initial detailed energy from a lightning strike on the applicable times specified in paragraph (f)(1), inspection of the Section 46 lower lobe bushing for the sump drain valve from (f)(2), or (f)(3) of this AD. frames required by paragraph (f)(2) or (i)(2) arcing to the inside of the center fuel (1) For all airplanes: Prior to the of AD 2005–20–30 constitutes terminating accumulation of 15,000 total flight cycles; or tank wall, which could create an action for the requirements of this AD only ignition source in the fuel tank and (2) For Group 1 airplanes identified in for airplanes identified in Boeing Alert Revision 1 of the service bulletin: Within Service Bulletin 747–53A2408, Revision 1, result in a fuel tank explosion. 1,500 flight cycles or 18 months after May 5, dated April 4, 2002, as Group 1 airplanes. DATES: We must receive comments on 1999 (the effective date of AD 99–07–12), this proposed AD by February 3, 2006. whichever occurs first. Alternative Methods of Compliance (AMOCs) ADDRESSES: Use one of the following (3) For Group 2 airplanes identified in (j)(1) The Manager, Seattle Aircraft Revision 1 of the service bulletin: Within addresses to submit comments on this Certification Office (ACO), FAA, has the proposed AD. 1,500 flight cycles or 18 months after the authority to approve AMOCs for this AD, if • effective date of this AD, whichever occurs requested in accordance with the procedures DOT Docket Web site: Go to first. found in 14 CFR 39.19. http://dms.dot.gov and follow the Note 1: Paragraph (f)(2) or (i)(2) of AD (2) Before using any AMOC approved in instructions for sending your comments 2005–20–30 requires a detailed inspection to accordance with § 39.19 on any airplane to electronically. detect cracks in the Section 46 lower lobe which the AMOC applies, notify the • Government-wide rulemaking Web frames, in accordance with Boeing Service appropriate principal inspector in the FAA site: Go to http://www.regulations.gov
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and follow the instructions for sending Federal holidays. The Docket We have determined that the actions your comments electronically. Management Facility office (telephone identified in this AD are necessary to • Mail: Docket Management Facility, (800) 647–5227) is located on the plaza reduce the potential of ignition sources U.S. Department of Transportation, 400 level of the Nassif Building at the DOT inside fuel tanks, which, in combination Seventh Street SW., Nassif Building, street address stated in the ADDRESSES with flammable fuel vapors, could result room PL–401, Washington, DC 20590. section. Comments will be available in in fuel tank explosions and consequent • Fax: (202) 493–2251. the AD docket shortly after the Docket loss of the airplane. • Hand Delivery: Room PL–401 on Management System receives them. We have received a report indicating the plaza level of the Nassif Building, that small gaps may be present between 400 Seventh Street, SW., Washington, Discussion the bushing of the sump drain valve and DC, between 9 a.m. and 5 p.m., Monday The FAA has examined the the lower wing surface in the center fuel through Friday, except Federal holidays. underlying safety issues involved in tank, on certain Boeing Model 777–200 Contact Boeing Commercial recent fuel tank explosions on several series airplanes. If a lightning strike Airplanes, P.O. Box 3707, Seattle, large transport airplanes, including the occurs on the bushing, arcs can go Washington 98124–2207, for the service adequacy of existing regulations, the across the small gaps between the information identified in this proposed service history of airplanes subject to bushing and the lower wing surface, and AD. those regulations, and existing into the inside of the fuel tank wall. The FOR FURTHER INFORMATION CONTACT: maintenance practices for fuel tank bushing does not have an engineered Margaret Langsted, Aerospace Engineer, systems. As a result of those findings, bond path to the wing surface. In Propulsion Branch, ANM–140S, FAA, we issued a regulation titled ‘‘Transport addition, the layer of sealant between Seattle Aircraft Certification Office, Airplane Fuel Tank System Design the bushing and the inner surface of the 1601 Lind Avenue, SW., Renton, Review, Flammability Reduction and fuel tank could be too thin to contain Washington 98055–4056; telephone Maintenance and Inspection the energy in the arcs. This condition, (425) 917–6500; fax (425) 917–6590. Requirements’’ (67 FR 23086, May 7, if not corrected, could create an ignition 2001). In addition to new airworthiness source in the center fuel tank and result SUPPLEMENTARY INFORMATION: standards for transport airplanes and in a fuel tank explosion. Comments Invited new maintenance requirements, this Relevant Service Information rule included Special Federal Aviation We invite you to submit any relevant We have reviewed Boeing Special written data, views, or arguments Regulation No. 88 (‘‘SFAR 88,’’ Amendment 21–78, and subsequent Attention Service Bulletin 777–28– regarding this proposed AD. Send your 0045, dated September 1, 2005. The comments to an address listed in the Amendments 21–82 and 21–83). Among other actions, SFAR 88 service bulletin describes procedures for ADDRESSES section. Include the docket installing a new washer between the number ‘‘FAA–2005–23357; Directorate requires certain type design (i.e., type certificate (TC) and supplemental type lower wing surface and the jam nut of Identifier 2005–NM–207–AD’’ at the the sump drain valve assembly. beginning of your comments. We certificate (STC)) holders to substantiate that their fuel tank systems can prevent Accomplishing the actions specified in specifically invite comments on the the service information is intended to overall regulatory, economic, ignition sources in the fuel tanks. This requirement applies to type design adequately address the unsafe environmental, and energy aspects of condition. the proposed AD. We will consider all holders for large turbine-powered comments received by the closing date transport airplanes and for subsequent FAA’s Determination and Requirements and may amend the proposed AD in modifications to those airplanes. It of the Proposed AD requires them to perform design reviews light of those comments. We have evaluated all pertinent and to develop design changes and We will post all comments we information and identified an unsafe maintenance procedures if their designs receive, without change, to http:// condition that is likely to exist or do not meet the new fuel tank safety dms.dot.gov, including any personal develop on other airplanes of this same standards. As explained in the preamble information you provide. We will also type design. For this reason, we are to the rule, we intended to adopt post a report summarizing each proposing this AD, which would require airworthiness directives to mandate any substantive verbal contact with FAA accomplishing the actions specified in changes found necessary to address personnel concerning this proposed AD. the service information described unsafe conditions identified as a result Using the search function of that web previously. site, anyone can find and read the of these reviews. comments in any of our dockets, In evaluating these design reviews, we Costs of Compliance including the name of the individual have established four criteria intended There are about 88 airplanes of the who sent the comment (or signed the to define the unsafe conditions affected design in the worldwide fleet. comment on behalf of an association, associated with fuel tank systems that This proposed AD would affect about 22 business, labor union, etc.). You may require corrective actions. The airplanes of U.S. registry. The proposed review DOT’s complete Privacy Act percentage of operating time during actions would take about 4 work hours Statement in the Federal Register which fuel tanks are exposed to per airplane, at an average labor rate of published on April 11, 2000 (65 FR flammable conditions is one of these $65 per work hour. Required parts 19477–78), or you may visit http:// criteria. The other three criteria address would cost about $360 per airplane. dms.dot.gov. the failure types under evaluation: Based on these figures, the estimated Single failures, single failures in Examining the Docket cost of the proposed AD for U.S. combination with another latent failure operators is $13,640, or $620 per You may examine the AD docket on condition(s), and in-service failure airplane. the Internet at http://dms.dot.gov, or in experience. For all four criteria, the person at the Docket Management evaluations included consideration of Authority for This Rulemaking Facility office between 9 a.m. and 5 previous actions taken that may mitigate Title 49 of the United States Code p.m., Monday through Friday, except the need for further action. specifies the FAA’s authority to issue
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rules on aviation safety. Subtitle I, § 39.13 [Amended] DEPARTMENT OF TRANSPORTATION Section 106, describes the authority of 2. The Federal Aviation the FAA Administrator. Subtitle VII, Federal Aviation Administration Administration (FAA) amends § 39.13 Aviation Programs, describes in more by adding the following new detail the scope of the Agency’s 14 CFR Part 39 airworthiness directive (AD): authority. [Docket No. 2003–NM–198–AD] We are issuing this rulemaking under Boeing: Docket No. FAA–2005–23357; the authority described in Subtitle VII, Directorate Identifier 2005–NM–207–AD. RIN 2120–AA64 Part A, Subpart III, Section 44701, Comments Due Date Airworthiness Directives; McDonnell ‘‘General requirements.’’ Under that Douglas Model DC–9–10, –20, –30, –40, section, Congress charges the FAA with (a) The FAA must receive comments on and –50 Series Airplanes; Model DC– promoting safe flight of civil aircraft in this AD action by February 3, 2006. 9–81 (MD–81), –82 (MD–82), –83 (MD– air commerce by prescribing regulations Affected ADs 83), and –87 (MD–87) Airplanes; and for practices, methods, and procedures (b) None. Model MD–88 Airplanes the Administrator finds necessary for safety in air commerce. This regulation Applicability AGENCY: Federal Aviation is within the scope of that authority (c) This AD applies to Boeing Model 777– Administration (FAA), Department of because it addresses an unsafe condition 200 series airplanes, certificated in any Transportation (DOT). that is likely to exist or develop on category; as identified in Boeing Special ACTION: Supplemental notice of products identified in this rulemaking Attention Service Bulletin 777–28–0045, proposed rulemaking; reopening of action. dated September 1, 2005. comment period.
Regulatory Findings Unsafe Condition SUMMARY: This document revises an We have determined that this (d) This AD results from fuel system earlier proposed airworthiness directive proposed AD would not have federalism reviews conducted by the manufacturer. We (AD), applicable to certain McDonnell implications under Executive Order are issuing this AD to prevent energy from a Douglas Model DC–9–10, –20, –30, –40, 13132. This proposed AD would not lightning strike on the bushing for the sump and –50 series airplanes; Model DC–9– have a substantial direct effect on the drain valve from arcing to the inside of the 81 (MD–81), –82 (MD–82), –83 (MD–83), States, on the relationship between the center fuel tank wall, which could create an and –87 (MD–87) airplanes; and Model national Government and the States, or ignition source in the fuel tank and result in MD–88 airplanes. That proposed AD on the distribution of power and a fuel tank explosion. would have required repetitive responsibilities among the various Compliance inspections and functional tests of the levels of government. static port heater assemblies, an (e) You are responsible for having the inspection of the static port heaters and For the reasons discussed above, I actions required by this AD performed within insulators, and corrective actions if certify that the proposed regulation: the compliance times specified, unless the necessary. This new action revises the 1. Is not a ‘‘significant regulatory actions have already been done. action’’ under Executive Order 12866; proposed AD by adding repetitive 2. Is not a ‘‘significant rule’’ under the Installation inspections of the static port heaters and DOT Regulatory Policies and Procedures (f) Within 60 months after the effective insulators and revising the functional (44 FR 11034, February 26, 1979); and date of this AD, install a new washer between test of the static port heater. The actions specified by this new proposed AD are 3. Will not have a significant the lower wing surface and the jam nut of the intended to prevent an electrical short economic impact, positive or negative, sump drain valve assembly in both wings, in of the static port heater from sparking on a substantial number of small entities accordance with the Accomplishment and igniting the insulation blanket under the criteria of the Regulatory Instructions of Boeing Special Attention adjacent to the static port heater, which Flexibility Act. Service Bulletin 777–28–0045, dated could result in smoke and/or fire in the We prepared a regulatory evaluation September 1, 2005. cabin area. This action is intended to of the estimated costs to comply with Alternative Methods of Compliance address the identified unsafe condition. this proposed AD and placed it in the (AMOCs) DATES: AD docket. See the ADDRESSES section Comments must be received by (g)(1) The Manager, Seattle Aircraft January 17, 2006. for a location to examine the regulatory Certification Office (ACO), FAA, has the ADDRESSES: Submit comments in evaluation. authority to approve AMOCs for this AD, if triplicate to the Federal Aviation requested in accordance with the procedures List of Subjects in 14 CFR Part 39 Administration (FAA), Transport found in 14 CFR 39.19. Air transportation, Aircraft, Aviation (2) Before using any AMOC approved in Airplane Directorate, ANM–114, safety, Safety. accordance with § 39.19 on any airplane to Attention: Rules Docket No. 2003–NM– 198–AD, 1601 Lind Avenue, SW., The Proposed Amendment which the AMOC applies, notify the appropriate principal inspector in the FAA Renton, Washington 98055–4056. Accordingly, under the authority Flight Standards Certificate Holding District Comments may be inspected at this delegated to me by the Administrator, Office. location between 9 a.m. and 3 p.m., the FAA proposes to amend 14 CFR part Monday through Friday, except Federal Issued in Renton, Washington, on 39 as follows: holidays. Comments may be submitted December 13, 2005. via fax to (425) 227–1232. Comments PART 39—AIRWORTHINESS Ali Bahrami, may also be sent via the Internet using DIRECTIVES Manager, Transport Airplane Directorate, the following address: 9-anm- Aircraft Certification Service. [email protected]. Comments sent 1. The authority citation for part 39 [FR Doc. 05–24243 Filed 12–19–05; 8:45 am] via fax or the Internet must contain continues to read as follows: BILLING CODE 4910–13–P ‘‘Docket No. 2003–NM–198–AD’’ in the Authority: 49 U.S.C. 106(g), 40113, 44701. subject line and need not be submitted
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in triplicate. Comments sent via the submitted in response to this action Revision 2 of Boeing Service Bulletin Internet as attached electronic files must must submit a self-addressed, stamped DC9–30–097 as the appropriate source be formatted in Microsoft Word 97 or postcard on which the following of service information for accomplishing 2000 or ASCII text. statement is made: ‘‘Comments to certain proposed inspections, The service information referenced in Docket Number 2003–NM–198–AD.’’ replacements, and functional tests. the proposed AD may be obtained from The postcard will be date stamped and We have also considered the Boeing Commercial Airplanes, Long returned to the commenter. following comments we received in Beach Division, 3855 Lakewood response to the original NPRM: Boulevard, Long Beach, California Availability of NPRMs Agrees With Original NPRM 90846, Attention: Data and Service Any person may obtain a copy of this Management, Dept. C1–L5A (D800– NPRM by submitting a request to the One commenter generally agrees with 0024). This information may be FAA, Transport Airplane Directorate, the original NPRM. examined at the FAA, Transport ANM–114, Attention: Rules Docket No. Request To Add Repetitive Inspections Airplane Directorate, 1601 Lind 2003–NM–198–AD, 1601 Lind Avenue, Avenue, SW., Renton, Washington; or at SW., Renton, Washington 98055–4056. The National Transportation Safety Board (NTSB) requests that the the FAA, Los Angeles Aircraft Discussion Certification Office, 3960 Paramount inspection specified in paragraph (b)(2) Boulevard, Lakewood, California. A proposal to amend part 39 of the of the original NPRM be changed from FOR FURTHER INFORMATION CONTACT: Federal Aviation Regulations (14 CFR a one-time inspection to a repetitive Elvin Wheeler, Aerospace Engineer, part 39) to add an airworthiness inspection. The NTSB is concerned that Systems and Equipment Branch, ANM– directive (AD) was published as a notice incorrect stacking of the heater and 130L, FAA, Los Angeles Aircraft of proposed rulemaking (NPRM) in the insulator may occur after the one-time Certification Office, 3960 Paramount Federal Register on March 8, 2004 (69 inspection. The NTSB states that Boulevard, Lakewood, California FR 10636). That NPRM was applicable repetitive inspections at the same 90712–4137; telephone (562) 627–5344; to certain McDonnell Douglas Model interval as the inspection specified in fax (562) 627–5210. DC–9–10, –20, –30, –40, and –50 series paragraph (b)(1) of the original NPRM airplanes; Model DC–9–81 (MD–81), –82 would identify incorrect stacking SUPPLEMENTARY INFORMATION: (MD–82), –83 (MD–83), and –87 (MD– without placing an undue burden on Comments Invited 87) airplanes; and Model MD–88 operators. Interested persons are invited to airplanes. That NPRM would have We agree with the NTSB that the participate in the making of the required repetitive inspections and inspection specified in paragraph (b)(2) proposed AD by submitting such functional tests of the static port heater of the supplemental NPRM be changed written data, views, or arguments as assemblies, an inspection of the static to a repetitive inspection. Incorrect they may desire. Communications shall port heaters and insulators, and stacking of the heater and insulator will identify the Rules Docket number and corrective actions if necessary. That cause higher-than-normal operating be submitted in triplicate to the address NPRM was prompted by studies that temperature locally in the insulation specified above. All communications revealed that the wiring of the static blanket, which would lead to quicker received on or before the closing date port heater assembly may be damaged. deterioration and aging of the rubber, for comments, specified above, will be That condition, if not corrected, could causing it to crack and lead to electrical considered before taking action on the result in an electrical short of the static shorting or arcing. In consideration of proposed AD. The proposals contained port heater and consequent sparking this unsafe condition and the potential in this action may be changed in light and ignition of the insulation blanket for incorrect stacking, we have of the comments received. adjacent to the static port heater, which determined that a repetitive inspection Submit comments using the following could result in smoke and/or fire in the of the heater and insulator for incorrect format: cabin area. stacking is necessary. We have revised • paragraph (b) of the supplemental Organize comments issue-by-issue. Actions Since Issuance of Previous NPRM accordingly. For example, discuss a request to Proposal change the compliance time and a The airplane manufacturer informed Request To Withdraw the Original request to change the service bulletin NPRM reference as two separate issues. the FAA that the functional test of the • For each issue, state what specific left and right primary and alternate Two commenters request that the change to the proposed AD is being static port heater assemblies must be original NPRM be withdrawn. One requested. revised to prevent damaging the aircraft commenter, the airplane manufacturer, • Include justification (e.g., reasons or fuselage skin. An operator informed the contends that the unsafe condition no data) for each request. airplane manufacturer that performing longer exists. The commenter states that Comments are specifically invited on the current functional test would the unsafe condition was addressed by the overall regulatory, economic, overheat and damage the aircraft Boeing Alert Service Bulletin MD90– environmental, and energy aspects of fuselage skin. Therefore the airplane 30A023, including Appendix, dated the proposed AD. All comments manufacturer has revised the functional March 14, 2001 (for Model MD–90–30 submitted will be available, both before test and issued Boeing Service Bulletin airplanes); and by Boeing Alert Service and after the closing date for comments, DC9–30–097, Revision 2, dated May 27, Bulletin MD80–30A092, including in the Rules Docket for examination by 2005, which references the revised Appendix, dated March 14, 2001 (for interested persons. A report functional test (Boeing Service Bulletin Model DC–9–81, –82, –83, and –87 summarizing each FAA-public contact DC9–30–097, Revision 01, dated January airplanes, and Model MD–88 airplanes). concerned with the substance of this 24, 2003, is cited as the appropriate The commenter notes that those service proposal will be filed in the Rules source of service information for doing bulletins were mandated by AD 2001– Docket. functional tests specified in the original 10–11, amendment 39–12237 (66 FR Commenters wishing the FAA to NPRM). We have revised this 28651, May 24, 2001), and by AD 2001– acknowledge receipt of their comments supplemental NPRM to reference 10–10, amendment 39–12236 (66 FR
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28643, May 24, 2001). The commenter Request To Revise Airplane commenter notes that the initial states that those ADs require inspecting Maintenance Manual (AMM) Reference inspection specified in the original the wiring of the primary and alternate One commenter requests that the NPRM is to be done within 18 months. static port heaters, determining if the reference to AMM 30–32–00 be revised However, the commenter proposes that type of insulation blanket installed is to AMM 30–30–00. The commenter the initial inspection be done within 36 months. The commenter contends that metallized Mylar, and modifying the believes the reference in paragraph the area of inspection is not normally insulation blankets if necessary. (b)(2) of the original NPRM is in error opened during the light checks that The commenter also states that a as it is not reflected in either the DC– occur every 18 months and that the area review of operators’ reports indicates 9 or the MD–80 AMMs. would be open for the heavy checks that that only two events resulted in smoke We agree with the commenter that the occur every 36 months. The commenter in the cabin, both on one operator’s reference should be revised to Boeing also suggests doing the repetitive Model MD–88 airplanes. One event Model DC–9 AMM 30–30–00 for Model inspections at intervals not to exceed 36 resulted in the issuance of the service DC–9 airplanes only. For Model DC–9 months instead of intervals not to bulletins described previously, and the airplanes, AMM 30–30–00 contains the exceed 48 months as specified in other event report stated that a smoke instructions for performing a general smell was ‘‘evident.’’ The commenter paragraph (b) of the original NPRM. The visual inspection of the left and right commenter concludes that their notes that ‘‘in the three years since the primary and alternate static port heater release of these service bulletins and the proposed compliance times would and insulator for proper installation. For alleviate much of its labor impact. related ADs, no other static port heater Model MD–80 airplanes, Boeing Model smoke/fire events have been reported We do not agree with the commenter MD–80 AMM 30–30–01 contains the to revise the compliance times in from the entire MD–80/90 fleet.’’ The same instructions. We have revised commenter believes that the actions in paragraph (b) of the supplemental paragraph (b)(2) of the supplemental NPRM. In developing an appropriate the original NPRM are purely an NPRM accordingly. enhancement; thus, the NPRM should compliance time, we considered the be withdrawn. Request To Remove Model DC–9 safety implications, and normal maintenance schedules for timely The other commenter states that the Airplanes From the Applicability accomplishment of the inspections cause of the smoke in the cabin was One commenter requests that Model specified in the supplemental NPRM. In determined to be an electrical short of DC–9–10, –20, –30, –40, and –50 series consideration of all of these factors, we the static port heater, which caused a airplanes be removed from the determined that the compliance times, spark that ignited the metallized Mylar applicability of the original NPRM. The as proposed, represent an appropriate insulation blanket adjacent to the commenter states that the original interval in which the inspections can be heater. The commenter contends that NPRM addresses known problems on accomplished, while still maintaining Boeing Alert Service Bulletin MD80– the Model DC–9–81 (MD–81), –82 (MD– an adequate level of safety. Operators 30A092 was issued to address the 82), –83 (MD–83), and –87 (MD–87) are always permitted to accomplish the unsafe condition by inspecting the static airplanes, and Model MD–88 airplanes, requirements of an AD at a time earlier port heater wiring and modifying or and extends a proposed solution to than the specified compliance time; removing the metallized Mylar Model DC–9–10, –20, –30, –40, and –50 therefore, an operator may choose to do insulation blankets. The commenter series airplanes. The commenter notes the repetitive inspections at intervals notes that it accomplished this service that the shorted wiring at the static port earlier than 48 months. We have not bulletin to comply with AD 2001–10–10 heater blanket caused or contributed to revised the supplemental NPRM in this and found no faults in any of the static an instance of a metallized Mylar regard. port heaters. The commenter believes insulation blanket being ignited. The this addresses the unsafe condition and commenter believes the unsafe Request To Allow Further Flight therefore the original NPRM is not condition does not apply to Model DC– Subject to the Conditions of the needed. 9–10, –20, –30, –40, and –50 series Maintenance Equipment List (MEL) We do not agree with the commenters’ airplanes because those models do not One commenter requests that requests to withdraw the original use metallized Mylar insulation provisions should be made to allow NPRM. Although no other static port blankets. further flight subject to the conditions of heater smoke/fire events have been We do not agree with the commenter the MEL when damaged or inoperative reported since we issued ADs 2001–10– to remove Model DC–9–10, –20, –30, static port heater assemblies are found 10 and 2001–10–11, the potential for –40, and –50 series airplanes from the during an inspection specified by the sparks from an electrical short of the applicability in this supplemental original NPRM. The commenter notes static port heater to ignite the insulation NPRM. The unsafe condition exists for that the original NPRM specifies that, if blanket adjacent to the static port heater airplanes on which there is a static port damage is found or the heater fails a and result in smoke and/or fire in the heater regardless of the type of functional test, the damaged or cabin area still exists. While ADs 2001– insulation blanket adjacent to the inoperative static port heater assembly 10–10 and 2001–10–11 require only a heater. An electrical short of the static must be replaced before further flight. one-time inspection of the wiring of the port heater from sparking could ignite The commenter states that the FAA- static port heaters, this supplemental the insulation blanket adjacent to the approved MEL item 30–6 allows the NPRM would require repetitive static port heater and result in smoke static port heaters to be inoperative for functional tests and inspections of the and/or fire in the cabin area. We have takeoff and landing under certain static port heater assemblies and wiring. not revised the supplemental NPRM in conditions, for up to 10 days. The The proposed repetitive inspections are this regard. commenter believes that provisions to required to identify and remove allow the operator to collar the circuit marginal static port heaters before they Request To Revise Compliance Times breaker and permit further flight subject fail and generate sparks. Therefore, we The same commenter requests that the to the MEL should be made in the event have not withdrawn this supplemental compliance times specified in paragraph of parts shortages or other unforeseen NPRM. (b) of the original NPRM be revised. The circumstances.
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We do not agree with the commenter specified in paragraph (b) of the original estimates the labor to do the visual to make provisions to allow further NPRM. The commenter states that most inspections and functional tests of the flight subject to the conditions of the of its primary static ports and primary left and right primary and alternate MEL when damaged or inoperative static port heaters were replaced during static port heater assemblies to be 3.2 static port heater assemblies are found. the accomplishment of Boeing Service hours. The commenter estimates 6.0 MEL item 30–6 is based on Bulletin MD80–34–289 to comply with labor hours to be more accurate. The meteorological conditions, which are the requirements for domestic reduced other commenter notes that the service subject to change, during takeoff and vertical separation minimums (RVSM). bulletin estimates either 2.8 or 3.2 labor landing. We have not revised the We do not agree with the commenter’s hours to gain access, do the general supplemental NPRM in this regard. request to allow replacement of the visual inspection, and do the test. The However, under the provisions of static port heater in accordance with commenter states that the original paragraph (e) of the supplemental Boeing Service Bulletin MD80–34–289, NPRM specifies only one labor hour to NPRM, we may approve requests for dated February 25, 1997, as a means of do the general visual inspection and adjustments to the compliance time if compliance with the initial inspection test, and one labor hour to do the other data are submitted to substantiate that specified in paragraph (b) of the inspection. The commenter also points such an adjustment would provide an supplemental NPRM. The service out that the original NPRM does not acceptable level of safety. bulletin, titled ‘‘Navigation—Attitude include labor hours to do repairs ‘‘as Indication—Inspect for Reduced required’’ and does not include the cost Request To Exclude Certain Airplanes Vertical Separation Minimums (RVSM) to replace any damaged or inoperative From Initial Inspection Requirements,’’ is for RVSMs that blankets, at approximately $500 to One commenter requests that started being implemented March 27, $1,000 each. airplanes on which the metallized Mylar 1997. However, the replacement While we do not object to the figures insulation blankets have been replaced procedure specified in the service provided by the commenters, we do not be excluded from the initial inspection bulletin does not comply with agree to revise the Cost Impact section specified in paragraph (b) of the original paragraph (b)(2) of the supplemental in the supplemental NPRM. The cost NPRM. The commenter notes that it is NPRM, which requires performing a information describes only the direct well into its metallized Mylar insulation general visual inspection of the static costs of the specific actions in the blanket replacement program for its port heater and insulator for proper supplemental NPRM that will be Model MD–80 fleet. The commenter installation. We have not revised the required, based on data provided by the states that the reason to exclude these supplemental NPRM in this regard. manufacturer for the number of work airplanes is because of the lack of However, under the provisions of hours necessary to do the proposed findings during the inspection of the paragraph (e) of the final rule, we may actions. We recognize that, in doing the static port heaters in all of its airplanes approve requests for an alternate actions required by an AD, operators in 2001. method of compliance (AMOC) if data may incur incidental costs in addition We disagree with the commenter. As are submitted to substantiate that such to the direct costs. The cost analysis in stated previously, the identified unsafe an AMOC would provide an acceptable AD rulemaking actions, however, condition is on all airplanes specified in level of safety. typically does not include incidental the applicability of the supplemental costs such as the time required to gain NPRM regardless of whether the Request To Clarify Drawing That Is Not access and close up, time necessary for insulation blankets are made of Applicable to Certain Airplanes planning, or time necessitated by other metallized Mylar. Therefore, even if the One commenter notes that ‘‘Condition administrative actions. Those incidental metallized Mylar insulation blankets 2’’ of the service bulletin refers to costs, which may vary significantly have been removed or replaced, McDonnell Douglas drawing among operators, are almost impossible operators must do the inspections SR09340158. However, the commenter to calculate. The economic analysis of specified in paragraph (b) of the states that the drawing is applicable to an AD also does not consider the costs supplemental NPRM to inspect both the Model MD–80 airplanes, not to Model of ‘‘on-condition’’ actions (that is, wiring in the static port connecter for DC–9 airplanes. We infer from this that actions needed to correct an unsafe damage and to inspect for proper the commenter is requesting condition and costs of associated parts) installation of the static port heater and clarification of a drawing specified in because, regardless of AD direction, insulator. These inspections are Boeing Service Bulletin DC9–30–097, those actions would be required to required in order to address the Revision 01, dated January 24, 2003. correct an unsafe condition identified in identified unsafe condition. We have We do not agree with the commenter an airplane and ensure operation of that not revised the supplemental NPRM in that the drawing is not applicable to airplane in an airworthy condition, as this regard. However, under the Model DC–9 airplanes. McDonnell required by the Federal Aviation provisions of paragraph (e) of the Douglas drawing SR09340158 is Regulations. We have not revised the supplemental NPRM, we may consider applicable to both Model MD–80 supplemental NPRM in this regard. requests for approval of an AMOC if airplanes and Model DC–9 airplanes. sufficient data are submitted to Because Model DC–9–80 (MD–80) Clarification of AMOC Paragraph substantiate that such an AMOC would airplanes are a derivative of the Model We have revised this supplemental provide an acceptable level of safety. DC–9 airplanes, Boeing uses DC–9 and NPRM to clarify the appropriate MD–80 drawings interchangeably. We procedure for notifying the principal Request To Allow Replacement of a have not revised the supplemental inspector before using any approved Heater as a Means of Compliance With NPRM in this regard. AMOC on any airplane to which the the Initial Inspection AMOC applies. One commenter requests that Request To Revise Cost Impact replacing a static port heater in Two commenters request that the Cost Conclusion accordance with Boeing Service Bulletin Impact section in the original NPRM be Since the changes described above MD80–34–289 be allowed as a means of revised. One commenter notes that expand the scope of the original NPRM, compliance with the initial inspection Boeing Service Bulletin DC9–30–097 the FAA has determined that it is
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necessary to reopen the comment period products identified in this rulemaking To prevent an electrical short of the static to provide additional opportunity for action. port heater from sparking and igniting the public comment. insulation blanket adjacent to the static port Regulatory Impact heater, which could result in smoke and/or Cost Impact The regulations proposed herein fire in the cabin area, accomplish the There are approximately 1,836 would not have a substantial direct following: airplanes of the affected design in the effect on the States, on the relationship Service Bulletin References worldwide fleet. The FAA estimates that between the national Government and (a) The term ‘‘service bulletin,’’ as used in 1,125 airplanes of U.S. registry would be the States, or on the distribution of this AD, means the Accomplishment affected by this proposed AD. power and responsibilities among the Instructions of Boeing Service Bulletin DC9– It would take approximately 1 work various levels of government. Therefore, 30–097, Revision 2, dated May 27, 2005. hour per airplane to accomplish the it is determined that this proposal Inspection and Functional Test proposed general visual inspection for would not have federalism implications wire damage and functional test, at an under Executive Order 13132. (b) Within 18 months after the effective average labor rate of $65 per work hour. For the reasons discussed above, I date of this AD, do the actions in paragraphs (b)(1) and (b)(2) of this AD. Repeat the Based on these figures, the cost impact certify that this proposed regulation (1) actions thereafter at intervals not to exceed of the proposed inspection for wire is not a ‘‘significant regulatory action’’ 48 months. damage and functional test on U.S. under Executive Order 12866; (2) is not (1) Perform a general visual inspection of operators is estimated to be $73,125, or a ‘‘significant rule’’ under the DOT the left and right primary and alternate static $65 per airplane, per inspection cycle. Regulatory Policies and Procedures (44 port heater assemblies for wire damage; and It would also take approximately 1 FR 11034, February 26, 1979); and (3) if perform a functional test of the left and right work hour per airplane to accomplish promulgated, will not have a significant primary and alternate static port heater the proposed general visual inspection economic impact, positive or negative, assemblies; in accordance with the service for proper installation, at an average on a substantial number of small entities bulletin. labor rate of $65 per work hour. Based under the criteria of the Regulatory Note 1: For the purposes of this AD, a on these figures, the cost impact of the Flexibility Act. A copy of the draft general visual inspection is: ‘‘A visual proposed inspection for proper regulatory evaluation prepared for this examination of an interior or exterior area, installation on U.S. operators is action is contained in the Rules Docket. installation or assembly to detect obvious estimated to be $73,125, or $65 per A copy of it may be obtained by damage, failure or irregularity. This level of inspection is made from within touching airplane, per inspection cycle. contacting the Rules Docket at the The cost impact figures discussed distance unless otherwise specified. A mirror location provided under the caption may be necessary to ensure visual access to above are based on assumptions that no ADDRESSES. all surfaces in the inspection area. This level operator has yet accomplished any of List of Subjects in 14 CFR Part 39 of inspection is made under normal available the proposed requirements of this AD lighting conditions such as daylight, hangar action, and that no operator would Air transportation, Aircraft, Aviation lighting, flashlight or drop-light and may accomplish those actions in the future if safety, Safety. require removal or opening of access panels this proposed AD were not adopted. The or doors. Stands, ladders or platforms may be The Proposed Amendment cost impact figures discussed in AD required to gain proximity to the area being rulemaking actions represent only the Accordingly, pursuant to the checked.’’ time necessary to perform the specific authority delegated to me by the (2) Perform a general visual inspection of actions actually required by the AD. Administrator, the Federal Aviation the left and right primary and alternate static These figures typically do not include Administration proposes to amend part port heater and insulator for proper incidental costs, such as the time 39 of the Federal Aviation Regulations installation in accordance with a method required to gain access and close up, (14 CFR part 39) as follows: approved by the Manager, Los Angeles Aircraft Certification Office (ACO). planning time, or time necessitated by Inspecting for proper installation in other administrative actions. PART 39—AIRWORTHINESS DIRECTIVES accordance with ‘‘Heater, Static—Removal/ Authority for This Rulemaking Installation’’ of Airplane Maintenance 1. The authority citation for part 39 Manual (AMM) 30–30–01 for Model MD–80 Title 49 of the United States Code continues to read as follows: airplanes or ‘‘Pitot and Static—Maintenance specifies the FAA’s authority to issue Practices’’ of AMM 30–30–00 for Model DC– Authority: 49 U.S.C. 106(g), 40113, 44701. rules on aviation safety. Subtitle I, 9 airplanes, as applicable, is one approved Section 106, describes the authority of § 39.13 [Amended] method. Before further flight, correct any the FAA Administrator. Subtitle VII, improper installation in accordance with a 2. Section 39.13 is amended by method approved by the Manager, Los Aviation Programs, describes in more adding the following new airworthiness detail the scope of the Agency’s Angeles ACO. Correcting improper directive: installation in accordance with AMM 30–30– authority. McDonnell Douglas: Docket 2003–NM–198– 01 or AMM 30–30–00, as applicable, is one We are issuing this rulemaking under approved method. For an inspection method the authority described in Subtitle VII, AD. Applicability: McDonnell Douglas Model or corrective method to be approved by the Part A, Subpart III, Section 44701, DC–9–11, DC–9–12, DC–9–13, DC–9–14, DC– Manager, Los Angeles ACO, as required by ‘‘General requirements.’’ Under that 9–15, DC–9–15F, DC–9–21, DC–9–31, DC–9– this paragraph, the Manager’s approval letter section, Congress charges the FAA with 32, DC–9–32 (VC–9C), DC–9–32F, DC–9–33F, must specifically refer to this AD. DC–9–34, DC–9–34F, DC–9–32F (C–9A, C– promoting safe flight of civil aircraft in Wire Damage or Heater Failures air commerce by prescribing regulations 9B), DC–9–41, DC–9–51, DC–9–81 (MD–81), for practices, methods, and procedures DC–9–82 (MD–82), DC–9–83 (MD–83), and (c) If wire damage is found and/or the heater assembly fails the functional test the Administrator finds necessary for DC–9–87 (MD–87) airplanes, and Model MD– 88 airplanes; certificated in any category; as during the general visual inspection and safety in air commerce. This regulation identified in Boeing Service Bulletin DC9– functional test required by paragraph (b)(1) of is within the scope of that authority 30–097, Revision 2, dated May 27, 2005. this AD: Before further flight, replace the because it addresses an unsafe condition Compliance: Required as indicated, unless damaged or inoperative static port heater that is likely to exist or develop on accomplished previously. assembly with a new or serviceable static
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port heater assembly in accordance with the from sparking and igniting the in this action may be changed in light service bulletin. insulation blanket adjacent to the static of the comments received. Actions Accomplished In Accordance With port heater, which could result in smoke Submit comments using the following Previous Issue of Service Bulletin and/or fire in the cabin area. This action format: • Organize comments issue-by-issue. (d) Inspections, functional tests, and is intended to address the identified corrective actions accomplished before the unsafe condition. For example, discuss a request to change the compliance time and a effective date of this AD in accordance with DATES: Comments must be received by Boeing Service Bulletin DC9–30–097, dated January 17, 2006. request to change the service bulletin February 15, 2002; and Boeing Service reference as two separate issues. Bulletin DC9–30–097, Revision 01, dated ADDRESSES: Submit comments in • For each issue, state what specific January 24, 2003; are considered acceptable triplicate to the Federal Aviation change to the proposed AD is being for compliance with the corresponding Administration (FAA), Transport requested. actions specified in this AD. Airplane Directorate, ANM–114, • Include justification (e.g., reasons or Alternative Methods of Compliance Attention: Rules Docket No. 2003–NM– data) for each request. Comments are specifically invited on (e)(1) In accordance with 14 CFR 39.19, the 194–AD, 1601 Lind Avenue, SW., Manager, Los Angeles Aircraft Certification Renton, Washington 98055–4056. the overall regulatory, economic, Office, FAA, is authorized to approve Comments may be inspected at this environmental, and energy aspects of alternative methods of compliance for this location between 9 a.m. and 3 p.m., the proposed AD. All comments AD. Monday through Friday, except Federal submitted will be available, both before (2) Before using any AMOC approved in holidays. Comments may be submitted and after the closing date for comments, accordance with 14 CFR 39.19 on any via fax to (425) 227–1232. Comments in the Rules Docket for examination by airplane to which the AMOC applies, notify may also be sent via the Internet using interested persons. A report the appropriate principal inspector in the the following address: 9-anm- summarizing each FAA-public contact FAA Flight Standards Certificate Holding concerned with the substance of this District Office. [email protected]. Comments sent via fax or the Internet must contain proposal will be filed in the Rules Issued in Renton, Washington, on ‘‘Docket No. 2003–NM–194–AD’’ in the Docket. December 12, 2005. subject line and need not be submitted Commenters wishing the FAA to Ali Bahrami, in triplicate. Comments sent via the acknowledge receipt of their comments Manager, Transport Airplane Directorate, Internet as attached electronic files must submitted in response to this action Aircraft Certification Service. be formatted in Microsoft Word 97 or must submit a self-addressed, stamped [FR Doc. 05–24246 Filed 12–19–05; 8:45 am] 2000 or ASCII text. postcard on which the following BILLING CODE 4910–13–P The service information referenced in statement is made: ‘‘Comments to the proposed AD may be obtained from Docket Number 2003–NM–194–AD.’’ Boeing Commercial Airplanes, Long The postcard will be date stamped and DEPARTMENT OF TRANSPORTATION Beach Division, 3855 Lakewood returned to the commenter. Federal Aviation Administration Boulevard, Long Beach, California Availability of NPRMs 90846, Attention: Data and Service Any person may obtain a copy of this 14 CFR Part 39 Management, Dept. C1–L5A (D800– 0024). This information may be NPRM by submitting a request to the [Docket No. 2003–NM–194–AD] examined at the FAA, Transport FAA, Transport Airplane Directorate, ANM–114, Attention: Rules Docket No. RIN 2120–AA64 Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at 2003–NM–194–AD, 1601 Lind Avenue, SW., Renton, Washington 98055–4056. Airworthiness Directives; McDonnell the FAA, Los Angeles Aircraft Douglas Model MD–90–30 Airplanes Certification Office, 3960 Paramount Discussion Boulevard, Lakewood, California. AGENCY: Federal Aviation A proposal to amend part 39 of the FOR FURTHER INFORMATION CONTACT: Administration (FAA), Department of Federal Aviation Regulations (14 CFR Transportation (DOT). Elvin Wheeler, Aerospace Engineer, part 39) to add an airworthiness Systems and Equipment Branch, ANM– ACTION: Supplemental notice of directive (AD), applicable to certain 130L, FAA, Los Angeles Aircraft McDonnell Douglas Model MD–90–30 proposed rulemaking; reopening of Certification Office, 3960 Paramount comment period. airplanes, was published as a notice of Boulevard, Lakewood, California proposed rulemaking (NPRM) in the SUMMARY: This document revises an 90712–4137; telephone (562) 627–5344; Federal Register on March 8, 2004 (69 earlier proposed airworthiness directive fax (562) 627–5210. FR 10638). That NPRM would have (AD), applicable to certain McDonnell SUPPLEMENTARY INFORMATION: required repetitive inspections and Douglas Model MD–90–30 airplanes, functional tests of the static port heater that would have required repetitive Comments Invited assemblies, an inspection of the static inspections and functional tests of the Interested persons are invited to port heaters and insulators, and static port heater assemblies, an participate in the making of the corrective actions if necessary. That inspection of the static port heaters and proposed AD by submitting such NPRM was prompted by studies that insulators, and corrective actions if written data, views, or arguments as revealed that the wiring of the static necessary. This new action revises the they may desire. Communications shall port heater assembly may be damaged. proposed AD by adding repetitive identify the Rules Docket number and That condition, if not corrected, could inspections of the static port heaters and be submitted in triplicate to the address result in an electrical short of the static insulators and revising the functional specified above. All communications port heater and consequent sparking test of the static port heater assemblies. received on or before the closing date and ignition of the insulation blanket The actions specified by this new for comments, specified above, will be adjacent to the static port heater, which proposed AD are intended to prevent an considered before taking action on the could result in smoke and/or fire in the electrical short of the static port heater proposed AD. The proposals contained cabin area.
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Actions Since Issuance of Previous paragraph (b) of the supplemental heaters before they fail and generate Proposal NPRM accordingly. sparks. Therefore, we have not withdrawn this supplemental NPRM. The airplane manufacturer informed Request To Withdraw the NPRM the FAA that the functional test of the One commenter, the airplane Request To Revise Airplane left and right primary and alternate manufacturer, requests that the NPRM Maintenance Manual (AMM) static port heater assemblies must be be withdrawn. The commenter contends One commenter requests that AMM revised to prevent damaging the aircraft that the unsafe condition no longer 30–32–00 be revised to include the fuselage skin. An operator informed the exists. The commenter states that the procedures to check the insulator for airplane manufacturer that performing unsafe condition was addressed by proper installation. the current functional test will overheat Boeing Alert Service Bulletin MD90– We partially agree with the and damage the aircraft fuselage skin. 30A023, including Appendix, dated commenter’s request. Operators should Therefore, the airplane manufacturer March 14, 2001 (for Model MD–90–30 note that the procedures to check the has revised the functional test and airplanes), which was mandated by AD insulator for proper installation are issued Boeing Service Bulletin MD90– 2001–10–11, amendment 39–12237 (66 located in Boeing Model MD–90–30 30–026, Revision 1, dated May 27, 2005, FR 28651, May 24, 2001), and by Boeing AMM 30–32–01, which is a which references the revised functional Alert Service Bulletin MD80–30A092, subparagraph of AMM 30–32–00. We test (Boeing Service Bulletin MD90–30– including Appendix, dated March 14, have revised the reference to the AMM 026, dated February 15, 2002, is cited as 2001 (for Model DC–9–81, –82, –83, and in paragraph (b)(2) of this supplemental the appropriate source of service –87 airplanes, and Model MD–88 NPRM accordingly. information for doing functional tests airplanes), which was mandated by AD specified in the original NPRM). We 2001–10–10, amendment 39–12236 (66 Request To Revise Service Bulletin have revised the supplemental NPRM to FR 28643, May 24, 2001). The The same commenter requests that reference Revision 1 of Boeing Service commenter states that those ADs require Boeing Service Bulletin MD90–30–026, Bulletin MD90–30–026 as the inspecting the wiring of the primary and dated February 15, 2002 (cited as the appropriate source of service alternate static port heaters, determining appropriate source of service information for accomplishing certain if the type of insulation blanket information for the NPRM), be revised proposed inspections, replacements, installed is metallized Mylar, and to include the inspection for proper and functional tests. modifying the insulation blankets if installation as required by the NPRM. We have also considered the necessary. The commenter notes that the service following comments we received in The commenter also states that a bulletin does not include an inspection response to the original NPRM: review of operator’s reports indicates for proper installation. only two events resulted in smoke in the We do not agree with the commenter’s Request To Add Repetitive Inspections cabin, both on one operator’s MD–88 request. We have consulted with the airplanes. One event resulted in the The National Transportation Safety manufacturer and have concluded that issuance of the service bulletins the AMM provides the necessary Board (NTSB) requests that the described previously, and the other inspection for incorrect stacking information to properly complete the event report stated a smoke smell was inspection. Therefore, there is limited specified in paragraph (b)(2) of the ‘‘evident.’’ The commenter notes that NPRM be changed from a one-time value in revising the service bulletin to ‘‘in the three years since the release of include this information. No change is inspection to a repetitive inspection. these service bulletins and the related The NTSB is concerned that, after the made to the supplemental NPRM in this ADs, no other static port heater smoke/ regard. one-time inspection specified in the fire events have been reported from the NPRM, incorrect stacking may still entire MD–80/90 fleet.’’ Clarification of Alternative Method of occur. The NTSB states that repetitive The commenter concludes that the Compliance (AMOC) Paragraph inspections would address any incorrect unsafe condition no longer exists, and We have revised this supplemental stacking that may occur in the future. that the actions in the NPRM are purely NPRM to clarify the appropriate The NTSB also states that the repetitive an enhancement. Therefore, the procedure for notifying the principal inspection interval could be the same as commenter requests that the NPRM be inspector before using any approved the one for the inspection specified in withdrawn. AMOC on any airplane to which the paragraph (b)(1) of the NPRM, and We do not agree with the commenter’s AMOC applies. therefore would not place an undue request to withdraw the NPRM. burden on operators. Although no other static port heater Conclusion We agree with the NTSB that the smoke/fire events have been reported Since certain changes described above inspection required in paragraph (b)(2) since we issued ADs 2001–10–10 and expand the scope of the original NPRM, of the supplemental NPRM be changed 2001–10–11, the potential for sparks the FAA has determined that it is to repetitive inspections. Incorrect from an electrical short of the static port necessary to reopen the comment period stacking of the heater and insulator will heater to ignite the insulation blanket to provide additional opportunity for cause higher-than-normal operating adjacent to the static port heater and public comment. temperature locally in the insulation result in smoke and/or fire in the cabin blanket, which would lead to quicker area still exists. While ADs 2001–10–10 Cost Impact deterioration and aging of the rubber, and 2001–10–11 require only a one-time There are approximately 116 causing it to crack and lead to electrical inspection of the wiring of the static airplanes of the affected design in the shorting or arcing. In consideration of port heaters, this supplemental NPRM worldwide fleet. The FAA estimates that this unsafe condition and the potential would require repetitive functional tests 22 airplanes of U.S. registry would be for incorrect stacking, we have and inspections of the static port heater affected by this proposed AD. determined that repetitive inspections assemblies and wiring. The proposed It would take approximately 1 work of the heater and insulator for incorrect repetitive inspections are required to hour per airplane to accomplish the stacking is necessary. We have revised identify and remove marginal static port proposed general visual inspection for
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wire damage and functional test, at an would not have federalism implications (1) Perform a general visual inspection of average labor rate of $65 per work hour. under Executive Order 13132. the left and right primary and alternate static Based on these figures, the cost impact For the reasons discussed above, I port heater assemblies for wire damage; and of the proposed inspection for wire certify that this proposed regulation (1) perform a functional test of the left and right is not a ‘‘significant regulatory action’’ primary and alternate static port heater damage and functional test on U.S. assemblies; in accordance with the service operators is estimated to be $1,430, or under Executive Order 12866; (2) is not bulletin. $65 per airplane, per inspection cycle. a ‘‘significant rule’’ under the DOT Regulatory Policies and Procedures (44 Note 1: For the purposes of this AD, a It would also take approximately 1 general visual inspection is: ‘‘A visual work hour per airplane to accomplish FR 11034, February 26, 1979); and (3) if examination of an interior or exterior area, the proposed general visual inspection promulgated, will not have a significant installation or assembly to detect obvious for proper installation, at an average economic impact, positive or negative, damage, failure or irregularity. This level of labor rate of $65 per work hour. Based on a substantial number of small entities inspection is made from within touching on these figures, the cost impact of the under the criteria of the Regulatory distance unless otherwise specified. A mirror proposed inspection for proper Flexibility Act. A copy of the draft may be necessary to ensure visual access to installation on U.S. operators is regulatory evaluation prepared for this all surfaces in the inspection area. This level action is contained in the Rules Docket. of inspection is made under normal available estimated to be $1,430, or $65 per lighting conditions such as daylight, hangar airplane, per inspection cycle. A copy of it may be obtained by lighting, flashlight or drop-light and may The cost impact figure discussed contacting the Rules Docket at the require removal or opening of access panels above is based on assumptions that no location provided under the caption or doors. Stands, ladders or platforms may be operator has yet accomplished any of ADDRESSES. required to gain proximity to the area being checked.’’ the proposed requirements of this AD List of Subjects in 14 CFR Part 39 action, and that no operator would (2) Perform a general visual inspection of accomplish those actions in the future if Air transportation, Aircraft, Aviation the left and right primary and alternate static this AD were not adopted. The cost safety, Safety. port heater and insulator for proper impact figures discussed in AD The Proposed Amendment installation in accordance with a method rulemaking actions represent only the approved by the Manager, Los Angeles Accordingly, pursuant to the Aircraft Certification Office (ACO). time necessary to perform the specific authority delegated to me by the Inspecting for proper installation in actions actually required by the AD. Administrator, the Federal Aviation accordance with ‘‘Static Port Heaters— These figures typically do not include Administration proposes to amend part Maintenance Practices’’ of McDonnell incidental costs, such as the time 39 of the Federal Aviation Regulations Douglas MD–90–30 Airplane Maintenance required to gain access and close up, (14 CFR part 39) as follows: Manual (AMM) 30–32–01 is one approved planning time, or time necessitated by method. Before further flight, correct any other administrative actions. PART 39—AIRWORTHINESS improper installation in accordance with a method approved by the Manager, Los Authority for This Rulemaking DIRECTIVES Angeles ACO. Correcting improper installation in accordance with ‘‘Static Port Title 49 of the United States Code 1. The authority citation for part 39 continues to read as follows: Heaters—Maintenance Practices’’ of AMM specifies the FAA’s authority to issue 30–32–01 is one approved method. For an rules on aviation safety. Subtitle I, Authority: 49 U.S.C. 106(g), 40113, 44701. inspection method or corrective method to be Section 106, describes the authority of approved by the Manager, Los Angeles ACO, the FAA Administrator. Subtitle VII, § 39.13 [Amended] as required by this paragraph, the Manager’s Aviation Programs, describes in more 2. Section 39.13 is amended by approval letter must specifically refer to this detail the scope of the Agency’s adding the following new airworthiness AD. authority. directive: Wire Damage or Heater Failures We are issuing this rulemaking under McDonnell Douglas: Docket 2003–NM–194– (c) If wire damage is found and/or the the authority described in Subtitle VII, AD. heater assembly fails the functional test Part A, Subpart III, Section 44701, Applicability: Model MD–90–30 airplanes, during the general visual inspection and ‘‘General requirements.’’ Under that certificated in any category, as identified in functional test required by paragraph (b)(1) of section, Congress charges the FAA with Boeing Service Bulletin MD90–30–026, this AD: Before further flight, replace the promoting safe flight of civil aircraft in Revision 1, dated May 27, 2005. damaged or inoperative static port heater Compliance: Required as indicated, unless assembly with a new or serviceable static air commerce by prescribing regulations accomplished previously. port heater assembly in accordance with the for practices, methods, and procedures To prevent an electrical short of the static service bulletin. the Administrator finds necessary for port heater from sparking and igniting the Actions Accomplished According to safety in air commerce. This regulation insulation blanket adjacent to the static port Previous Issue of Service Bulletin is within the scope of that authority heater, which could result in smoke and/or because it addresses an unsafe condition fire in the cabin area, accomplish the (d) Actions accomplished before the that is likely to exist or develop on following: effective date of this AD according to Boeing Service Bulletin MD90–30–026, dated products identified in this rulemaking Service Bulletin References February 15, 2002, are considered acceptable action. (a) The term ‘‘service bulletin,’’ as used in for compliance with the corresponding Regulatory Impact this AD, means the Accomplishment actions specified in this AD. Instructions of Boeing Service Bulletin The regulations proposed herein MD90–30–026, Revision 1, dated May 27, Alternative Methods of Compliance would not have a substantial direct 2005. (e)(1) In accordance with 14 CFR 39.19, the Manager, Los Angeles ACO, FAA, is effect on the States, on the relationship Inspection and Functional Test between the national Government and authorized to approve alternative methods of (b) Within 18 months after the effective compliance for this AD. the States, or on the distribution of date of this AD, do the actions in paragraphs (2) Before using any AMOC approved in power and responsibilities among the (b)(1) and (b)(2) of this AD. Repeat the accordance with 14 CFR 39.19 on any various levels of government. Therefore, actions thereafter at intervals not to exceed airplane to which the AMOC applies, notify it is determined that this proposal 48 months. the appropriate principal inspector in the
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FAA Flight Standards Certificate Holding Anchorage, AK 99513–7587; telephone placed on a mailing list for future District Office. number (907) 271–5898; fax: (907) 271– NPRM’s should contact the FAA’s Issued in Renton, Washington, on 2850; e-mail: [email protected]. Office of Rulemaking, (202) 267–9677, December 12, 2005. Internet address: http:// to request a copy of Advisory Circular Ali Bahrami, www.alaska.faa.gov/at. No. 11–2A, Notice of Proposed Manager, Transport Airplane Directorate, SUPPLEMENTARY INFORMATION: Rulemaking Distribution System, which describes the application procedure. Aircraft Certification Service. Comments Invited [FR Doc. 05–24247 Filed 12–19–05; 8:45 am] The Proposal Interested parties are invited to BILLING CODE 4910–13–P participate in this proposed rulemaking The FAA is considering an by submitting such written data, views, amendment to the Code of Federal DEPARTMENT OF TRANSPORTATION or arguments as they may desire. Regulations (14 CFR part 71), which Comments that provide the factual basis would revise the Class E airspace at Federal Aviation Administration supporting the views and suggestions Sand Point, AK. The intended effect of presented are particularly helpful in this proposal is to modify Class E 14 CFR Part 71 developing reasoned regulatory airspace upward from 700 ft. and 1,200 decisions on the proposal. Comments ft. above the surface to contain [Docket No. FAA–2005–23026; Airspace are specifically invited on the overall Instrument Flight Rules (IFR) operations Docket No. 05–AAL–39] regulatory, aeronautical, economic, at Sand Point, AK. The FAA Instrument Flight Proposed Revision of Class E environmental, and energy-related Procedures Production and Airspace; Sand Point, AK aspects of the proposal. Communications should identify both Maintenance Branch has developed AGENCY: Federal Aviation docket numbers and be submitted in three new SIAPs, revised the DP, and Administration (FAA), DOT. triplicate to the address listed above. modified one SIAP for the Sand Point ACTION: Notice of proposed rulemaking. Commenters wishing the FAA to Airport. The new approaches are: (1) acknowledge receipt of their comments Area Navigation (Global Positioning SUMMARY: This action proposes to revise on this notice must submit with those System) (RNAV (GPS)) Runway (RWY) the Class E airspace at Sand Point, AK. comments a self-addressed, stamped 13, original; (2) Non-directional Beacon Three new Standard Instrument postcard on which the following (NDB)/Distance Measuring Equipment Approach Procedures (SIAPs), a revised statement is made: ‘‘Comments to (DME) RWY 13, original; (3) NDB/DME Departure Procedure (DP) and a revised Docket No. FAA–2005–23026/Airspace RWY 31, original. The unnamed revised SIAP are being published for the Sand Docket No. 05–AAL–39.’’ The postcard DP is published in the front of the U.S. Point Airport. Adoption of this proposal will be date/time stamped and returned Terminal Procedures Alaska Vol 1. The would result in revised Class E airspace to the commenter. revised SIAP is the NDB RWY 13, upward from 700 feet (ft.) and 1,200 ft. All communications received on or Amendment 1. Modified Class E above the surface at Sand Point, AK. before the specified closing date for controlled airspace extending upward DATES: Comments must be received on comments will be considered before from 700 ft. and 1,200 ft. above the or before February 3, 2006. taking action on the proposed rule. The surface within the Sand Point Airport proposal contained in this notice may area would be established by this action. ADDRESSES: Send comments on the be changed in light of comments The proposed airspace is sufficient to proposal to the Docket Management received. All comments submitted will contain aircraft executing the new and System, U.S. Department of be available for examination in the revised instrument procedures at the Transportation, Room Plaza 401, 400 public docket both before and after the Sand Point Airport. Seventh Street, SW., Washington, DC closing date for comments. A report The area would be depicted on 20590–0001. You must identify the summarizing each substantive public aeronautical charts for pilot reference. docket number FAA–2005–23026/ contact with FAA personnel concerned The coordinates for this airspace docket Airspace Docket No. 05–AAL–39, at the with this rulemaking will be filed in the are based on North American Datum 83. beginning of your comments. You may docket. The Class E airspace areas designated as also submit comments on the Internet at 700/1200 foot transition areas are http://dms.dot.gov. You may review the Availability of Notice of Proposed published in paragraph 6005 in FAA public docket containing the proposal, Rulemaking’s (NPRM’s) Order 7400.9N, Airspace Designations any comments received, and any final An electronic copy of this document and Reporting Points, dated September disposition in person in the Dockets may be downloaded through the 1, 2005, and effective September 15, Office between 9 a.m. and 5 p.m., Internet at http://dms.dot.gov. Recently 2005, which is incorporated by Monday through Friday, except Federal published rulemaking documents can reference in 14 CFR 71.1. The Class E holidays. The Docket Office (telephone also be accessed through the FAA’s Web airspace designations listed in this 1–800–647–5527) is on the plaza level page at http://www.faa.gov or the document would be published of the Department of Transportation Superintendent of Document’s Web subsequently in the Order. NASSIF Building at the above address. page at http://www.access.gpo.gov/nara. The FAA has determined that this An informal docket may also be Additionally, any person may obtain proposed regulation only involves an examined during normal business hours a copy of this notice by submitting a established body of technical at the office of the Manager, Safety, request to the Federal Aviation regulations for which frequent and Alaska Flight Service Operations, Administration, Office of Air Traffic routine amendments are necessary to Federal Aviation Administration, 222 Airspace Management, ATA–400, 800 keep them operationally current. It, West 7th Avenue, Box 14, Anchorage, Independence Avenue, SW., therefore: (1) Is not a ‘‘significant AK 99513–7587. Washington, DC 20591 or by calling regulatory action’’ under Executive FOR FURTHER INFORMATION CONTACT: Gary (202) 267–8783. Communications must Order 12866; (2) is not a ‘‘significant Rolf, Federal Aviation Administration, identify both docket numbers for this rule’’ under DOT Regulatory Policies 222 West 7th Avenue, Box 14, notice. Persons interested in being and Procedures (44 FR 11034; February
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26, 1979); and (3) does not warrant Paragraph 6005 Class E airspace extending in ozone nonattainment and preparation of a regulatory evaluation as upward from 700 feet or more above the maintenance areas from the the anticipated impact is so minimal. surface of the earth. implementation of rules which limit the Since this is a routine matter that will * * * * * VOC content of architectural coatings only affect air traffic procedures and air AAL AK E5 Sand Point, AK[Revised] (commonly referred to as architectural navigation, it is certified that this rule, industrial maintenance, or AIM, Sand Point Airport, AK when promulgated, will not have a (Lat. 55°18′54″ N., long. 160°31′22″ W) coatings). In addition to submitting significant economic impact on a Borland NDB/DME comments, data and information, substantial number of small entities (Lat. 55°18′56″ N., long. 160°31′06″ W.) interested parties may also request to under the criteria of the Regulatory That airspace extending upward from meet with EPA to present their Flexibility Act. 700 feet above the surface within a 6.4-mile recommended approaches and radius of the Sand Point Airport and within rationales. Pursuant to requests of the The FAA’s authority to issue rules ° regarding aviation safety is found in 3 miles each side of the 172 bearing of the Ozone Transport Commission and the Borland NDB/DME extending from the 6.4- Title 49 of the United States Code. California Air Resources Board and to mile radius to 13.9 miles south of the airport allow more time in general, EPA is Subtitle 1, section 106 describes the ° and within 5 miles either side of the 318 extending the comment period an authority of the FAA Administrator. bearing of the Borland NDB/DME extending additional 60 days to February 16, 2006. Subtitle VII, Aviation Programs, from the 6.4-mile radius to 17 miles describes in more detail the scope of the northwest of the airport; and that airspace DATES: Comments must be received on agency’s authority. within 5 miles either side of the 324° bearing or before February 16, 2006. Requests to of the Borland NDB/DME extending from the meet with EPA should be made on or This rulemaking is promulgated 6.4-mile radius to 17 miles northwest of the before January 30, 2006. under the authority described in subtitle airport, and that airspace extending upward ADDRESSES: Submit comments, VII, part A, subpart 1, section 40103, from 1,200 feet above the surface within a 25- identified by Docket ID No. EPA–OAR– Sovereignty and use of airspace. Under mile radius of the Borland NDB/DME. 2005–0148, by one of the following that section, the FAA is charged with * * * * * methods: prescribing regulations to ensure the Issued in Anchorage, AK, on December 13, • http://www.regulations.gov: Follow safe and efficient use of the navigable 2005. the on-line instructions for submitting airspace. This regulation is within the Anthony M. Wylie, comments. scope of that authority because it Manager, Safety, Area Flight Service • E-mail: [email protected] proposes to modify the Class E airspace Operations. attention Docket No. EPA–OAR–2005– sufficiently to contain aircraft executing [FR Doc. 05–24228 Filed 12–19–05; 8:45 am] 0148. instrument procedures at Sand Point • BILLING CODE 4910–13–P Fax: 202–566–1741. Airport and represents the FAA’s • Mail: Docket ID No. EPA–OAR– continuing effort to safely and 2005–0148, Environmental Protection efficiently use the navigable airspace. ENVIRONMENTAL PROTECTION Agency Docket Center, Mail Code: List of Subjects in 14 CFR Part 71 AGENCY 6102T, 1200 Pennsylvania Avenue, NW., Washington, DC 10460. Please Airspace, Incorporation by reference, 40 CFR PART 51 include duplicate copies, if possible. Navigation (air). • Hand Delivery: Docket ID No. EPA– [EPA–OAR–2005–0148; FRL–8010–5] OAR–2005–0148, Environmental The Proposed Amendment Advance Notice To Solicit Comments, Protection Agency Docket Center, EPA In consideration of the foregoing, the Date and Information for Determining West Building, Room–102, 1301 Federal Aviation Administration the Emissions Reductions Achieved in Constitution Avenue, NW., Washington, proposes to amend 14 CFR part 71 as Ozone Nonattainment and DC. Please include duplicate copies, if follows: Maintenance Areas From the possible. Such deliveries are only Implementation of Rules Limiting the accepted during the Docket’s normal PART 71—DESIGNATION OF CLASS A, VOC Content of AIM Coatings; Second hours of operation, and special CLASS B, CLASS C, CLASS D, AND Extension of the Comment Period arrangements should be made for CLASS E AIRSPACE AREAS; deliveries of boxed information. AIRWAYS; ROUTES; AND REPORTING AGENCY: Environmental Protection Instructions: Direct your comments to POINTS Agency (EPA). Docket ID No. EPA–OAR–2005–0148. ACTION: Advance notice of proposed The EPA’s policy is that all comments 1. The authority citation for 14 CFR rulemaking; second extension of the received will be included in the public part 71 continues to read as follows: comment period. docket without change and may be made available online at http:// Authority: 49 U.S.C. 106(g), 40103, 40113, SUMMARY: The EPA is extending the www.regulations.gov, including any 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– comment period a second time for an personal information provided, unless 1963 Comp., p. 389. advanced notice of proposed the comment includes information § 71.1 [Amended] rulemaking (ANPR) published on claimed to be Confidential Business August 31, 2005 (70 FR 51694). The first Information (CBI) or other information 2. The incorporation by reference in extension of comment period published whose disclosure is restricted by statute. 14 CFR 71.1 of Federal Aviation in the Federal Register on October 13, Do not submit information that you Administration Order 7400.9N, 2005 (70 FR 59680). In the August 31, consider to be CBI or otherwise Airspace Designations and Reporting 2005, document, EPA solicited protected through http:// Points, dated September 1, 2005, and comments, data and information for www.regulations.gov or e-mail. The effective September 15, 2005, is to be determining how to calculate the http://www.regulations.gov Web site is amended as follows: reduction in volatile organic an ‘‘anonymous access’’ system, which * * * * * compounds (VOC) emissions achieved means EPA will not know your identify
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or contact information unless you Group, Air Quality Strategies & Environmental Protection Agency, Air provide it in the body of your comment. Standards Division, Mail Code C539–02, Planning and Development Branch, 901 If you send an e-mail comment directly Office of Air Quality Planning & North 5th Street, Kansas City, Kansas to EPA without going through Standards, Research Triangle Park, NC 66101. Such deliveries are only www.regulations.gov your e-mail 27711, telephone (919) 541–3356, or by accepted during the Regional Office’s address will be automatically captured e-mail at [email protected]. normal hours of operation. The Regional and included as part of the comment Dated: December 14, 2005. Office’s official hours of business are that is placed in the public docket and William L. Wehrum, Monday through Friday, 8 to 4:30, made available on the Internet. If you excluding legal holidays. Acting Assistant Administrator, Office of Air submit an electronic comment, EPA and Radiation. Please see the direct final rule which recommends that you include your is located in the Rules section of this [FR Doc. 05–24260 Filed 12–19–05; 8:45 am] name and other contact information in Federal Register for detailed the body of your comment and with any BILLING CODE 6560–50–M instructions on how to submit disk or CD–ROM you submit. If EPA comments. cannot read your comment due to ENVIRONMENTAL PROTECTION FOR FURTHER INFORMATION CONTACT: technical difficulties and cannot contact AGENCY Heather Hamilton at (913) 551–7039, or you for clarification, EPA may not be by e-mail at [email protected]. able to consider your comment. 40 CFR Parts 52 and 70 Electronic files should avoid the use of SUPPLEMENTARY INFORMATION: In the special characters, any form of [EPA–R07–OAR–2005–IA–0006; FRL–8010– final rules section of the Federal encryption, and be free of any defects or 8] Register, EPA is approving the state’s submittal as a direct final rule without viruses. For additional information Approval and Promulgation of about EPA’s public docket visit the EPA prior proposal because the Agency Implementation Plans and Operating views this as a noncontroversial Docket Center homepage at http:// Permits Program; State of Iowa www.epa.gov/epahome/docket.htm. revision amendment and anticipates no Docket: All documents in the docket AGENCY: Environmental Protection relevant adverse comments to this are listed in the http:// Agency (EPA). action. A detailed rationale for the approval is set forth in the direct final www.regulations.gov index. Although ACTION: Proposed rule. listed in the index, some information is rule. If no relevant adverse comments not publicly available, e.g., CBI or other SUMMARY: EPA proposes to approve are received in response to this action, information whose disclosure is revisions to the State Implementation no further activity is contemplated in restricted by statute. Certain other Plan (SIP) submitted by the state of relation to this action. If EPA receives material, such as copyrighted material, Iowa. These revisions include the relevant adverse comments, the direct will be publicly available only in hard general rulemaking that Iowa completes final rule will be withdrawn and all copy. Publicly available docket for the purpose of updating various public comments received will be materials are available either rules, making clarifications and other addressed in a subsequent final rule electronically in http:// minor revisions. EPA is also proposing based on this proposed action. EPA will www.regulations.gov or in hard copy at approval of revisions to the Iowa not institute a second comment period the Docket, EPA/DC, EPA West, Room Operating Permits Program for the on this action. Any parties interested in B102, 1301 Constitution Ave., NW., purpose of updating and clarifying commenting on this action should do so Washington, DC. This docket facility is various rules included in the general at this time. Please note that if EPA open from 8:30 a.m. to 4:30 p.m., rulemaking. These revisions add new receives adverse comment on part of Monday through Friday, excluding legal definitions, as well as an administrative this rule and if that part can be severed holidays. The docket telephone number correction to a previously submitted from the remainder of the rule, EPA may is (202) 566–1742. The Public Reading rule. Approval of these revisions will adopt as final those parts of the rule that Room is open from 8:30 a.m. to 4:30 ensure consistency between the state are not the subject of an adverse p.m, Monday through Friday, excluding and Federally-approved rules, and comment. For additional information, legal holidays. The telephone number ensure Federal enforceability of the see the direct final rule which is located for the public Reading room is (202) State’s revised air program rules. in the rules section of this Federal Register. 566–1744. DATES: Comments on this proposed FOR FURTHER INFORMATION CONTACT: action must be received in writing by Dated: December 12, 2005. Marcia L. Spink, Air Protection January 19, 2006. James B. Gulliford, Division, Office of Air Programs, Mail ADDRESSES: Submit your comments, Regional Administrator, Region 7. Code: 3AP20; Environmental Protection identified by Docket ID No. EPA–R07– [FR Doc. 05–24258 Filed 12–19–05; 8:45 am] Agency, Region 3, 1650 Arch St., OAR–2005–IA–0006 by one of the BILLING CODE 6560–50–P Philadelphia, PA 19103–2029; following methods: telephone (215) 814–2104, spink.marcia 1. http://www.regulations.gov: Follow epa.gov, or Makeba A. Morris, Air the on-line instructions for submitting DEPARTMENT OF DEFENSE Protection Division, Air Quality comments. Planning Branch, Mail Code; 3AP21; 2. E-mail: Heather Hamilton at 48 CFR Parts 215, 230, 252, and 253 Environmental Protection Agency, [email protected]. Region 3, 1650 Arch St., Philadelphia, 3. Mail: Heather Hamilton, [DFARS Case 2003–D014] PA 19103–2029; telephone number: Environmental Protection Agency, Air Defense Federal Acquisition (215) 814–2187; fax number: (215) 814– Planning and Development Branch, 901 Regulation Supplement; Contract 2124; e-mail address: North 5th Street, Kansas City, Kansas Pricing and Cost Accounting [email protected]. To schedule a 66101. Standards meeting with EPA, please contact David 4. Hand Delivery or Courier. Deliver Sanders, Ozone Policy & Strategies your comments to: Heather Hamilton, AGENCY: Department of Defense (DoD).
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ACTION: Proposed rule with request for http://www.acq.osd.mil/dpap/dars/ • Elimination of 230.7101, comments. dfars/transformation/index.htm. Calculations, and 230.7102, This proposed rule is a result of the Determining imputed cost of money, SUMMARY: DoD is proposing to amend DFARS Transformation initiative. The because they are adequately covered in the Defense Federal Acquisition proposed DFARS changes include: CAS 417, Cost of Money as an Element Regulation Supplement (DFARS) to • Addition of text at 215.403–1(c) and of the Cost of Capital Assets Under update text addressing contract pricing 230.201–5(a)(1) to implement Section Construction (48 CFR 9904.417). matters and cost accounting standards 817 of the National Defense • Removal of 230.7103, Preaward administration. This proposed rule is a Authorization Act for Fiscal Year 2003 capital employed application, and result of a transformation initiative (Pub. L. 107–314) regarding exceptions relocation of that coverage to 215.404– undertaken by DoD to dramatically to cost or pricing data requirements and 73(b)(2)(i), Offsets for facilities capital change the purpose and content of the waiver of cost accounting standards. cost of money, since it applies to offsets DFARS. • Deletion of 215.404–1(d), Cost in determining profit, rather than cost DATES: Comments on the proposed rule realism analysis, because FAR 15.404–1 accounting standards. should be submitted in writing to the contains sufficient policy on this • Relocation of the following text to address shown below on or before subject. the new DFARS companion resource, February 21, 2006, to be considered in • Deletion of unnecessary Procedures, Guidance, and Information the formation of the final rule. introductory text at redesignated (PGI). Additional information on PGI is available at http://www.acq.osd.mil/ ADDRESSES: You may submit comments, 215.404–71–4(f), Facilities capital dpap/dars/pgi. identified by DFARS Case 2003–D014, employed, Values: Normal and • 215.403–1(c)(1), Adequate price using any of the following methods: designated ranges. • • Deletion of the definition of competition. Federal eRulemaking Portal: http:// • 215.403–5, Instructions for www.regulations.gov. Follow the ‘‘Acceptable estimating system’’ from 215.407–5–70(a)(1), and relocation of submission of cost or pricing data or instructions for submitting comments. information other than cost or pricing • Defense Acquisition Regulations the definition to the contract clause at 252.215–7002, Cost Estimating System data. Web Site: http://emissary.acq.osd.mil/ • 215.404–2, Information to support dar/dfars.nsf/pubcomm. Follow the Requirements; addition of a cross- reference in 215.407–5–70(a)(1) to the proposal analysis. instructions for submitting comments. • 215.404–3, Subcontract pricing • relocated definition; elimination of E-mail: [email protected]. Include considerations. DFARS Case 2003–D014 in the subject 215.407–5–70(b)(1)(iii) and (iv) and • relocation of the language to the new 215.404–70, DD Form 1547, Record line of the message. of Weighted Guidelines Method • Fax: (703) 602–0350. definition at 252.215–7002(a); and deletion of duplicative language at Application. • Mail: Defense Acquisition • 252.215–7002(b). 215.404–71–2(b), (d), and (e), Regulations System, Attn: Mr. Bill Sain, Performance risk. • Revision of 230.201–5(a)(1)(A) to OUSD (AT&L) DPAP(DAR), IMD 3C132, • 215.404–71–3(b), (d), (e), and (f)(3), address the authority of the Director, 3062 Defense Pentagon, Washington, DC Contract type risk and working capital Defense Procurement and Acquisition 20301–3062. adjustment. Policy, to grant cost accounting • Hand Delivery/Courier: Defense • 215.404–71–4, Facilities capital standards waivers, in accordance with Acquisition Regulations System, Crystal employed (partial relocation). Section 802 of the National Defense Square 4, Suite 200A, 241 18th Street, • 215.404–71–5(b) and (c), Cost Authorization Act for Fiscal Year 2000 Arlington, VA 22202–3402. efficiency factor. (Pub. L. 106–65). All comments received will be posted • 215.404–76, Reporting profit and • Removal of 230.7000, Contract to http://emissary.acq.osd.mil/dar/ fee statistics. facilities capital estimates; 230.7001, dfars.nsf. • 215.406–1, Prenegotiation Use of DD Form 1861; 230.7002, objectives. FOR FURTHER INFORMATION CONTACT: Mr. Preaward facilities capital applications; • 215.406–3, Documenting the Bill Sain, (703) 602–0293. and 230.7004–2, DD Form 1861, and negotiation. SUPPLEMENTARY INFORMATION: relocation of text on these subjects to • 215.407–4, Should-cost review. 215.404–4, Profit, since these sections • A. Background 215.407–5–70(e) and (f), Estimating pertain to the calculation of weighted systems ‘‘ Disclosure, maintenance, and DFARS Transformation is a major guidelines for profit, rather than cost review requirements. DoD initiative to dramatically change accounting standards. • 215.470(b) and (c), Estimated data • the purpose and content of the DFARS. Elimination of 230.7003, Postaward prices, except that the first sentence of The objective is to improve the facilities capital applications, and (b) remains in DFARS, and is revised for efficiency and effectiveness of the 230.7004–1, Forms CASB–CMF, since clarity. acquisition process, while allowing the these sections duplicate CAS 414, Cost • 230.201–5(a)(1), Waiver (partial acquisition workforce the flexibility to of Money as an Element of the Cost of relocation). innovate. The transformed DFARS will Facilities Capital; FAR 31.205–10, Cost • 253.215–70, DD Form 1547, Record contain only requirements of law, DoD- of Money; and the implementing of Weighted Guidelines Application. wide policies, delegations of FAR contract clauses. This rule was not subject to Office of authorities, deviations from FAR • Elimination of the definitions at Management and Budget review under requirements, and policies/procedures 230.7100(a) and (b), since these Executive Order 12866, dated that have a significant effect beyond the definitions are provided in the cost September 30, 1993. internal operating procedures of DoD or accounting standards (CAS); elimination a significant cost or administrative of the definition at 230.7100(c), because B. Regulatory Flexibility Act impact on contractors or offerors. it conflicts with CAS; and elimination of DoD does not expect this rule to have Additional information on the DFARS the definition at 230.7100(d), because it a significant economic impact on a Transformation initiative is available at is unnecessary. substantial number of small entities
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within the meaning of the Regulatory exceptional circumstances authority 215.404–3 Subcontract pricing Flexibility Act, 5 U.S.C. 601, et seq., when a determination is made that: considerations. because the rule updates, clarifies, and (1) The property or services cannot Follow the procedures at PGI relocates DFARS text, but makes no reasonably be obtained under the 215.404–3 when reviewing a significant change to DoD contracting contract, subcontract, or modification, subcontractor’s proposal. policy. Therefore, DoD has not without the granting of the waiver; 6. Section 215.404–4 is amended by performed an initial regulatory revising paragraph (b)(1) introductory (2) The price can be determined to be flexibility analysis. DoD invites text to read as follows: fair and reasonable without the comments from small businesses and submission of certified cost or pricing 215.404–4 Profit. other interested parties. DoD will also data; and consider comments from small entities (b) * * * concerning the affected DFARS subparts (3) There are demonstrated benefits to (1) Contracting officers shall use a in accordance with 5 U.S.C. 610. Such granting the waiver. structured approach for developing a comments should be submitted (B) By November 30th of each year, prenegotiation profit or fee objective on separately and should cite DFARS Case the departments and agencies shall any negotiated contract action when 2003-D014. provide a report to the Director, DPAP, cost or pricing data is obtained, except ATTN: DPAP/Policy, of all waivers for cost-plus-award-fee contracts (see C. Paperwork Reduction Act granted under FAR 15.403–1(b)(4), 215.404–74, 216.405–2, and FAR The Paperwork Reduction Act does during the previous fiscal year, for any 16.405–2) or contracts with Federally not apply, because the rule does not contract, subcontract, or modification Funded Research and Development impose any information collection expected to have a value of $15,000,000 Centers (FFRDCs) (see 215.404–75). requirements that require the approval or more. See PGI 215.403–1(c)(4)(B) for There are three structured approaches— of the Office of Management and Budget the format and guidance for the report. * * * * * under 44 U.S.C. 3501, et seq. The Director, DPAP, will submit a 7. Section 215.404–70 is revised to consolidated report to the congressional read as follows: List of Subjects in 48 CFR Parts 215, defense committees. 230, 252, and 253 215.404–70 DD Form 1547, Record of (C) DoD has waived the requirement Weighted Guidelines Method Application. Government procurement. for submission of cost or pricing data for Follow the procedures at PGI Michele P. Peterson, the Canadian Commercial Corporation 215.404–70 for use of DD Form 1547 Editor, Defense Acquisition Regulations and its subcontractors. whenever a structured approach to System. (D) DoD has waived cost or pricing profit analysis is required. Therefore, DoD proposes to amend 48 data requirements for nonprofit 8. Section 215.404–71–2 is amended CFR Parts 215, 230, 252, and 253 as organizations (including educational by revising paragraphs (b), (d), and (e) follows: institutions) on cost-reimbursement-no- to read as follows: fee contracts. The contracting officer 1. The authority citation for 48 CFR 215.404–71–2 Performance risk. Parts 215, 230, 252, and 253 continues shall require: to read as follows: (1) Submission of information other * * * * * than cost or pricing data to the extent (b) Determination. See PGI 215.404– Authority: 41 U.S.C. 421 and 48 CFR 71–2(b) for guidance on determining the Chapter 1. necessary to determine price reasonableness and cost realism; and risk factors to be included in DD Form 1547. PART 215—CONTRACTING BY (2) Cost or pricing data from * * * * * NEGOTIATION subcontractors that are not nonprofit (d) Evaluation criteria for technical. organizations when the subcontractor’s 2. Section 215.403–1 is revised to read See PGI 215.404–71–2(d) for guidance proposal exceeds the cost or pricing as follows: on evaluation criteria and examples of data threshold at FAR 15.403–4(a)(1). when above and below normal values 215.403–1 Prohibition on obtaining cost or 3. Section 215.403–5 is revised to read pricing data. should be applied. as follows: (e) Evaluation criteria for (c) See PGI 215.403–1(c) for guidance 215.403–5 Instructions for submission of management/cost control. See PGI on standards for exceptions from cost or 215.404–71–2(e) for guidance on pricing data requirements. cost or pricing data or information other than cost or pricing data. evaluation criteria and examples of (3) Commercial items. By November when above and below normal values 30th of each year, the departments and When the solicitation requires should be applied. agencies shall provide a report to the contractor compliance with the 9. Section 215.404–71–3 is amended Director, Defense Procurement and Contractor Cost Data Reporting System, by revising paragraphs (b), (d), (e), and Acquisition Policy (DPAP), ATTN: follow the procedures at PGI 215.403–5. (f)(3) to read as follows: DPAP/Policy, of all commercial item 215.404–1 [Amended] exceptions granted under FAR 15.403– 215.404–71–3 Contract type risk and 1(b)(3), during the previous fiscal year, 4. Section 215.404–1 is amended by working capital adjustment. for any contract, subcontract, or removing paragraph (d). * * * * * modification expected to have a value of 5. Sections 215.404–2 and 215.404–3 (b) Determination. See PGI 215.404– $15,000,000 or more. See PGI 215.403– are revised to read as follows: 71–3(b) for guidance on determining the 1(c)(3) for the format and guidance for risk factors to be included in DD Form the report. The Director, DPAP, will 215.404–2 Information to support proposal 1547. analysis. submit a consolidated report to the * * * * * congressional defense committees. See PGI 215.404–2 for guidance on (d) Evaluation criteria. See PGI (4) Waivers. (A) The head of the obtaining field pricing or audit 215.404–71–3(d) for guidance on contracting activity may apply the assistance. evaluation criteria and examples of
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when above and below normal values 12. Section 215.404–73 is amended by (e) Review procedures. Follow the should be applied. revising paragraph (b)(2)(i) to read as procedures at PGI 215.407–5–70(e) for (e) Costs financed. See PGI 215.404– follows: establishing and conducting estimating 71–3(e) for guidance for determining the system reviews. 215.404–73 Alternate structured (f) Disposition of survey team amount included in DD Form 1547. approaches. (f) * * * findings. Follow the procedures at PGI * * * * * (3) An example is available at PGI 215.407–5–70(f) for disposition of the (b) * * * survey team findings. 215.404–71–3(f)(3). (2) * * * 10. Section 215.404–71–4 is revised to (i) The contracting officer shall reduce * * * * * read as follows: the overall prenegotiation profit 16. Section 215.470 is amended by revising paragraph (b), removing 215.404–71–4 Facilities capital employed. objective by the amount of facilities capital cost of money under Cost paragraph (c), and redesignating (a) Description. This factor focuses on Accounting Standard 414, Cost of paragraph (d) as paragraph (c). The encouraging and rewarding capital Money as an Element of the Cost of revised text reads as follows: investment in facilities that benefit DoD. Facilities Capital (48 CFR 9904.414). 215.470 Estimated data prices. It recognizes both the facilities capital Cost of money under CAS 417, Cost of * * * * * that the contractor will employ in Money as an Element of the Cost of (b) When data are required to be contract performance and the Capital Assets Under Construction (48 delivered under a contract, include DD contractor’s commitment to improving CFR 9904.417), should not be used to Form 1423, Contract Data Requirements productivity. reduce the overall prenegotiation profit List, in the solicitation. See PGI (b) Contract facilities capital objective. The profit amount in the 215.470(b) for guidance on the use of estimates. The contracting officer shall negotiation summary of the DD Form DD Form 1423. estimate the facilities capital cost of 1547 must be net of the offset. money and capital employed using: * * * * * * * * * * (1) An analysis of the appropriate 13. Sections 215.404–76, 215.406–1, Forms CASB-CMF and cost of money PART 230—COST ACCOUNTING and 215.406–3 are revised to read as factors (48 CFR 9904.414 and FAR STANDARDS ADMINISTRATION follows: 31.205–10); and 17. Section 230.201–5 is revised to (2) DD Form 1861, Contract Facilities 215.404–76 Reporting profit and fee read as follows: Capital Cost of Money. statistics. (c) Use of DD Form 1861. See PGI Follow the procedures at PGI 230.201–5 Waiver. 215.404–71–4(c) for information on the 215.404–76 for reporting profit and fee (a)(1)(A) The military departments purpose of DD Form 1861 and statistics. and the Director, Defense Procurement instructions for completion of the form. and Acquisition Policy, Office of the 215.406–1 Prenegotiation objectives. (d) Preaward facilities capital Under Secretary of Defense applications. Follow the procedures at See PGI 215.406–1 for guidance on (Acquisition, Technology, and PGI 215.404–71–4(d) for establishing establishing prenegotiation objectives. Logistics): cost and price objectives. 215.406–3 Documenting the negotiation. (1) May grant CAS waivers that meet (e) Determination. See PGI 215.404– Follow the procedures at PGI the conditions in FAR 30.201–5(b)(1); 71–4(e) for guidance on determining the 215.406–3 for documenting the and (2) May grant CAS waivers that meet amounts and values to be included in negotiation. DD Form 1547. 14. Section 215.407–4 is revised to the conditions in FAR 30.201–5(b)(2), (f) Values: Normal and designated read as follows: provided the cognizant Federal agency ranges. official granting the waiver determines 215.407–4 Should-cost review. that: Normal Des- See PGI 215.407–4 for guidance on (i) The property or services cannot Asset type ignated reasonably be obtained under the value range determining whether to perform a program or overhead should-cost contract, subcontract, or modification, Land ...... 0% ...... N/A. review. as applicable, without granting the Buildings ...... 0% ...... N/A. 15. Section 215.407–5–70 is amended waiver; Equipment ...... 17.5% ..... 10% to by revising paragraphs (a)(1), (b)(1), (e), (ii) The price can be determined to be 25%. and (f) to read as follows: fair and reasonable without the application of the Cost Accounting (g) Evaluation criteria. See PGI 215.407–5–70 Disclosure, maintenance, Standards; and and review requirements. 215.404–71–4(g) for guidance on (iii) There are demonstrated benefits evaluation criteria and examples of (a) * * * to granting the waiver. when above and below normal values (1) Acceptable estimating system is (B) Follow the procedures at PGI should be applied. defined in the clause at 252.215–7002, 230.201–5(a)(1) for submitting waiver 11. Section 215.404–71–5 is amended Cost Estimating System Requirements. requests to the Director, Defense by revising paragraph (b) and removing * * * * * Procurement and Acquisition Policy. paragraph (c). The revised text reads as (b) * * * (2) The military departments shall not follows: (1) DoD policy is that all contractors delegate CAS waiver authority below have acceptable estimating systems that the individual responsible for issuing 215.404–71–5 Cost efficiency factor. consistently produce well-supported contracting policy for the department. * * * * * proposals that are acceptable as a basis (e) By November 30th of each year, (b) See PGI 215.404–71–5(b) for for negotiation of fair and reasonable the military departments shall provide a guidance on appropriate use of the prices. report to the Director, Defense special cost efficiency factor. * * * * * Procurement and Acquisition Policy,
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ATTN: DPAP/Policy, of all waivers a. By revising the clause date; (3) Is consistent with and integrated granted under FAR 30.201–5(a), during b. In paragraph (a), by revising the with the Contractor’s related the previous fiscal year, for any paragraph heading and adding a management systems; and contract, subcontract, or modification definition of ‘‘Acceptable estimating (4) Is subject to applicable financial expected to have a value of $15,000,000 system’’; and control systems. or more. See PGI 230.201–5(e) for the c. By revising paragraph (b). The * * * * * format and guidance for the report. The revised and added text reads as follows: (b) General. The Contractor shall Director, Defense Procurement and establish, maintain, and comply with an Acquisition Policy, will submit a 252.215–7002 Cost estimating system acceptable estimating system. consolidated report to the CAS Board requirements. and the congressional defense * * * * * * * * * * committees. COST ESTIMATING SYSTEM PART 253—FORMS Subparts 230.70 and 230.71— REQUIREMENTS (XXX 2005) 20. Section 253.215–70 is revised to [Removed] (a) Definitions. read as follows: 18. Subparts 230.70 and 230.71 are Acceptable estimating system means removed. an estimating system that— 253.215–70 DD Form 1547, Record of Weighted Guidelines Application. (1) Is maintained, reliable and PART 252—SOLICITATION consistently applied; Follow the procedures at PGI PROVISIONS AND CONTRACT 253.215–70 for completing DD Form (2) Produces verifiable, supportable CLAUSES 1547. and documented cost estimates that are 19. Section 252.215–7002 is amended an acceptable basis for negotiation of [FR Doc. 05–24219 Filed 12–19–05; 8:45 am] as follows: fair and reasonable prices; BILLING CODE 5001–08–P
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Notices Federal Register Vol. 70, No. 243
Tuesday, December 20, 2005
This section of the FEDERAL REGISTER the collection of information unless it Description of Respondents: contains documents other than rules or displays a currently valid OMB control Individuals or households. proposed rules that are applicable to the number. Number of Respondents: 3,200. public. Notices of hearings and investigations, Frequency of Responses: Reporting: Economic Research Service committee meetings, agency decisions and On occasion. rulings, delegations of authority, filing of Title: Generic Clearance to Conduct Total Burden Hours: 3,400. petitions and applications and agency Formative Research for the statements of organization and functions are Ruth Brown, examples of documents appearing in this Development of Dietary Behavior Departmental Information Collection section. Evaluation Measures. OMB Control Number: 0536–NEW. Clearance Officer. Summary of Collection: The [FR Doc. 05–24232 Filed 12–19–05; 8:45 am] DEPARTMENT OF AGRICULTURE Economic Research Service (ERS) of the BILLING CODE 3410–18–M Department of Agriculture (USDA) has a Submission for OMB Review; requirement to conduct formative Comment Request research to develop measures of dietary DEPARTMENT OF AGRICULTURE behavior associated with dietary quality December 14, 2005. that will be widely usable with the Submission for OMB Review; The Department of Agriculture has general public and with low-income and Comment Request submitted the following information food assistance recipient populations December 15, 2005. collection requirement(s) to OMB for across the United States. Nutrition has The Department of Agriculture has review and clearance under the been shown to have important effects on submitted the following information Paperwork Reduction Act of 1995, obesity, child development, learning, collection requirement(s) to OMB for Public Law 104–13. Comments lifelong health, and productivity. Poor review and clearance under the regarding (a) whether the collection of food behaviors have been linked to four information is necessary for the proper leading causes of death, reduced quality Paperwork Reduction Act of 1995, performance of the functions of the of life, increased cost of living, and Public Law 104–13. Comments agency, including whether the premature death. While these food- regarding (a) whether the collection of information will have practical utility; related problems affect many information is necessary for the proper (b) the accuracy of the agency’s estimate Americans, there is a lack of reliable, performance of the functions of the of burden including the validity of the valid questionnaires or other short, agency, including whether the methodology and assumptions used; (c) practical population measures to assess information will have practical utility; ways to enhance the quality, utility and such import information as: nutrition- (b) the accuracy of the agency’s estimate clarity of the information to be and-food-related knowledge, attitude, of burden including the validity of the collected; (d) ways to minimize the and behaviors; food assistance program methodology and assumptions used; (c) burden of the collection of information participation and its determinants; and ways to enhance the quality, utility and on those who are to respond, including program satisfaction. Development of clarity of the information to be through the use of appropriate new questionnaires and related collected; (d) ways to minimize the automated, electronic, mechanical, or measures and assessment of their burden of the collection of information other technological collection reliability and validity will require on those who are to respond, including techniques or other forms of information formative research. This formative through the use of appropriate technology should be addressed to: Desk research will provide information automated, electronic, mechanical, or Officer for Agriculture, Office of leading to standardized dietary outcome other technological collection Information and Regulatory Affairs, measures that can be used to assess techniques or other forms of information Office of Management and Budget dietary quality of the general public, technology should be addressed to: Desk (OMB), low-income Americans, and food Officer for Agriculture, Office of [email protected] or assistance recipients, and to examine Information and Regulatory Affairs, fax (202) 395–5806 and to Departmental the impact of USDA food assistance Office of Management and Budget Clearance Office, USDA, OCIO, Mail programs on the dietary well being of (OMB), Stop 7602, Washington, DC 20250– food assistance recipients. [email protected] or 7602. Comments regarding these Need and Use of the Information: ERS fax (202) 395–5806 and to Departmental information collections are best assured will collect information to develop Clearance Office, USDA, OCIO, Mail of having their full effect if received standardized measures of dietary Stop 7602, Washington, DC 20250– within 30 days of this information. behavior for practical use in assessing 7602. Comments regarding these Copies of the submission(s) may be dietary quality among the general public information collections are best assured obtained by calling (202) 720–8958. and among low-income population and of having their full effect if received An agency may not conduct or food assistance recipient population within 30 days of this notification. sponsor a collection of information across the United States, its change over Copies of the submission(s) may be unless the collection of information time or with exposure to food assistance obtained by calling (202) 720–8681. displays a currently valid OMB control and nutrition information programs. If An agency may not conduct or number and the agency informs this information is not collected, sponsor a collection of information potential persons who are to respond to USDA’s ability to measure the impact of unless the collection of information the collection of information that such nutrition education efforts will be displays a currently valid OMB control persons are not required to respond to impaired. number and the agency informs
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potential persons who are to respond to Description of Respondents: Business comments at the beginning of the the collection of information that such or other for-profit; Farms; Individuals or meeting. persons are not required to respond to households. The business meeting March 6th the collection of information unless it Number of Respondents: 1. begins at 4 pm; at the Modoc National displays a currently valid OMB control Frequency of Responses: Reporting; Forest Office, Conference Room, 800 number. On occasion. West 12th St., Alturas. Agenda topics Total Burden Hours: 23. will include existing and future projects Foreign Agricultural Agency Ruth Brown, that meet the intent of Pub. L. 106–393. Time will also be set aside for public Title: Emergency Relief From Duty- Departmental Information Collection Free Imports of Perishable Products Clearance Officer. comments at the beginning of the meeting. Under the Andean Trade Promotion and [FR Doc. 05–24253 Filed 12–19–05; 8:45 am] Drug Eradication Act (ATPDEA). BILLING CODE 3410–10–M FOR FURTHER INFORMATION CONTACT: Stan OMB Control Number: 0551–0033. Sylva, Forest Supervisor and Designated Summary of Collection: The Andean Federal Officer, at (530) 233–8700; or Trade Preference Act (the Act) (19 DEPARTMENT OF AGRICULTURE Public Affairs Officer Louis J Haynes at U.S.C. 3201 et seq.) was signed into law (530) 233–8846. on December 4, 1991 and expired Forest Service Stanley G. Sylva, December 4, 2001. Section 3104 of H.R. Notice of Resource Advisory Forest Supervisor. 3009, the ‘‘Trade Act of 2002’’ amended Committee Meeting section 208(b) of the Act to extend the [FR Doc. E5–7548 Filed 12–19–05; 8:45 am] termination date to December 31, 2006, AGENCY: Modoc Resource Advisory BILLING CODE 3410–11–P retroactive to December 4, 2001. The Committee, Alturas, California, USDA Act authorizes the President to provide Forest Service. duty-free treatment to imports from ACTION: Notice of meeting. DEPARTMENT OF COMMERCE Bolivia, Colombia, Ecuador, and Peru, except for those few products SUMMARY: Pursuant to the authorities in Economic Development Administration specifically excluded. Section 204(d) the Federal Advisory Committees Act provides, in part, that a petition for (Pub. L. 92–463) and under the Secure Notice of Petitions by Producing Firms emergency import relief may be filed Rural Schools and Community Self- for Determination of Eligibility To with the Secretary of Agriculture at the Determination Act of 2000 (Pub. L. 106– Apply for Trade Adjustment same time a petition for import relief is 393) the Modoc National Forest’s Modoc Assistance filed with the United States Resource Advisory Committee will meet AGENCY: Economic Development International Trade Commission (ITC). Monday, January 9th, 2006 and Administration, Department of Emergency import relief is limited to February 6th, 2006 and March 6th in Commerce. restoration of MFN tariffs during the Alturas, California for business ACTION: Notice and opportunity for period of the ITC’s investigation. meetings. The meetings are open to the public comment. Need and Use of the Information: The public. Foreign Agricultural Service will collect SUPPLEMENTARY INFORMATION: The Pursuant to section 251 of the Trade the following information to be business meeting January 9th begins at Act of 1974 (19 U.S.C. 2341 et seq.), the included in a petition: A description of 4 pm., at the Modoc National Forest Economic Development Administration the imported perishable product Office, Conference Room, 800 West 12th (EDA) has received petitions for concerned; country of origin of imports; St., Alturas. Agenda topics will include certification of eligibility to apply for data indicating increased imports are a existing and future projects that meet Trade Adjustment Assistance from the substantial cause of serious injury to the the intent of Pub. L. 106–393. Time will firms listed below. EDA has initiated domestic industry producing a like or also be set aside for public comments at separate investigations to determine directly competitive product; evidence the beginning of the meeting. whether increased imports into the of serious injury; and a statement The business meeting February 6th United States of articles like or directly indicating why emergency action would begins at 4 pm; at the Modoc National competitive with those produced by be warranted. The information collected Forest Office, Conference Room, 800 each firm contributed importantly to the provides essential data for the Secretary West 12th St., Alturas. Agenda topics total or partial separation of the firm’s regarding specific market conditions will include existing and future projects workers, or threat thereof, and to a with respect to the industry requesting that meet the intent of Pub. L. 106–393. decrease in sales or production of each emergency relief. Time will also be set aside for public petitioning firm.
LIST OF PETITIONS RECEIVED BY EDA FOR CERTIFICATION OF ELIGIBILITY TO APPLY FOR TRADE ADJUSTMENT ASSISTANCE FOR THE PERIOD NOVEMBER 4, 2005 THROUGH DECEMBER 14, 2005
Date petition Firm Address accepted Product
La Rinascente Pasta, 808 Natali Drive, Hope, ND 58046 ...... 11/4/05 Pasta. LLC. Pantaloni Manufacturing, 320 South Washington Street, Boyertown, PA 11/9/05 Men’s and women’s clothing. Inc. 19512. Haven Manufacturing 370 Sterling Industrial Road, Brunswick, GA 11/14/05 Pipe and metal tubing cutting, processing and in- Corp. 31525. spection machinery. Automotive Lifts and Ma- 200 Benchmark Industrial Drive, Streator, IL 11/18/05 Hydraulic automotive lifting jacks and hoists for chinery, Corp. 61364. cars and trucks.
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LIST OF PETITIONS RECEIVED BY EDA FOR CERTIFICATION OF ELIGIBILITY TO APPLY FOR TRADE ADJUSTMENT ASSISTANCE FOR THE PERIOD NOVEMBER 4, 2005 THROUGH DECEMBER 14, 2005—Continued
Date petition Firm Address accepted Product
Glaspro, Inc, dba Zap 101 Pond Cypress Road, Venice, FL 34292 ...... 11/21/05 Recreational skimboards and surfboards. Skimers. Latronics Corp ...... 1001 Lloyd Avenue, P.O. Box 469, Latrobe, PA 11/21/05 Hermetic seals and machined components. 15650. Comdaco, Inc ...... 2000 N. Jesse James Road, Excelsior Springs, 11/29/05 Rubber gaskets, washers and seals. MO 64024. Cap America, Inc...... One Cap America Drive, Fredericktown, MO 11/29/05 Caps. 63645. Catawissa Lumber & 1 Cemetery Street, P.O. Box 176, Catawissa, PA 11/4/05 Hardwood furniture and kitchen components. Specialty Co., Inc. 17820. Genesee Group NY, Inc 975 John Street, West Henrietta, NY 14586– 12/2/05 Metal parts and accessories. 9780. Treatco, Inc ...... 2300 N. Broadway Street, Wichita, KS 67219 ..... 12/2/05 Natural pet treats. Hypogard USA, Inc ...... 7301 Ohms Lane, Suite 200, Edina, MN 55439– 12/7/05 Blood glucose and urine monitoring strips for di- 2335. abetic testing. Northwest Seed, Inc ...... Hwy 111 W., P.O. Box 335, Oregon, MO 64473 12/13/05 Soy nut snack foods. Frankoma, Inc ...... 9549 Frankoma Road, P.O. Box 789, Sapulpa, 12/2/05 Ceramic tableware. OK 74066. Dyecraftsmen, Inc ...... 437 Whittenton Street, P.O. Box 551, Tauton, 12/13/05 Dyed yarn. MA 02780. Wald LLC ...... 800 East 5th Street, Maysville, KY 41056 ...... 12/13/05 Bicycle components. Touchstone Designs, 7249 Commerce Drive, Mentor, OH 44060 ...... 12/14/05 Electric lamps and lighting fixtures, LLC. Wilkes Pools Corpora- Interstate 80, Exit 242, Mifflinville, PA 18631 ...... 12/14/05 Swimming pools. tion.
Any party having a substantial Mill Heights, Herndon, VA 20171; University Section 766.25 of the Export interest in the proceedings may request Laboratories, 12731 Mill Heights, Herndon, Administration Regulations 2 a public hearing on the matter. A VA 20171; Allways, Inc., 12731 Mill Heights, (‘‘Regulations’’) provide, in pertinent Herndon, VA 20171; Donghua Xue, 12731 part, that ‘‘[t]he Director of Exporter written request for a hearing must be Mill Heights, Herndon, VA 20171; Related submitted to the Office of Chief Persons Services, in consultation with the Counsel, Room 7005, Economic Director of the Office of Export Development Administration, U.S. Order Denying Export Privileges Enforcement, may deny export Department of Commerce, Washington, A. Denial of Export Privileges of Zhan privileges of any person who has been DC 20230, no later than ten (10) Gao convicted of a violation of * * * calendar days following publication of IEEPA,’’ for a period not to exceed 10 this notice. Please follow the procedures On March 5, 2004, in the U.S. District years from the date of conviction. 15 set forth in section 315.9 of EDA’s Court in the Eastern District of Virginia, CFR 766.25(a) and (d). In addition, interim final rule (70 FR 47002) for Zhan Gao (‘‘Gao’’) was convicted of two Section 750.8 of the Regulations states felonies, including one violation of the procedures for requesting a public that BIS’s Office of Exporter Services International Emergency Economic hearing. The Catalog of Federal may revoke any BIS licenses previously Powers Act (50 U.S.C. 1701–1706 Domestic Assistance official program issued in which the person had an (2000)) (‘‘IEEPA’’) and one violation of number and title of the program under interest in at the time of her conviction. the Internal Revenue Code (26 U.S.C. which these petitions are submitted is I have received notice of Gao’s 7206 (2000)). As to the IEEPA count, 11.313, Trade Adjustment Assistance. conviction for violating the IEEPA, and Gao was found guilty of knowingly and have provided notice and an Dated: December 14, 2005. willfully having exported and caused to opportunity for Gao to make a written Benjamin Erulkar, be exported from the United States to submission to the Bureau of Industry Chief Counsel. the People’s Republic of China, 80 and Security as provided in Section [FR Doc. E5–7554 Filed 12–19–05; 8:45 am] microprocessors, which were Commerce 766.25 of the Regulations. Having BILLING CODE 3510–24–P Control List items, without obtaining the required license from the had been extended by successive Presidential Department of Commerce. These items Notices, the last of which was August 3, 2000 (3 DEPARTMENT OF COMMERCE were controlled for national security CFR, 2000 Comp. 397 (2001)), continued the reasons for export to China and valued Regulations in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701– Bureau of Industry and Security at approximately $500,000. Gao was 1706 (2000)) (‘‘IEEPA’’). On November 13, 2000, the sentenced to seven months in prison. Act was reauthorized and it remained in effect Action Affecting Export Privileges; Section 11(h) of the Export through August 20, 2001. Since August 21, 2001, Zhan Gao, Technology Business Administration Act of 1979, as amended the Act has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, Services, University Laboratories, (currently codified at 50 U.S.C. app. 2001 Comp. 783 (2002)), as extended by the Notice Allways, Inc., Donghua Xue §§ 2491–2420 (2000)) (‘‘Act’’) 1 and of August 2, 2005 (70 FR 45273, August 5, 2005), has continued the Regulations in effect under the In the Matter of Zhan Gao, 12731 Mill 1 From August 21, 1994 through November 12, IEEPA. Heights, Herndon, VA 20171; Respondent: 2000, the Act was in lapse. During that period, the 2 The Regulations are currently codified at 15 CFR and Technology Business Services, 12731 President, through Executive Order 12924, which parts 730–774 (2005).
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received no submission from Gao, I, on his or their behalf, his or their Subject To This Order, or service any following consultations with the Export employees, agents or representatives, item, of whatever origin, that is owned, Enforcement, including the Director, (‘‘the Related Persons’’) (together, the possessed or controlled by the Persons Office of Export Enforcement, have Denied Persons and the Related Persons Subject To This Order if such service decided to deny Gao’s export privileges are ‘‘Person Subject To This Order’’) involves the use of any item subject to under the Regulations for a period of 10 may not, directly or indirectly, the Regulations that has been or will be years from the date of Gao’s conviction. participate in any way in any exported from the United States. For transaction involving any commodity, B. Denial of Export Privileges of Related purposes of this paragraph, servicing software or technology (hereinafter Persons means installation, maintenance, repair, collectively referred to as ‘‘item’’) modification or testing. In addition, pursuant to Sections exported or to be exported from the III. In addition to the Related Persons 766.25(h) and 766.23 of the Regulations, United States that is subject to the named above, after notice and the Director, Office of Exporter Services, Regulations, or in any other activity opportunity for comment as provided in in consultation with the Director, Office subject to the Regulations, including, section 766.23 of the Regulations, any of Export Enforcement, may take action but not limited to: other person, firm, corporation, or to name persons related to the A. Applying for, obtaining, or using business organization related to Gao by Respondent by ownership, control, any license, License Exception, or affiliation, ownership, control, or position of responsibility, affiliation, or export control document; position of responsibility in the conduct other connection in the conduct of trade B. Carrying on negotiations of trade or related services may also be or business in order to prevent evasion concerning, or ordering, buying, made subject to the provisions of this of the Order. On March 18, 2005, I gave receiving, using, selling, delivering, Order if necessary to prevent evasion of notice to Technology Business Services, storing, disposing of, forwarding, the Order. University Laboratories, Allways, Inc. transporting, financing, or otherwise IV. This Order does not prohibit any and Donghua Xue, Gao’s husband, servicing in any way, any transaction export, reexport, or other transaction notifying them that their export involving any item exported or to be subject to the Regulations where the privileges under the Regulations could exported from the United States that is only items involved that are subject to be denied for up to 10 years as BIS subject to the Regulations, or in any the Regulations are the foreign- believed these entities were related to other activity subject to the Regulations; produced direct product of U.S.-origin Gao and including them in the Gao or technology. Order was necessary to prevent evasion. C. Benefitting in any way from any V. This Order is effective immediately The basis for considering the addition of transaction involving any item exported and shall remain in effect until March these entities was the fact that Gao had or to be exported from the United States 5, 2014. used these entities to conduct the illegal that is subject to the Regulations, or in VI. In accordance with Part 756 of the business that was subject of the criminal any other activity subject to the Regulations, Gao and any of the Related conviction and all are operated out of Regulation. Persons may file an appeal of this Order her home in Virginia. II. No person may, directly or with the Under Secretary of Commerce Donghue Xue responded to the indirectly, do any of the following: for Industry and Security. The appeal notification and did not raise any A. Export or reexport to or on behalf must be filed within 45 days from the objections to naming the above of the Persons Subject To This Order date of this Order and must comply referenced related persons. I have any item subject to the Regulations; with the provisions of Part 756 of the therefore decided to name Technology B. Take any action that facilitates the Regulations. Business Services, University acquisition or attempted acquisition by VII. A copy of this Order shall be Laboratories, Allways, Inc. and Donghua the Persons Subject To This Order of the delivered to Gao and each Related Xue as related persons to Zhan Gao, ownership, possession, or control of any Person. This Order shall be published in thereby denying their export privileges item subject to the Regulations that has the Federal Register. as well. been or will be exported from the I have also decided to revoke all United States, including financing or Dated: December 14, 2005. licenses issued pursuant to the Act or other support activities related to a Eileen M. Albanese, Regulations in which Gao and transaction whereby the Persons Subject Director, Office of Exporter Services. Technology Business Services, To This Order acquires or attempts to [FR Doc. 05–24234 Filed 12–19–05; 8:45 am] University Laboratories, Allways, Inc. acquire such ownership, possession or BILLING CODE 3510–DT–M and Donghua Xue had an interest at the control; time of Gao’s conviction. The 10-year C. Take any action to acquire from or denial period ends on March 5, 2014. to facilitate the acquisition or attempted DEPARTMENT OF COMMERCE Accordingly, it is hereby acquisition from the Persons Subject To This Order of any item subject to the International Trade Administration Ordered Regulations that has been exported from I. Until March 5, 2014, Zhan Gao, the United States; A–570–846 12731 Mill Heights, Herndon, VA D. Obtain from the Persons Subject To 20171, and when acting for or on her This Order in the United States any item Brake Rotors from the People’s behalf, her employees, agents or subject to the Regulations with Republic of China: Extension of Time representatives, (‘‘the Denied Person’’) knowledge or reason to know that the Limit for Preliminary Results of and the following persons related to the item will be, or is intended to be, Antidumping Duty Administrative Denied Person as defined by Section exported from the United States; or Review and New Shipper Review 766.23 of the Regulations, Technology E. Engage in any transaction to service Business Services, University any item subject to the Regulations that AGENCY: Import Administration, Laboratories, Allways, Inc. and Donghua has been or will be exported from the International Trade Administration, Xue, all at 12731 Mill Heights, Herndon, United States and which is owned, Department of Commerce. Virginia 20171, and when acting for or possessed or controlled by the Persons EFFECTIVE DATE: December 20, 2005.
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FOR FURTHER INFORMATION CONTACT: Erin Longkou Haimeng Machinery Co., Ltd. administrative review of this order for C. Begnal or Tom Killiam, AD/CVD See November 16, 2005, Sampling the period April 1, 2004, through March Operations, Office 9, Import Memorandum. 31, 2005. Therefore, the preliminary Administration, International Trade The preliminary results of this results of this new shipper review will Administration, U.S. Department of administrative review are currently due also be extended by 120 days to April Commerce, 14th Street and Constitution by December 31, 2005. 30, 2006. The deadline for the final Avenue, NW, Washington, DC 20230; Extension of Time Limit for Preliminary results of these reviews continues to be telephone: (202) 482–1442 or (202) 482– Results 120 days after the publication of the 5222, respectively. preliminary results. SUPPLEMENTARY INFORMATION: Pursuant to section 751(a)(3)(A) of the We are issuing and publishing this Act, the Department shall issue notice in accordance with sections Background preliminary results in an administrative 751(a)(1) and 777(i)(1) of the Act. review of an antidumping duty order On May 27, 2005, the Department of Dated: December 13, 2005. Commerce (‘‘Department’’) initiated an within 245 days after the last day of the administrative review of the anniversary month of the date of Stephen J. Claeys, antidumping duty order on brake rotors publication of the order for which a Deputy Assistant Secretaryfor Import from the People’s Republic of China. review is requested and the final results Administration. The review was initiated for 27 within 120 days after the date on which [FR Doc. E5–7561 Filed 12–19–05; 8:45 am] individually named firms. The period of the preliminary results are published. BILLING CODE 3510–DS–S review (POR) is April 1, 2004, through However, if it is not practicable to March 31, 2005. See Notice of Initiation complete the review within the of Antidumping and Countervailing specified time periods, section DEPARTMENT OF COMMERCE 751(a)(3)(A) of the Act allows the Duty Administrative Reviews and International Trade Administration Request for Revocation in Part, 66 FR Department to extend these deadlines to 30694 (May 27, 2005). Of the 27 named a maximum of 365 days and 180 days, A–570–846 firms for which the Department initiated respectively. an administrative review, 18 firms had The Department has determined that Brake Rotors from the People’s shipments of subject merchandise completion of the preliminary results Republic of China: Extension of Time during the POR that are subject to within the originally anticipated time Limit for Final Results of the Twelfth review. Two of the 18 firms are also limit, December 31, 2005, is New Shipper Review impracticable. For the first time in this participating in the proceeding as new AGENCY: Import Administration, shippers. After consulting with the two proceeding, the Department employed a sampling methodology to select International Trade Administration, new shippers, they agreed to have the Department of Commerce. Department rescind their administrative respondents. In order to obtain EFFECTIVE DATE: December 20, 2005. reviews in accordance with 19 CFR necessary information and to afford 351.214(j). See Memorandum to the File parties opportunities to comment on the FOR FURTHER INFORMATION CONTACT: Kit from Carrie Blozy Regarding the 8th Department’s respondent selection Rudd or Nicole Bankhead, AD/CVD Administrative Review of Brake Rotors methodology, the Department did not Operations, Office 9, Import from the People’s Republic of China, conduct its respondent selection Administration, International Trade dated July 28, 2005. As a result, this sampling procedure until November 16, Administration, U.S. Department of administrative review will cover 16 2005. See section 777A(b) of the Act Commerce, 14th Street and Constitution firms. (where the Department determines to Avenue, NW, Washington, DC 20230; However, due to the large number of limit the selection of respondents by telephone (202) 482–1385 and (202) firms subject to this administrative sampling, the Department ‘‘shall, to the 482–9068, respectively. review, and the Department’s greatest extent possible, consult with SUPPLEMENTARY INFORMATION: experience regarding the resulting the exporters and producers regarding Background administrative burden to review each the method to be used to select company for which a request has been exporters, producers or types of On September 28, 2005, the made, the Department exercised its products’’). The Department requires Department of Commerce (‘‘the authority to limit the number of additional time to analyze the parties’ Department’’) published in the Federal respondents selected for individual responses to the questionnaires issued Register the preliminary results of the review by sampling, and conducted the on November 16, 2005, as well as to new shipper review of the antidumping sampling on November 16, 2005. See issue any necessary supplemental duty order on brake rotors from the Section 777A(c) of the Tariff Act of questionnaires and to conduct People’s Republic of China (‘‘PRC’’). See 1930, as amended (‘‘the Act’’); see also verifications. Consequently, it is not Brake Rotors From the People’s November 16, 2005, Memorandum to practicable to complete the review Republic of China: Preliminary Results the File from Erin Begnal, Antidumping within the time specified under the Act. of the Twelfth New Shipper Review, 70 Duty Administrative Review: Brake Therefore, the Department is extending FR 56634 (‘‘Preliminary Results’’). The Rotors from the People’s Republic of the time limit for completion of these final results are currently due on China (November 16, 2005, Sampling preliminary results by 120 days to April December 19, 2005. Memorandum). 30, 2006, in accordance with Section The following respondents were 751(a)(3)(A) of the Act. Extension of Time Limit for Final selected for individual review pursuant Additionally, on April 29, 2005, Results to the sampling procedure: Qingdao Shanxi Zhongding Auto Parts Co., Ltd. Pursuant to section 751(a)(2)(B)(iv) of Meita Automotive Industry Co., Ltd., agreed to waive the time limits of its the Tariff Act of 1930, as amended (‘‘the Yantai Winhere Auto–Part new shipper review, on April 29, 2005, Act’’), and section 351.214(i)(1) of the Manufacturing Co., Ltd., Xiangfen pursuant to 19 CFR 351.214(j)(3), and Department’s regulations, the Hengtai Brake Systems Co., Ltd., Hongfa agreed to have its review conducted Department shall issue final results in a Machinery (Dalian) Group Co., Ltd., and concurrently with the eighth new shipper review of an antidumping
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duty order 90 days after the date on Operations, International Trade or not tipped (e.g., with erasers, etc.) in which the preliminary results are Administration, U.S. Department of any fashion, and either sharpened or issued. Section 351.214(i)(2) of the Commerce, 14th Street and Constitution unsharpened. The pencils subject to the Department’s regulations state, however, Avenue, NW, Washington, DC, 20230. order are classified under subheading that if the Department determines that a SUMMARY: The U.S. Department of 9609.10.00 of the Harmonized Tariff new shipper review is extraordinarily Commerce (Department), pursuant to Schedule of the United States (HTSUS). complicated, the Department may section 751(c) of the Tariff Act of 1930, Specifically excluded from the scope of extend the 90-day period to 150 days. as amended (the Act), has determined the order are mechanical pencils, The Department finds that the that revocation of the antidumping duty cosmetic pencils, pens, non–cased complicated nature of this review order on certain cased pencils (pencils) crayons (wax), pastels, charcoals, from the People’s Republic of China necessitates an extension of time chalks, and pencils produced under (PRC) would likely lead to continuation beyond the 90-day period to complete U.S. patent number 6,217,242, from the final results. or recurrence of dumping. On December paper infused with scents by the means On October 17, 2005, the Department 6, 2005, the International Trade covered in the above–referenced patent, granted the Coalition for the Commission (ITC), pursuant to section Preservation of American Brake Drum 751(c) of the Act, determined that thereby having odors distinct from those and Rotor Aftermarket Manufacturers revocation of the antidumping duty that may emanate from pencils lacking (‘‘Petitioner’’) an extension of time to order on pencils from the PRC would the scent infusion. Also excluded from file publicly available information to likely lead to continuation or recurrence the scope of the order are pencils with value certain factors of production in of material injury to an industry in the all of the following physical the final results of the review. In United States within a reasonably characteristics: 1) length: 13.5 or more addition, on October 25, 2005, the foreseeable time. Therefore, pursuant to inches; 2) sheath diameter: not less than Department granted respondents 19 CFR 351.218(f)(4), the Department is one–and-one quarter inches at any point Laizhou Wally Automobile Co., Ltd. publishing notice of the continuation of (before sharpening); and 3) core length: (‘‘Wally’’) and Dixion Brake System the antidumping duty order on pencils not more than 15 percent of the length (Longkou) Ltd. an extension of time to from the PRC. of the pencil. file their case briefs and rebuttal briefs. SUPPLEMENTARY INFORMATION: Although the HTSUS subheading is As a result of these extensions, the Background provided for convenience and customs Department requires additional time to purposes, our written description of the analyze the complex issues contained in On July 1, 2005, the Department scope of the order is dispositive. the parties’ comments and briefs, initiated, and the ITC instituted, a including the Petitioner’s argument sunset review of the antidumping duty Determination regarding the bona fide nature of order on pencils from the PRC, pursuant Wally’s sales. to section 751(c) of the Act. See As a result of the determinations by Therefore, for the reasons cited above, Initiation of Five–Year (Sunset) Reviews, the Department and the ITC that we are extending the time limit for the 70 FR 38101 (July 1, 2005) and Cased revocation of this antidumping duty completion of the final results of this Pencils from China, 70 FR 38192 (July order would be likely to lead to review by 30 days, until no later than 1, 2005). As a result of its review, the continuation or recurrence of dumping January 18, 2006. This notice is Department found that revocation of the and material injury to an industry in the published in accordance with section antidumping duty order would likely United States, pursuant to section 751(a)(2)(B)(iv) of the Act and section lead to continuation or recurrence of 751(d)(2) of the Act, the Department dumping and notified the ITC of the 351.214(i)(2) of the Department’s hereby orders the continuation of the magnitude of the margins likely to regulations. antidumping duty order on pencils from prevail were the order revoked. See Dated: December 13, 2005. Certain Cased Pencils from the People’s the PRC. U.S. Customs and Border Stephen J. Claeys, Republic of China (PRC); Notice of Final Protection will continue to collect Deputy Assistant Secretaryfor Import Results of Expedited Sunset Review of antidumping duty deposits at the rates Administration. Antidumping Duty Order, 70 FR 67427 in effect at the time of entry for all [FR Doc. E5–7563 Filed 12–19–05; 8:45 am] (November 7, 2005). On November 15, imports of subject merchandise. The BILLING CODE 3510–DS–S 2005, the ITC determined, pursuant to effective date of continuation of this section 751(c) of the Act, that revocation order is the date of publication in the of the antidumping duty order on Federal Register of this Notice of DEPARTMENT OF COMMERCE pencils would likely lead to Continuation. Pursuant to sections continuation or recurrence of material 751(c)(2) and 751(c)(6) of the Act, the International Trade Administration injury to an industry in the United Department intends to initiate the next A–570–827 States within a reasonably foreseeable five–year review of this order not later time. See Cased Pencils from China, 70 than November 2010. Notice of Continuation of Antidumping FR 72652 (December 6, 2005). We are issuing and publishing the Duty Order on Certain Cased Pencils from the People’s Republic of China Scope of the Order results and notice in accordance with Imports covered by this order are sections 751(c) and 777(i)(1) of the Act. AGENCY: Import Administration, shipments of certain cased pencils of Dated: December 13, 2005. International Trade Administration, any shape or dimension (except as Department of Commerce. Stephen J. Claeys, noted below) which are writing and/or Acting Assistant Secretaryfor Import EFFECTIVE DATE: December 20, 2005. drawing instruments that feature cores Administration. FOR FURTHER INFORMATION CONTACT: of graphite or other materials, encased [FR Doc. E5–7560 Filed 12–19–05; 8:45 am] Maureen Flannery at (202) 482–3020 or in wood and/or man–made materials, Paul Stolz at (202) 482–4474, AD/CVD whether or not decorated and whether BILLING CODE 3510–DS–S
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DEPARTMENT OF COMMERCE. and Stelco Inc. Therefore, the the Internet. If comments are submitted Department finds that it is not by mail, the Office prefers that the International Trade Administration practicable to complete the review by comments be submitted on a DOS A–122–822 the original deadline of January 7, 2006. formatted 3 1/2 inch disk accompanied Consequently, in accordance with by a paper copy. Notice of Extension of Time Limit for section 751(a)(3)(A) of the Act and Comments may also be sent by Final Results of Antidumping Duty section 351.213(h)(2) of the electronic mail message over the Administrative Review: Certain Department’s regulations, the Internet via the Federal eRulemaking Corrosion–Resistant Carbon Steel Flat Department is extending the time limit Portal. See the Federal eRulemaking Products from Canada for the completion of the final results of Portal Web site (http:// the review until no later than March 8, www.regulations.gov) for additional AGENCY: Import Administration, 2006, which is 180 days from the instructions on providing comments via International Trade Administration, publication of the preliminary results. the Federal eRulemaking Portal. Department of Commerce. This notice is issued and published in The comments will be available for EFFECTIVE DATE: December 20, 2005. accordance with sections 751(a)(3)(A) public inspection at the Office of the FOR FURTHER INFORMATION CONTACT: and 777(i) of the Act. Commissioner for Patents, located in Gene Calvert or Sean Carey, AD/CVD Dated: December 13, 2005. Madison East, Tenth Floor, 600 Dulany Street, Alexandria, Virginia, and will be Operations, Office 6, Import Stephen J. Claeys, Administration, International Trade available via the Office Internet Web site Deputy Assistant Secretaryfor Import (address: http://www.uspto.gov). Administration, U.S. Department of Administration. Commerce, 14th Street and Constitution Because comments will be made [FR Doc. E5–7562 Filed 12–19–05; 8:45 am] available for public inspection, Avenue, NW, Washington, DC 20230; BILLING CODE 3510–DS–S telephone: (202) 482–3586 or (202) 482– information that is not desired to be 3964, respectively. made public, such as an address or phone number, should not be included SUPPLEMENTARY INFORMATION: DEPARTMENT OF COMMERCE in the comments. Background Patent and Trademark Office FOR FURTHER INFORMATION CONTACT: Linda Therkorn, Office of the Deputy On September 9, 2005, the [Docket No.: 2005–P–072] Department of Commerce (‘‘the Commissioner for Patent Examination Department’’) published the preliminary RIN 0651–AB98 Policy, by telephone at 571–272–8800, results of the administrative review of or Ray Chen, Office of the Solicitor, by Request for Comments on Interim the antidumping duty order on certain telephone at 571–272–9035, by mail Guidelines for Examination of Patent corrosion–resistant carbon steel flat addressed to: Mail Stop Comments, P.O. Applications for Patent Subject Matter products from Canada for the period of Box 1450, Alexandria, VA, 22313–1450, Eligibility August 1, 2003, through July 31, 2004 or by facsimile transmission to 571– (see Certain Corrosion–Resistant Carbon AGENCY: United States Patent and 273–0125, marked to the attention of Steel Flat Products from Canada: Trademark Office, Commerce. Linda Therkorn or Ray Chen. Preliminary Results of Antidumping ACTION: Request for comments. SUPPLEMENTARY INFORMATION: The Duty Administrative Review, 70 FR USPTO has published a notice setting 53621 (September 9, 2005)) (Preliminary SUMMARY: The United States Patent and forth interim guidelines for the Results). The current deadline for the Trademark Office (USPTO) has, in examination of patent applications for final results of this review is January 7, response to recent case law, revised its patent subject matter eligibility under 2006. guidelines to be used by USPTO 35 U.S.C. 101. See Interim Guidelines personnel in their review of patent for Examination of Patent Applications Extension of Time Limit for Final applications to determine whether the for Patent Subject Matter Eligibility, Results of Review claims in a patent application are 1300 Off. Gaz. Pat. Office 142 (Nov. 22, Section 751(a)(3)(A) of the Tariff Act directed to patent eligible subject 2005) (Patent Subject Matter Eligibility of 1930, as amended (‘‘the Act’’), matter. The USPTO is requesting Interim Guidelines). requires the Department to issue the comments from the public regarding The Patent Subject Matter Eligibility final results in an administrative review these interim examination guidelines. Interim Guidelines are based on the within 120 days of the date on which Comment Deadline Date: To be USPTO’s current understanding of the the preliminary results were published. ensured of consideration, written law and are believed to be fully However, if it is not practicable to comments must be received on or before consistent with binding precedent of the complete the review within this time June 30, 2006. No public hearing will be U.S. Supreme Court, the U.S. Court of period, section 751(a)(3)(A) of the Act held. Appeals for the Federal Circuit (Federal allows the Department to extend the ADDRESSES: Comments should be sent Circuit) and the Federal Circuit’s time limit for the final results to 180 by electronic mail message over the predecessor courts. The Patent Subject days from the date of publication of the Internet addressed to Matter Eligibility Interim Guidelines do preliminary results. [email protected]. Comments not constitute substantive rule making Because of the Department’s recent may also be submitted by mail and hence do not have the force and verification after the issuance of its addressed to: Mail Stop Comments— effect of law. The Patent Subject Matter preliminary determination, additional Patents, Commissioner for Patents, P.O. Eligibility Interim Guidelines have been time is required to release and analyze Box 1450, Alexandria, VA, 22313–1450, designed to assist USPTO personnel in its findings, and to afford interested or by facsimile to (571) 273–0125, analyzing claimed subject matter for parties the opportunity to comment on marked to the attention of Linda compliance with substantive law. the verification findings of the three Therkorn. Although comments may be Rejections will be based upon the Canadian producers of subject submitted by mail or facsimile, the substantive law and it is these rejections merchandise: Dofasco Inc., Sorevco Inc., Office prefers to receive comments via which are appealable. Consequently,
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any failure by USPTO personnel to Guidelines sufficient? If not, please abstracted below has been forwarded to follow the Patent Subject Matter suggest alternative explanations. the Office of Management and Budget Eligibility Interim Guidelines is neither (4) What role should preemption have (OMB) for review and comment. The appealable nor petitionable. in the determination of whether a ICR describes the nature of the The Patent Subject Matter Eligibility claimed invention is directed to a information collection and its expected Interim Guidelines merely revise practical application of a 35 U.S.C. 101 costs and burden; it includes the actual USPTO examination practice for judicial exception? data collection instruments [if any]. consistency with the USPTO’s current (5) Annex IV to the Patent Subject DATES: Comments must be submitted on understanding of the case law regarding Matter Eligibility Interim Guidelines or before January 19, 2006. patent subject matter eligibility under explains why the USPTO considers FOR FURTHER INFORMATION OR A COPY 35 U.S.C. 101. Therefore, the Patent claims to signals per se, whether CONTACT: David Van Wagner, Division Subject Matter Eligibility Interim functional descriptive material or non- of Market Oversight, U.S. Commodity Guidelines are interpretive or relate functional descriptive material, to be Futures Trading Commission, 1155 21st only to agency practice and procedure, nonstatutory subject matter. Does the Street, NW., Washington, DC 20581, and prior notice and an opportunity for USPTO analysis represent a reasonable (202) 418–5481; FAX: (202) 418–5527; public comment are not required under extrapolation of relevant case law? If e-mail: [email protected] and refer 5 U.S.C. 553(b)(A) (or any other law). not, please explain why and provide to OMB Control No. 3038–0048. Nevertheless, the USPTO is providing support for an alternative analysis. If SUPPLEMENTARY INFORMATION: this opportunity for public comment claims directed to a signal per se are Title: Off-Exchange Agricultural Trade because the USPTO desires the benefit determined to be statutory subject Options (OMB Control No. 3038–0048). of public comment on the Patent Subject matter, what is the potential impact on This is a request for extension of a Matter Eligibility Interim Guidelines. internet service providers, satellites, currently approved information The USPTO is particularly interested wireless fidelity (WiFi ), and other collection. in comments addressing the following carriers of signals? Abstract: Off-Exchange Agricultural questions: The USPTO also notes that the U.S. Trade Options, OMB Control No. 3038– (1) While the Patent Subject Matter Supreme Court has granted certiorari in 0048—Extension. Eligibility Interim Guidelines explain Laboratory Corp. of America Holdings v. In April 1998, the Commodity Futures that physical transformation of an Metabolite Laboratories, Inc., S.Ct. No. Trading Commission (Commission or article or physical object to a different 04–607 (LabCorp). See 546 U.S. ll CFTC) removed the prohibition on off- state or thing to another establishes that (Nov. 2, 2005). The USPTO expects that exchange trade options on the a claimed invention is eligible for patent a decision in LabCorp will be rendered enumerated agricultural commodities protection, Annex III to the Patent sometime before the end of June 2006. subject to a number of regulatory Subject Matter Eligibility Interim Since the Court’s decision in LabCorp conditions. 63 FR 18821 (April 16, Guidelines explains that identifying that may impact the broader question of 1998). Thereafter, the Commission a claim transforms data from one value patent subject matter eligibility under streamlined the regulatory or paperwork to another is not by itself sufficient for 35 U.S.C. 101, the USPTO is extending burdens in order to increase the utility establishing that the claim is eligible for the period for public comment on the of agricultural trade options while patent protection. Therefore, claims that USPTO’s Patent Subject Matter maintaining basic customer protections. perform data transformation must still Eligibility Interim Guidelines until June 64 FR 68011 (Dec. 6, 1999). be examined for whether there is a 30, 2006. The USPTO will publish a An agency may not conduct or practical application of an abstract idea notice further extending the period for sponsor, and a person is not required to that produces a useful, concrete, and public comment on the USPTO’s Patent respond to, a collection of information tangible result. Is the distinction Subject Matter Eligibility Interim unless it displays a currently valid OMB between physical transformation and Guidelines if necessary to permit the control number. The OMB control data transformation appropriate in the comments to take into account the numbers for the CFTC’s regulations context of the Patent Subject Matter Court’s decision in LabCorp. were published on December 30, 1981. Eligibility Interim Guidelines? If not, See 46 FR 63035 (Dec. 30, 1981). The please explain why and provide support Dated: December 14, 2005. Jon W. Dudas, Federal Register notice with a 60-day for an alternative analysis. comment period soliciting comments on (2) Is the USPTO interpretation of Under Secretary of Commerce for Intellectual this collection of information was State Street Bank & Trust Co. v. Property and Director of the United States published on October 12, 2005 (70 FR Signature Financial Group Inc., 149 F. Patent and Trademark Office. 59319). 3d 1368, 47 USPQ2d 1596 (Fed. Cir. [FR Doc. E5–7552 Filed 12–19–05; 8:45 am] BILLING CODE 3510–16–P Burden statement: The respondent 1998), as holding that if there is no burden for this collection is estimated to physical transformation, a claimed average 5.59 hours per response. invention must necessarily, either Respondents/Affected Entities: 360. expressly or inherently, produce a COMMODITY FUTURES TRADING Estimated number of responses: 411. useful, concrete, and tangible result COMMISSION Estimated total annual burden on (rather than just be ‘‘capable of’’ Agency Information Collection respondents: 2,391 hours. producing such a result) either too Frequency of collection: On occasion. broad or too narrow? If so, please Activities Under OMB Review Send comments regarding the burden suggest an alternative interpretation and AGENCY: Commodity Futures Trading estimated or any other aspect of the reasons therefor. Commission. information collection, including (3) As the courts have yet to define ACTION: Notice. suggestions for reducing the burden, to the terms ‘‘useful,’’ ‘‘concrete,’’ and the addresses listed below. Please refer ‘‘tangible’’ in the context of the practical SUMMARY: In compliance with the to OMB Control No. 3038–0048 in any application requirement, are the Paperwork Reduction Act (44 U.S.C. correspondence. explanations provided in the Patent 3501 et seq.), this notice announces that David Van Wagner, Division of Subject Matter Eligibility Interim the Information Collection Request (ICR) Market Oversight, U.S. Commodity
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Futures Trading Commission, 1155 21st oversight committees to insulate self- DEPARTMENT OF DEFENSE Street, NW., Washington, DC 20581; and regulatory functions form improper Office of Information and Regulatory influence. The Request for Comments GENERAL SERVICES Affairs, Office of Management and also notes that it will form the basis of ADMINISTRATION Budget, Attention: Desk Officer for an upcoming public Commission CFTC, 725 17th Street, Washington, DC meeting on self-regulation and self- NATIONAL AERONAUTICS AND 20503. regulatory organizations (‘‘SRO SPACE ADMINISTRATION Dated: December 15, 2005. Hearing’’). The Commission’s 2004 Jean A. Webb, Request for Comments on SRO [OMB Control No. 9000–0145] Governance and industry developments Secretary of the Commission. Federal Acquisition Regulation; since the initiation of the SRO Study [FR Doc. 05–24254 Filed 12–19–05; 8:45 am] Information Collection; Use of Data will be considered.2 BILLING CODE 6351–01–M Universal Numbering System (DUNS) The Commission hereby announces as Primary Contractor Identification that the SRO Hearing will commence on COMMODITY FUTURES TRADING Wednesday, February 15, 2006, at 10 AGENCIES: Department of Defense (DOD), COMMISSION a.m., at the Commission’s headquarters General Services Administration (GSA), and National Aeronautics and Space Sunshine Act Meeting in Washington, DC. An agenda will be provided as the hearing date Administration (NASA). AGENCY HOLDING THE MEETING: approaches. All individuals or ACTION: Notice of request for public Commodity Futures Trading organizations wishing to appear before comments regarding an extension to an Commission (‘‘Commission’’). the Commission must submit to the existing OMB clearance (9000–0145). DATE AND TIME: Wednesday, February 15, Secretariat, at the above address, a SUMMARY: Under the provisions of the 2006, commencing at 10 a.m. request to appear. Such request must be Paperwork Reduction Act of 1995 (44 PLACE: 1155 21st Street, NW., received by January 13, 2006, and must include the name of the individual U.S.C. Chapter 35), the Federal Washington, DC, Lobby Level Hearing Acquisition Regulation (FAR) appearing; the entity that he or she Room (Room 1000). Secretariat will be submitting to the represents, if any; a concise statement of STATUS: Open. Office of Management and Budget interest and qualifications; and a brief MATTERS TO BE CONSIDERED: Public (OMB) a request to review and approve summary or abstract of his or her Hearing on Self-Regulation and Self- an extension of a currently approved Regulatory Organizations (‘‘SROs’’). statement. The Commission will invite information collection requirement a representative number of individuals CONTACT PERSONS AND ADDRESSES: concerning use of data universal or organizations to appear at the hearing Requests to appear and supporting numbering system (DUNS) as primary from those submitting requests to materials should be mailed to the contractor identification. This OMB appear. A transcription of the hearing Commodity Futures Trading clearance expires on April 30, 2006. Commission, Three Lafayette Center, will be made and entered into the Public comments are particularly 1155 21st Street, NW., Washington, DC Commission’s public comment files, invited on: Whether this collection of 20581, attention Office of the which will remain open for the receipt information is necessary for the proper Secretariat; transmitted by facsimile at of written comments until March 2, performance of functions of the FAR, 202–418–5521; or transmitted 2006. and whether it will have practical electronically to [email protected]. The Commission believes that utility; whether our estimate of the Reference should be made to ‘‘SRO providing interested members of the public burden of this collection of Hearing.’’ For substantive questions on public with an opportunity to appear information is accurate, and based on requests to appear and supporting before it, responds to questions, and valid assumptions and methodology; materials, please contact Stephen address differing viewpoints will ways to enhance the quality, utility, and Braverman, Deputy Director, (202) 418– enhance its decision-making as the SRO clarity of the information to be 5487; Rachel Berdansky, Special Study nears conclusion. collected; and ways in which we can Counsel, (202) 418–5429; or Sebastian minimize the burden of the collection of Pujol Schott, Attorney-Advisor, (202) Issued in Washington, DC on December 15, information on those who are to 418–5641, Division of Market Oversight. 2005, by the Commission. respond, through the use of appropriate SUPPLEMENTARY INFORMATION: In a Jean A. Webb, technological collection techniques or separate Federal Register release Secretary of the Commission. other forms of information technology. published today, the Commission [FR Doc. 05–24293 Filed 12–16–05; 11:25 DATES: Submit comments on or before extended the comment period for ‘‘Self- am] February 21, 2006. Regulation and Self-Regulatory BILLING CODE 6351–01–M ADDRESSES: Submit comments regarding 1 Organizations in the Futures Industry’’ this burden estimate or any other aspect (‘‘Requests for Comments’’) by 14 days. of this collection of information, The comment period now closes on including suggestions for reducing this January 23, 2006. The Request for burden to the General Services Comments seeks public input on a range Administration, Regulatory Secretariat of SRO issues, including governance, (VIR), 1800 F Street, NW., Room 4035, board and disciplinary committee Washington, DC 20405. composition, conflicts of interest within self-regulation, and the ability of FOR FURTHER INFORMATION CONTACT Mr. independent, board-level regulatory Ernest Woodson, Contract Policy Division, GSA, (202) 501–3775. 1 70 FR 71090 (November 25, 2005). 2 69 FR 32326 (June 9, 2004). SUPPLEMENTARY INFORMATION:
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A. Purpose Officer invites comments on the Reporting and Recordkeeping Hour The Data Universal Numbering submission for OMB review as required Burden: Responses: 57. Burden Hours: System (DUNS) number is the nine-digit by the Paperwork Reduction Act of 684. identification number assigned by Dun 1995. Abstract: This program has not received funding since 1995. It was and Bradstreet Information Services to DATES: Interested persons are invited to originally designed to assist State an establishment. The Government uses submit comments on or before January agencies to provide scholarships to the DUNS number to identify 19, 2006. contractors in reporting to the Federal talented and meritorious students who Procurement Data System (FPDS). The ADDRESSES: Written comments should were seeking teaching careers at the FPDS provides a comprehensive be addressed to the Office of preschool, elementary, and secondary mechanism for assembling, organizing, Information and Regulatory Affairs, levels. and presenting contract placement data Attention: Rachel Potter, Desk Officer, Requests for copies of the information for the Federal Government. Federal Department of Education, Office of collection submission for OMB review agencies report data on all contracts in Management and Budget, 725 17th may be accessed from http:// excess of the micro-purchase threshold Street, NW., Room 10222, New edicsweb.ed.gov, by selecting the to the Federal Procurement Data Center Executive Office Building, Washington, ‘‘Browse Pending Collections’’ link and which collects, processes, and DC 20503 or faxed to (202) 395–6974. by clicking on link number 2902. When disseminates official statistical data on SUPPLEMENTARY INFORMATION: Section you access the information collection, Federal contracting. Contracting officers 3506 of the Paperwork Reduction Act of click on ‘‘Download Attachments’’ to insert the Federal Acquisition 1995 (44 U.S.C. Chapter 35) requires view. Written requests for information Regulation (FAR) provision at 52.204–6, that the Office of Management and should be addressed to U.S. Department Data Universal Numbering System Budget (OMB) provide interested of Education, 400 Maryland Avenue, (DUNS) Number, in solicitations they Federal agencies and the public an early SW., Potomac Center, 9th Floor, expect will result in contracts in excess opportunity to comment on information Washington, DC 20202–4700. Requests of the micro-purchase threshold and do collection requests. OMB may amend or may also be electronically mailed to not contain FAR 52.204–7, Central waive the requirement for public [email protected] or faxed to 202– Contractor Registration. This provision consultation to the extent that public 245–6623. Please specify the complete requires offerors to submit their DUNS participation in the approval process title of the information collection when number with their offer. If the offeror would defeat the purpose of the making your request. does not have a DUNS number, the information collection, violate State or Comments regarding burden and/or provision provides instructions on Federal law, or substantially interfere the collection activity requirements obtaining one. with any agency’s ability to perform its should be electronically mailed to Kim Rudolph, Docket Manager at her e-mail B. Annual Reporting Burden statutory obligations. The Leader, Information Management Case Services address [email protected]. Respondents: 35,694. Team, Regulatory Information Individuals who use a Responses Per Respondent: 4.00. Management Services, Office of the telecommunications device for the deaf Annual Responses: 142,776. Chief Information Officer, publishes that (TDD) may call the Federal Information Hours Per Response: .0200. notice containing proposed information Relay Service (FIRS) at 1–800–877– (Averaged) 8339. Total Burden Hours: 2,852. collection requests prior to submission OBTAINING COPIES OF of these requests to OMB. Each [FR Doc. E5–7519 Filed 12–19–05; 8:45 am] proposed information collection, PROPOSALS: Requesters may obtain a BILLING CODE 4000–01–P copy of the information collection grouped by office, contains the documents from the General Services following: (1) Type of review requested, Administration, Regulatory Secretariat e.g. new, revision, extension, existing or DEPARTMENT OF EDUCATION (VIR), Room 4035, Washington, DC reinstatement; (2) Title; (3) Summary of 20405, telephone (202) 501–4755. Please the collection; (4) Description of the Submission for OMB Review; cite OMB Control No. 9000–0145, Use of need for, and proposed use of, the Comment Request Data Universal Numbering System information; (5) Respondents and AGENCY: (DUNS) as Primary Contractor frequency of collection; and (6) Department of Education. Identification, in all correspondence. Reporting and/or Recordkeeping SUMMARY: The Leader, Information burden. OMB invites public comment. Management Case Services Team, Dated: December 13, 2005. Dated: December 13, 2005. Regulatory Information Management Gerald Zaffos, Angela C. Arrington, Services, Office of the Chief Information Director, Contract Policy Division. Officer invites comments on the Leader, Information Management Case [FR Doc. E5–7516 Filed 12–19–05; 8:45 am] Services Team, Regulatory Information submission for OMB review as required BILLING CODE 6820–EP–S Management Services, Office of the Chief by the Paperwork Reduction Act of Information Officer. 1995. Office of Postsecondary Education DATES: Interested persons are invited to DEPARTMENT OF EDUCATION submit comments on or before January Type of Review: Reinstatement. Submission for OMB Review; 19, 2006. Title: Paul Douglas Teacher Comment Request ADDRESSES: Written comments should Scholarship Program Performance be addressed to the Office of AGENCY: Department of Education. Report. Information and Regulatory Affairs, SUMMARY: The Leader, Information Frequency: Annually. Attention: Rachel Potter, Desk Officer, Management Case Services Team, Affected Public: State, Local, or Tribal Department of Education, Office of Regulatory Information Management Gov’t, SEAs or LEAs; Federal Management and Budget, 725 17th Services, Office of the Chief Information Government. Street, NW., Room 10222, New
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Executive Office Building, Washington, ‘‘Browse Pending Collections’’ link and of review requested, e.g. new, revision, DC 20503 or faxed to (202) 395–6974. by clicking on link number 2904. When extension, existing or reinstatement; (2) SUPPLEMENTARY INFORMATION: Section you access the information collection, Title; (3) Summary of the collection; (4) 3506 of the Paperwork Reduction Act of click on ‘‘Download Attachments’’ to Description of the need for, and 1995 (44 U.S.C. Chapter 35) requires view. Written requests for information proposed use of, the information; (5) that the Office of Management and should be addressed to U.S. Department Respondents and frequency of Budget (OMB) provide interested of Education, 400 Maryland Avenue, collection; and (6) Reporting and/or Federal agencies and the public an early SW., Potomac Center, 9th Floor, Recordkeeping burden. OMB invites opportunity to comment on information Washington, DC 20202–4700. Requests public comment. The Department of collection requests. OMB may amend or may also be electronically mailed to the Education is especially interested in waive the requirement for public Internet address [email protected] or public comment addressing the consultation to the extent that public faxed to 202–245–6623. Please specify following issues: (1) Is this collection participation in the approval process the complete title of the information necessary to the proper functions of the would defeat the purpose of the collection when making your request. Department; (2) will this information be information collection, violate State or Comments regarding burden and/or processed and used in a timely manner; Federal law, or substantially interfere the collection activity requirements (3) is the estimate of burden accurate; with any agency’s ability to perform its should be directed to Kim Rudolph, (4) how might the Department enhance statutory obligations. The Leader, Docket Manager at her e-mail address the quality, utility, and clarity of the Information Management Case Services [email protected]. Individuals who information to be collected; and (5) how Team, Regulatory Information use a telecommunications device for the might the Department minimize the Management Services, Office of the deaf (TDD) may call the Federal burden of this collection on the Chief Information Officer, publishes that Information Relay Service (FIRS) at 1– respondents, including through the use notice containing proposed information 800–877–8339. of information technology. collection requests prior to submission [FR Doc. E5–7520 Filed 12–19–05; 8:45 am] Dated: December 14, 2005. of these requests to OMB. Each BILLING CODE 4000–01–P Angela C. Arrington, proposed information collection, Leader, Information Management Case grouped by office, contains the Services Team, Regulatory Information following: (1) Type of review requested, DEPARTMENT OF EDUCATION Management Services, Office of the Chief e.g. new, revision, extension, existing or Information Officer. Notice of Proposed Information reinstatement; (2) Title; (3) Summary of Federal Student Aid the collection; (4) Description of the Collection Requests need for, and proposed use of, the Type of Review: Extension. AGENCY: Department of Education. information; (5) Respondents and Title: Regulations for Equity in frequency of collection; and (6) SUMMARY: The Leader, Information Athletics Disclosure Act (EADA). Reporting and/or Recordkeeping Management Case Services Team, Frequency: Annually. Affected Public: burden. OMB invites public comment. Regulatory Information Management Services, Office of the Chief Information Not-for-profit institutions. Dated: Officer, invites comments on the Reporting and Recordkeeping Hour Angela C. Arrington, proposed information collection Burden: Leader, Information Management Case requests as required by the Paperwork Responses: 1,800. Burden Hours: 9,900. Services Team, Regulatory Information Reduction Act of 1995. Management Services, Office of the Chief Abstract: The EADA amended the Information Officer. DATES: Interested persons are invited to Higher Education Act of 1965, as submit comments on or before February amended (HEA), to require Institute of Education Sciences 21, 2006. coeducational institutions of higher Type of Review: New. SUPPLEMENTARY INFORMATION: Section education that participate in any Title: Study of Teacher Preparation in 3506 of the Paperwork Reduction Act of program under Title IV of the HEA and Early Reading Instruction. 1995 (44 U.S.C. Chapter 35) requires have an intercollegiate athletic program, Frequency: One time. that the Office of Management and annually to make available upon request Affected Public: Businesses or other Budget (OMB) provide interested a report on institutional financing and for-profit; Individuals or household. Federal agencies and the public an early student and staff participation in men’s Reporting and Recordkeeping Hour opportunity to comment on information and women’s intercollegiate athletics. Burden: Responses: 100. Burden Hours: collection requests. OMB may amend or The Higher Education Amendments of 1,500. waive the requirement for public 1998 amended the EADA to require Abstract: The Study of Teacher consultation to the extent that public additional disclosures, to require that an Preparation in Early Reading Instruction participation in the approval process institution submit its report to the will assess the extent to which school of would defeat the purpose of the Department of Education, and to require education coursework related to information collection, violate State or the Department to report to Congress on elementary reading is aligned with the Federal law, or substantially interfere gender equity in intercollegiate athletics National Reading Panel (NRP) Report as with any agency’s ability to perform its and to make its report and institutions’ well as assess new teachers’ preparation statutory obligations. The Leader, EADA reports publicly available. to teach the five essential components of Regulatory Information Management Requests for copies of the proposed reading as identified by the NRP report Group, Office of the Chief Information information collection request may be and specified in the Reading First Officer, publishes that notice containing accessed from http://edicsweb.ed.gov, program statute. proposed information collection by selecting the ‘‘Browse Pending Requests for copies of the information requests prior to submission of these Collections’’ link and by clicking on collection submission for OMB review requests to OMB. Each proposed link number 2958. When you access the may be accessed from http:// information collection, grouped by information collection, click on edicsweb.ed.gov, by selecting the office, contains the following: (1) Type ‘‘Download Attachments’’ to view.
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Written requests for information should Management Services, Office of the may also be electronically mailed to be addressed to U.S. Department of Chief Information Officer, publishes that [email protected] or faxed to 202– Education, 400 Maryland Avenue, SW., notice containing proposed information 245–6623. Please specify the complete Potomac Center, 9th Floor, Washington, collection requests prior to submission title of the information collection when DC 20202–4700. Requests may also be of these requests to OMB. Each making your request. electronically mailed to proposed information collection, Comments regarding burden and/or [email protected] or faxed to 202– grouped by office, contains the the collection activity requirements 245–6623. Please specify the complete following: (1) Type of review requested, should be electronically mailed to Kim title of the information collection when e.g. new, revision, extension, existing or Rudolph, Docket Manager at her e-mail making your request. reinstatement; (2) Title; (3) Summary of address [email protected] 703–620– Comments regarding burden and/or the collection; (4) Description of the 3655. Individuals who use a the collection activity requirements need for, and proposed use of, the telecommunications device for the deaf should be electronically mailed to Kim information; (5) Respondents and (TDD) may call the Federal Information Rudolph, Docket Manager at her e-mail frequency of collection; and (6) Relay Service (FIRS) at 1–800–877– address [email protected]. Reporting and/or Recordkeeping 8339. Individuals who use a burden. OMB invites public comment. [FR Doc. E5–7539 Filed 12–19–05; 8:45 am] telecommunications device for the deaf Dated: December 14, 2005. (TDD) may call the Federal Information BILLING CODE 4000–01–P Angela C. Arrington, Relay Service (FIRS) at 1–800–877– 8339. Leader, Information Management Case Services Team, Regulatory Information DEPARTMENT OF EDUCATION [FR Doc. E5–7538 Filed 12–19–05; 8:45 am] Management Services, Office of the Chief BILLING CODE 4000–01–P Information Officer. Submission for OMB Review; Comment Request Institute of Education Sciences AGENCY: Department of Education. DEPARTMENT OF EDUCATION Type of Review: Revision Title: Impact Evaluation of Charter SUMMARY: The Leader, Information Submission for OMB Review; School Strategies-Student, Parent, Management Case Services Team, Comment Request Principal, and Authorizer Surveys. Regulatory Information Management Frequency: One time. Services, Office of the Chief Information AGENCY: Department of Education. Affected Public: Individuals or Officer invites comments on the SUMMARY: The Leader, Information household; Not-for-profit institutions. submission for OMB review as required Management Case Services Team, Reporting and Recordkeeping Hour by the Paperwork Reduction Act of Regulatory Information Management Burden: 1995. Responses: 3,150. Services, Office of the Chief Information DATES: Interested persons are invited to Officer invites comments on the Burden Hours: 1,513. Abstract: This OMB package requests submit comments on or before January submission for OMB review as required 19, 2006. by the Paperwork Reduction Act of clearance for a set of data collection ADDRESSES: Written comments should 1995. activities to be used in the Impact Evaluation of Charter School Strategies be addressed to the Office of DATES: Interested persons are invited to that includes surveys of students, their Information and Regulatory Affairs, submit comments on or before January parents, principals, and charter school Attention: Rachel Potter, Desk Officer, 19, 2006. authorizers. This submission represents Department of Education, Office of ADDRESSES: Written comments should the second in a two-stage clearance Management and Budget, 725 17th be addressed to the Office of process. The first stage resulted in a Street, NW., Room 10222, New Information and Regulatory Affairs, January 2005 approval (OMB 1850– Executive Office Building, Washington, Attention: Rachel Potter, Desk Officer, 0799) for the evaluation design, DC 20503 or faxed to (202) 395–6974. Department of Education, Office of sampling and analysis plan, and for SUPPLEMENTARY INFORMATION: Section Management and Budget, 725 17th initial data collection activities 3506 of the Paperwork Reduction Act of Street, NW., Room 10222, New necessary for random assignment 1995 (44 U.S.C. Chapter 35) requires Executive Office Building, Washington, (consent form, baseline form, and school that the Office of Management and DC 20503 or faxed to (202) 395–6974. records collection). The current Budget (OMB) provide interested SUPPLEMENTARY INFORMATION: Section submission requests approval for three Federal agencies and the public an early 3506 of the Paperwork Reduction Act of modest enhancements to the design and opportunity to comment on information 1995 (44 U.S.C. Chapter 35) requires for the specific instruments that were collection requests. OMB may amend or that the Office of Management and only briefly described in the earlier waive the requirement for public Budget (OMB) provide interested package. consultation to the extent that public Federal agencies and the public an early Requests for copies of the information participation in the approval process opportunity to comment on information collection submission for OMB review would defeat the purpose of the collection requests. OMB may amend or may be accessed from http:// information collection, violate State or waive the requirement for public edicsweb.ed.gov, by selecting the Federal law, or substantially interfere consultation to the extent that public ‘‘Browse Pending Collections’’ link and with any agency’s ability to perform its participation in the approval process by clicking on link number 2876. When statutory obligations. The Leader, would defeat the purpose of the you access the information collection, Information Management Case Services information collection, violate State or click on ‘‘Download Attachments’’ to Team, Regulatory Information Federal law, or substantially interfere view. Written requests for information Management Services, Office of the with any agency’s ability to perform its should be addressed to U.S. Department Chief Information Officer, publishes that statutory obligations. The Leader, of Education, 400 Maryland Avenue, notice containing proposed information Information Management Case Services SW., Potomac Center, 9th Floor, collection requests prior to submission Team, Regulatory Information Washington, DC 20202–4700. Requests of these requests to OMB. Each
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proposed information collection, Information Relay Service (FIRS) at 1– from 8:30 a.m. to 4:30 p.m., Monday grouped by office, contains the 800–877–8339. through Friday, excluding legal following: (1) Type of review requested, [FR Doc. E5–7540 Filed 12–19–05; 8:45 am] holidays. The telephone number for the e.g. new, revision, extension, existing or Reading Room is (202) 566–1744, and BILLING CODE 4000–01–P reinstatement; (2) Title; (3) Summary of the telephone number for the RCRA the collection; (4) Description of the Docket is (202) 566–0270. An electronic need for, and proposed use of, the version of the public docket is available ENVIRONMENTAL PROTECTION information; (5) Respondents and through EPA Dockets (EDOCKET) at AGENCY frequency of collection; and (6) http://www.epa.gov/edocket. Use Reporting and/or Recordkeeping [RCRA–2005–0016, FRL–8010–6] EDOCKET to obtain a copy of the draft burden. OMB invites public comment. collection of information, submit or Agency Information Collection view public comments, access the index Dated: December 14, 2005. Activities: Proposed Collection; listing of the contents of the public Angela C. Arrington, Comment Request; Reporting and docket, and to access those documents Leader, Information Management Case Recordkeeping Requirements Under in the public docket that are available Services Team, Regulatory Information EPA’s National Partnership for electronically. Once in the system, Management Services, Office of the Chief Environmental Priorities, EPA ICR select ‘‘search,’’ then key in the docket Information Officer. Number 2076.02, OMB Control Number ID number identified above. Office of Elementary and Secondary 2050–0190 Any comments related to this ICR Education should be submitted to EPA within 60 AGENCY: Environmental Protection days of this notice. EPA’s policy is that Type of Review: Revision. Agency. public comments, whether submitted Title: Application Package for the ACTION: Notice. electronically or in paper, will be made REAP Small, Rural School Achievement available for public viewing in SUMMARY: Program. In compliance with the EDOCKET as EPA receives them and Frequency: Annually. Paperwork Reduction Act (44 U.S.C. without change, unless the comment Affected Public: State, Local, or Tribal 3501 et seq.), this document announces contains copyrighted material, CBI, or Gov’t, SEAs or LEAs. that EPA is planning to submit a other information whose public continuing Information Collection Reporting and Recordkeeping Hour disclosure is restricted by statute. When Request (ICR) to the Office of Burden: EPA identifies a comment containing Management and Budget (OMB). This is copyrighted material, EPA will provide Responses: 4,552. a request for an existing approved Burden Hours: 4,830. a reference to that material in the collection. This ICR is scheduled to version of the comment that is placed in Abstract: LEAs will apply for funding expire on April 30, 2006. Before under the REAP Small, Rural School EDOCKET. The entire printed comment, submitting the ICR to OMB for review including the copyrighted material, will Achievement Program. This collection and approval, EPA is soliciting consists of an additional form to the be available in the public docket. comments on specific aspects of the Although identified as an item in the Spreadsheet and Instructions which will proposed information collection as official docket, information claimed as address the second tier of the described below. CBI, or whose disclosure is otherwise Department’s strategy for completing the DATES: Comments must be submitted on restricted by statute, is not included in funding process. The additional form or before February 21, 2006. the official public docket, and will not will serve as the application package for be available for public viewing in LEAs under the REAP Small, Rural ADDRESSES: Submit your comments, EDOCKET. For further information Schools Achievement Program. referencing docket ID number RCRA– 2005–0016, to EPA online using about the electronic docket, see EPA’s Requests for copies of the information EDOCKET (our preferred method), by e- Federal Register notice describing the collection submission for OMB review mail to RCRA–[email protected], or by electronic docket at 67 FR 38102 (May may be accessed from http:// mail to: EPA Docket Center, 31, 2002), or go to http://www.epa.gov./ edicsweb.ed.gov, by selecting the Environmental Protection Agency, edocket. ‘‘Browse Pending Collections’’ link and RCRA Docket, mail code 5305T, 1200 Affected entities: Entities potentially by clicking on link number 2896. When Pennsylvania Ave., NW., Washington, affected by this action are those which you access the information collection, DC 20460. generate, store, and treat hazardous click on ‘‘Download Attachments’’ to waste. FOR FURTHER INFORMATION CONTACT: view. Written requests for information Title: Reporting and Recordkeeping Newman Smith, Office of Solid Waste should be addressed to U.S. Department Requirements Under EPA’s National (5302W), Environmental Protection of Education, 400 Maryland Avenue, Program for Environmental Priorities Agency, 1200 Pennsylvania Ave., NW., SW., Potomac Center, 9th Floor, (formerly, Reporting and Recordkeeping Washington, DC 20460; telephone Washington, DC 20202–4700. Requests Requirements under EPA’s National number: 703–308–8757; fax number: may also be electronically mailed to the Waste Minimization partnership 703–308–8433; e-mail address: Internet address [email protected] or Program) faxed to 202–245–6623. Please specify [email protected]. Abstract: EPA currently has an the complete title of the information SUPPLEMENTARY INFORMATION: EPA has ongoing national program that, through collection when making your request. established a public docket for this ICR source reduction, reuse, and recycling, Comments regarding burden and/or under Docket ID number RCRA–2005– encourages a reduction in use or the the collection activity requirements 0016, which is available for public minimization of release of hazardous should be directed to Kim Rudolph, viewing at the RCRA Docket in the EPA chemicals. Participation in the National Docket Manager at her e-mail address Docket Center (EPA/DC), EPA West, Partnership for Environmental Priorities [email protected]. Individuals who Room B102, 1301 Constitution Ave., (previously the National Waste use a telecommunications device for the NW., Washington, DC. The EPA Docket Minimization Partnership Program) is deaf (TDD) may call the Federal Center Public Reading Room is open completely voluntary. EPA will use five
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forms to collect information from (i) Evaluate whether the proposed Dated: December 13, 2005. participants, called partners, which can collection of information is necessary Matthew Hale, be prepared and submitted in a hard for the proper performance of the Director, Office of Solid Waste. copy or electronically. Participation functions of the Agency, including [FR Doc. E5–7558 Filed 12–19–05; 8:45 am] begins when the first of these forms, an whether the information will have BILLING CODE 6560–50–P Enrollment Form, is submitted and practical utility; accepted by EPA. The form asks for (ii) Evaluate the accuracy of the basic site identification information as Agency’s estimate of the burden of the ENVIRONMENTAL PROTECTION well as information on the company’s proposed collection of information, AGENCY chemical reduction goals under the including the validity of the [EPA–HQ–OAR–2003–0039, FRL–8110–4] program. methodology and assumptions used; Partners will also have an opportunity (iii) Enhance the quality, utility, and Agency Information Collection to complete and submit the second Activities: Proposed Collection; optional form titled Application for clarity of the information to be collected; and Comment Request; Reporting and Certificate of Accomplishment. They Recordkeeping Requirements of the may submit this form when they (iv) Minimize the burden of the HCFC Allowance System, EPA ICR accomplish the goals they established collection of information on those who Number 2014.03, OMB Control Number for their initial participation in the are to respond, including through the 2060–0948 program. These certificate applications use of appropriate automated electronic, will enable the Agency to confirm a mechanical, or other technological AGENCY: Environmental Protection partners’ progress and to measure the collection techniques or other forms of Agency. overall success of the program. information technology, e.g., permitting ACTION: Notice. Evaluation and acceptance of these electronic submission of responses. certificate applications is also the basis SUMMARY: In compliance with the Burden Statement: The annual public Paperwork Reduction Act (44 U.S.C. the Agency uses to recognize partner reporting and recordkeeping burden for accomplishments in a formal (e.g., at an 3501 et seq.), this document announces this collection of information is that EPA is planning to submit a request awards ceremony or by congratulatory estimated to average 14 hours per letter) manner, if appropriate. This to renew an existing approved response. Burden means the total time, partner recognition is important as a Information Collection Request (ICR) to effort, or financial resources expended motivation in enlisting new partners the Office of Management and Budget by persons to generate, maintain, retain, and in encouraging current partners to (OMB). This is a request for to renew an or disclose or provide information to or declare additional reduction goals. existing approved collection. This ICR is for a Federal agency. This includes the A third form is an optional, one-time scheduled to expire on June 30, 2006. time needed to review instructions; Case Studies Submission Form. This Before submitting the ICR to OMB for develop, acquire, install, and utilize form enables a partner to describe its review and approval, EPA is soliciting technology and systems for the purposes waste minimization techniques, comments on specific aspects of the of collecting, validating, and verifying implementation problems, lessons proposed information collection as information, processing and learned, benefits, and relevant described below. maintaining information, and disclosing implications. The case studies will DATES: Comments must be submitted on and providing information; adjust the assist the Agency in better or before February 21, 2006. existing ways to comply with any understanding waste minimization previously applicable instructions and ADDRESSES: Submit your comments, approaches and technologies. The identified by Docket ID No. EPA–HQ– information may also help the Agency requirements; train personnel to be able to respond to a collection of OAR–2003–0039, by one of the in sharing lessons learned and effective following methods: strategies among the facilities generating information; search data sources; • complete and review the collection of http://www.regulations.gov: Follow hazardous waste, in order to promote the on-line instructions for submitting continued and effective waste information; and transmit or otherwise disclose the information. comments. minimization efforts. Sharing effective • E-mail: [email protected] waste reduction strategies with others is Burden means the total time, effort, or • Fax: 202–566–1741 a fundamental objective of the financial resources expended by persons • Mail: Docket #, Air and Radiation partnership program. to generate, maintain, retain, or disclose Docket and Information Center, U.S. The fourth and fifth forms provide or provide information to or for a Environmental Protection Agency, current partners the opportunity to Federal agency. This includes the time Mailcode: 6102T, 1200 Pennsylvania revise current goals or to submit needed to review instructions; develop, Ave., NW., Washington, DC 20460. additional goals. They are titled the Add acquire, install, and utilize technology • Hand Delivery: Docket ID No. EPA– Our New Goals Form and the Goal and systems for the purposes of HQ–OAR–2003–0039, Air and Radiation Revision Form. Other than their titles, collecting, validating, and verifying Docket at EPA West, 1301 Constitution both forms are actually the same as the information, processing and Avenue NW., Room B108, Mail Code enrollment form described above. maintaining information, and disclosing 6102T, Washington, DC 20460. Such An agency may not conduct or and providing information; adjust the deliveries are only accepted during the sponsor, and a person is not required to existing ways to comply with any Docket’s normal hours of operation, and respond to, a collection of information previously applicable instructions and special arrangements should be made unless it displays a currently valid OMB requirements; train personnel to be able for deliveries of boxed information. control number. The OMB control to respond to a collection of Instructions: Direct your comments to numbers for EPA’s regulations in 40 information; search data sources; Docket ID No. EPA–HQ–OAR–2003– CFR are listed in 40 CFR part 9. complete and review the collection of 0039. EPA’s policy is that all comments The EPA would like to solicit information; and transmit or otherwise received will be included in the public comments to: disclose the information. docket without change and may be
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made available online at http:// How Can I Access the Docket and/or (iv) Minimize the burden of the www.regulations.gov, including any Submit Comments? collection of information on those who personal information provided, unless EPA has established a public docket are to respond, including through the the comment includes information for this ICR under Docket ID No. EPA– use of appropriate automated electronic, claimed to be Confidential Business HQ–OAR–2003–0039, which is mechanical, or other technological Information (CBI) or other information available for online viewing at http:// collection techniques or other forms of whose disclosure is restricted by statute. www.regulations.gov, or in person information technology, e.g., permitting Do not submit information that you viewing at Air and Radiation Docket electronic submission of responses. In consider to be CBI or otherwise and Information Center in the EPA particular, EPA is requesting comments protected through http:// Docket Center (EPA/DC), EPA West, from very small businesses (those that www.regulations.gov or e-mail. The Room B102, 1301 Constitution Ave., employ less than 25) on examples of http://www.regulations.gov website is NW., Washington, DC. The EPA/DC specific additional efforts that EPA an ‘‘anonymous access’’ system, which Public Reading Room is open from 8 could make to reduce the paperwork means EPA will not know your identity a.m. to 4:30 p.m., Monday through burden for very small businesses or contact information unless you Friday, excluding legal holidays. The affected by this collection. provide it in the body of your comment. telephone number for the Reading Room If you send an e-mail comment directly What Should I Consider When I is 202–566–1744, and the telephone to EPA without going through Prepare My Comments for EPA? number for the Office of Air and www.regulations.gov your e-mail Radiation, Docket is 202–566–1742. You may find the following address will be automatically captured Use http://www.regulations.gov to suggestions helpful for preparing your and included as part of the comment obtain a copy of the draft collection of comments: that is placed in the public docket and information, submit or view public made available on the Internet. If you 1. Explain your views as clearly as comments, access the index listing of submit an electronic comment, EPA possible and provide specific examples. the contents of the docket, and to access recommends that you include your 2. Describe any assumptions that you those documents in the public docket name and other contact information in used. that are available electronically. Once in the body of your comment and with any 3. Provide copies of any technical the system, select ‘‘search,’’ then key in disk or CD–ROM you submit. If EPA information and/or data you used that the docket ID number identified in this cannot read your comment due to support your views. document. technical difficulties and cannot contact 4. If you estimate potential burden or you for clarification, EPA may not be What Information Is EPA Particularly costs, explain how you arrived at the able to consider your comment. Interested In? estimate that you provide. Electronic files should avoid the use of Pursuant to section 3506(c)(2)(A) of special characters, any form of 5. Offer alternative ways to improve PRA, EPA specifically solicits encryption, and be free of any defects or the collection activity. comments and information to enable it viruses. For additional information 6. Make sure to submit your to: about EPA’s public docket visit the EPA comments by the deadline identified (i) Evaluate whether the proposed Docket Center homepage at http:// under DATES. collection of information is necessary www.epa.gov/epahome/dockets.htm. for the proper performance of the 7. To ensure proper receipt by EPA, FOR FURTHER INFORMATION CONTACT: functions of the Agency, including be sure to identify the docket ID number Cindy Axinn Newberg, Stratospheric whether the information will have assigned to this action in the subject Protection Division, Office of practical utility; line on the first page of your response. Atmospheric Programs, Office of Air (ii) Evaluate the accuracy of the You may also provide the name, date, and Radiation, Mail Code 6205J, Agency’s estimate of the burden of the and Federal Register citation. Environmental Protection Agency, 1200 proposed collection of information, What Information Collection Activity or Pennsylvania Ave., NW., Washington, including the validity of the ICR Does This Apply to? DC 20460; telephone number: 202–343– methodology and assumptions used; 9729 and email address: (iii) Enhance the quality, utility, and [Docket ID No. EPA–HQ–OAR–2003–0039] [email protected]. clarity of the information to be Affected entities: Entities potentially SUPPLEMENTARY INFORMATION: collected; and affected by this action are:
Category NAICS code SIC code Examples of regulated entities
Chlorofluorocarbon gas manufacturing ...... 325120 2869 Chlorodifluoromethane manufac- turers; Dichlorofluoroethane manufacturers; Chlorodifluoroethane manufac- turers. Chlorofluorocarbon gas importers ...... Chlorodifluoromethane importers; Dichlorofluoroethane importers; Chlorodifluoroethane importers; Chlorodifluoromethane export- ers; Dichlorofluoroethane ex- porters; Chlorodifluoroethane exporters. Chlorofluorocarbon gas exporters ...... Insulation and cushioning, foam plastics (except polystyrene) manufacturing. Urethane and Other Foam Product (Except Polystyrene) Manufacturing .... 326150 3086
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Title: Reporting and Recordkeeping any change in burden hours. EPA uses Federal Register notice pursuant to 5 Requirements of the HCFC Allowance collected information to ensure that the CFR 1320.5(a)(1)(iv) to announce the System. U.S. maintains compliance with the submission of the ICR to OMB and the ICR numbers: EPA ICR No. 2014.03, Protocol caps, to report annually to the opportunity to submit additional OMB Control No. 2060–0498. United Nations Environment comments to OMB. If you have any ICR status: This ICR is currently Programme the U.S. activity in HCFCs, questions about this ICR or the approval scheduled to expire on June 30, 2006. and to ensure that allowance holders are process, please contact the technical An Agency may not conduct or sponsor, in compliance. The respondents are person listed under FOR FURTHER and a person is not required to respond producers, importers, and exporters of INFORMATION CONTACT. to, a collection of information, unless it HCFCs; and entities granted HCFC–141b Dated: December 12, 2005. displays a currently valid OMB control exemption allowances. Drusilla Hufford, number. The OMB control numbers for Burden Statement: The annual public EPA’s regulations in title 40 of the CFR, reporting and recordkeeping burden for Division Director, Stratospheric Protection Division. after appearing in the Federal Register this collection of information is when approved, are listed in 40 CFR currently estimated to average less than [FR Doc. E5–7559 Filed 12–19–05; 8:45 am] part 9, and included on the related one hour per response. Burden means BILLING CODE 6560–50–P collection instrument or form, if the total time, effort, or financial applicable. resources expended by persons to Abstract: In order to continue to meet generate, maintain, retain, or disclose or FEDERAL RESERVE SYSTEM its obligations under the Montreal provide information to or for a Federal Protocol on Substances that Deplete the agency. This includes the time needed Change in Bank Control Notices; Ozone Layer (Protocol) and the Clean to review instructions; develop, acquire, Acquisition of Shares of Bank or Bank Air Act Amendments of 1990 (CAAA), install, and utilize technology and Holding Companies EPA maintains an allowance system for systems for the purposes of collecting, The notificants listed below have class II controlled substances or validating, and verifying information, hydrochlorofluorocarbons (HCFCs). applied under the Change in Bank processing and maintaining Control Act (12 U.S.C. 1817(j)) and Under the Protocol, the U.S. is obligated information, and disclosing and to limit HCFC consumption (defined by § 225.41 of the Board’s Regulation Y (12 providing information; adjust the CFR 225.41) to acquire a bank or bank the Protocol as production plus imports, existing ways to comply with any minus exports) under a specific cap. holding company. The factors that are previously applicable instructions and considered in acting on the notices are The U.S. is also a signatory to requirements which have subsequently amendments that froze HCFC set forth in paragraph 7 of the Act (12 changed; train personnel to be able to U.S.C. 1817(j)(7)). production on January 1, 2004. EPA is respond to a collection of information; controlling U.S. production and import The notices are available for search data sources; complete and immediate inspection at the Federal of HCFCs by granting baseline review the collection of information; allowances based on the historical Reserve Bank indicated. The notices and transmit or otherwise disclose the also will be available for inspection at activity levels of producers and information. importers. Since each allowance will be the office of the Board of Governors. The ICR provides a detailed Interested persons may express their equal to 1 kilogram of HCFC, EPA will explanation of the Agency’s estimate, be able to monitor the quantity of views in writing to the Reserve Bank which is only briefly summarized here: indicated for that notice or to the offices HCFCs being produced, imported, Estimated total number of potential of the Board of Governors. Comments exported, transformed, or destroyed. respondents: 52. There are two types of allowances: Frequency of response: quarterly, must be received not later than January Consumption allowances and annual, or one-time only. 4, 2006. production allowances. Transfers of Estimated total average number of A. Federal Reserve Bank of New production and consumption responses for each respondent: 114. York (Jay Bernstein, Bank Supervision allowances among producers and Estimated total annual burden hours: Officer) 33 Liberty Street, New York, importers are allowed. Producers, 3,292 hours for respondents. New York 10045-0001: importers, and exporters are required to Estimated total annual costs: 1. Jacinto Rodrigues and Joaquina submit to EPA quarterly reports of the $472,197 for respondents. This includes Rodrigues, both of Warren, New Jersey; quantity of HCFCs in each of their the current OMB-approved estimated to acquire voting shares of CGD–USA transactions; they are also required to burden cost of $253,089 and an Holding Company, Inc., New York, New report the quantity of HCFCs estimated cost of $219,108 for capital York, and thereby indirectly acquire transformed or destroyed. EPA requires investment or maintenance and Crown Bank, N.A., Ocean City, New all producers, importers, and exporters operational costs. There is no change of Jersey. maintain records such as Customs entry hours in the total estimated respondent forms, bills of lading, sales records, and burden compared with that identified in B. Federal Reserve Bank of St. Louis canceled checks to support their the ICR currently approved by OMB. (Glenda Wilson, Community Affairs quarterly reports. The quarterly reports Officer) 411 Locust Street, St. Louis, may be faxed or mailed to EPA and soon What Is the Next Step in the Process for Missouri 63166-2034: may be submitted electronically, where This ICR? 1. The Ferguson Family Control they are handled as confidential EPA will consider the comments Group, consisting of Carolyn Ferguson business information. EPA stores the received, historical information with Pryor, Jackson, Mississippi; Nancy submitted information in a complying with the requirements of this Ferguson Rasco, Hot Springs, Arkansas; computerized database designed to track ICR, and amend the ICR as appropriate. Rebecca Ferguson Ehrlicher, Memphis, allowance balances and transfer The final ICR package will then be Tennessee; the Carolyn F. Pryor Trust, activities. When electronic reporting is submitted to OMB for review and DeWitt, Arkansas (Carolyn Ferguson available, EPA will change its guidance approval pursuant to 5 CFR 1320.12. At Pryor and DeWitt Bank & Trust, DeWitt, document and revise the ICR if there is that time, EPA will issue another Arkansas, as co–trustees); the Nancy F.
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Rasco Trust, DeWitt, Arkansas (Nancy SUMMARY: The information collection As a matter of discretion, the FTC makes Ferguson Rasco and DeWitt Bank & requirements described below will be every effort to remove home contact Trust as co-trustees); the Rebecca F. submitted to the Office of Management information for individuals from the Ehrlicher Trust, DeWitt, Arkansas and Budget (‘‘OMB’’) for review, as public comments it receives before (Rebecca Ferguson Ehrlicher and DeWitt required by the Paperwork Reduction placing those comments on the FTC Bank & Trust as co–trustees); the Act (‘‘PRA’’) (44 U.S.C. 3501–3520). The Web site. More information, including Charles W. Rasco III Marital Trust FTC is seeking public comments on its routine uses permitted by the Privacy (DeWitt Bank & Trust as trustee); and proposal to extend through December Act, may be found in the FTC’s privacy the Elmer Ferguson Farms, Inc., DeWitt, 31, 2008 the current PRA clearances for policy at http://www.ftc.gov/ftc/ Arkansas; to retain voting shares of DBT information collection requirements privacy.htm. Financial Corporation, DeWitt, contained in four product labeling rules FOR FURTHER INFORMATION CONTACT: Arkansas, and thereby indirectly acquire enforced by the Commission. Those Requests for additional information or additional voting shares of DeWitt Bank clearances expire on December 31, 2005. copies of the proposed information and Trust Company, DeWitt, Arkansas. DATES: Comments must be received on requirements should be addressed as Board of Governors of the Federal Reserve or before January 19, 2006. follows: System, December 15, 2005. ADDRESSES: Interested parties are For the Fur Act Regulations, Wool Act Robert deV. Frierson, invited to submit written comments. Regulations, and Textile Act Deputy Secretary of the Board. Comments should refer to ‘‘Apparel Regulations, contact Carol Jennings, [FR Doc. E5–7555 Filed 12–19–05; 8:45 am] Rules: FTC File No. P948404’’ to Attorney, Enforcement Division, Bureau BILLING CODE 6210–01–S facilitate the organization of comments. of Consumer Protection 600 A comment filed in paper form should Pennsylvania Ave., NW., Washington, include this reference both in the text DC 20580, (202) 326–2996. FEDERAL RESERVE SYSTEM and on the envelope and should be For the Care Labeling Rule, contact mailed or delivered, with two complete Connie Vecellio, Attorney, Enforcement Formations of, Acquisitions by, and copies, to the following address: Federal Division, Bureau of Consumer Mergers of Bank Holding Companies; Trade Commission/Office of the Protection, 600 Pennsylvania Ave., NW., Correction Secretary, Room H–135 (Annex J), 600 Washington, DC 20580, (202) 326–2996. Pennsylvania Avenue, NW., SUPPLEMENTARY INFORMATION: On This notice corrects a notice (FR Doc. Washington, DC 20580. Because paper E5-7262) published on page 73747 of September 28, 2005, the FTC sought mail in the Washington area and at the comment on the information collection the issue for Tuesda, December 13, Commission is subject to delay, please 2005. requirements associated with consider submitting your comments in regulations under the Fur Act, 16 CFR Under the Federal Reserve Bank of electronic form, (in ASCII format, New York heading, the entry for Part 301 (OMB Control Number 3084– WordPerfect, or Microsoft Word) as part 0099); regulations under the Wool Act, Community Partners Bancorp, of or as an attachment to email messages Middletown, New Jersey, is revised to 16 CFR Part 300 (OMB Control Number directed to the following email box: 3084–0100); regulations under the read as follows: [email protected]. However, A. Federal Reserve Bank of New Textile Act, 16 CFR Part 303 (OMB if the comment contains any material for Control Number 3084–0101); and the York (Jay Bernstein, Bank Supervision which confidential treatment is Officer) 33 Liberty Street, New York, Care Labeling Rule, 16 CFR 423 (OMB requested, it must be filed in paper Control Number 3084–0103). See 70 FR New York 10045-0001: form, and the first page of the document 1. Community Partners Bancorp, 56692. No comments were received. must be clearly labeled ‘‘Confidential.’’ 1 Pursuant to the OMB regulations that Middletown, New Jersey; to become a Comments should also be submitted bank holding company by acquiring 100 implement the PRA (5 CFR Part 1320), to: Office of Management and Budget, the FTC is providing this second percent of the voting shares of Two Attention: Desk Officer for the Federal River Community Bank, Middletown, opportunity for public comment while Trade Commission. Comments should seeking OMB approval to extend the New Jersey, and The Town Bank, be submitted via facsimile to (202) 395– Westfield, New Jersey. existing paperwork clearance for the 6974 because U.S. Postal Mail is subject rules. All comments should be filed as Comments on this application must to lengthy delays due to heightened be received by January 6, 2006. prescribed in the ADDRESSES section security precautions. above, and must be received on or Board of Governors of the Federal Reserve The FTC Act and other laws the before January 19, 2006. System, December 15, 2005. Commission administers permit the Staff’s burden estimates for the four Robert deV. Frierson, collection of public comments to rules in question are based on data from Deputy Secretary of the Board. consider and use in this proceeding as the Bureau of Census, U.S. Customs and [FR Doc. E5–7556 Filed 12–19–05; 8:45 am] appropriate. All timely and responsive International Trade Commission, the BILLING CODE 6210–01–S public comments will be considered by Department of Labor, and data or other the Commission and will be available to input from industry sources. The the public on the FTC website, to the relevant information collection extent practicable, at http://www.ftc.gov. requirements within these rules and FEDERAL TRADE COMMISSION corresponding burden estimates follow. 1 Commission Rule 4.2(d), 16 CFR 4.2(d). The Agency Information Collection comment must be accompanied by an explicit 1. Regulations Under the Fur Products Activities; Submission for OMB request for confidential treatment, including the Labeling Act, 15 U.S.C. 69 et seq. (‘‘Fur factual and legal basis for the request, and must Review; Comment Request identify the specific portions of the comment to be Act’’), 16 CFR Part 301 (OMB Control withheld from the public record. The request will Number: 3084–0099) AGENCY: Federal Trade Commission be granted or denied by the Commission’s General (‘‘FTC’’ or ‘‘Commission’’). Counsel, consistent with applicable law and the The Fur Act prohibits the misbranding and false advertising of fur ACTION: Notice. public interest. See Commission Rule 4.9(c), 16 CFR 4.9(c). products. The Fur Act Regulations, 16
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CFR 301, establish disclosure combined recordkeeping burden for the the time that would be devoted to requirements that assist consumers in industry is approximately 54,080 hours preparing invoices in its absence, is making informed purchasing decisions, annually. approximately 30 seconds per invoice.3 and recordkeeping requirements that Disclosure: Staff estimates that 1,400 The invoice disclosure requirement assist the Commission in enforcing respondents (100 manufacturers + 1,300 applies to fur garments, which are these regulations. The Regulations also retail sellers of fur garments) each generally sold individually, and fur provide a procedure for exemption from require an average of 20 hours per year pelts, which are generally sold in groups certain disclosure provisions under the to determine label content (28,000 hours of at least 50, on average. Assuming Fur Act. total), and an average of five hours per invoices are prepared for sales of Estimated annual hours burden: year to draft and order labels (7,000 3,000,000 garments and 160,000 groups 168,000 hours, rounded to the nearest hours total). Staff estimates that the total (an estimated 8 million pelts ÷ 50) each thousand (54,080 hours for number of garments subject to the fur of imported and domestic pelts, the recordkeeping + 113,633 hours for labeling requirements is approximately invoice disclosure requirement entails disclosure). 3,000,000.2 Staff estimates that for an estimated total burden of 26,333 Recordkeeping: The Regulations approximately half of these garments, hours. require that retailers, manufacturers, labels are attached manually, requiring Staff estimates that the Regulations’ processors, and importers of furs and fur approximately two minutes per garment advertising disclosure requirements products keep certain records in for a total of 50,000 hours annually. For impose an average burden of one hour addition to those they may keep in the the remaining 1,500,000, the process of per year for each of the approximately ordinary course of business. Staff attaching labels is semi-automated and 1,300 domestic fur retailers, or a total of estimates that 1,300 retailers incur an requires an average of approximately 1,300 hours. average recordkeeping burden of about two seconds per item, for a total of 1,000 13 hours per year (16,900 hours total); hours (rounded to the nearest Thus, staff estimates the total 115 manufacturers and fur processors thousand). Thus, the total burden for disclosure burden to be approximately combined incur an average attaching labels is 51,000 hours, and the 113,633 hours (86,000 hours for labeling recordkeeping burden of about 52 hours total burden for labeling garments is + 26,333 hours for invoices + 1,300 per year (5,980 total); and 1,200 86,000 hours per year. hours for advertising). importers of furs and fur products incur Staff estimates that the incremental Estimated annual cost burden: an average recordkeeping burden of 26 burden associated with the Regulations’ $2,153,000, rounded to the nearest hours per year (31,200 hours total). The invoice disclosure requirement, beyond thousand (solely relating to labor costs).
Task Hourly rate Burden hours Labor cost
Determine label content ...... $ 20.00 28,000 $560,000 Draft and order labels ...... 13.00 7,000 91,000 Attach labels ...... 4 8.50 51,000 433,500 Invoice disclosures ...... 13.00 26,333 342,329 Prepare advertising disclosures ...... 18.00 1,300 23,400 Recordkeeping ...... 13.00 54,080 703,040
Total ...... 2,153,269 4 Per industry sources, most fur labeling is done in the U.S., and this rate is reflective of an average domestic hourly wage for such tasks. Con- versely, attaching labels with regard to the others regulations discussed herein is mostly performed by foreign labor, as detailed in note 5.
2 The total number of fur garments, fur-trimmed exempt from the labeling requirements pursuant to 3 The invoice disclosure burden for PRA purposes garments, and fur accessories is estimated to be 16 CFR 301.39 (items where either the cost of the excludes the time that respondents would spend for approximately 3,500,000, based on International fur trim to the manufacturer or the manufacturer’s invoicing, apart from the Fur Act Regulations, in Trade Commission data. Of that number, selling price for the finished product is less than the ordinary course of business. See 5 CFR approximately 500,000 items are estimated to be $150 are exempt). 1320.3(b)(2).
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Staff believes that there are no current 2. Regulations Under the Wool Products disclosure requirements. Staff estimates start-up costs or other capital costs Labeling Act, 15 U.S.C. 68 et seq. the burden of determining label content associated with the Regulations. (‘‘Wool Act’’), 16 CFR Part 300 (OMB to be 15 hours per year per respondent, Because the labeling of fur products has Control Number: 3084–0100) or a total of 120,000 hours, and the been an integral part of the The Wool Act prohibits the burden of drafting and ordering labels to manufacturing process for decades, misbranding of wool products. The be 5 hours per respondent per year, or manufacturers have in place the capital Wool Act Regulations, 16 CFR 300, a total of 40,000 hours. Staff believes equipment necessary to comply with the establish disclosure requirements that that the process of attaching labels is Regulations’ labeling requirements. assist consumers in making informed now fully automated and integrated into Industry sources indicate that much of purchasing decisions and recordkeeping other production steps for about 40 the information required by the Fur Act requirements that assist the Commission percent of all affected products. For the and its implementing Regulations in enforcing the Regulations. remaining 300,000,000 items (60 percent of 500,000,000), the process is would be included on the product label Estimated annual hours burden: semi-automated and requires an average even absent the regulations. Similarly, 407,000 hours, rounded to the nearest thousand (80,000 recordkeeping hours + of approximately two seconds per item, invoicing, recordkeeping, and for a total of 166,667 hours per year. advertising disclosures are tasks 326,667 disclosure hours). Recordkeeping: Staff estimates that Thus, the total estimated annual burden performed in the ordinary course of approximately 4,000 wool firms are for all respondents is 326,667 hours. business so that covered firms would subject to the Regulations’ Staff believes that any additional burden incur no additional capital or other non- recordkeeping requirements. Based on associated with advertising disclosure labor costs as a result of the Act or the an average annual burden of 20 hours requirements would be minimal (less Regulations. per firm, the total recordkeeping burden than 10,000 hours) and can be is 80,000 hours. subsumed within the burden estimates Disclosure: Approximately 8,000 wool set forth above. firms, producing or importing about Estimated annual cost burden: 500,000,000 wool products annually, $4,460,000, rounded to the nearest are subject to the Regulations’ thousand (solely relating to labor costs).
Task Hourly rate Burden hours Labor cost
Determine label content ...... $20.00 120,000 $2,400,000 Draft and order labels ...... 13.00 40,000 520,000 Attach labels ...... 5 3.00 166,667 500,001 Recordkeeping ...... 13.00 80,000 1,040,000
Total ...... 4,460,001 5 For products that are imported, this work generally is done in the country where they are manufactured. According to information compiled by an industry trade association using data from the International Trade Commission, the U.S. Customs Service, and the U.S. Census Bureau, ap- proximately 90% of apparel and other textile products used in the United States is imported. With the remaining 10% attributable to U.S. produc- tion at an approximate domestic hourly wage of $8.50 to attach labels, staff has calculated a weighted average hourly wage of $3 per hour attrib- utable to U.S. and foreign labor combined. The estimated percentage of imports supplied by particular countries is based on trade data for 2001 compiled by the Office of Textiles and Apparel, International Trade Administration, U.S. Department of Commerce. Wages in major textile export- ing countries, factored into the above hourly wage estimate, were based on data published in February 2000 by the U.S. Department of Labor, Bureau of International Labor Affairs (See ‘‘Wages, Benefits, Poverty Line, and Meeting Workers’’ Needs in the Apparel and Footwear Industries of Selected Countries,’’ Table I–2: ‘‘Prevailing or Average Wages in the Manufacturing Sector and in the Footwear and Apparel Industries in Se- lected Countries, Latest Available Year’’).
Staff believes that there are no current 3. Regulations Under the Textile Fiber Recordkeeping: Staff estimates that start-up costs or other capital costs Products Identification Act, 15 U.S.C. approximately 24,000 textile firms are associated with the Regulations. 70 et seq. (‘‘Textile Act’’), 16 CFR Part subject to the Textile Regulations’ Because the labeling of wool products 303 (OMB Control Number: 3084–0101) recordkeeping requirements. Based on has been an integral part of the an average burden of 25 hours per firm, The Textile Act prohibits the the total recordkeeping burden is manufacturing process for decades, misbranding and false advertising of manufacturers have in place the capital 600,000 hours. textile fiber products. The Textile Act Disclosure: Approximately 32,000 equipment necessary to comply with the Regulations, 16 CFR 303, establish Regulations. Based on knowledge of the textile firms, producing or importing disclosure requirements that assist about 19.9 billion textile fiber products industry, staff believes that much of the consumers in making informed information required by the Wool Act annually, are subject to the Regulations’ purchasing decisions, and disclosure requirements.6 Staff and its implementing regulations would recordkeeping requirements that assist be included on the product label even the Commission in enforcing the 6 The apparent consumption of garments in the absent their requirements. Similarly, Regulations. The Regulations also U.S. in 2004 was 18.4 billion. Staff estimates that recordkeeping and advertising contain a petition procedure for 1 billion garments are exempt from the Textile Act disclosures are tasks performed in the requesting the establishment of generic (i.e., any kind of headwear and garments made from something other than a textile fiber product, such ordinary course of business so that names for textile fibers.5 as leather) or are subject to a special exemption for covered firms would incur no additional Estimated annual hours burden: hosiery products sold in packages where the label capital or other non-labor costs as a approximately 8,011,000 hours, information is contained on the package. Based on available data, staff estimates that an additional 3 result of the Regulations. rounded to the nearest thousand billion household textile products (non-garments, (600,000 recordkeeping hours + such as sheets, towels, blankets) were consumed. 7,411,111 disclosure hours). Continued
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estimates the burden of determining for about 40 percent of all affected additional burden associated with label content to be 20 hours per year per products. For the remaining 11.9 billion advertising disclosure requirements or respondent, or a total of 640,000 hours items (60 percent of 19.9 billion), the the filing of generic fiber name petitions and the burden of drafting and ordering process is semi-automated and requires would be minimal (less than 10,000 labels to be 5 hours per respondent per an average of approximately two hours) and can be subsumed within the year, or a total of 160,000 hours. Staff seconds per item, for a total of 6,611,111 burden estimates set forth above. believes that the process of attaching hours per year. Thus, the total estimated Estimated annual cost burden: labels is now fully automated and annual burden for all respondents is $42,513,000, rounded to the nearest integrated into other production steps 7,411,111 hours. Staff believes that any thousand (solely relating to labor costs).
Task Hourly rate Burden hours Labor cost
Determine label content ...... $ 20.00 640,000 $12,800,000 Draft and order labels ...... 13.00 160,000 2,080,000 Attach labels ...... 7 3.00 6,611,111 19,833,333 Recordkeeping ...... 13.00 600,000 7,800,000
Total ...... 42,513,333 7 See note 5.
Staff believes that there are no current importers to attach a permanent care Staff estimates the burden of start-up costs or other capital costs label to all covered textile clothing in determining care instructions to be 43 associated with the Regulations. order to assist consumers in making hours each year per respondent, for a Because the labeling of textile products purchase decisions and in determining cumulative total of 1,062,100 hours. has been an integral part of the what method to use to clean their Staff further estimates that the burden of manufacturing process for decades, apparel. Also, manufacturers and drafting and ordering labels is 2 hours manufacturers have in place the capital importers of piece goods used to make each year per respondent, for a total of equipment necessary to comply with the textile clothing must provide the same 49,400 hours. Staff believes that the Regulations’ labeling requirements. care information on the end of each bolt process of attaching labels is fully Industry sources indicate that much of or roll of fabric. automated and integrated into other the information required by the Textile Estimated annual hours burden: production steps for about 40 percent of Act and its implementing rules would 6,889,000 hours, rounded to the nearest the approximately 17.4 billion garments be included on the product label even thousand (solely relating to that are required to have care disclosure 8). absent their requirements. Similarly, instructions on permanent labels.9 For Staff estimates that approximately recordkeeping, invoicing, and the remaining 10.4 billion items (60 advertising disclosures are tasks 24,700 manufacturers or importers of textile apparel, producing about 17.4 percent of 17.4 billion), the process is performed in the ordinary course of semi-automated and requires an average business so that covered firms would billion textile garments annually, are subject to the Rule’s disclosure of approximately two seconds per item, incur no additional capital or other non- for a total of 5,777,778 hours per year. labor costs as a result of the Regulations. requirements. The burden of developing proper care instructions may vary Thus, the total estimated annual burden 4. The Care Labeling Rule, 16 CFR Part greatly among firms, primarily based on for all respondents is 6,889,278 hours. 423 (OMB Control Number: 3084–0103) the number of different lines of textile Estimated annual cost burden: The Care Labeling Rule, 16 CFR Part garments introduced per year that $39,218,000, rounded to the nearest 423, requires manufacturers and require new or revised care instructions. thousand (solely relating to labor costs).
Task Hourly rate Burden hours Labor cost
Determine care instructions ...... $20.00 1,062,100 $21,242,000 Draft and order labels ...... 13.00 49,400 642,200 Attach labels ...... 10 3.00 5,777,778 17,333,334
Total ...... 39,217,534 10 See note 5.
Staff believes that there are no current process for decades, manufacturers have that much of the information required start-up costs or other capital costs in place the capital equipment by the Rule would be included on the associated with the Rule. Because the necessary to comply with the Rule’s labeling of textile products has been an labeling requirements. Based on integral part of the manufacturing knowledge of the industry, staff believes
However, approximately .5 billion of all of these 8 The Care Labeling Rule imposes no specific 9 About 1 billion of the 18.4 billion garments combined products (garments and non-garments) recordkeeping requirements. Although the Rule produced annually are either not covered by the are subject to the Wool Products Labeling Act, not requires manufacturers and importers to have Care Labeling Rule (gloves, hats, caps, and leather, the Textile Fiber Products Identification Act, reliable evidence to support the recommended care fur, plastic, or leather garments) or are subject to an because they contain some amount of wool. Thus, instructions, companies may provide as support exemption that allows care instructions to appear the estimated net total products subject to the Textile Fiber Products Identification Act is 19.9 current technical literature or rely on past on packaging (hosiery). billion. experience.
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product label even absent those DEPARTMENT OF HEALTH AND FDA has determined under 21 CFR requirements. HUMAN SERVICES 25.33(a)(1) that this action is of a type that does not individually or William Blumenthal, Food and Drug Administration cumulatively have a significant effect on General Counsel. the human environment. Therefore, [FR Doc. E5–7531 Filed 12–19–05; 8:45 am] Notice of Approval of Supplemental neither an environmental assessment BILLING CODE 6750–01–P New Animal Drug Application; nor an environmental impact statement Tilmicosin is required. Dated: December 8, 2005. DEPARTMENT OF HEALTH AND AGENCY: Food and Drug Administration, Bernadette Dunham, HUMAN SERVICES HHS. ACTION: Notice. Deputy Director, Office of New Animal Drug Centers for Disease Control and Evaluation, Center for Veterinary Medicine. Prevention SUMMARY: The Food and Drug [FR Doc. 05–24269 Filed 12–19–05; 8:45 am] Administration (FDA) is providing BILLING CODE 4160–01–S Disease, Disability, and Injury notice that it has approved a Prevention and Control Special supplemental new animal drug Emphasis Panel (SEP): Occupational application (NADA) filed by Elanco DEPARTMENT OF HEALTH AND Health and Safety Research, Program Animal Health. The approved NADA HUMAN SERVICES Announcement 04038 and Small provides for the veterinary prescription Food and Drug Administration Grants in Occupational Safety and use of an injectable solution of Health, Program Announcement 04021 tilmicosin phosphate for respiratory [Docket No. 2005N–0485] disease in cattle and sheep. This In accordance with section 10(a)(2) of Regulatory Process for Pediatric the Federal Advisory Committee Act supplemental NADA adds user safety information to product labeling. Mechanical Circulatory Support (Pub. L. 92–463), the Centers for Disease Devices (Ventricular Assist Devices) Control and Prevention (CDC) FOR FURTHER INFORMATION CONTACT: Joan announces the following meeting: C. Gotthardt, Center for Veterinary AGENCY: Food and Drug Administration, Name: Disease, Disability, and Injury Medicine (HFV–130), Food and Drug HHS. Prevention and Control Special Emphasis Administration, 7500 Standish Pl., ACTION: Notice of public meeting. Panel (SEP): Occupational Health and Safety Rockville, MD 20855, 301–827–7571, e- Research, Program Announcement 04038 and mail: [email protected]. SUMMARY: The Food and Drug Small Grants in Occupational Safety and Administration (FDA) is announcing the SUPPLEMENTARY INFORMATION: Elanco Health, Program Announcement 04021. following public meeting: Regulatory Time and Date: 1 p.m.–3 p.m., January 13, Animal Health, A Division of Eli Lilly Process for Pediatric Mechanical 2006 (Closed). & Co., Lilly Corporate Center, Circulatory Support Devices Place: National Institute for Occupational Indianapolis, IN 46285, filed a (Ventricular Assist Devices). The topics Safety and Health, CDC, 1600 Clifton Road, supplement to NADA 140–929 for of discussion are the agency’s activities NE., Mailstop E–74, Atlanta, GA 30333 MICOTIL 300 (tilmicosin phosphate), an Telephone Number (404) 498–2582. regarding the regulation and approval of injectable solution available by circulatory support devices used for Status: The meeting will be closed to the veterinary prescription for use in the public in accordance with provisions set temporary support in pediatric patients. forth in section 552b(c)(4) and (6), Title 5 treatment and control of respiratory Date and Time: The public meeting U.S.C., and the Determination of the Director, disease in cattle and in the treatment of will be held on January 20, 2006, from Management Analysis and Services Office, respiratory disease in sheep. This 9 a.m. to 12 p.m. The agency is CDC, pursuant to Public Law 92–463. supplemental NADA adds user safety requiring registration by December 30, Matters To Be Considered: The meeting information to product labeling related 2005. will include the review, discussion, and to the mechanism of toxicity and Location: The public meeting will be evaluation of applications received in medical intervention. In accordance response to: Occupational Health and Safety held at the Center for Devices and Research, Program Announcement 04038 and with section 512(i) of the Federal Food, Radiological Health, rm. 20B, 9200 Small Grants in Occupational Safety and Drug, and Cosmetic Act (the act) (21 Corporate Blvd., Rockville, MD 20850. Health, Program Announcement 04021. U.S.C. 360b(i)) and part 514 (21 CFR Contact: Eric Chen, Center for Devices Contact Person For More Information: part 514) in §§ 514.105(a) and and Radiological Health (HFZ–450), Charles Rafferty, Ph.D., Scientific Review 514.106(a), the Center for Veterinary Food and Drug Administration, 9200 Administrator, National Institute for Medicine is providing notice that this Corporate Blvd., 301–443–8262, ext. Occupational Safety and Health, CDC, 1600 supplemental NADA is approved as of 146, e-mail: [email protected], or Clifton Road, NE., Mailstop E–74, Atlanta, December 2, 2005. The basis of approval GA 30333, Telephone Number (404) 498– Michael Berman (HFZ–170), 12725 2582. The Director, Management Analysis is discussed in the freedom of Twinbrook Pkwy., 301–827–4744, e- and Services Office, has been delegated the information summary. mail: [email protected]. If you need authority to sign Federal Register notices In accordance with the freedom of special accommodations due to a pertaining to announcements of meetings and information provisions of 21 CFR part disability, please contact Eric Chen, at other committee management activities, for 20 and § 514.11(e)(2)(ii), a summary of least 7 days in advance of the meeting. both CDC and the Agency for Toxic safety and effectiveness data and Registration: There is no fee to attend Substances and Disease Registry. information submitted to support the workshop; however, because space Dated: December 13, 2005. approval of this application may be seen is limited, registration is required. Alvin Hall, in the Division of Dockets Management Please submit registration information Director, Management Analysis and Services (HFA–305), Food and Drug (including name, title, firm name, Office, Centers for Disease Control and Administration, 5630 Fishers Lane, rm. address, e-mail address, telephone Prevention. 1061, Rockville, MD 20852, between 9 number, and fax number) by December [FR Doc. E5–7550 Filed 12–19–05; 8:45 am] a.m. and 4 p.m., Monday through 30, 2005 (see Contact). Background BILLING CODE 4163–18–P Friday. information for the workshop will be
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available to the public on the Internet at DEPARTMENT OF HEALTH AND assign an identification number to http://www.fda.gov/cdrh/meetings/ HUMAN SERVICES qualifying practitioners; this number 012006workshop/index.html. will be included in the practitioner’s Substance Abuse and Mental Health registration under 21 U.S.C. 823(f). SUPPLEMENTARY INFORMATION: This Services Administration Practitioners may use the form for two workshop helps fulfill the Department types of notification: (a) New, and (b) of Health and Human Services’ and Agency Information Collection immediate. Under ‘‘new’’ notifications, FDA’s important mission to protect the Activities: Submission for OMB practitioners may make their initial public health by providing the medical Review; Comment Request waiver requests to SAMHSA. device community with guidance on the Periodically, the Substance Abuse and ‘‘Immediate’’ notifications inform approval process for mechanical Mental Health Services Administration SAMHSA and the Attorney General of a circulatory support devices (ventricular (SAMHSA) will publish a summary of practitioner’s intent to prescribe assist devices) used in pediatric patients information collection requests under immediately to facilitate the treatment in need of temporary support (left side, OMB review, in compliance with the of an individual (one) patient under 21 right side, or both sides). During the Paperwork Reduction Act (44 U.S.C. U.S.C. 823(g)(2)(E)(ii). public workshop, FDA will present Chapter 35). To request a copy of these The form collects data on the information regarding the approval documents, call the SAMHSA Reports following items: Practitioner name; state process for these devices. Specifically, Clearance Officer on (240) 276–1243. medical license number and DEA FDA will address applications for registration number; address of primary premarket approval, humanitarian use Notification of Intent To Use Schedule location, telephone and fax numbers; e- III, IV, or V Opioid Drugs for the designations, humanitarian device mail address; name and address of Maintenance and Detoxification exemptions, and investigational device group practice; group practice employer Treatment of Opiate Addiction Under exemptions. FDA will also present identification number; names and DEA 21 U.S.C. 823(g)(2) (OMB No. 0930– registration numbers of group information regarding preclinical 0234)—Revision engineering qualification of pediatric practitioners; purpose of notification mechanical circulatory support devices The Drug Addiction Treatment Act of new, immediate, or renewal; certification of qualifying criteria for and invited experts will discuss medical 2000 (‘‘DATA,’’ Pub. L. 106–310) treatment and management of opiate and surgical topics. Following each amended the Controlled Substances Act (21 U.S.C. 823(g)(2)) to permit dependent patients; certification of presentation, and at the close of the practitioners (physicians) to seek and capacity to refer patients for appropriate meeting, FDA will conduct a question obtain waivers to prescribe certain counseling and other appropriate and answer session with the approved narcotic treatment drugs for ancillary services; certification of participating audience. After the the treatment of opiate addiction. The maximum patient load, certification to workshop, presentations can be legislation sets eligibility requirements use only those drug products that meet accessed by the public on the Internet and certification requirements as well as the criteria in the law. The form also at http://www.fda.gov/cdrh/meetings/ an interagency notification review notifies practitioners of Privacy Act 012006workshop/index.html. process for physicians who seek considerations, and permits This workshop helps to implement waivers. practitioners to expressly consent to the objectives of section 406 of the FDA To implement these new provisions, disclose limited information available Modernization Act (21 U.S.C. 393) and SAMHSA developed a notification form on http:// the FDA Plan for Statutory Compliance, (SMA–167) that facilitates the www.buprenorphine.samhsa.gov. which include working more closely submission and review of notifications. Since July 2002, SAMHSA has with stakeholders and ensuring access The form provides the information received approximately 6,400 to needed scientific and technical necessary to determine whether notifications and has certified over expertise. The workshop also furthers practitioners (i.e., independent 5,500 physicians. Eighty-one percent of the notifications were submitted by mail the goals of the Small Business physicians and physicians in group practices (as defined under section or by facsimile, with approximately Regulatory Enforcement Fairness Act 1877(h)(4) of the Social Security Act) twenty percent submitted through the (Public Law 104–121) by providing meet the qualifications for waivers set Web based online system. outreach activities by Government forth under the new law. Use of this Approximately 60 percent of the agencies directed to small businesses. form will enable physicians to know certified physicians have consented to Dated: December 12, 2005. they have provided all information disclosure on http:// Linda S. Kahan, needed to determine whether www.buprenorphine.samhsa.gov. Deputy Director, Center for Devices and practitioners are eligible for a waiver. Respondents may submit the form Radiological Health. However, there is no prohibition on electronically, through a dedicated Web [FR Doc. 05–24271 Filed 12–19–05; 8:45 am] use of other means to provide requisite page that SAMHSA will establish for the information. The Secretary will convey purpose, as well as via U.S. mail. BILLING CODE 4160–01–S notification information and The following table summarizes the determinations to the Drug Enforcement estimated annual burden for the use of Administration (DEA), which will this form.
Responses Burden per Purpose of submission Number of per response Total burden respondents respondent (hr.) (hrs)
Initial Application for Waiver ...... 2,000 1 .066 132 Notification to Prescribe Immediately ...... 50 1 .083 3
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Responses Burden per Purpose of submission Number of per response Total burden respondents respondent (hr.) (hrs)
Total ...... 2,050 ...... 135
Written comments and past month, it will be listed at the end, Baptist Medical Center-Toxicology recommendations concerning the and will be omitted from the monthly Laboratory, 9601 I–630, Exit 7, Little proposed information collection should listing thereafter. Rock, AR 72205–7299, 501–202–2783, be sent by January 19, 2006 to: This notice is also available on the (Formerly: Forensic Toxicology SAMHSA Desk Officer, Human Internet at http://workplace.samhsa.gov Laboratory Baptist Medical Center) Resources and Housing Branch, Office and http://www.drugfreeworkplace.gov. Clinical Reference Lab, 8433 Quivira of Management and Budget, New FOR FURTHER INFORMATION CONTACT: Mrs. Road, Lenexa, KS 66215–2802, 800– Executive Office Building, Room 10235, Giselle Hersh or Dr. Walter Vogl, 445–6917 Washington, DC 20503; due to potential Division of Workplace Programs, Diagnostic Services, Inc., dba DSI, delays in OMB’s receipt and processing SAMHSA/CSAP, Room 2–1035, 1 Choke 12700 Westlinks Drive, Fort Myers, of mail sent through the U.S. Postal Cherry Road, Rockville, Maryland FL 33913, 239–561–8200 / 800–735– Service, respondents are encouraged to 20857; 240–276–2600 (voice), 240–276– 5416 submit comments by fax to: 202–395– 2610 (fax). Doctors Laboratory, Inc., 2906 Julia 6974. SUPPLEMENTARY INFORMATION: The Drive, Valdosta, GA 31602, 229–671– Dated: December 14, 2005. Mandatory Guidelines were developed 2281 Anna Marsh, in accordance with Executive Order DrugScan, Inc., P.O. Box 2969, 1119 Director, Office of Program Services. 12564 and section 503 of Public Law Mearns Road, Warminster, PA 18974, 215–674–9310 [FR Doc. E5–7542 Filed 12–19–05; 8:45 am] 100–71. Subpart C of the Mandatory Dynacare Kasper Medical Laboratories *, BILLING CODE 4162–20–P Guidelines, ‘‘Certification of Laboratories Engaged in Urine Drug 10150–102 St., Suite 200, Edmonton, Testing for Federal Agencies,’’ sets strict Alberta, Canada T5J 5E2, 780–451– DEPARTMENT OF HEALTH AND standards that laboratories must meet in 3702 / 800–661–9876 HUMAN SERVICES order to conduct drug and specimen ElSohly Laboratories, Inc., 5 Industrial validity tests on urine specimens for Park Drive, Oxford, MS 38655, 662– Substance Abuse and Mental Health Federal agencies. To become certified, 236–2609 Services Administration an applicant laboratory must undergo Express Analytical Labs, 3405 7th Ave., three rounds of performance testing plus Suite 106, Marion, IA 52302, 319– Current List of Laboratories Which an on-site inspection. To maintain that 377–0500 Meet Minimum Standards To Engage in certification, a laboratory must Gamma-Dynacare Medical Urine Drug Testing for Federal participate in a quarterly performance Laboratories *, A Division of the Agencies testing program plus undergo periodic, Gamma-Dynacare, Laboratory Partnership, 245 Pall Mall Street, AGENCY: Substance Abuse and Mental on-site inspections. Health Services Administration, HHS. Laboratories which claim to be in the London, ONT, Canada N6A 1P4, 519– applicant stage of certification are not to 679–1630 ACTION: Notice. be considered as meeting the minimum General Medical Laboratories, 36 South SUMMARY: The Department of Health and requirements described in the HHS Brooks St., Madison, WI 53715, 608– Human Services (HHS) notifies Federal Mandatory Guidelines. A laboratory 267–6225 agencies of the laboratories currently must have its letter of certification from Laboratory Corporation of America certified to meet the standards of HHS/SAMHSA (formerly: HHS/NIDA) Holdings, 7207 N. Gessner Road, Subpart C of the Mandatory Guidelines which attests that it has met minimum Houston, TX 77040, 713–856–8288 / for Federal Workplace Drug Testing standards. 800–800–2387 Programs (Mandatory Guidelines). The In accordance with Subpart C of the Laboratory Corporation of America Mandatory Guidelines were first Mandatory Guidelines dated April 13, Holdings, 69 First Ave., Raritan, NJ published in the Federal Register on 2004 (69 FR 19644), the following 08869, 908–526–2400 / 800–437– April 11, 1988 (53 FR 11970), and laboratories meet the minimum 4986, (Formerly: Roche Biomedical subsequently revised in the Federal standards to conduct drug and specimen Laboratories, Inc.) Register on June 9, 1994 (59 FR 29908), validity tests on urine specimens: Laboratory Corporation of America on September 30, 1997 (62 FR 51118), ACL Laboratories, 8901 W. Lincoln Holdings, 1904 Alexander Drive, and on April 13, 2004 (69 FR 19644). Ave., West Allis, WI 53227, 414–328– Research Triangle Park, NC 27709, A notice listing all currently certified 7840 / 800–877–7016, (Formerly: 919–572–6900 / 800–833–3984, laboratories is published in the Federal Bayshore Clinical Laboratory) (Formerly: LabCorp Occupational Register during the first week of each ACM Medical Laboratory, Inc., 160 Testing Services, Inc., CompuChem month. If any laboratory’s certification Elmgrove Park, Rochester, NY 14624, Laboratories, Inc.; CompuChem is suspended or revoked, the laboratory 585–429–2264 Laboratories, Inc., A Subsidiary of will be omitted from subsequent lists Advanced Toxicology Network, 3560 Roche Biomedical Laboratory; Roche until such time as it is restored to full Air Center Cove, Suite 101, Memphis, CompuChem Laboratories, Inc., A certification under the Mandatory TN 38118, 901–794–5770 / 888–290– Member of the Roche Group) Guidelines. 1150 Laboratory Corporation of America If any laboratory has withdrawn from Aegis Analytical Laboratories, Inc., 345 Holdings,10788 Roselle St., San the HHS National Laboratory Hill Ave., Nashville, TN 37210, 615– Diego, CA 92121, 800–882–7272 Certification Program (NLCP) during the 255–2400 (Formerly: Poisonlab, Inc.)
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Laboratory Corporation of America SmithKline Beecham Clinical Toxicology Testing Service, Inc., 5426 Holdings, 550 17th Ave., Suite 300, Laboratories; SmithKline Bio-Science N.W. 79th Ave., Miami, FL 33166, Seattle, WA 98122, 206–923–7020/ Laboratories) 305–593–2260 800–898–0180 (Formerly: DrugProof, Quest Diagnostics Incorporated, 4230 US Army Forensic Toxicology Drug Division of Dynacare/Laboratory of South Burnham Ave., Suite 250, Las Testing Laboratory, 2490 Wilson St., Pathology, LLC; Laboratory of Vegas, NV 89119–5412, 702–733– Fort George G. Meade, MD 20755– Pathology of Seattle, Inc.; DrugProof, 7866/800–433–2750 (Formerly: 5235, 301–677–7085 Division of Laboratory of Pathology of Associated Pathologists Laboratories, * The Standards Council of Canada Seattle, Inc.) Inc.) (SCC) voted to end its Laboratory Laboratory Corporation of America Quest Diagnostics Incorporated, 10101 Accreditation Program for Substance Holdings, 1120 Main Street, Renner Blvd., Lenexa, KS 66219, 913– Abuse (LAPSA) effective May 12, 1998. Southaven, MS 38671, 866–827–8042/ 888–3927/800–873–8845 (Formerly: Laboratories certified through that 800–233–6339 (Formerly: LabCorp LabOne, Inc.; Center for Laboratory program were accredited to conduct Occupational Testing Services, Inc.; Services, a Division of LabOne, Inc.) forensic urine drug testing as required MedExpress/National Laboratory Quest Diagnostics Incorporated, 400 by U.S. Department of Transportation Center) Egypt Road, Norristown, PA 19403, (DOT) regulations. As of that date, the Marshfield Laboratories, Forensic 610–631–4600/877–642–2216 certification of those accredited Toxicology Laboratory, 1000 North (Formerly: SmithKline Beecham Canadian laboratories will continue Oak Ave., Marshfield, WI 54449, 715– Clinical Laboratories; SmithKline Bio- under DOT authority. The responsibility 389–3734/800–331–3734 Science Laboratories) for conducting quarterly performance MAXXAM Analytics Inc.*, 6740 Quest Diagnostics Incorporated, 506 E. testing plus periodic on-site inspections Campobello Road, Mississauga, ON, State Pkwy., Schaumburg, IL 60173, of those LAPSA-accredited laboratories Canada L5N 2L8, 905–817–5700 800–669–6995/847–885–2010 was transferred to the U.S. HHS, with (Formerly: NOVAMANN (Ontario), (Formerly: SmithKline Beecham the HHS’ NLCP contractor continuing to Inc.) Clinical Laboratories; International have an active role in the performance MedTox Laboratories, Inc., 402 W. Toxicology Laboratories) testing and laboratory inspection Quest Diagnostics Incorporated, 7600 County Road D, St. Paul, MN 55112, processes. Other Canadian laboratories Tyrone Ave., Van Nuys, CA 91405, 651–636–7466/800–832–3244 wishing to be considered for the NLCP MetroLab-Legacy Laboratory Services, 818–989–2520/800–877–2520, may apply directly to the NLCP 1225 NE 2nd Ave., Portland, OR (Formerly: SmithKline Beecham contractor just as U.S. laboratories do. 97232, 503–413–5295/800–950–5295 Clinical Laboratories) Upon finding a Canadian laboratory to Minneapolis Veterans Affairs Medical Quest Diagnostics Incorporated, 282 be qualified, HHS will recommend that Center, Forensic Toxicology South Presidents Drive, Suite C, West DOT certify the laboratory (Federal Laboratory, 1 Veterans Drive, Valley City, UT 84120, 801–606– Register, July 16, 1996) as meeting the Minneapolis, MN 55417, 612–725– 6301/800–322–3361, (Formerly: minimum standards of the Mandatory 2088 Northwest Toxicology, a LabOne National Toxicology Laboratories, Inc., Company; LabOne, Inc., dba Guidelines published in the Federal 1100 California Ave., Bakersfield, CA Northwest Toxicology; NWT Drug Register on April 13, 2004 (69 FR 93304, 661–322–4250/800–350–3515 Testing, NorthWest Toxicology, Inc.; 19644). After receiving DOT One Source Toxicology Laboratory, Inc., Northwest Drug Testing, a division of certification, the laboratory will be 1213 Genoa-Red Bluff, Pasadena, TX NWT Inc.) included in the monthly list of HHS- 77504, 888–747–3774 (Formerly: Scientific Testing Laboratories, Inc., 450 certified laboratories and participate in University of Texas Medical Branch, Southlake Blvd., Richmond, VA the NLCP certification maintenance Clinical Chemistry Division; UTMB 23236, 804–378–9130 program. Pathology-Toxicology Laboratory) S.E.D. Medical Laboratories, 5601 Office Anna Marsh, Oregon Medical Laboratories, P.O. Box Blvd., Albuquerque, NM 87109, 505– Director, Office Program Services, SAMHSA. 972, 722 East 11th Ave., Eugene, OR 727–6300/800–999–5227 [FR Doc. 05–24252 Filed 12–19–05; 8:45 am] 97440–0972, 541–687–2134 South Bend Medical Foundation, Inc., Pacific Toxicology Laboratories, 9348 530 N. Lafayette Blvd., South Bend, BILLING CODE 4160–20–P DeSoto Ave., Chatsworth, CA 91311, IN 46601, 574–234–4176 x276 800–328–6942 (Formerly: Centinela Southwest Laboratories, 4645 E. Cotton Hospital AirpoToxicology Laboratory) Center Boulevard, Suite 177, Phoenix, DEPARTMENT OF HOMELAND Pathology Associates Medical AZ 85040, 602–438–8507/800–279– SECURITY Laboratories, 110 West Cliff Dr., 0027 Federal Emergency Management Spokane, WA 99204, 509–755–8991/ Sparrow Health System, Toxicology Agency 800–541–7897x7 Testing Center, St. Lawrence Campus, Physicians Reference Laboratory, 7800 1210 W. Saginaw, Lansing, MI 48915, Agency Information Collection West 110th St., Overland Park, KS 517–364–7400, (Formerly: St. Activities: Submission for OMB 66210, 913–339–0372/800–821–3627 Lawrence Hospital & Healthcare Review; Comment Request Quest Diagnostics Incorporated, 3175 System) Presidential Dr., Atlanta, GA 30340, St. Anthony Hospital Toxicology AGENCY: Federal Emergency 770–452–1590/800–729–6432 Laboratory, 1000 N. Lee St., Management Agency, Department of (Formerly: SmithKline Beecham Oklahoma City, OK 73101, 405–272– Homeland Security. Clinical Laboratories; SmithKline Bio- 7052 ACTION: Notice and request for Science Laboratories), Toxicology & Drug Monitoring comments. Quest Diagnostics Incorporated, 4770 Laboratory, University of Missouri Regent Blvd., Irving, TX 75063, 800– Hospital & Clinics, 301 Business Loop SUMMARY: The Federal Emergency 824–6152 (Moved from the Dallas 70 West, Suite 208, Columbia, MO Management Agency (FEMA) has location on 03/31/01; Formerly: 65203, 573–882–1273 submitted the following information
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collection to the Office of Management DEPARTMENT OF HOMELAND 10102, 725 17th Street, NW., and Budget (OMB) for review and SECURITY Washington, DC 20503, or facsimile clearance in accordance with the number (202) 395–7285. Comments requirements of the Paperwork Federal Emergency Management must be submitted on or before January Reduction Act of 1995. The submission Agency 19, 2006. describes the nature of the information FOR FURTHER INFORMATION CONTACT: Agency Information Collection collection, the categories of Requests for additional information or Activities: Submission for OMB respondents, the estimated burden (i.e., copies of the information collection Review; Comment Request the time, effort and resources used by should be made to Chief, Records respondents to respond) and cost, and AGENCY: Federal Emergency Management, FEMA, 500 C Street, SW., includes the actual data collection Management Agency, Department of Room 316, Washington, DC 20472, instruments FEMA will use. Homeland Security. facsimile number (202) 646–3347, or e- Title: Application for Participation in ACTION: Notice and request for mail address FEMA-Information- the National Flood Insurance Program. comments. [email protected]. OMB Number: 1660–0004. Dated: December 13, 2005. Abstract: The NFIP provides flood SUMMARY: The Federal Emergency George S. Trotter, insurance to communities that apply for Management Agency (FEMA) has Acting Branch Chief, Information Resources participation and make a commitment submitted the following information Management Branch, Information to adopt and enforce land use control collection to the Office of Management Technology Services Division. measures that are designed to protect and Budget (OMB) for review and [FR Doc. E5–7535 Filed 12–19–05; 8:45 am] development from future flood damages. clearance in accordance with the BILLING CODE 9110–11–P The application form will enable FEMA requirements of the Paperwork to continue to rapidly process new Reduction Act of 1995. The submission community applications and to thereby describes the nature of the information DEPARTMENT OF HOMELAND more quickly provide flood insurance collection, the categories of SECURITY protection to the residents of the respondents, the estimated burden (i.e., communities. Participation in the NFIP the time, effort and resources used by Federal Emergency Management is mandatory in order for flood related respondents to respond) and cost, and Agency Presidentially-declared communities to includes the actual data collection [FEMA–1618–DR] receive Federal disaster assistance. instruments FEMA will use. Affected Public: State, local or Tribal Title: Exemption of State-Owned Alaska; Major Disaster and Related Governments. Properties Under Self-Insurance Plan. Determinations OMB Number: 1660–0013. Number of Respondents: 150. Abstract: The application for AGENCY: Federal Emergency Estimated Time per Respondent: 4 exemption is made to the Federal Management Agency, Department of Hours. Insurance Administration by the Homeland Security. Estimated Total Annual Burden Governor or other duly authorized ACTION: Notice. Hours: 600 Hours. official of the State accompanied by SUMMARY: This is a notice of the Frequency of Response: Once. sufficient supporting documentation Presidential declaration of a major which certifies that the plan of self- Comments: Interested persons are disaster for the State of Alaska (FEMA– insurance upon which the application invited to submit written comments on 1618–DR), dated December 9, 2005, and for exemption is based meets or exceeds the proposed information collection to related determinations. the Office of Information and Regulatory the standards set forth in 44 CFR 75.11. EFFECTIVE DATE: December 9, 2005. Affairs at OMB, Attention: Desk Officer Upon determining that the State’s plan for the Department of Homeland of self-insurance equals or exceeds the FOR FURTHER INFORMATION CONTACT: Security/FEMA, Docket Library, Room standards, the Administrator then Magda Ruiz, Recovery Division, Federal 10102, 725 17th Street, NW., certifies that the State is exempt from Emergency Management Agency, Washington, DC 20503, or facsimile the requirements for the purchase of Washington, DC 20472, (202) 646–2705. number (202) 395–7285. Comments flood insurance for State-owned SUPPLEMENTARY INFORMATION: Notice is must be submitted on or before January structures and their contents. hereby given that, in a letter dated 19, 2006. Affected Public: Individuals or December 9, 2005, the President households; Business or other for-profit; declared a major disaster under the FOR FURTHER INFORMATION CONTACT: Not-for-profit institutions; Farms; authority of the Robert T. Stafford Requests for additional information or Federal Government: State, Local or Disaster Relief and Emergency copies of the information collection Tribal Government. Assistance Act, 42 U.S.C. 5121–5206 should be made to Chief, Records Number of Respondents: 20. (the Stafford Act), as follows: Management, FEMA, 500 C Street, SW., Estimated Time per Respondent: 5 Room 316, Washington, DC 20472, I have determined that the damage in hours. facsimile number (202) 646–3347, or e- certain areas of the State of Alaska, resulting Estimated Total Annual Burden from a severe fall storm, tidal surges, and mail address FEMA-Information- Hours: 100. flooding from September 22–26, 2005, is of [email protected]. Frequency of Response: Once. sufficient severity and magnitude to warrant Dated: December 13, 2005. Comments: Interested persons are a major disaster declaration under the Robert George S. Trotter, invited to submit written comments on T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121–5206 (the Acting Branch Chief, Information Resources the proposed information collection to Stafford Act). Therefore, I declare that such Management Branch, Information the Office of Information and Regulatory a major disaster exists in the State of Alaska. Technology Services Division. Affairs at OMB, Attention: Desk Officer In order to provide Federal assistance, you [FR Doc. E5–7533 Filed 12–19–05; 8:45 am] for the Department of Homeland are hereby authorized to allocate from funds BILLING CODE 9110–12–P Security/FEMA, Docket Library, Room available for these purposes such amounts as
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you find necessary for Federal disaster DEPARTMENT OF HOMELAND DEPARTMENT OF HOMELAND assistance and administrative expenses. SECURITY SECURITY You are authorized to provide Public Assistance in the designated areas and Federal Emergency Management Transportation Security Administration Hazard Mitigation throughout the State, and Agency any other forms of assistance under the Extension Agency Information Stafford Act you may deem appropriate. Collection Activity Under OMB Review: [FEMA–1612–DR] Consistent with the requirement that Federal Application for Participation in Biometric Device Performance assistance be supplemental, any Federal Indiana; Amendment No. 2 to Notice of Qualification Testing Program funds provided under the Stafford Act for a Major Disaster Declaration Public Assistance and Hazard Mitigation will be limited to 75 percent of the total eligible AGENCY: Transportation Security AGENCY: Federal Emergency costs. If Other Needs Assistance under Administration (TSA), DHS. Management Agency, Department of Section 408 of the Stafford Act is later ACTION: Notice. requested and warranted, Federal funding Homeland Security. SUMMARY: This notice announces that under that program will also be limited to 75 ACTION: Notice. percent of the total eligible costs. TSA has forwarded the Information Collection Request (ICR) abstracted Further, you are authorized to make SUMMARY: This notice amends the notice below to the Office of Management and changes to this declaration to the extent of a major disaster declaration for the allowable under the Stafford Act. Budget (OMB) for review and approval State of Indiana (FEMA–1612–DR), of an extension of the currently The Federal Emergency Management dated November 8, 2005, and related approved collection under the Agency (FEMA) hereby gives notice that determinations. Paperwork Reduction Act. The ICR pursuant to the authority vested in the describes the nature of the information EFFECTIVE DATE: December 7, 2005. Acting Director, under Executive Order collection and its expected burden. TSA 12148, as amended, Dennis Hunsinger, FOR FURTHER INFORMATION CONTACT: published a Federal Register notice, of FEMA, is appointed to act as the Magda Ruiz, Recovery Division, Federal with a 60-day comment period soliciting Federal Coordinating Officer for this Emergency Management Agency, comments, of the following collection of declared disaster. Washington, DC 20472, (202) 646–2705. information on October 14, 2005, 70 FR 60097. I do hereby determine the following SUPPLEMENTARY INFORMATION: The areas of the State of Alaska to have been Federal Emergency Management Agency DATES: Send your comments by January affected adversely by this declared (FEMA) hereby gives notice that 19, 2006. A comment to OMB is most effective if OMB receives it within 30 major disaster: pursuant to the authority vested in the days of publication. Bering Strait Regional Education Acting Director, Department of Homeland Security, under Executive ADDRESSES: Comments may be faxed to Attendance Area, Kashunamiut Regional the Office of Information and Regulatory Education Attendance Area, Lower Order 12148, as amended, Marianne C. Affairs, Office of Management and Kuskokwim Regional Education Attendance Jackson, of FEMA is appointed to act as Budget, Attention: DHS–TSA Desk Area, and the Northwest Arctic Borough for the Federal Coordinating Officer for this Officer, at (202) 395–5806. Public Assistance. declared disaster. Bering Strait Regional Education FOR FURTHER INFORMATION CONTACT: This action terminates my Katrina Wawer, Information Collection Attendance Area, Kashunamiut Regional appointment of Brad Gair as Federal Education Attendance Area, Lower Specialist, Office of Transportation Coordinating Officer for this disaster. Kuskokwim Regional Education Attendance Security Policy, TSA–9, Transportation Area, and the Northwest Arctic Borough are (The following Catalog of Federal Domestic Security Administration, 601 South eligible to apply for assistance under the Assistance Numbers (CFDA) are to be used 12th Street, Arlington, VA 22202–4220. Hazard Mitigation Grant Program. for reporting and drawing funds: 97.030, SUPPLEMENTARY INFORMATION: Community Disaster Loans; 97.031, Cora (The following Catalog of Federal Domestic Comments Invited Assistance Numbers (CFDA) are to be used Brown Fund Program; 97.032, Crisis for reporting and drawing funds: 97.030, Counseling; 97.033, Disaster Legal Services In accordance with the Paperwork Community Disaster Loans; 97.031, Cora Program; 97.034, Disaster Unemployment Reduction Act of 1995, (44 U.S.C. 3501 Brown Fund Program; 97.032, Crisis Assistance (DUA); 97.046, Fire Management et seq.), an agency may not conduct or Counseling; 97.033, Disaster Legal Services Assistance; 97.048, Individuals and sponsor, and a person is not required to Program; 97.034, Disaster Unemployment Households Housing; 97.049, Individuals and respond to a collection of information, Assistance (DUA); 97.046, Fire Management Households Disaster Housing Operations; unless it displays a valid OMB control Assistance; 97.048, Individuals and 97.050 Individuals and Households number. Therefore, in preparation for Households Housing; 97.049, Individuals and Program—Other Needs, 97.036, Public OMB review and approval of the Households Disaster Housing Operations; Assistance Grants; 97.039, Hazard Mitigation following information collection, TSA is 97.050 Individuals and Households Grant Program.) soliciting comments to: Program—Other Needs, 97.036, Public R. David Paulison, (1) Evaluate whether the proposed Assistance Grants; 97.039, Hazard Mitigation Acting Director, Federal Emergency information requirement is necessary for Grant Program.) Management Agency, Department of the proper performance of the functions R. David Paulison, Homeland Security. of the agency, including whether the [FR Doc. E5–7532 Filed 12–19–05; 8:45 am] information will have practical utility; Acting Director, Federal Emergency (2) Evaluate the accuracy of the Management Agency, Department of BILLING CODE 9110–10–P agency’s estimate of the burden; Homeland Security. (3) Enhance the quality, utility, and [FR Doc. E5–7534 Filed 12–19–05; 8:45 am] clarity of the information to be BILLING CODE 9110–10–P collected; and
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(4) Minimize the burden of the DEPARTMENT OF THE INTERIOR habitat, may not be realized within the collection of information on those who 15-year planning period due to budget are to respond, including using Fish and Wildlife Service constraints and landowner preferences. appropriate automated, electronic, The five units within the acquisition Notice of Availability of the Final mechanical, or other technological boundary have a significant ‘‘edge,’’ Comprehensive Conservation Plan for collection techniques or other forms of which contributes to the predation of Bon Secour National Wildlife Refuge in information technology. birds, sea turtles, and beach mice. Edge Baldwin and Mobile Counties, AL effect is the tendency of a transitional Information Collection Requirement AGENCY: Fish and Wildlife Service, zone between communities to contain a Interior. greater variety of species and more Title: Application for Participation in dense populations of species than any ACTION: Notice of availability. Biometric Device Performance surrounding communities. Qualification Testing Program. SUMMARY: The Fish and Wildlife Service Implementing the comprehensive Type of Request: Extension of a announces that a Final Comprehensive conservation plan will enable the refuge currently approved collection. Conservation Plan for Bon Secour to fulfill its critical role in the conservation and management of fish OMB Control Number: 1652–0031. National Wildlife Refuge is available for distribution. The plan was prepared and wildlife resources along coastal Forms(s): Biometric Product pursuant to the National Wildlife Refuge Alabama, and to provide quality Qualification Application Form. System Improvement Act of 1997, and environmental education and wildlife- Affected Public: Biometric Device in accordance with the National dependent recreation opportunities for Manufacturers. Environmental Policy Act of 1969, and refuge visitors. The Service analyzed four alternatives for managing the refuge Abstract: Section 4011—Provision for describes how the refuge will be managed for the next 15 years. The and selected Alternative D to guide the Use of Biometric or Other management direction over the next 15 Technology, of Title IV—Transportation compatibility determinations for wildlife observation, photography, and years. Security, in the Intelligence Reform and hiking; swimming and beach use; Under alternative D, fishing will Terrorism Prevention Act of 2004 (Pub. recreational fishing; environmental continue with greater emphasis on the L. 108–458, 118 Stat. 3638, 3712, Dec. education and interpretation; and quality of the experience. Education and 17, 2004), directs TSA to issue guidance scientific research are also available interpretation will be promoted with for use of biometric technology in within the plan. regular programs and partnerships with airport access control systems including local schools. Wildlife observation and ADDRESSES: A copy of the plan may be photography opportunities will be a list of qualified biometric device obtained by writing to Robert Cail, products and vendors by March 31, expanded, including a kayak trail and Refuge Manager, Bon Secour National observation towers, highlighting refuge 2005. In compliance, TSA has Wildlife Refuge, 12295 State Highway developed a process that examines the management programs and unique 180, Gulf Shores, Alabama 36542; or by wildlife habitats. A user fee and permit fitness of the technology for application calling 251/540–7720; fax 251/540– to airport access control systems. TSA system will be implemented to facilitate 7301. The plan may also be accessed night fishing at Mobile Point. will ask biometric device and downloaded from the Service’s Web Depending upon the availability of manufacturers, who wish to have their site http://southeast.fws.gov/planning/. funds, a visitor center and headquarters devices considered for use in airport SUPPLEMENTARY INFORMATION: Bon office will be constructed, which will access control systems, to submit an Secour National Wildlife Refuge is include space for interpretation and application containing detailed located on the Gulf coast of Alabama, 8 environmental education. Also based on information describing their devices. miles west of the city of Gulf Shores in the availability of funds, a biological TSA intends to make the forms, Baldwin and Mobile Counties. The technician, outdoor recreation planner, which provide the basis for the device planning study area was divided into seasonal maintenance worker, and full- manufacturer’s application to this five separate management units along time law enforcement officer will be process, widely available to the the Fort Morgan Peninsula and Little added to accomplish objectives outlined interested manufacturers through Dauphin Island. Although the refuge in the plan. ‘‘Current Announcements’’ in the was established in 1980, to date, only Research studies on the refuge will be ‘‘Business Opportunities’’ link within 6,978 acres have been acquired within fostered and partnerships developed the 12,570-acre acquisition boundary, with agencies and universities, the TSA website: http://www.tsa.gov/ including the 575 acres leased from the providing needed resources and public. The online application will be State of Alabama. The Service has equipment sites, all while meeting the made via that website. TSA will use the management jurisdiction along the needs of the refuge’s wildlife and information to evaluate the products’ shoreline above mean high tide, except habitat management programs. Research readiness for performance testing. on Little Dauphin Island, which will also benefit conservation efforts Number of Respondents: 100. contains 560 acres of submerged throughout the central Gulf coast to Estimated Annual Burden Hours: An bottoms. The potential wildlife habitat preserve, enhance, restore, and manage estimated 800 hours annually. values of beach/dune, maritime forest, coastal barrier island habitat. New and estuarine habitat provided the surveys on birds, reptiles, and Issued in Arlington, Virginia, on December impetus to purchase the properties. amphibians will be initiated to develop 14, 2005. Management efforts since 1985 have baseline information. Lisa S. Dean, emphasize acquiring land, securing staff Under this alternative, the refuge will Privacy Officer. to operate the refuge, and initiating continue to seek acquisition of all lands [FR Doc. E5–7557 Filed 12–19–05; 8:45 am] conservation programs that benefit within the present acquisition BILLING CODE 4910–62–P endangered wildlife species. However, boundary. Pristine lands that provide Service acquisition of key properties, quality habitat and connectivity to such as inholdings and beach/dune existing refuge lands will be priority
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acquisitions. Equally important Dated: August 24, 2005. U.S. Fish and Wildlife Service, Division acquisition tools to be used include: Jeffrey M. Fleming, of Management Authority, 4401 North transfer lands, partnerships with Acting Regional Director. Fairfax Drive, Room 700, Arlington, conservation organizations, [FR Doc. 05–24240 Filed 12–19–05; 8:45 am] Virginia 22203; fax (703) 358–2281. conservation easements with adjacent BILLING CODE 4310–55–M FOR FURTHER INFORMATION CONTACT: landowners, and leases/cooperative Division of Management Authority, agreements with state agencies. telephone (703) 358–2104. DEPARTMENT OF THE INTERIOR Public comments were requested, SUPPLEMENTARY INFORMATION: Notice is considered, and incorporated Fish and Wildlife Service hereby given that on the dates below, as throughout the planning process. Public authorized by the provisions of the outreach included open houses, public Issuance of Permits Endangered Species Act of 1973, as meetings, technical workgroups, amended (16 U.S.C. 1531 et seq.), and/ AGENCY: Fish and Wildlife Service, planning update mailings, and Federal or the Marine Mammal Protection Act of Interior. Register notices. During the comment 1972, as amended (16 U.S.C. 1361 et ACTION: period on the draft document, the Notice of issuance of permits for seq.), the Fish and Wildlife Service endangered species and/or marine Service received a total of 30 comments. issued the requested permit(s) subject to mammals. All substantive issues raised have been certain conditions set forth therein. For each permit for an endangered species, addressed either through revisions of SUMMARY: The following permits were the Service found that (1) the the final comprehensive conservation issued. application was filed in good faith, (2) plan or in responses contained in the ADDRESSES: Documents and other the granted permit would not operate to appendix dealing with public information submitted with these the disadvantage of the endangered comments. applications are available for review, species, and (3) the granted permit Authority: This notice is published under subject to the requirements of the would be consistent with the purposes the authority of the National Wildlife Refuge Privacy Act and Freedom of Information and policy set forth in Section 2 of the System Improvement Act of 1997, Public Act, by any party who submits a written Endangered Species Act of 1973, as Law 105–57. request for a copy of such documents to: amended.
ENDANGERED SPECIES
Permit No. Applicant Receipt of application Federal Register notice Permit issuance date
111397 ...... Donald S. Priest ...... 70 FR 62321; October 31, 2005 ...... November 15, 2005. 110435 ...... David C. West ...... 70 FR 58736; October 7, 2005 ...... November 14, 2005. 109575 ...... Louis A. Souza ...... 70 FR 58736; October 7, 2005 ...... November 14, 2005. 110014 ...... Stephen W. Mayes ...... 70 FR 58736; October 7, 2005 ...... November 14, 2005. 110044 ...... Raymond T. Cuppy ...... 70 FR 58736; October 7, 2005 ...... November 14, 2005.
ENDANGERED MARINE MAMMALS AND MARINE MAMMALS
Permit No. Applicant Receipt of application Federal Register notice Permit issuance date
100361 ...... Mote Marine Laboratory ...... 70 FR 51839; August 31, 2005 ...... November 10, 2005. 106376 ...... Paul W. Prudler ...... 70 FR 46183; August 9, 2005 ...... October 3, 2005. 110049 ...... Michael J. Vorst ...... 70 FR 58736; October 7, 2005 ...... November 28, 2005.
Dated: December 9, 2005. endangered species and/or marine FOR FURTHER INFORMATION CONTACT: Michael L. Carpenter, mammals. Division of Management Authority, Senior Permit Biologist, Branch of Permits, telephone (703) 358–2104. DATES: Written data, comments or Division of Management Authority. SUPPLEMENTARY INFORMATION: [FR Doc. E5–7536 Filed 12–19–05; 8:45 am] requests must be received by January 19, BILLING CODE 4310–55–P 2006. Endangered Species ADDRESSES: Documents and other The public is invited to comment on information submitted with these the following applications for a permit DEPARTMENT OF THE INTERIOR applications are available for review, to conduct certain activities with Fish and Wildlife Service subject to the requirements of the endangered species. This notice is Privacy Act and Freedom of Information provided pursuant to section 10(c) of Receipt of Applications for Permit Act, by any party who submits a written the Endangered Species Act of 1973, as request for a copy of such documents amended (16 U.S.C. 1531 et seq.). AGENCY: Fish and Wildlife Service, within 30 days of the date of publication Written data, comments, or requests for Interior. of this notice to: U.S. Fish and Wildlife copies of these complete applications ACTION: Notice of receipt of applications Service, Division of Management should be submitted to the Director for permit. Authority, 4401 North Fairfax Drive, (address above). Room 700, Arlington, Virginia 22203; PRT–115741 SUMMARY: The public is invited to fax 703/358–2281. comment on the following applications Applicant: Winston C. Stalcup, to conduct certain activities with Alpharetta, GA.
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The applicant requests a permit to ACTION: Notice of Availability of a decision whether the DPS range import the sport-hunted trophy of one recovery plan of Atlantic salmon. included the mainstem of the Penobscot male bontebok (Damaliscus pygargus River and its tributaries above the pygargus) culled from a captive herd SUMMARY: The National Marine former site of the Bangor Dam. Presently maintained under the management Fisheries Service (NMFS) and the a status review is underway to program of the Republic of South Africa, United States Fish and Wildlife Service determine the relationship of large river for the purpose of enhancement of the (FWS)(collectively, the Services) systems (e.g., the Penobscot and survival of the species. announce the availability of the final Kennebec Rivers) to the DPS as recovery plan for the Gulf of Maine currently delineated. This review will Marine Mammals (GOM) distinct population segment also determine the status of current The public is invited to comment on (DPS) of Atlantic salmon (Salmo salar). salmon populations within these large the following applications for a permit ADDRESSES: Requests for a copy of the river systems, as well as any other to conduct certain activities with marine final recovery plan should be addressed additional salmon populations present mammals. The application was to the Atlantic Salmon Recovery outside the geographic range of the DPS. submitted to satisfy requirements of the Coordinator, NMFS, Northeast Regional Decisions regarding the status of these Marine Mammal Protection Act of 1972, Office, Protected Resources Division, populations may have significant as amended (16 U.S.C. 1361 et seq.), and One Blackburn Drive, Gloucester, MA implications for the recovery strategy the regulations governing marine 01930. A copy of the Final Recovery and recovery criteria. The Services will mammals (50 CFR Part 18). Written Plan can also be downloaded from the consider the implications of these data, comments, or requests for copies following web address: http:// decisions and, if necessary, amend or of the complete applications or requests www.nmfs.noaa.gov/pr/recovery. modify the recovery plan accordingly. for a public hearing on these FOR FURTHER INFORMATION CONTACT: The GOM DPS has declined to applications should be submitted to the Jessica Pruden, NMFS Atlantic Salmon critically low levels. Adult returns, and Director (address above). Anyone Recovery Coordinator, (978) 281–9328 estimates of juvenile abundance and requesting a hearing should give extension 6532. survival have continued to decline since the listing. In 2004, total adult returns specific reasons why a hearing would be SUPPLEMENTARY INFORMATION: The appropriate. The holding of such a to the eight rivers still supporting wild Endangered Species Act of 1973, as Atlantic salmon populations within the hearing is at the discretion of the amended, (16 U.S.C. 1531 et seq.) (ESA) Director. DPS were estimated to range from 60 to requires the development of recovery 113 individuals. Therefore, while full PRT–113776 plans for listed species unless such a recovery will encompass the full range plan would not promote the recovery of of the DPS from the Kennebec to the St. Applicant: Scott E. Behnken, a particular species. Recovery Plans Brookville, OH. Croix River, the initial focus of the describe actions considered necessary recovery program is to stabilize The applicant requests a permit to for the conservation and recovery of populations in the eight populations in import a polar bear (Ursus maritimus) listed species, establish criteria for the DPS that were extant at the time of sport hunted from the Lancaster Sound downlisting or delisting such species, the listing polar bear population in Canada for and estimate the time and costs required The recovery plan contains a synopsis personal, noncommercial use. to implement recovery actions. On of the biology and distribution of Dated: December 9, 2005. December 17, 2000, the Services listed Atlantic salmon, a description of factors Michael L. Carpenter, the GOM DPS of Atlantic salmon as affecting species recovery, an outline of endangered under the ESA (65 FR Senior Permit Biologist, Branch of Permits, actions needed to recover the species, Division of Management Authority. 69459). On June 18, 2004, the Services and an implementation schedule for published a draft recovery plan for the [FR Doc. E5–7537 Filed 12–19–05; 8:45 am] completing the recovery tasks. The DPS, and solicited public comments (69 recovery plan, prepared with the BILLING CODE 4310–55–P FR 34184). assistance of the Maine Atlantic Salmon The GOM DPS includes all naturally Commission (ASC), provides a DEPARTMENT OF COMMERCE reproducing remnant populations of framework for addressing a multitude of Atlantic salmon from the Kennebec threats threatening the survival and National Oceanic and Atmospheric River downstream of the former conservation of the GOM DPS of Administration Edwards Dam site, northward to the Atlantic salmon. mouth of the St. Croix River. DPS The Services published a notice of DEPARTMENT OF THE INTERIOR salmon taken for hatchery rearing for availability of the draft recovery plan for broodstock purposes and any captive the GOM DPS of Atlantic salmon in the Fish and Wildlife Service progeny from these salmon are also Federal Register on June 18, 2004 (69 included as part of the DPS. These FR 34184). The Services distributed the hatchery-held fish, however, do not [I.D. 121305B] draft recovery plan for public review count toward delisting or and comment. During the 90-day public Endangered and Threatened Species: reclassification goals as these goals refer comment period, the Services held two Notice of Availability for the Final to the status of naturally-spawned formal public hearings, as well as Recovery Plan for the Gulf of Maine salmon in the wild. numerous meetings and briefings with Distinct Population Segment of At the time of listing, there were at Federal, state, local and private Atlantic Salmon least eight rivers in the geographic range stakeholders to discuss the recovery of the GOM DPS known to still support plan and solicit comments. AGENCIES: National Marine Fisheries wild Atlantic salmon populations: the The Services received comments from Service, National Oceanic and Dennys, East Machias, Machias, a wide range of stakeholders and Atmospheric Administration, Pleasant, Narraguagus, Ducktrap and interested parties including state, Commerce; and United States Fish and Sheepscot Rivers, and Cove Brook. At Federal and local government agencies; Wildlife Service, Interior. the time of listing, the Services deferred local stakeholder groups; non-
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governmental organizations; industry (1) Acidified water and associated was to attempt to link the threats groups; and private citizens. The aluminum toxicity which decrease assessment to the implementation comments received ranged from juvenile survival; (2) aquaculture schedule and to ensure consistency in endorsements of the plan to practices, which pose ecological and addressing threats throughout the body disagreement with specific as well as genetic risks; (3) avian Predation; (4) of the recovery plan. The final plan general elements contained in the plan. changing land use patterns (e.g., includes a revised threat assessment Many of the comments received development, agriculture, forestry); (5) that was the product of the workshop provided technical corrections and climate change; (6) depleted mentioned above. additional information that the Services’ diadromous fish communities; (7) Water Use considered and applied as appropriate incidental capture of adults and parr by in preparing the final recovery plan. recreational fishermen; (8) introduced Comment 2: Some comments The Maine ASC coordinated the fish species that compete or prey on recommended that the plan take a review of the draft plan by state Atlantic salmon; (9) low marine broader approach to addressing water agencies. The state agencies involved in survival; (10) poaching of adults in DPS use related to hydrologic manipulation the plan review were the Maine ASC, rivers; (11) recovery hatchery program of river flow. Others stated that the Maine Department of Marine Resources (potential for artificial selection/ terms ‘‘excessive or unregulated (DMR), Maine Department of Inland domestication); (12) sedimentation; and withdrawals’’ were not accurate or Fisheries and Wildlife (IFW), Maine (13) water extraction. instructive and stated that the Plan did Department of Environmental Protection The public and peer review comments not adequately acknowledge the existing (DEP), Maine Department of received during the public comment state regulatory programs that are in Agriculture, Food, and Rural Resources period have been fully considered in the place to guard against threats to habitat (DAFRR), Maine Bureau of Pesticide preparation of this recovery plan. In due to water withdrawal. It was Control (BPC), Maine Department of response to comments received, the suggested that too much emphasis was Conservation (DOC), Maine Bureau of Services have made revisions to the placed on water withdrawal in the plan Parks and Lands (BPL), Maine Forest draft plan as appropriate. In addition, and that the plan should focus on a Service (MFS), Maine Geological the Services have reviewed and solution-based approach as agreed to by Service (MGS), Maine Department of considered the recommendations of the private and public, state and Federal Transportation (DOT), and Maine State 2004 NRC report on Atlantic Salmon in partners in the Downeast Rivers Water Planning Office (SPO). Maine and incorporated the Use Management Plan (WUMP) In addition to public review, the recommendations as appropriate. developed under the State Atlantic recovery plan underwent peer-review. Salmon Conservation Plan instead of The Services and the State identified Comments and Responses focusing on water-use permitting. and contacted 27 peer reviewers with The majority of the comments The Downeast Salmon Federation specific technical and other relevant received on the draft recovery plan were (DSF) commented that the draft plan expertise, requesting review and editorial and were incorporated as should specifically state that the Water comment on the draft recovery plan. received. More substantive comments Use Management Plan (WUMP) is not These individuals were asked to review and responses to these comments are comprehensive enough to truly deserve relevant sections of the plan for summarized below. the name, and that a reader of the technical accuracy and completeness. recovery plan unfamiliar with the Threats Assessment The peer-reviewers were also asked to WUMP might conclude that these identify any specific issues or Comment 1: A number of comments ‘‘plans’’ address cumulative as well as information that the Services should were submitted questioning the individual withdrawals. DSF consider in the preparation of a final relationship between the threats commented that the WUMP actually recovery plan. The Services received assessment and the text related to those addresses only those withdrawals made eight responses from the individuals identified threats and/or their priorities by the larger industry users and does contacted. in the implementation table. It was not do a thorough or precautionary job In conjunction with efforts to prepare suggested that better documentation of of planning or managing water use in a final recovery plan, the Services and the risk assessment method used to these watersheds. Lastly, DSF the Maine ASC conducted a 2-day identify the top threats would be commented that the documents referred Threats Assessment Workshop in instructive for the reader. Others to as the WUMP provide a basis from December 2004. The Services assembled commented that some of the threats which to move forward, but are lacking a team of technical experts from Maine were more applicable to some in addressing the impact of the full ASC, NOAA Fisheries and USFWS to watersheds and not to others. Finally, range of irrigators within these conduct a structured threats analysis to some questioned the estimates of costs watersheds. evaluate the geographic extent and life in the Implementation Schedule and the Response: The Recovery Plan stage affected by threats, and the State of Maine suggested that they could endorses the implementation of the severity of these effects. During this assist the Federal Services, with the WUMP as an important recovery action workshop, the Services and workshop assistance of the Recovery Team, to for the DPS. The Services agree with the participants reviewed and considered refine these estimates. comment that the practical threat of the recommendations of the National Response: A workshop was held with water use is much less today than it was Research Council’s (NRC) (2004) report state and Federal agency experts to in 1995 when the State Conservation on Atlantic Salmon in Maine, as well as conduct a threats assessment. The Plan was being developed. As explained relevant public and peer review purpose of this workshop was to in the draft recovery plan, the WUMP is comments received during the comment address the concerns submitted by the a significant accomplishment and period. The workshop resulted in the public with the goal of expanding the provides an excellent foundation as a following threats being identified in the section of the recovery plan to include planning document. In order for it to be final recovery plan as high priority for an explanation of the process utilized effective as a tool for the protection and action to reverse the decline of Atlantic and factors considered in conducting recovery of Atlantic salmon, however, salmon populations in the GOM DPS: the threats assessment. Another goal the WUMP needs to be endorsed by the
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state regulatory agencies and however, and instead require what is Our focus is, therefore, on ensuring that consistently applied in the State of necessary to achieve the outcome of regulations and best management Maine in both organized and preventing negative impacts to water practices to protect water quality are unorganized territories. While voluntary quality. Foresters are provided with a fully implemented and evaluated. compliance with the WUMP by growers range of BMPs and training in those Where opportunities present may be reducing the practical threat of techniques, but the ultimate decision of themselves, the purchase of land and water withdrawals to salmon and their what specific techniques to apply is left conservation easements has been and habitat today, it does not provide to their discretion in light of the site likely will continue to be an important security into the future that this threat specific circumstances. We tool in the effort to protect important will remain reduced. acknowledge that land ownership riparian areas adjacent to salmon patterns are changing in Maine and we habitat. Forestry cannot take for granted the excellent Aquaculture Comment 3: Some comments were relationship we have had with submitted concurring with the landowners in the past who have Comment 5: Comments were provided conclusion in the draft plan that current voluntarily adopted protective measures stating that the section in the draft plan timber harvesting activities do not for Atlantic salmon. Efforts to work with on aquaculture was outdated and represent a significant threat under new landowners are ongoing and Project requesting that the final recovery plan current management measures and SHARE has been very instrumental in acknowledge progress made to address harvest practices. Other commenters this effort. It will be important during the threat of aquaculture. Other questioned the basis for this conclusion. implementation of the recovery plan for comments identified areas where They cited the following potential the Services to continue to work with actions to address the threat from impacts from forest practices: landowners and the Maine Forest aquaculture needed to be strengthened sedimentation, thermal loading, altering Service to ensure that salmon habitat is and specifically cited disease water chemistry, altering hydrology and not negatively impacted by forestry management, the establishment of limiting large woody debris. Other practices. aquaculture free-zones and bay commenters raised concerns that management planning. changes in land ownership could lead to Land Acquisition and Riparian Buffers Response: We have updated the increased harvesting and impacts to Comment 4: Some suggested land section in the recovery plan related to Atlantic salmon and their habitat. One acquisition and conservation easements aquaculture. As noted in the comments, comment requested that the Services should be pursued in areas that are the Services have been working with the review the state laws that govern forest threatened with serious, immediate, aquaculture industry and the State of management and timber harvesting and development pressure, where the Maine for a number of years to another comment specifically stated that relationship between specific land use implement measures to minimize the the State of Maine’s Forest Practices Act changes and habitat degradation is potential for aquaculture practices to provides little protection to smaller firmly established and where high value negatively impact Atlantic salmon and order streams. In addition, some stated habitat is at risk. Others argued that the their habitat. As correctly noted in the that there was little to no enforcement case for riparian buffer protection is comments, significant progress has been of existing forest laws and regulations. based on the presumed impacts of made recently to incorporate a number Some commenters contend that the draft sedimentation, removal of shade and of these protective measures in permit plan does not adequately describe the associated increases in stream conditions. Aquaculture free-zones have forestry issue. DSF stated that forestry temperature, alteration of natural been considered, but not implemented practices impact watershed productivity processes that create large woody due to the lack of adequate sites particularly when first order streams do debris, low dissolved oxygen from sufficiently removed from the Gulf of not receive adequate protection from nutrient enrichment, runoff of chemical Maine DPS. Bay management planning cutting activities. These commenters contaminants from agricultural and is an excellent tool for ensuring that state that these streams receive the least silvicultural lands. These individuals aquaculture practices are well protection under current law and the asserted that there is little evidence that coordinated and that cumulative least emphasis under current these potential impacts are actually a impacts are identified and assessed. We conservation easement strategies and as threat to the GOM DPS. have included a discussion on bay a result these water bodies are Response: The available scientific management in the final recovery plan. experiencing the most abuse and literature provides a strong basis for the neglect. need for a riparian buffer zone to Habitat Quality and Restoration Response: In the recovery plan the prevent adverse impacts to water Comment 6: Comments were Services acknowledge that forestry quality. Purchasing all of the land in the submitted stating that the recovery plan practices can negatively impact Atlantic riparian habitat in the Gulf of Maine needed to identify habitat as a limiting salmon habitat. Due to state laws and DPS of Atlantic salmon is not possible factor to Atlantic salmon throughout best management practices (BMPs), and is not necessary for salmon Maine and placing habitat restoration as widespread problems with forestry protection and recovery. The major a top priority. One comment stated that practices have not been documented. focus of the GOM DPS recovery program poor large parr survival indicated that These impacts can occur, however, and is to ensure that buffers are adequate in habitat in the rivers may be marginal in some cases the protective measures a particular region to prevent adverse and that greater emphasis should be currently in place are best management impacts to water quality in that region. placed on investigating this further. practices that are not regulatory in For example, if Atlantic salmon in a Comments suggested that a greater nature. In general, landowners are particular stream is threatened by emphasis needed to be placed on required to protect water quality and to elevated temperatures, but not restoring the structure and function of utilize best management practices to threatened by sedimentation, then these rivers. Another comment ensure that water quality is not riparian buffers should be in place to recommended that the size and scale of negatively impacted by harvesting. The prevent increases in water temperature riparian buffer zones needs to be BMPs are not prescriptive in nature, but necessarily to reduce sedimentation. carefully assessed to determine if they
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are adequate to meet the needs of land-use and impacts from current land- producing progeny for other rivers to Atlantic salmon and the rest of the use are not addressed rapidly and establish experimental populations. It ecosystem. aggressively we will not see the was suggested that stocking of Response: The plan does identify restoration of self-sustaining Atlantic additional streams might provide a habitat quality as a significant threat to salmon populations in Maine. surprising result in terms of a few the recovery of Atlantic salmon. As Response: The recovery plan focuses returning adults and perhaps a catch explained in the plan, assessment on threats to Atlantic salmon habitat so and release fishery at some point in the activities have documented significant the impacts of changing land-use future which could go a long way mortality occurring to large parr during patterns are addressed in a variety of toward rebuilding popular support for their last winter in the river, and to also sections. As noted in the comment, the recovery program as a whole. smolts are they migrate out of the river. development can impact Atlantic Response: The recovery plan supports These research findings indicate that salmon habitat by contributing the recommendation from the 2004 NRC there are problems with habitat quality. sediments, chemicals and nutrients and report that the hatchery program should Research and management efforts are increasing water temperature. Land-use be reviewed. The issues identified now concentrated on specifically changes will continue to be monitored above, including the source of the fish identifying limiting factors in the during implementation of the recovery taken into the hatchery, the use of spent freshwater, estuarine and marine plan with a focus on how those changes broodstock, life stage to be stocked, and environments. Examples include increase impacts to salmon habitat. evaluation of hatchery products should assessment of embeddedness and all be included in a review as Stakeholder and Community substrate permeability and its recommended in the final recovery Involvement relationship to productivity and plan. The recovery plan also includes a consideration of a pilot liming study to Comment 9: Comments stated that the recommendation to evaluate additional evaluate the benefits of buffering the plan does not identify many areas where stocking in other rivers within the DPS. river as smolts migrate into saltwater. In non-agency organizations and West Greenland Fishery addition, the final recovery plan stakeholders are involved and discusses the need to investigate the recommended that the plan identify Comment 11: A comment suggested potential role of diminished habitat more ways to include stakeholders and that the management and establishment complexity in the conservation of the the local knowledge that these of commercial quotas should not be left DPS. individuals and groups possess. solely up to NASCO and stated that Another comment stated that the NASCO failed to follow advice from the Ecosystem Restoration Watershed Councils are essential for International Council for the Comment 7: Comments recommended salmon recovery and must have the Exploration of the Sea (ICES) to adopt that the plan needed to go further in backing of state and Federal agencies the zero quota for the WGF in 2001 and incorporating an ecosystem approach to involved in salmon restoration. It 2002. It suggested that the plan recovering the DPS and should consider further suggested that the recommend a continued suspension of a rivers as entire systems. One comment ‘‘Implementation Schedule’’ should commercial fishery for Atlantic salmon stated that non-native species should include funding to support the full time until such time as rivers within the not be stocked into rivers within the staff needed to keep the Watershed United States have self-sustaining DPS and another recommended pursing Councils functioning as an effective populations. It further recommended the restoration of alewives. Other component of salmon restoration efforts. that the recovery plan explicitly support comments stated that to restore salmon Response: The recovery plan the existing 5-year Greenland we need to restore the other species acknowledges the critical role that local Conservation agreement and call for the with which it co-evolved over the years. citizens and organizations have and will continued elimination of the West Response: The goal of the Endangered continue to play in recovery of Atlantic Greenland Fishery as a priority recovery Species Act is to conserve the salmon. These individuals serve as the action. ecosystems upon which endangered and eyes and ears in these watersheds and Response: NASCO is the international threatened species depend. The plan are frequently the first to identify organization created with the purpose of acknowledges that recovery of specific habitat problems that need to be international coordination and endangered Atlantic salmon depends on addressed and opportunities for habitat cooperation for Atlantic salmon recovery of the rivers, estuaries and enhancement. The implementation conservation and management. It is the marine environment. Recovery includes schedule identifies the actions at the forum for the Untied States to engage restoration of other diadromous species local level and the funding estimated to Denmark, on behalf of Greenland, in which provide important benefits to be necessary to carry out those discussions on management of Atlantic Atlantic salmon including serving as activities. Included in these estimates salmon fisheries. The recovery plan predator buffers and contributing are the personnel resources needed to identifies the commercial catch of marine derived nutrients to the carry out these tasks. Atlantic salmon off the coast of ecosystem. Greenland as a threat to the recovery of Hatcheries the Gulf of Maine DPS. The model Changing Land-Use Patterns Comment 10: A number of comments utilized by ICES to provide management Comment 8: A comment were submitted on the existing hatchery advice to NASCO estimates pre-fishery recommended that changing land-use program. One comment suggested that abundance off Greenland and subtracts patterns (i.e., development and sprawl) the plan identify the need to assess the spawning escapement needs for all needs to be addressed more thoroughly whether hatchery-reared fish, which are the rivers represented in that mixed in the plan. It was also suggested that essentially land-locked, are capable of stock and then allocates a portion of the habitat protection needs to be guided by transitioning to saltwater water. Another remainder to the Greenland fishery. an ecosystem management approach comment suggested that there should While this, in theory, offers adequate that looks at what is happening across not be a ‘‘broodstock retirement’’ protection to all stocks contributing to the landscape. One comment stated that program as currently exists and that the mixed stock off Greenland, some if the long term effects of historical instead these brood fish should be stocks may be disproportionately
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affected by the fishery. For instance, if years of significant acid rain deposition individual and group involvement in Canadian and Northern European stocks and leaching of buffering capacity from the recovery process. The Recovery Plan recovery more quickly than U.S. and the watersheds. recommends that a comprehensive and Southern European stocks then the pre- coordinated Education and Outreach Elevated Water Temperature fishery abundance may increase enough Plan for the Gulf of Maine DPS of to allow for a commercial harvest off Comment 14: A comment stated that Atlantic salmon should be developed. Greenland yet the stocks in the southern the draft recovery plan does not This plan should include a strategy to portion of the range may still be adequately discuss the threat of elevated coordinate the efforts of Federal, state significantly lower than spawning water temperature. and local organizations currently escapement goals. Continued Response: There is no question in the involved in education and outreach involvement in the international literature as to the negative effects of programs. The plan should identify management forum and involvement of high temperature. The best available target audiences, review existing conservation organizations is necessary data seems to show a significant number programs and materials, evaluate the to ensure adequate protection of U.S. of days when the temperature goes role of public display of Atlantic stocks. above the thresholds for feeding and salmon, identify education and outreach survival. The draft recovery plan needs, identify responsibilities and Penobscot and Other Large Rivers identifies elevated water temperature as costs and develop strategies for Comment 12: Several commenters a threat to Atlantic salmon. As noted in dissemination of information and stated that the Recovery Plan does not the comment, temperatures have been materials. adequately address the relationship and recorded at levels higher than that importance of the Penobscot to the preferred and sometimes even tolerable Governance listed rivers. These comments stated for salmon. The recovery plan also Comment 16: A comment suggested that this is a serious omission in the identifies activities that can cause that the plan should include a draft recovery plan, and that the increased water temperature including discussion on governance and recovery plan’s failure to adequately removal of vegetation in the riparian referenced the 2004 NRC report which recognize the importance of the zone and water withdrawals. also suggested that this issue should be Penobscot to the listed rivers is a serious investigated. The comment suggested Education omission and needs to be rectified in the that the Services should pull language final plan. Likewise, the plan needs to Comment 15: A comment stated that from the 2004 NRC report and the look at the role of Maine’s other large education is an essential component to comments received to help create this salmon rivers, particularly those within species or population restoration and new section. The DSF suggests a review the geographic range of the DPS, i.e., the will require substantial investment and of the literature on the topic of natural Kennebec, Androscoggin and St. Croix commitment on the part of all of the resource ‘‘co management’’ and rivers, as well as the Saco River. players in this recovery. The commenter referenced lobster fisheries co- Response: The recovery plan is for the stated that the recovery plan’s management in Maine as one example listed entity the Gulf of Maine DPS of implementation schedule lacks funding of an alternative and reasonably Atlantic salmon that was listed in 2000. and commitment for education. successful structure that should be At the time of the listing, the mainstem Response: The Recovery Plan states reviewed. Penobscot River was excluded from the that education and outreach programs Response: The Recovery Plan Gulf of Maine DPS due to outstanding are a critical component of successful recommends that Federal and state data and analysis. The plan properly conservation and recovery plans. The agencies and local governments should focuses on the threats to Atlantic Recovery Plan states that public continue to work cooperatively to salmon and their habitat as listed and information and outreach programs help recover the DPS. Where necessary, identifies actions necessary to avoid or build public support and a strong interagency communication and minimize those threats in the future. constituency for Atlantic salmon coordination should be strengthened. recovery and conservation in Maine. Existing coordination and Acid Rain The Recovery Plan recommends that communication mechanisms between Comment 13: A comment offered efforts to increase and improve public Federal and state agencies and local support for efforts to mitigate the effects awareness of Atlantic salmon conservation organizations and other of acid rain on the DPS, but stated that conservation should continue through constituency groups should be reviewed the draft plan does not place adequate media, educational material, public and strengthened. The Plan emphasis on mitigating the underlying forums and workshops, demonstration acknowledges that there are many causes of acid rain. The comment projects and technical assistance. The organizations and groups involved in recommended that the Services place a Recovery Plan notes that virtually all the protection and recovery of Atlantic high priority on consulting with the successful conservation programs salmon. Ensuring inter-organizational EPA on identifying point sources of air include education and public outreach coordination and communication pollution contributing to acid rain. programs. Public awareness is important mechanisms are in place will increase Response: The available information to the success of Atlantic salmon the effectiveness and efficiency of these on acid deposition in Maine indicates recovery efforts in Maine. groups. The implementation schedule in that, as a result of air pollution The Recovery Plan states that the recovery plan identifies responsible regulations, acid deposition is education and outreach programs entities for each of the recovery plan decreasing. The current problems inform the general public and interested actions. There are a number of appear to be caused by the removal of parties, such as land owners, business organizations, agencies, individuals and buffering capacity in these rivers over and industry, state and local industries involved in Atlantic salmon time which now allows acid pulses to government about the Atlantic salmon protection and recovery as noted in the cause effects to Atlantic salmon. The recovery process. Education and 2004 NRC report. By assigning mitigation effort appears to be necessary information campaigns help promote responsibility appropriately for carrying to provide buffering capacity until such Atlantic salmon as an important out activities, the plan describes roles time as the habitat recovers from the national resource and encourage for each of these groups in recovery
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implementation. The recovery plan (a tributary to the Machias River). The Authority implementation team will also WUMP was developed to address a The authority for this action is section coordinate actions and help reduce the specific issue (i.e., agricultural water 4(f) of the Endangered Species Act (16 potential for overlap. The Recovery Plan use) that was a concern in these three U.S.C. 1531 et seq.) has been revised to include an rivers. In a number of instances, local expanded discussion of the issue of conservation organizations have begun Dated: December 14, 2005. governance as it relates to the recovery the process of developing river-specific Angela Somma, of the DPS. The Services agree that the management plans for specific issues. Chief, Endangered Species Division, National complexity of the multiple state, Marine Fisheries Service. Pesticides Federal, local and private groups Dated: December 2, 2005. involved in salmon recovery or related Comment 18: The Services received a Marvin E. Moriarty, activities presents specific challenges number of comments related to that must be addressed if recovery is to Regional Director, Region 5U.S. Fish and pesticides. Comments provided by the Wildlife Service. be successful. State of Maine questioned the factual [FR Doc. E5–7567 Filed 12–19–05; 8:45 am] River-Specific Recovery Planning basis of statements in the draft plan that drift of hexazinone from aerial BILLING CODE 3510–22–S Comment 17: Several comments applications has been documented. The stated that the recovery plan did not State stated that it had no DEPARTMENT OF THE INTERIOR address recovery action at a river- documentation of hexazinone drift in its specific scale. These individual state records. The DSF commented that the Fish and Wildlife Service that the plan does not make any attempt plan did not adequately present the to address individual rivers, identify extent of pesticide use and the threat to DEPARTMENT OF COMMERCE unique threats to salmon in each and the DPS posed by DPS by this activity. describe actions necessary to address The Services received comments that National Oceanic and Atmospheric each threat. In addition, the comments the threat from pesticides warrants state that the threats identified in the Administration consultation between the Services and plan are not the most important in all the EPA on the effects of pesticide [I.D. 110905A] watersheds. Response: The Recovery Plan registration on the DPS. This commenter Notice of Intent to Conduct Public considers threats to the DPS at a river- stated that pesticides should not be used Scoping and to Prepare an specific scale and discusses regional until this consultation has taken place. Environmental Impact Statement differences that exist between various Further, these comments stated the view Related to the Port of Vancouver’s watersheds and regions in Maine. The that the recovery plan does not place a Columbia Gateway Site Habitat Recovery Plan identifies site-specific high enough priority on measures to Conservation Plan management actions for all the threats control pesticide use. Lastly, the the Services have identified under comments stated that no pesticides can AGENCIES: Fish and Wildlife Service section 4(a)(1) of the ESA five-factor be discharged into DPS waters without (FWS), Interior; National Marine analysis. The Services acknowledge that a CWA, NPDES permit. Fisheries Service (NMFS), National the Recovery Plan does not present Response: The Services have revised Oceanic and Atmospheric comprehensive river specific recovery the recovery plan based on public Administration (NOAA), Commerce. strategies for each of the rivers still comments received. An assessment of ACTION: Notice; scoping meetings. known to support wild salmon the magnitude and severity of the threat SUMMARY: The U.S. Fish and Wildlife populations. The Services agree that posed to the survival and recovery of Service and the National Marine recovery implementation may be further the DPS by chemical contaminants facilitated by the development of resulted in the conclusion that Fisheries Service (Services) advise watershed or river-specific management pesticides currently are not a high-level interested parties of their intent to plans that would include and highlight threat to the DPS recovery. The recovery conduct public scoping under the those threats and accompanying actions plan identifies a number of recovery National Environmental Policy Act applicable within that particular area. actions related to continued monitoring (NEPA) to gather information to prepare The Recovery Plan acknowledges of any threat to the DPS related to an Environmental Impact Statement ongoing recovery implementation pesticides. Should water quality or (EIS) related to a permit application activities that are currently responsive other data indicate that pesticides from the Port of Vancouver, to the specific circumstances within applied in accordance with approved Washington, for the incidental take of individual watersheds (e.g., NPS labeling instructions may be adversely listed species. The permit application surveys, nutrient management plans in affecting the DPS, the Services will would be associated with the Port of the Sheepscot, liming project consult with the U.S. Environmental Vancouver Columbia Gateway Site Downeast). Management plans for Protection Agency (EPA) to address any Habitat Conservation Plan adjacent to specific issues of concern have been potential impact to the DPS. the Columbia River in Vancouver, WA. developed, or are envisioned, for many DATES: The public scoping meeting will Implementation of the Plan of the rivers and watersheds within the be held on January 4, 2006, from 4–7 DPS. For example, the Maine ASC has NMFS and the FWS are committed to p.m. in Vancouver, WA. been working to develop river-specific the implementation of the Gulf of Maine Written comments should be received fisheries management plans for DPS of Atlantic salmon Recovery Plan. on or before January 19, 2006. individual DPS rivers. The State of The recovery plan may be revised in the ADDRESSES: The public scoping meeting Maine, working in cooperation with future on the basis of new information. will be held at the Fruit Valley multiple public and private partners, Public notice and an opportunity for Community Center, 3203 Unander has developed a water use management public review and comment would be Avenue, Vancouver, WA 98660–1100. plan (WUMP) for the Narraguagus and provided prior to final approval of a All comments concerning the Pleasant rivers and for Mopang Stream revised recovery plan. preparation of the EIS and the NEPA
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process should be addressed to: Greg M. environmental analysis of their are located north of the Vancouver Lake Smith, FWS, 2600 SE 98th Avenue, proposed actions to determine if the Flushing Channel, and the Rufener Suite 100, Portland, OR 97266–1325, actions may significantly affect the property (206 acres) is located east of facsimile (503) 231–6195, or Laura human environment. Under NEPA, a Vancouver Lake and west of the Fruit Hamilton, NMFS, 510 Desmond Drive reasonable range of alternatives to Valley neighborhood. To compensate for SE, Suite 103, Lacey, WA 98503–1273, proposed projects is developed and wildlife habitat impacts that would be facsimile (360) 753–9517. Comments considered in the Services’ caused by proposed development may be submitted by e-mail to the environmental review. Alternatives activities on Parcel 3, the Port proposes following address: considered for analysis in an EIS may to provide habitat mitigation on Parcels [email protected]. include: variations in the scope of 4 and 5 and the Rufener property. Some In the subject line of the e-mail, include covered activities; variations in the industrial facilities would also be the document identifier: Columbia location, amount, and type of developed on the Rufener property. A Gateway HCP–EIS. conservation; variations in permit portion of Parcel 2 may be used as a FOR FURTHER INFORMATION CONTACT: Greg duration; or a combination of these transportation corridor to access Parcel M. Smith, FWS (503) 231–6179; or elements. In addition, the EIS will 3. Laura Hamilton, NMFS (360) 753–5820. identify potentially significant direct, Species for which the Port seeks indirect, and cumulative impacts on SUPPLEMENTARY INFORMATION: incidental take coverage include 15 biological resources, land use, air species of fish and one species of Statutory Authority quality, water quality, water resources, wildlife. Three of the fish species are Section 9 of the Endangered Species socioeconomics, and other currently listed as endangered under the Act (ESA) (16 U.S.C. 1538) and environmental issues that could occur ESA, including Upper Columbia River with the implementation of the implementing regulations prohibit the Spring-run Chinook (Oncorhynchus applicant’s proposed actions and taking of animal species listed as tshawytscha), Upper Columbia River alternatives. For potentially significant endangered or threatened. The term steelhead (O. mykiss), and Snake River impacts, an EIS may identify avoidance, ‘‘take’’ is defined under the ESA (16 sockeye (O. nerka). Nine fish species are minimization, or mitigation measures to U.S.C. 1532(19)) as to harass, harm, currently listed as threatened under the reduce these impacts, where feasible, to pursue, hunt, shoot, wound, kill, trap, ESA, including Lower Columbia River a level below significance. capture, or collect, or to attempt to Chinook, Upper Willamette Chinook, engage in any such conduct. ‘‘Harm’’ is Background Snake River Fall-Run Chinook, Snake defined by FWS regulation to include An EIS for the Columbia Gateway River Spring/Summer-Run Chinook, significant habitat modification or HCP would analyze the potential Columbia River chum (O. keta), Lower degradation where it actually kills or issuance of two ITPs, one by NMFS and Columbia River steelhead, Middle injures wildlife by significantly one by the FWS. To obtain an ITP, the Columbia River steelhead, Upper impairing essential behavioral patterns, applicant must prepare an HCP that Willamette River steelhead, and Snake including breeding, feeding, and meets the issuance criteria established River Basin steelhead. The bald eagle sheltering (50 CFR 17.3). NMFS’ by the ESA and Service regulations (50 (Haliaeetus leucocephalus) is also listed definition of ‘‘harm’’ includes CFR 17.22(b)(2), 17.32(b)(2), and as threatened. The Lower Columbia significant habitat modification or 222.307). Should a permit or permits be River coho evolutionary significant unit degradation where it actually kills or issued, the permit(s) may include (O. kisutch) is proposed for listing. The injures fish or wildlife by significantly assurances under the Services’ ≥No Pacific lamprey (Lampetra tridentata) impairing essential behavioral patterns, Surprises≥ regulations. and coastal cutthroat trout (O. clarki including breeding, feeding, spawning, The Port of Vancouver (Port) is clarki) are species of concern. One migrating, rearing, and sheltering (64 FR seeking ITPs from the Services that additional species, the sandhill crane 60727, November 8, 1999). would provide ESA regulatory certainty (Grus canadensis), will be addressed in Section 10 of the ESA and for a proposed expansion of water- the conservation measures contained in implementing regulations specify dependent and water-related the HCP; however, the Port is not requirements for the issuance of development at the Columbia Gateway seeking ITP coverage for this species. incidental take permits (ITPs) to non- site. This industrial development would The bald eagle, Pacific lamprey, coastal Federal landowners for the take of consist of the infrastructure necessary to cutthroat trout and sandhill crane are endangered and threatened species. Any support marine terminals on Parcel 3 under the jurisdiction of the FWS, and proposed take must be incidental to (approximately 517 acres), and offsite the remaining species are under the otherwise lawful activities, not transportation facilities necessary to jurisdiction of NMFS. appreciably reduce the likelihood of the move material to and from Parcel 3. The draft HCP to be prepared by the survival and recovery of the species in These offsite transportation facilities Port in support of the ITP applications the wild, and minimize and mitigate the include a proposed rail line to connect will describe the impacts of take on impacts of such take to the maximum Columbia Gateway with the existing proposed covered species, and will extent practicable. In addition, the Burlington Northern Santa Fe mainline, propose a conservation strategy to applicant must prepare a habitat and the extension of 26th Avenue minimize and mitigate those impacts on conservation plan (HCP) describing the within the City of Vancouver to provide each covered species to the maximum impact that will likely result from such an alternate route between the site and extent practicable. The Port will taking, the strategy for minimizing and Interstate 5, to accommodate increased develop habitat conservation measures mitigating the take, the funding cargo and employee trips that would for fish and wildlife, and their available to implement such steps, occur as a result of the project. associated habitat, with assistance from alternatives to such taking, and the In addition to Parcel 3, the Columbia the Services. Habitat conservation reason such alternatives are not being Gateway site includes Parcels 2, 4, and measures for the bald eagle will follow implemented. 5, and the Port’s Rufener property. the Washington Department of Fish and NEPA (42 U.S.C. 4321 et seq.) requires Parcel 2 is a 31-acre tract near Parcel 3, Wildlife Bald Eagle Management Plan, that Federal agencies conduct an Parcels 4 (112 acres) and 5 (430 acres) developed for the site with the FWS and
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the Port. Other conservation and alternatives related to the applicant’s Dated: November 29, 2005. mitigation strategies will include: proposed action. The scoping workshop David J. Wesley, • Regulated wetland (Clean Water Act will allocate time for presentations by Deputy Regional Director, Fish and Wildlife section 404) impacts as a result of the Services and the Port, followed by Service, Region 1, Portland, Oregon. development on Parcel 3 would be informal questions and discussions. mitigated on Parcels 4 and 5 Written comments from interested Dated: December 14, 2005. (approximately 542 acres). parties are welcome to ensure that the Angela Somma, • Natural resource protection and full range of issues related to the Chief, Endangered Species Division, Office mitigation planning would be primarily proposed permit request are identified. of Protected Resources, National Marine shaped by regulatory requirements. All comments and materials received, Fisheries Service. • Wetland and wildlife habitat including names and addresses, will [FR Doc. E5–7564 Filed 12–19–05; 8:45 am] impacts from development of the road become part of the administrative record BILLING CODES 4310–55–S, 3510–22–S and rail infrastructure would be and may be released to the public. mitigated on the Port’s Rufener Comments and materials received will property. be available for public inspection, by DEPARTMENT OF THE INTERIOR • Limited mitigation and habitat areas appointment, during normal business Bureau of Land Management would be retained along the shoreline hours at the offices listed in the and the Flushing Channel on Parcel 3. ADDRESSES section of this notice. [(NV–912–0777)] The draft HCP will identify HCP The Services request that comments alternatives considered by the Port and be specific. In particular, we request Notice of Public Meeting, Mojave will explain why those alternatives were information regarding: direct, indirect, Southern Great Basin Resource not selected. The Services are and cumulative impacts that Advisory Council Meetings implementation of the proposed HCP or responsible for determining whether the AGENCY: Bureau of Land Management. HCP satisfies ESA section 10 permit other alternatives could have on ACTION: Notice of public meetings. issuance criteria. endangered and threatened and other Under NEPA, a reasonable range of covered species, and their communities SUMMARY: In accordance with the alternatives to a proposed project must and habitats; other possible alternatives Federal Land Policy and Management be developed and considered in the that meet the purpose and need; Act (FLPMA) and the Federal Advisory Services’ environmental review. The potential adaptive management and/or Committee Act of 1972 (FACA), the U.S. Services have identified the following monitoring provisions; funding issues; Department of the Interior, Bureau of preliminary alternatives for public existing environmental conditions in Land Management (BLM) Mojave evaluation during the scoping period: the plan area; other plans or projects Southern Great Basin Resource Alternative 1: No Action - Under the that might be relevant to this proposed Advisory Council (RAC) will meet as No Action Alternative, the ITPs would project; permit duration; maximum indicated below. acreage that should be covered; specific not be issued by the Services and the DATES: The Mojave Southern Great HCP would not be approved. The Port species that should or should not be Basin RAC meetings will be held would be required to comply with all covered; specific landforms that should January 20, 2006; March 23, 2006; June local, state, and Federal laws and or should not be covered; and 15 and 16, 2006; and August 17, 2006. regulations through the appropriate minimization and mitigation efforts. ADDRESSES: The Mojave Southern Great permitting processes. NMFS and FWS estimate that the draft Alternative 2: Proposed Alternative - EIS will be available for public review Basin RAC meetings will be held There would be full implementation of in the summer of 2006. January 20, 2006 and March 23, 2006 at the HCP, which includes a set of site- The environmental review of this the BLM Las Vegas Field Office, located specific wetland, riparian, and upland project will be conducted in accordance at 4701 N. Torrey Pines Dr., Las Vegas, habitat conservation measures that with the requirements of the NEPA of NV; June 15, 2006, at the Bristlecone would be specific to the Columbia 1969 as amended (42 U.S.C. 4321 et Convention Center 150 Sixth St., Ely, Gateway site and associated rail and seq.), Council on Environmental Quality NV; and August 17, 2006 at the Beatty road improvements. Regulations (40 CFR parts 1500 1508), Community Center, 100 A–Ave. South, Alternative 3: The HCP would be other applicable Federal laws and Beatty, NV. The Mojave Southern Great Basin modified by changing or adding regulations, and applicable policies and RAC meetings will usually begin at 8 measures to further reduce the amount procedures of the Services. This notice a.m. and adjourn at approximately 4 and risk of incidental take. These is being furnished in accordance with p.m. Public comment periods regarding measures could involve different road 40 CFR 1501.7 of the NEPA regulations matters on the agenda will be held at and/or rail alignments, industrial to obtain suggestions and information 9:30 a.m. during each meeting. development configurations, approaches from other agencies and the public on to ESA compliance, conservation the scope of issues and alternatives to be FOR FURTHER INFORMATION CONTACT: commitments, adaptive management, addressed in the EIS. Hillerie C. Patton, BLM Las Vegas Field permit timeframes, covered lands, Office Public Affairs Specialist at 702– Reasonable Accommodation covered species, eligible parties and 515–5046. other covered activities. Persons needing reasonable SUPPLEMENTARY INFORMATION: The Additional project alternatives may be accommodations to attend and Mojave Southern Great Basin RAC developed based on input received from participate in the public meeting should advises the Secretary of the Interior, the public scoping process. contact Greg Smith (see FOR FURTHER through the Bureau of Land INFORMATION CONTACT). To allow Management, on a variety of public Request for Comments sufficient time to process requests, issues in Southern Nevada. Topics of The primary purpose of the scoping please call no later than December 28, discussion during Mojave Southern process is for the public to assist the 2005. Information regarding the RAC meetings may include land use Services in developing the EIS by applicant’s proposed action is available planning, Environmental Impact identifying important issues and in alternative formats upon request. Statements, recreation, fire
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management, invasive species addressed in the EIS. The scoping foothills west of the Delta and east of management, energy and minerals meeting dates are: the Bay Area, the central and south management, travel management, • Tuesday, January 24, 2006, 1:30 to Delta, and service areas of Bay Area wilderness, wild horse herd 3:30 p.m., Sacramento, CA. water agencies that may be directly management, cultural resource • Tuesday, January 24, 2006, 6 to 8 affected by the project. The Bay Area management, and other issues as p.m. Antioch, CA. water agencies that may be directly appropriate. • Wednesday January 25, 2006, 6 to 8 affected include Contra Costa Water These meetings are open to the p.m., Livermore, CA. District, Alameda County Water District, public. The public may present written • Thursday, January 26, 2006, 6 to 8 Santa Clara Valley Water district, and comments to the RACs. Each formal p.m., Concord, CA. Alameda County Flood Control and RAC meeting will also have time, as Submit written comments on the Water Conservation District—Zone 7. identified above, allocated for hearing scope of the environmental document to Due to the potential influence on other public comments. Depending on the Reclamation at the address below by programs and projects, an extended number of persons wishing to comment February 28, 2006. study area is defined to include the and time available, the time for ADDRESSES: The scoping meeting service area of the San Francisco Public individual oral comments may be locations are: Utilities Commission and the Central limited. • Sacramento—Department of Water Valley of California. Planning studies to date have focused Dated: December 14, 2005. Resources, the Bonderson Building, 901 P Street, Public Hearing Room first on identifying water resources Juan Palma, floor, Sacramento, CA 95814. problems, needs, and opportunities in Las Vegas Field Manager, Designated Federal • Antioch—Legion Hall, Veteran’s the primary study area, developing a set Officer for the Mojave Southern Great Basin of planning objectives to help guide the RAC. Memorial Building 403 West 6th Street, Antioch, CA 94509. remainder of the feasibility study, and [FR Doc. 05–24241 Filed 12–19–05; 8:45 am] • Livermore—Martinelli Event formulating a set of initial alternatives. BILLING CODE 4310–HC–M Center, Agricultural Center, 3585 These elements of the study are Greenville Road, Livermore, CA 94550. summarized below. • DEPARTMENT OF THE INTERIOR Concord—Contra Costa Water Problems, Needs, and Opportunities District, 1331 Concord Ave., Concord, Water Supply Reliability. Deliveries of CA 94520. Bureau of Reclamation imported water to the Bay Area for Written comments on the scope of the drinking water supply are significantly Los Vaqueros Reservoir Expansion environmental document should be sent reduced during dry years and critically Investigation, Contra Costa County, to Ms. Patricia Roberson, Bureau of dry years. Periods of multiple dry years CA Reclamation, Mid Pacific Regional can also occur, such as the droughts of Office, 2800 Cottage Way, Sacramento 1928–1935 and 1976–1977, and most AGENCY: Bureau of Reclamation, CA 95825–1898; by e-mail at Interior. recently 1987–1992. These dry periods [email protected]; or faxed to cause most local supplies, such as ACTION: Notice of intent to prepare an (916) 978–5094. Further information on groundwater and locally stored runoff, Environmental Impact Statement (EIS). the investigation, including the interim to be depleted. At the same time, results, can be found at http:// deliveries of imported water from the SUMMARY: Pursuant to section 102(2)(c) www.usbr.gov/mp/vaqueros/. SWP and CVP are curtailed. Bay Area of the National Environmental Policy FOR FURTHER INFORMATION CONTACT: water agencies need to improve water Act (NEPA), the Department of the Patricia Roberson, Reclamation Project supply reliability not only to reduce Interior, Bureau of Reclamation Manager at the above address, (916) deficiencies during a drought, but also (Reclamation) will prepare an EIS to 978–5074; or Ms. Marguerite Naillon, as an alternative supply in case of a evaluate expanding the existing Los Project Manager, Contra Costa Water catastrophic event or emergency in the Vaqueros Reservoir and alternatives to District, P.O. Box H2O, Concord, CA Delta, such as a chemical spill or levee improve water supply reliability and 94524, (925) 688–8018. If you would failure. water quality for Bay Area water users, like to be included on the EIS/EIR Environmental Opportunities. The particularly those receiving water from mailing list, please contact Jennifer Sacramento/San Joaquin Delta is the the Sacramento-San Joaquin Delta; and Allen, CirclePoint, at (415) 227–1100 largest estuary on the West Coast and contribute to lower cost implementation ext. 33 or [email protected]. provides essential habitat for a diverse of the CALFED Environmental Water SUPPLEMENTARY INFORMATION: array of fish and wildlife. A variety of Account (EWA). Pursuant to the factors have contributed to the decline California Environmental Quality Act, Background of fish species in the Delta, including Contra Costa Water District will prepare One of the five potential surface the loss of habitat and water resources an EIR on the proposed project storage projects described in the development. Water deliveries from the concurrent with the EIS preparation. A CALFED Bay-Delta Program’s long-term Delta have been curtailed in recent years joint EIS/EIR document will be plan is the expansion of the existing Los to help protect threatened and prepared. Vaqueros Reservoir, an existing 100,000- endangered fish populations and their Reclamation was directed in Public acre-foot off-stream surface storage habitats. However, while pumping Law 108–7, (Omnibus Appropriations facility, located in Contra Costa County, curtailments and other actions in the Act of 2003) to conduct a feasibility- California. The existing facility is Delta have been beneficial to fish, they level investigation of the potential owned and operated by the Contra Costa often have had adverse impacts on expansion of Los Vaqueros Reservoir. Water District (CCWD). cities, farms, and businesses that DATES: Four scoping meetings will be The primary study area includes the depend on water supplies pumped from held to solicit public input on the scope Los Vaqueros Reservoir watershed and or through the Delta. Consequently, the of the environmental document, associated dam and reservoir facilities, Environmental Water Account (EWA) alternatives, concerns and issues to be which are situated in the coastal was developed to provide water project
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operators with additional flexibility in • Different reservoir expansion sizing INTERNATIONAL TRADE meeting or exceeding fishery and operations geared to meet the COMMISSION requirements in the Delta. project objectives: Water supply Water Quality. Although State water [Investigation Nos. 731–TA–344, 391–A, reliability, EWA needs, and/or water 392–A and C, 393–A, 394–A, 396, and 399– quality standards have been maintained, quality. A (Second Review)] the quality of water supplies from the Specific measures and combinations Delta has generally declined because of of measures in these initial alternatives Certain Bearings From China, France, salinity intrusion resulting from water Germany, Italy, Japan, Singapore, and will likely change in future studies and resources development; polluted runoff the United Kingdom from urban, agricultural, and other some may be combined with others or development; and changes to the dropped from further consideration. AGENCY: United States International physical environment. Because Bay Other measures and combinations of Trade Commission. Area water agencies typically blend measures may emerge during the ACTION: Revised schedule for the subject water from various sources to attain a scoping process and warrant investigations. desired quality, water quality in the development into alternatives. In study area is a function of both water addition to the action alternatives, the EFFECTIVE DATE: December 9, 2005. source and volume. Water providers in No Action alternative will also be FOR FURTHER INFORMATION CONTACT: the study area use imported supplies evaluated. Additional information on Debra Baker (202–205–3180), Office of from the Delta and local groundwater these initial alternatives is contained in Investigations, U.S. International Trade and surface water supplies. the Los Vaqueros Expansion Commission, 500 E Street, SW., Planning Objectives Investigation, California, Initial Washington, DC 20436. Hearing- Alternatives Information Report at impaired persons can obtain The planning objectives identified http://www.usbr.gov/mp/vaqueros/. information on this matter by contacting below were developed based on the the Commission’s TDD terminal on 202– problems, needs, and opportunities in Additional Information 205–1810. Persons with mobility the study area. impairments who will need special • Increase water supply reliability for The environmental review will be conducted pursuant to NEPA, the assistance in gaining access to the water providers within the study area, Commission should contact the Office Endangered Species Act, and other principally to help meet municipal and of the Secretary at 202–205–2000. applicable Federal law, to analyze the industrial water demands during General information concerning the drought periods, with a focus on potential environmental impacts of Commission may also be obtained by enlarging Los Vaqueros Reservoir. implementing a range of feasible • accessing its Internet server (http:// Use an expanded Los Vaqueros alternatives, including Los Vaqueros www.usitc.gov). The public record for Reservoir to develop replacement water Reservoir expansion. Public input on these investigations may be viewed on supplies for the long-term EWA, if the the range of alternatives to be the Commission’s electronic docket cost of water provided from an considered will be sought through the (EDIS) at http://edis.usitc.gov. expanded reservoir is found to be less initial public scoping meetings. than the cost of water for continued SUPPLEMENTARY INFORMATION: On Our practice is to make comments, implementation of that program. October 12, 2005, the Commission • To the extent possible through including names and home addresses of established a schedule for the conduct pursuit of the water supply reliability respondents, available for public of the final phase of the subject and environmental water objectives, review. Individual respondents may investigations (70 FR 60556, October 18, improve the quality of water deliveries request that we withhold their home 2005). Subsequently, the Commission to municipal and industrial customers addresses from public disclosure, which received a request from an interested in the study area. we will honor to the extent allowable by party to change the scheduled date for In addition to the study objectives, law. There also may be circumstances in the public hearing. The Commission, various planning constraints, principles, which we would withhold a therefore, is revising its schedule. and criteria were identified and are respondent’s identity from public The Commission’s new schedule for being used to help guide the disclosure, as allowable by law. If you the investigations is as follows: requests investigation. These criteria include the wish us to withhold your name and/or to appear at the hearing must be filed Contra Costa Water District’s principles address, you must state this with the Secretary to the Commission not later than April 20, 2006; the of participation. prominently at the beginning of your prehearing conference will be held at comment. We will make all submissions Initial Alternatives the U.S. International Trade from organizations or businesses, and From the Planning Objectives, a Commission Building at 9:30 a.m. on from individuals identifying themselves number of water resources management April 25, 2006; the prehearing staff as representatives or officials of measures were identified. The most report will be placed in the nonpublic organizations or businesses, available effective of these measures were used to record on April 7, 2006; the deadline for formulate a set of initial alternatives. for public disclosure in their entirety. filing prehearing briefs is April 21, The initial action alternatives, still Frank Michny, 2006; the hearing will be held at the U.S. International Trade Commission under refinement, include the following Regional Environmental Officer, Mid-Pacific elements: Region. Building at 9:30 a.m. on May 2, 2006; • Different ways to increase reservoir the deadline for filing posthearing briefs [FR Doc. E5–7541 Filed 12–19–05; 8:45 am] capacity: Raise the existing dam in- is May 11, 2006; the Commission will place or replace it completely with a BILLING CODE 4310–MN–P make its final release of information on new dam; June 6, 2006; and final party comments • Different ways/points of connection are due on June 8, 2006. to deliver water to Bay Area users via For further information concerning facilities of the State Water Project; these investigations see the
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Commission’s notice cited above and Commission may also be obtained by United States at less than fair value the Commission’s Rules of Practice and accessing its internet server (http:// (LTFV). Procedure, part 201, subparts A through www.usitc.gov). The public record for Background E (19 CFR part 201), and part 207, this review may be viewed on the subparts A and C (19 CFR part 207). Commission’s electronic docket (EDIS) The Commission instituted this investigation effective March 4, 2005, Authority: These investigations are being at http://edis.usitc.gov. following receipt of a petition filed with conducted under authority of title VII of the SUPPLEMENTARY INFORMATION: On Tariff Act of 1930; this notice is published the Commission and Commerce by pursuant to section 207.21 of the December 5, 2005, the Commission Eramet Marietta Inc., Marietta, OH, and Commission’s rules. determined that it should proceed to a the Paper, Allied-Industrial, Chemical full review in the subject five-year By order of the Commission. and Energy Workers International review pursuant to section 751(c)(5) of Union, Local 5–0639, Belpre, OH. The Issued: December 13, 2005. the Act. The Commission found that the final phase of the investigation was Marilyn R. Abbott, domestic interested party group scheduled by the Commission following Secretary to the Commission. response to its notice of institution (70 notification of a preliminary [FR Doc. E5–7511 Filed 12–19–05; 8:45 am] FR 52122, September 1, 2005) was determination by Commerce that BILLING CODE 7020–02–P adequate but that the respondent imports of superalloy degassed interested party group response was chromium from Japan were being sold at inadequate. The Commission also found LTFV within the meaning of section INTERNATIONAL TRADE that other circumstances warranted 733(b) of the Act (19 U.S.C. 1673b(b)). COMMISSION conducting a full review.1 A record of Notice of the scheduling of the final [Investigation No. 731–TA–696 (Second the Commissioners’ votes, the phase of the Commission’s investigation Review)] Commission’s statement on adequacy, and of a public hearing to be held in and any individual Commissioner’s connection therewith was given by Pure Magnesium From China statements will be available from the posting copies of the notice in the Office Office of the Secretary and at the of the Secretary, U.S. International AGENCY: United States International Commission’s Web site. Trade Commission. Trade Commission, Washington, DC, and by publishing the notice in the ACTION: Notice of Commission Authority: This review is being conducted under authority of title VII of the Tariff Act Federal Register of September 7, 2005 determination to conduct a full five-year (70 FR 53252). The hearing was held in review concerning the antidumping of 1930; this notice is published pursuant to § 207.62 of the Commission’s rules. Washington, DC, on November 3, 2005, duty order on pure magnesium from and all persons who requested the By order of the Commission. China. opportunity were permitted to appear in Issued: December 14, 2005. SUMMARY: The Commission hereby gives person or by counsel. Marilyn R. Abbott, notice that it will proceed with a full The Commission transmitted its review pursuant to section 751(c)(5) of Secretary to the Commission. determination in this investigation to the Tariff Act of 1930 (19 U.S.C. [FR Doc. E5–7510 Filed 12–19–05; 8:45 am] the Secretary of Commerce on December 1675(c)(5)) to determine whether BILLING CODE 7020–02–P 15, 2005. The views of the Commission revocation of the antidumping duty are contained in USITC Publication order on pure magnesium from China 3825 (December 2005), entitled would be likely to lead to continuation INTERNATIONAL TRADE Superalloy Degassed Chromium from or recurrence of material injury within COMMISSION Japan: Investigation No. 731–TA–1090 a reasonably foreseeable time. A (Final). schedule for the review will be [Investigation No. 731–TA–1090 (Final)] By order of the Commission. established and announced at a later Issued: December 15, 2005. date. For further information concerning Superalloyed Degassed Chromium Marilyn R. Abbott, From Japan the conduct of this review and rules of Secretary to the Commission. general application, consult the Determination [FR Doc. E5–7553 Filed 12–19–05; 8:45 am] Commission’s Rules of Practice and BILLING CODE 7020–02–P Procedure, part 201, subparts A through On the basis of the record 1 developed E (19 CFR part 201), and part 207, in the subject investigation, the United subparts A, D, E, and F (19 CFR part States International Trade Commission NATIONAL ARCHIVES AND RECORDS 207). (Commission) determines, pursuant to ADMINISTRATION EFFECTIVE DATE: December 5, 2005. section 735(b) of the Tariff Act of 1930 FOR FURTHER INFORMATION CONTACT: (19 U.S.C. 1673d(b)) (the Act), that an Agency Information Collection Mary Messer (202–205–3193), Office of industry in the United States is Activities: Submission for OMB Investigations, U.S. International Trade materially injured by reason of imports Review; Comment Request from Japan of superalloy degassed Commission, 500 E Street, SW., AGENCY: National Archives and Records Washington, DC 20436. Hearing- chromium, provided for in subheading 8112.21.00 of the Harmonized Tariff Administration (NARA). impaired persons can obtain ACTION: Notice. information on this matter by contacting Schedule of the United States, that have the Commission’s TDD terminal on 202– been found by the Department of SUMMARY: NARA is giving public notice 205–1810. Persons with mobility Commerce (Commerce) to be sold in the that the agency has submitted to OMB impairments who will need special for approval the information collections assistance in gaining access to the 1 Chairman Stephen Koplan and Commissioner described in this notice. The public is Jennifer A. Hillman dissenting. Commission should contact the Office 1 The record is defined in sec. 207.2(f) of the invited to comment on the proposed of the Secretary at 202–205–2000. Commission’s Rules of Practice and Procedure (19 information collections pursuant to the General information concerning the CFR § 207.2(f)). Paperwork Reduction Act of 1995.
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DATES: Written comments must be respondent wishes to apply for support. The narrative report is used by submitted to OMB at the address below attendance at the Institute). the NHPRC staff to monitor the on or before January 19, 2006 to be Estimated total annual burden hours: performance of grants. assured of consideration. 37.5 hours. You can also use NARA’s Web site at ADDRESSES: Send comments to Desk Abstract: The application is used by http://www.archives.gov/nhprc/ Officer for NARA, Office of Management the NHPRC staff to establish the guidelines/index.html to review the and Budget, New Executive Office applicant’s qualifications and to permit guidelines. The forms used to apply for Building, Washington, DC 20503; fax: selection of those individuals best a grant can be found at http:// 202–395–5167. qualified to attend the Institute jointly www.archives.gov/nhprc/forms/. sponsored by the NHPRC, the FOR FURTHER INFORMATION CONTACT: Dated: December 7, 2005. Wisconsin Historical Society, and the Requests for additional information or University of Wisconsin. Selected L. Reynolds Cahoon, copies of the proposed information applicants forms are forwarded to the Senior Advisor on Electronic Records. collections and supporting statements resident advisors of the Institute, who [FR Doc. E5–7551 Filed 12–19–05; 8:45 am] should be directed to Tamee Fechhelm use them to determine what areas of BILLING CODE 7515–01–P at telephone number 301–837–1694 or instruction would be most useful to the fax number 301–837–3213. applicants. SUPPLEMENTARY INFORMATION: Pursuant You can also use NARA’s Web site at NUCLEAR REGULATORY to the Paperwork Reduction Act of 1995 http://www.archives.gov/nhprc/forms/ COMMISSION (Pub. L. 104–13), NARA invites the editing-application.pdf to review and general public and other Federal fill-in the application. Documents Containing Reporting or agencies to comment on proposed 2. Title: National Historical Recordkeeping Requirements: Office information collections. NARA Publications and Records Commission of Management and Budget (OMB) published a notice of proposed Grant Program. Review collection for these information OMB number: 3095–0013. collections on September 29, 2005 (70 Agency form number: None. AGENCY: U.S. Nuclear Regulatory FR 56931 and 56932). No comments Type of review: Regular. Commission (NRC). were received. NARA has submitted the Affected public: Nonprofit ACTION: Notice of the OMB review of described information collections to organizations and institutions, state and information collection and solicitation OMB for approval. local government agencies, Federally of public comment. In response to this notice, comments acknowledged or state-recognized and suggestions should address one or Native American tribes or groups, and SUMMARY: The NRC has recently more of the following points: (a) individuals who apply for NHPRC submitted to OMB for review the Whether the proposed information grants for support of historical following proposal for the collection of collections are necessary for the proper documentary editions, archival information under the provisions of the performance of the functions of NARA; preservation and planning projects, and Paperwork Reduction Act of 1995 (44 (b) the accuracy of NARA’s estimate of other records projects. U.S.C. Chapter 35). the burden of the proposed information Estimated number of respondents: 1. Type of submission, new, revision, collections; (c) ways to enhance the 148 per year submit applications; or extension: Revision. quality, utility, and clarity of the approximately 100 grantees among the 2. The title of the information information to be collected; and (d) applicant respondents also submit collection: 10 CFR part 52, Appendix D, ways to minimize the burden of the semiannual narrative performance AP1000 Design Certification, Final Rule. collection of information on reports. 3. The form number if applicable: Not respondents, including the use of Estimated time per response: 54 hours applicable. information technology; and (e) whether per application; 2 hours per narrative 4. How often the collection is small businesses are affected by this report. required: Semi-annually. collection. In this notice, NARA is Frequency of response: On occasion 5. Who will be required or asked to soliciting comments concerning the for the application; semiannually for the report: Applicant for a combined following information collections: narrative report. Currently, the NHPRC license. 1. Title: Application for attendance at considers grant applications 2 times per 6. An estimate of the number of the Institute for the Editing of Historical year; respondents usually submit no annual responses: 2 (1 response plus 1 Documents. more than one application per year. recordkeeper). OMB number: 3095–0012. Estimated total annual burden hours: 7. The estimated number of annual Agency form number: None. 8,392 hours. respondents: 1. Type of review: Regular. Abstract: The NHPRC is changing the 8. An estimate of the total number of Affected public: Individuals, often way it provides information about its hours needed annually to complete the already working on documentary grant program. The previously all requirement or request: Approximately editing projects, who wish to apply to inclusive grant guidelines booklet is 39 additional burden hours (5 hours attend the annual one-week Institute for being replaced by a suite of reporting plus 34 hours recordkeeping). the Editing of Historical Documents, an announcements where the information 9. An indication of whether section intensive seminar in all aspects of will be specific to the grant opportunity 3507(d), Public Law 104–13 applies: It is modern documentary editing techniques named. The basic information collection applicable. taught by visiting editors and remains the same. The grant proposal is 10. Abstract: The NRC is proposing to specialists. used by the NHPRC staff, reviewers, and amend its regulations to certify the Estimated number of respondents: 25. the Commission to determine if the AP1000 standard plant design under Estimated time per response: 1.5 applicant and proposed project are subpart B of 10 CFR part 52. This action hours. eligible for an NHPRC grant, and is necessary so that applicants or Frequency of response: On occasion, whether the proposed project is licensees intending to construct and no more than annually (when methodologically sound and suitable for operate an AP1000 design may do so by
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referencing the AP1000 design The facility consists of one application of the regulation in the certification rule (DCR). This proposed pressurized-water reactor located in St. particular circumstances would not DCR, as set out in Appendix D, is nearly Charles Parish, Louisiana. serve the underlying purpose of the rule identical to the AP600 DCR in or is not necessary to achieve the 2.0 Request/Action Appendix C of the 10 CFR part 52. The underlying purpose of the rule. Under information collection requirements for Sections IV.F.2.b and c of Appendix 10 CFR 50.12(a)(2)(v), special part 52 were based largely on the E, to Title 10 of the Code of Federal circumstances are present whenever the requirements for licensing nuclear Regulations (10 CFR) Part 50 require the exemption would provide only facilities under 10 CFR part 50. The licensee at each site to conduct an temporary relief from the applicable applicant for certification of the AP1000 exercise of its onsite emergency plan regulation and the licensee or applicant design is Westinghouse Electric and of its offsite emergency plans has made good faith efforts to comply Company LLC. biennially with full or partial with the regulation. A copy of the supporting statement participation by each offsite authority The underlying purposes for may be viewed free of charge at the NRC having a role under the offsite plan. conducting a biennial exercise are to Public Document Room, One White During such biennial exercises, the NRC ensure that emergency organization Flint North, 11555 Rockville Pike, Room evaluates onsite and the Federal personnel are familiar with their duties O–1 F21, Rockville, MD 20852. OMB Emergency Management Agency and to test the adequacy of emergency clearance packages are available at the (FEMA) evaluates offsite emergency plans. In order to accommodate the NRC worldwide Web site: http:// preparedness activities, including scheduling of exercises, the NRC has www.nrc.gov/public-involve/doc- interaction with the various State and allowed licensees to schedule the comment/omb/index.html. The local emergency management agencies. exercises at any time during the document will be available on the NRC The licensee successfully conducted a calendar biennium. Conducting the home page site for 60 days after the full-participation emergency Waterford 3 exercise in calendar year signature date of this notice. preparedness exercise on May 21, 2003, 2006 places the exercise past the Comments and questions should be and it was evaluated by the NRC and previously scheduled biennial calendar directed to the OMB reviewer by FEMA. year of 2005. The licensee had scheduled a plume February 21, 2006. Since the last exercise conducted at exposure pathway exercise for John A. Asalone, Office of Information Waterford 3 on May 21, 2003, Waterford December 7, 2005. However, due to and Regulatory Affairs (3150–0151), 3 has conducted two emergency Hurricanes Katrina and Rita, the State of NEOB–10202, Office of Management response team tabletops (site drills Louisiana was unable to support the and Budget, Washington DC 20503. without state or parish participation) on exercise. Under the current regulations, August 8 and December 9, 2003, and Comments can also be e-mailed to the licensee would have had until [email protected] or Waterford 3 site-wide drills (which December 31, 2005, to complete its next includes state and parish participation) submitted by telephone at (202) 395– biennial full or partial-participation 4650. on March 11, June 17, September 30, emergency preparedness exercises and December 2, 2004, and February 17, The NRC Clearance Officer is Brenda consisting of both onsite and offsite Jo. Shelton, 301–415–7233. and August 4, 2005. The licensee also exercises. By letter dated October 24, states: Dated at Rockville, Maryland, this 12th day 2005, the licensee requested an of December 2005. exemption from Section IV.F.2.c of Emergency response team tabletops are For the Nuclear Regulatory Commission. Appendix E to 10 CFR part 50. Though conducted prior to each site-wide drill. The local parishes had limited participation Brenda Jo. Shelton, not referenced in the licensee’s request, (communication only) in each of the site- NRC Clearance Office, Office of Information the NRC staff has determined that an wide drills. The Louisiana Office of Services. exemption from Section IV.F.2.b of Homeland Security and Emergency [FR Doc. E5–7517 Filed 12–19–05; 8:45 am] Appendix E to 10 CFR part 50 is also Preparedness also participated to a limited BILLING CODE 7590–01–P necessary, since the last full extent (communications only) in these drills. participation onsite exercise was The Louisiana Department of Environmental completed on May 21, 2003. The Quality participated in all the site-wide drills NUCLEAR REGULATORY licensee commits to conduct the next by manning the Waterford 3 Emergency Operations Facility and the Emergency News COMMISSION biennial full participation emergency Center. The NRC and FEMA did not preparedness exercise on June 28, 2006. participate in any of the tabletops or site- [Docket No. 50–382] Future onsite and offsite exercises will wide drills. Although these drills were not be scheduled biennially from the year evaluated by NRC and FEMA, the results Entergy Operations, Inc.; Waterford 2005. were critiqued by the drill participants, our Steam Electric Station, Unit 3; emergency response organization, and the Exemption 3.0 Discussion parish and state officials who participated in The Commission, pursuant to 10 CFR the drills. The drills were also evaluated by 1.0 Background 50.12(a)(1), may grant exemptions from our Quality Assurance Department. An Entergy Operations, Inc. (the licensee) the requirements of 10 CFR Part 50 that emergency preparedness medical drill at Ochsner Medical Center (Ochsner) took place is the holder of Facility Operating are authorized by law, will not present on July 23, 2003, and FEMA evaluated a License No. NPF–38 which authorizes an undue risk to public health and medical drill at Ochsner on August 6, 2003. operation of Waterford Steam Electric safety, and are consistent with the Issues identified during all emergency Station, Unit 3 (Waterford 3). The common defense and security. The preparedness drills and in the critiques that license provides, among other things, Commission, however, pursuant to 10 follow all the drills have been resolved or are that the facility is subject to all rules, CFR 50.12(a)(2), will not consider being resolved under our corrective action regulations, and orders of the U.S. granting an exemption unless special program. Nuclear Regulatory Commission (NRC, circumstances are present. Under 10 The Waterford 3 emergency response, the Commission) now or hereafter in CFR 50.12(a)(2)(ii), special along with the parish and state effect. circumstances are present when emergency response, were further tested
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as a result of Hurricane Katrina. Many and security. Additionally, special activities, and the Federal Emergency of the elements of the Waterford 3 circumstances are present, which make Management Agency (FEMA) evaluates emergency response were implemented conducting the exercise impracticable in the offsite emergency preparedness in the preparation, response, and 2005, and which allow the underlying activities, including interaction with its restoration efforts for Hurricane Katrina. purposes of the regulation to be served various State and local emergency This includes activation of the with a postponement. Therefore, the management agencies. The licensee Waterford 3, parish and state emergency Commission hereby grants Entergy successfully conducted a full response organizations, evacuation and Operations, Inc. an exemption from the participation exercise at Surry on July re-entry of the population, requirements of 10 CFR part 50, 15, 2003. environmental sampling, and assisting Appendix E, Sections IV.F.2.b and c for The licensee had scheduled a full Waterford 3 in the plans for restart of Waterford 3. participation Radiological Emergency the unit. Pursuant to 10 CFR 51.32, the Preparedness Exercise for December 6, The NRC staff considers the intent of Commission has determined that the 2005. Because the Virginia Department the regulatory requirement is met by granting of this exemption will not have of Emergency Management (DEM) is having conducted these series of drills a significant effect on the quality of the currently constructing a new Emergency and the emergency response to human environment (70 FR 73311). Operations Center (EOC) and this EOC Hurricane Katrina. The NRC staff This exemption is effective upon is not scheduled to be fully operational considers that these measures are issuance. until January 2, 2006, the Virginia DEM adequate to maintain an acceptable level requested approval from FEMA to delay Dated at Rockville, Maryland, this 13th day of emergency preparedness during this of December, 2005. the emergency exercise until February 7, period, satisfying the underlying 2006, in order to allow the Virginia For the Nuclear Regulatory Commission. purposes of the rule. Therefore, the DEM to test its new EOC during the special circumstances of 10 CFR Catherine Haney, exercise at Surry. By letter dated May 50.12(a)(2)(ii) are satisfied. In addition, Director, Division of Operating Reactor 20, 2005, FEMA approved Virginia the staff has concluded that the above Licensing, Office of Nuclear Reactor DEM’s request to delay this exercise Regulation. drills and exercises provide adequate until the first week of February 2006. protection of the public health and [FR Doc. E5–7544 Filed 12–19–05; 8:45 am] Under the current regulations, the safety and are consistent with the BILLING CODE 7590–01–P licensee would have until December 31, common defense and security. 2005, to complete its next full Only temporary relief from the participation exercise. The licensee NUCLEAR REGULATORY regulation is provided by the requested plans to conduct a Federally observed COMMISSION exemption, since Waterford 3 will full participation emergency exercise on resume their normal biennial exercise [Docket Nos. 50–280 and 50–281] February 7, 2006. Future full schedule in 2007. The licensee has participation exercises will be made a good faith effort to comply with Virginia Electric and Power Company, scheduled biennially from the year the regulation. The exemption is being Surry Power Station, Unit Nos. 1 and 2005. sought by the licensee in response to a 2; Exemption By letter dated September 15, 2005, request by the State of Louisiana to the licensee requested an exemption postpone the exercise. Louisiana was 1.0 Background from the requirements of 10 CFR Part unable to support the original schedule The Virginia Electric and Power 50, Appendix E, Section IV.F.2.b and c for the exercise due to a series of severe Company (the licensee) is the holder of regarding the biennial exercise and weather events. FEMA, in its letter Renewed Facility Operating License participation of the offsite response dated October 14, 2005, to the State of Nos. DPR–32 and DPR–37 that organizations during a biennial Louisiana, stated, ‘‘* * * we concur that authorizes operation of the Surry Power emergency exercise at Surry. the Waterford-3 Radiological Emergency Station, Unit Nos. 1 and 2 (Surry). The Subsequently, the NRC staff has Preparedness (REP) Exercise currently license provides, among other things, determined that the requirements of 10 scheduled for December 7, 2005, * * * that the facility is subject to all rules, CFR Part 50, Appendix E, Section should be postponed due to the effects regulations, and orders of the Nuclear IV.F.2.b and c are applicable to the of Hurricanes Katrina and Rita on the Regulatory Commission (NRC, the circumstances of the licensee’s request local infrastructure * * *.’’ Commission) now or hereafter in effect. and that an exemption from those The NRC staff, having considered the The facility consists of a two requirements is appropriate. schedule and resource issues with those pressurized-water reactors located in 3.0 Discussion agencies that participate in and evaluate Surry County, Virginia. the offsite portion of the exercises, Pursuant to 10 CFR 50.12(a)(1), the 2.0 Request/Action concludes that the licensee made a good Commission may, upon application by faith effort to meet the requirements of Section IV.F.2.b of Appendix E, to any interested person or upon its own the regulation. The NRC staff, therefore, Title 10 of the Code of Federal initiative, grant exemptions from the concludes that the exemption request Regulations (10 CFR) Part 50, requires requirements of 10 CFR Part 50 when meets the special circumstances of 10 the licensee at each site to conduct an the exemptions are authorized by law, CFR 50.12(a)(2)(v) and should be exercise of its onsite emergency plan will not present an undue risk to public granted. biennially. Section IV.F.2.c of Appendix health or safety, and are consistent with E, to 10 CFR Part 50, states that the the common defense and security. 4.0 Conclusion offsite plans for each site shall be However, pursuant to 10 CFR Accordingly, the Commission has exercised biennially with full 50.12(a)(2), the Commission will not determined that, pursuant to 10 CFR participation by each offsite authority consider granting an exemption unless 50.12(a), the exemption is authorized by having a role under the plan. During special circumstances are present. law, will not present an undue risk to such biennial full participation Under 10 CFR 50.12(a)(2)(ii), special the public health and safety, and is exercises, the NRC staff evaluates the circumstances are present when consistent with the common defense onsite emergency preparedness application of the regulation in the
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particular circumstances would not the exemption request meets the special amendment dated March 28, 2005, as serve the underlying purpose of the rule circumstances of 10 CFR 50.12(a)(2)(v) supplemented September 23, 2005. or is not necessary to achieve the and should be granted. The Need for the Proposed Action underlying purpose of the rule. Under 4.0 Conclusion 10 CFR 50.12(a)(2)(v), special The current operating licensed term circumstances are present whenever the Accordingly, the Commission has for Seabrook ends on October 17, 2026. exemption would provide only determined that, pursuant to 10 CFR This is 40 years from the date of the temporary relief from the applicable 50.12(a), the exemption is authorized by zero-power operating license, which regulation and the licensee or applicant law, will not present an undue risk to was issued on October 17, 1986. The has made good faith efforts to comply the public health and safety, and is amendment would extend the with the regulation. consistent with the common defense expiration date of the operating license The underlying purpose for and security. Also, special from October 17, 2026, to March 15, conducting a biennial exercise is to circumstances are present. Therefore, 2030. The extended date for termination ensure that emergency response the Commission hereby grants the of the operating license would be 40 organization personnel are familiar with licensee an exemption from the years after issuance of the full-power their duties and to test the adequacy of requirements of 10 CFR Part 50, operating license which was issued on emergency plans. In order to Appendix E, Section IV.F.2.b and c for March 15, 1990. This would allow the accommodate the scheduling of full Surry, Units 1 and 2. licensee to recapture approximately 41 participation exercises, the NRC staff Pursuant to 10 CFR 51.32, the months of additional plant operation for has allowed licensees to schedule the Commission has determined that the the unit. This proposed amendment is exercises at any time during the granting of this exemption will not have not a request for license renewal calendar biennium. Conducting the full a significant effect on the quality of the pursuant to 10 CFR Part 54. participation exercise at Surry in human environment (70 FR 72666). Environmental Impacts of the Proposed calendar year 2006 places the exercise This exemption is effective upon Action past the previously scheduled biennial issuance. calendar year of 2005. The NRC has completed its evaluation Dated at Rockville, Maryland, this 9th day of the proposed action and concludes Since the last full participation of December 2005. exercise conducted at Surry on July 15, that there are no significant For the Nuclear Regulatory Commission. 2003, the licensee conducted Full Scale environmental considerations involved Plume exercises on April 13, 2004, and Edwin M. Hackett, with the proposed action. The extension December 6, 2005, and also performed Acting Director, Division of Operating Reactor of the operating licenses does not affect an unannounced plume phase exercise Licensing, Office of Nuclear Reactor the design or operation of the plant, Regulation. on August 25, 2004. In addition, four does not involve any modifications to training exercises were conducted. The [FR Doc. E5–7546 Filed 12–19–05; 8:45 am] the plant or any increase in the licensed NRC staff considers the intent of this BILLING CODE 7590–01–P power for the plant, and will not create requirement met by having conducted any new or unreviewed environmental these series of exercises and drills. The impacts that were not considered in the NUCLEAR REGULATORY NRC staff considers these measures to Final Environmental Statement (FES) be adequate to maintain an acceptable COMMISSION related to the operation of Seabrook, level of emergency preparedness during [Docket No. 50–443] NUREG–0895, dated December 1982. this period, satisfying the underlying The evaluations presented in the FES purpose of the rule. Therefore, the FPL Energy Seabrook, LLC, Seabrook were of the environmental impacts of special circumstances of 10 CFR Station Unit No. 1; Environmental generating power at Seabrook and the 50.12(a)(2)(ii) are satisfied. Assessment and Finding of No basis for granting a 40-year operating Only temporary relief from the Significant Impact license for Seabrook. The environmental regulation is provided by the requested impacts of the proposed action are The Nuclear Regulatory Commission exemption since Surry will resume its based on the evaluations in the FES. It (NRC or the Commission) is considering normal biennial exercise schedule in should be noted that the Seabrook issuance of an amendment pursuant to 2007. The licensee has made a good license was amended on February 28, Title 10 of the Code of Federal faith effort to comply with the 2005, to allow an increase in maximum Regulations (10 CFR) part 50, for regulation. The exemption is being core power by 5.2% (from 3411 Facility Operating License No. NPF–86 sought by the licensee in response to a megawatts thermal (MWt) to 3587 issued to FPL Energy Seabrook, LLC (the request by the Virginia DEM to postpone MWt). The environmental assessment of licensee), for operation of Seabrook the exercise. The Virginia DEM the power uprate was published in the Station, Unit No. 1 (Seabrook), located requested this delay to allow for the Federal Register on February 14, 2005 in Rockingham County, New completion of the new EOC, which is (70 FR 7525). not scheduled for completion until Hampshire. Therefore, as required by 10 The FES which, in general, assesses January 2, 2006. In its letter dated May CFR 51.21, the NRC is issuing this various impacts associated with 20, 2005, FEMA stated that it supports environmental assessment and finding operation of the facility in terms of the schedule change from December 6, of no significant impact. annual impacts, and balances these 2005, to the first week of February 2006. Environmental Assessment against the anticipated annual energy The NRC staff, having considered the production benefits. schedule and resource issues with those Identification of the Proposed Action The offsite exposure from releases agencies that participate in and evaluate The proposed action would extend during postulated accidents has been the offsite portion of the full the expiration date of the operating previously evaluated in the Updated participation exercises, concludes that license for Seabrook from October 17, Final Safety Analysis Report (UFSAR) the licensee made a good faith effort to 2026, to March 15, 2030. for Seabrook. The results are acceptable meet the requirements of the regulation. The proposed action is in accordance when compared with the criteria Therefore, the NRC staff concludes that with the licensee’s application for defined in 10 CFR Part 100, as
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documented in the Commission’s Safety Accordingly, the NRC concluded that For the Nuclear Regulatory Commission. Evaluation Report, NUREG–0896, dated there are no significant environmental Darrell J. Roberts, March 1983, and its nine supplements. impacts associated with the proposed Branch Chief, Plant Licensing Branch I–2, As a result of this action there is no action. Division of Operating Reactor Licensing, change in the types, frequency, or Office of Nuclear Reactor Regulation. Environmental Impacts of the consequences of design-basis accidents. [FR Doc. E5–7515 Filed 12–19–05; 8:45 am] Alternatives to the Proposed Action The NRC staff has concluded that the BILLING CODE 7590–01–P impacts associated with the addition of As an alternative to the proposed approximately 41 months to the license action, the staff considered denial of the expiration date are not significantly proposed action (i.e., the ‘‘no-action’’ NUCLEAR REGULATORY different from the operating license alternative). Denial of the application COMMISSION duration assessed in the Seabrook FES. would result in no change in current Sunshine Act; Notice of Meetings Therefore, the staff concluded that the environmental impacts. The FES sufficiently addresses the environmental impacts of the proposed environmental impacts associated with AGENCY HOLDING THE MEETINGS: Nuclear action and the alternative action are Regulatory Commission. a full 40-year operating period for similar. Seabrook. DATES: Weeks of December 19, 26, 2005, The annual occupational exposure of Alternative Use of Resources January 2, 9, 16, 23, 2006. workers at the plant, station employees PLACE: Commissioners’ Conference The action does not involve the use of and contractors, is reported in the Room, 11555 Rockville Pike, Rockville, any different resource than those Annual Operating Report submitted by Maryland. the licensee. The lowest exposure value previously considered in the FES for STATUS: Public and Closed. is for a year without a refueling outage, Seabrook. and the highest value is for a year with Agencies and Persons Consulted Matters To Be Considered: a refueling outage. In Section 5.9.3.1.1 Week of December 19, 2005 of the FES, the average occupational On December 8, 2005, the staff exposure for a pressurized water reactor consulted with the New Hampshire There are no meetings scheduled for was reported as 440 person-rems. State official, Mr. Mike Nawoj, and the the Week of December 19, 2005. Massachusetts State official, Mr. James Therefore, the expected annual Week of December 26, 2005—Tentative occupational exposure for the proposed Muckerheid, regarding the extended period of operation does not environmental impact of the proposed There are no meetings scheduled for change previous conclusions presented action. The State officials had no the Week of December 26, 2005. in the FES on occupational exposure. comments. Week of January 2, 2006—Tentative The offsite exposure from releases during routine operations has been Finding of No Significant Impact There are no meetings scheduled for previously evaluated in Section 5.9.3 of On the basis of the environmental the Week of January 2, 2006. the FES. During the low-power license, assessment, the NRC concluded that the Week of January 9, 2006—Tentative the plant was restricted to no more than proposed action will not have a five percent of rated power for no longer significant effect on the quality of the Tuesday, January 10, 2006 than 0.75 effective full power hours, and human environment. Accordingly, the 9:30 a.m.—Briefing on International the generation of radioactivity at the NRC has determined not to prepare an Research and Bilateral Agreements. plant was significantly smaller than environmental impact statement for the (Contact: Roman Shaffer, 301–415– would have occurred if the plant were proposed action. 7606). at full-power operation. Therefore, the This meeting will be webcast live at addition of approximately 41 months of For further details with respect to the the Web address: http://www.nrc.gov. operation that the licensee has proposed action, see the licensee’s letter requested does not change previous dated March 28, 2005 as supplemented Wednesday, January 11, 2006 conclusions presented in the FES on September 23, 2005. Documents may be examined, and/or copied for a fee, at the 9:30 a.m.—Meeting with Advisory annual public doses. Committee on Nuclear Waste The proposed action will not NRC’s Public Document Room (PDR), (ACNW). (Contact: John Larkins, significantly increase the probability or located at One White Flint North, Public 301–415–7360). consequences of accidents, no changes File Area O1 F21, 11555 Rockville Pike are being made in the types of effluents (first floor), Rockville, Maryland. This meeting will be webcast live at that may be released off site, and there Publicly available records will be the Web address: http://www.nrc.gov. accessible electronically from the is no significant increase in Thursday, January 12, 2006 occupational or public radiation Agencywide Documents Access and exposure. Therefore, there are no Management System (ADAMS) Public 9:30 a.m.—Discussion of Security Issues significant radiological environmental Electronic Reading Room on the Internet (Closed—Ex. 1 & 2). impacts associated with the proposed at the NRC Web site, http:// Week of January 16, 2006—Tentative action. www.nrc.gov/reading-rm/adams.html. With regard to potential Persons who do not have access to Thursday, January 19, 2006 nonradiological impacts, the proposed ADAMS or who encounter problems in 1:30 p.m.—Discussion of Security Issues action does not have a potential to affect accessing the documents located in (Closed—Ex. 1 & 3). any historic sites. It does not affect ADAMS, should contact the NRC PDR nonradiological plant effluents and has reference staff by telephone at 1–800– Week of January 23, 2006—Tentative no other environmental impact. 397–4209 or 301–415–4737, or by e-mail There are no meetings scheduled for Therefore, there are no significant to [email protected]. the Week of January 23, 2006. nonradiological environmental impacts Dated at Rockville, Maryland, this 6th day * The schedule for Commission associated with the proposed action. of December 2005. meetings is subject to change on short
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notice. To verify the status of meetings hazards consideration, notwithstanding comment period or the notice period, it call (recording)—(301) 415–1292. the pendency before the Commission of will publish in the Federal Register a Contact person for more information: a request for a hearing from any person. notice of issuance. Should the Michelle Schroll, (301) 415–1662. This biweekly notice includes all Commission make a final No Significant * * * * * notices of amendments issued, or Hazards Consideration Determination, The NRC Commission Meeting proposed to be issued from November any hearing will take place after Schedule can be found on the Internet 23, 2005 to December 8, 2005. The last issuance. The Commission expects that at: http://www.nrc.gov/what-we-do/ biweekly notice was published on the need to take this action will occur policy-making/schedule.html. December 6, 2005 (70 FR 72667). very infrequently. * * * * * Notice of Consideration of Issuance of Written comments may be submitted The NRC provides reasonable Amendments to Facility Operating by mail to the Chief, Rules and accommodation to individuals with Licenses, Proposed No Significant Directives Branch, Division of disabilities where appropriate. If you Hazards Consideration Determination, Administrative Services, Office of need a reasonable accommodation to and Opportunity for a Hearing Administration, U.S. Nuclear Regulatory participate in these public meetings, or Commission, Washington, DC 20555– The Commission has made a need this meeting notice or the 0001, and should cite the publication proposed determination that the transcript or other information from the date and page number of this Federal following amendment requests involve public meetings in another format (e.g. Register notice. Written comments may no significant hazards consideration. braille, large print), please notify the also be delivered to Room 6D22, Two Under the Commission’s regulations in NRC’s Disability Program Coordinator, White Flint North, 11545 Rockville 10 CFR 50.92, this means that operation August Spector, at 301–415–7080, TDD: Pike, Rockville, Maryland, from 7:30 of the facility in accordance with the 301–415–2100, or by e-mail at proposed amendment would not (1) a.m. to 4:15 p.m. Federal workdays. [email protected]. Determinations on involve a significant increase in the Copies of written comments received requests for reasonable accommodation probability or consequences of an may be examined at the Commission’s will be made on a case-by-case basis. accident previously evaluated; or (2) Public Document Room (PDR), located * * * * * create the possibility of a new or at One White Flint North, Public File This notice is distributed by mail to different kind of accident from any Area O1F21, 11555 Rockville Pike (first several hundred subscribers; if you no accident previously evaluated; or (3) floor), Rockville, Maryland. The filing of longer wish to receive it, or would like involve a significant reduction in a requests for a hearing and petitions for to be added to the distribution, please margin of safety. The basis for this leave to intervene is discussed below. contact the Office of the Secretary, proposed determination for each Within 60 days after the date of Washington, DC 20555 (301–415–1969). amendment request is shown below. publication of this notice, the licensee In addition, distribution of this meeting The Commission is seeking public may file a request for a hearing with notice over the Internet system is comments on this proposed respect to issuance of the amendment to available. If you are interested in determination. Any comments received the subject facility operating license and receiving this Commission meeting within 30 days after the date of any person whose interest may be schedule electronically, please send an publication of this notice will be affected by this proceeding and who electronic message to [email protected]. considered in making any final wishes to participate as a party in the Dated: December 15, 2005. determination. Within 60 days after the proceeding must file a written request R. Michelle Schroll, date of publication of this notice, the for a hearing and a petition for leave to Office of the Secretary. licensee may file a request for a hearing intervene. Requests for a hearing and a petition for leave to intervene shall be [FR Doc. 05–24323 Filed 12–16–05; 2:18 pm] with respect to issuance of the amendment to the subject facility filed in accordance with the BILLING CODE 7590–01–M operating license and any person whose Commission’s ‘‘Rules of Practice for interest may be affected by this Domestic Licensing Proceedings’’ in 10 NUCLEAR REGULATORY proceeding and who wishes to CFR part 2. Interested persons should COMMISSION participate as a party in the proceeding consult a current copy of 10 CFR 2.309, must file a written request for a hearing which is available at the Commission’s Biweekly Notice; Applications and and a petition for leave to intervene. PDR, located at One White Flint North, Amendments to Facility Operating Normally, the Commission will not Public File Area 01F21, 11555 Rockville Licenses Involving No Significant issue the amendment until the Pike (first floor), Rockville, Maryland. Hazards Considerations expiration of 60 days after the date of Publicly available records will be publication of this notice. The accessible from the Agencywide I. Background Commission may issue the license Documents Access and Management Pursuant to section 189a.(2) of the amendment before expiration of the 60- System’s (ADAMS) Public Electronic Atomic Energy Act of 1954, as amended day period provided that its final Reading Room on the Internet at the (the Act), the U.S. Nuclear Regulatory determination is that the amendment NRC Web site, http://www.nrc.gov/ Commission (the Commission or NRC involves no significant hazards reading-rm/doc-collections/cfr/. If a staff) is publishing this regular biweekly consideration. In addition, the request for a hearing or petition for notice. The Act requires the Commission may issue the amendment leave to intervene is filed within 60 Commission publish notice of any prior to the expiration of the 30-day days, the Commission or a presiding amendments issued, or proposed to be comment period should circumstances officer designated by the Commission or issued and grants the Commission the change during the 30-day comment by the Chief Administrative Judge of the authority to issue and make period such that failure to act in a Atomic Safety and Licensing Board immediately effective any amendment timely way would result, for example, Panel, will rule on the request and/or to an operating license upon a in derating or shutdown of the facility. petition; and the Secretary or the Chief determination by the Commission that Should the Commission take action Administrative Judge of the Atomic such amendment involves no significant prior to the expiration of either the Safety and Licensing Board will issue a
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notice of a hearing or an appropriate significant hazards consideration. The Electronic Reading Room on the Internet order. final determination will serve to decide at the NRC Web site, http:// As required by 10 CFR 2.309, a when the hearing is held. If the final www.nrc.gov/reading-rm/adams.html. If petition for leave to intervene shall set determination is that the amendment you do not have access to ADAMS or if forth with particularity the interest of request involves no significant hazards there are problems in accessing the the petitioner in the proceeding, and consideration, the Commission may documents located in ADAMS, contact how that interest may be affected by the issue the amendment and make it the PDR Reference staff at 1 (800) 397– results of the proceeding. The petition immediately effective, notwithstanding 4209, (301) 415–4737 or by e-mail to should specifically explain the reasons the request for a hearing. Any hearing [email protected]. why intervention should be permitted held would take place after issuance of with particular reference to the the amendment. If the final AmerGen Energy Company, LLC, et al., following general requirements: (1) The determination is that the amendment Docket No. 50–219, Oyster Creek name, address, and telephone number of request involves a significant hazards Nuclear Generating Station (OCNGS), the requestor or petitioner; (2) the consideration, any hearing held would Ocean County, New Jersey nature of the requestor’s/petitioner’s take place before the issuance of any Date of amendment request: October right under the Act to be made a party amendment. 18, 2005. to the proceeding; (3) the nature and A request for a hearing or a petition Description of amendment request: extent of the requestor’s/petitioner’s for leave to intervene must be filed by: The licensee proposes to revise the property, financial, or other interest in (1) First class mail addressed to the OCNGS Technical Specifications the proceeding; and (4) the possible Office of the Secretary of the Surveillance Requirement 4.4.B.1 to effect of any decision or order which Commission, U.S. Nuclear Regulatory provide an alternative means for testing may be entered in the proceeding on the Commission, Washington, DC 20555– the electromatic relief valves located on requestor’s/petitioner’s interest. The 0001, Attention: Rulemaking and the main steam system. The proposed petition must also set forth the specific Adjudications Staff; (2) courier, express change would allow demonstration of contentions which the petitioner/ mail, and expedited delivery services: the capability of the valves to perform requestor seeks to have litigated at the Office of the Secretary, Sixteenth Floor, their function without requiring that the proceeding. One White Flint North, 11555 Rockville valves be cycled with steam pressure Each contention must consist of a Pike, Rockville, Maryland 20852, while installed. specific statement of the issue of law or Attention: Rulemaking and Basis for proposed no significant fact to be raised or controverted. In Adjudications Staff; (3) e-mail hazards consideration determination: addition, the petitioner/requestor shall addressed to the Office of the Secretary, As required by 10 CFR 50.91(a), the provide a brief explanation of the bases U.S. Nuclear Regulatory Commission, licensee has provided its analysis of the for the contention and a concise [email protected]; or (4) facsimile issue of no significant hazards statement of the alleged facts or expert transmission addressed to the Office of consideration. The licensee’s analysis is opinion which support the contention the Secretary, U.S. Nuclear Regulatory presented below: and on which the petitioner/requestor Commission, Washington, DC, 1. Does the proposed change involve a intends to rely in proving the contention Attention: Rulemakings and significant increase in the probability or at the hearing. The petitioner/requestor Adjudications Staff at (301) 415–1101, consequences of an accident previously must also provide references to those verification number is (301) 415–1966. evaluated? specific sources and documents of A copy of the request for hearing and Response: No. which the petitioner is aware and on petition for leave to intervene should The proposed change modifies Technical which the petitioner/requestor intends also be sent to the Office of the General Specifications (TS) Surveillance Requirement to rely to establish those facts or expert Counsel, U.S. Nuclear Regulatory (SR) 4.4.B.1 to provide an alternative means opinion. The petition must include Commission, Washington, DC 20555– for testing the Electromatic Relief Valves (EMRVs). Accidents are initiated by the sufficient information to show that a 0001, and it is requested that copies be malfunction of plant equipment, or the genuine dispute exists with the transmitted either by means of facsimile failure of plant structures, systems, or applicant on a material issue of law or transmission to (301) 415–3725 or by e- components. The performance of EMRV fact. Contentions shall be limited to mail to [email protected]. A copy testing is not a precursor to any accident matters within the scope of the of the request for hearing and petition previously evaluated and does not change the amendment under consideration. The for leave to intervene should also be manner in which the valves are operated. contention must be one which, if sent to the attorney for the licensee. The proposed testing requirements will not proven, would entitle the petitioner/ Nontimely requests and/or petitions contribute to the failure of the relief valves requestor to relief. A petitioner/ and contentions will not be entertained nor any plant structure, system, or requestor who fails to satisfy these absent a determination by the component. AmerGen Energy Company, LLC (AmerGen) has determined that the proposed requirements with respect to at least one Commission or the presiding officer of change in testing methodology provides an contention will not be permitted to the Atomic Safety and Licensing Board equivalent level of assurance that the relief participate as a party. that the petition, request and/or the valves are capable of performing their Those permitted to intervene become contentions should be granted based on intended safety functions. Thus, the parties to the proceeding, subject to any a balancing of the factors specified in 10 proposed change does not affect the limitations in the order granting leave to CFR 2.309(a)(1)(i)–(viii). probability of an accident previously intervene, and have the opportunity to For further details with respect to this evaluated. participate fully in the conduct of the action, see the application for The performance of EMRV testing provides hearing. amendment which is available for confidence that the EMRVs are capable of If a hearing is requested, and the public inspection at the Commission’s depressurizing the reactor pressure vessel (RPV). This will protect the reactor vessel Commission has not made a final PDR, located at One White Flint North, from overpressurization and allow the Core determination on the issue of no Public File Area 01F21, 11555 Rockville Spray system to inject into the RPV as significant hazards consideration, the Pike (first floor), Rockville, Maryland. designed. The proposed change involves the Commission will make a final Publicly available records will be manner in which the EMRVs are tested, and determination on the issue of no accessible from the ADAMS Public has no effect on the types or amounts of
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radiation released or the predicted offsite Attorney for licensee: Thomas S. reduce TS SR. Component actuations that doses in the event of an accident. The O’Neill, Associate General Counsel, will be allowed to be performed online for proposed testing requirements are sufficient Exelon Generation Company, LCC, 4300 these TS SRs are either already actuated to provide confidence that the EMRVs are online for other TS SRs or the components capable of performing their intended safety Winfield Road, Warrenville, IL 60555. NRC Branch Chief: Darrell J. Roberts. to be actuated online are currently stroked functions. In addition, a stuck open EMRV online in accordance with the Inservice accident is analyzed in the Updated Final Entergy Operations Inc., Docket No. 50– Testing Program. Therefore, the proposed Safety Analysis Report (section 15.6.1). Since 382, Waterford Steam Electric Station, change introduces no new mode of plant the proposed testing requirements do not Unit 3, St. Charles Parish, Louisiana operation and no new possibility for an alter the assumptions for the stuck open accident is introduced. EMRV accident, the consequences of any Date of amendment request: October Therefore, the proposed change does not accident previously evaluated are not 27, 2005. create the possibility of a new or different increased. Description of amendment request: kind of accident from any previously Therefore, the proposed change does not This amendment proposes revisions to evaluated. involve a significant increase in the the Technical Specification (TS) 3. Does the proposed change involve a probability or consequences of an accident Surveillance Requirements (SR) 4.5.2e significant reduction in a margin of safety? previously evaluated. Response: No. 2. Does the proposed change create the (Safety Injection), 4.6.2.1d (Containment Spray), and 4.7.3b (Component Cooling There are no automatic valves in the possibility of a new or different kind of essential services chilled water system that accident from any accident previously Water/Auxiliary Component Cooling actuate on an SIAS [safety injection actuation evaluated? Water), by removing the words ‘‘during signal]. Deletion of the ‘‘during shutdown’’ Response: No. shutdown.’’ Additionally, a revision to limitation does not change the TS test The proposed change does not affect the delete TS SR 4.7.12.1c (Essential requirements or surveillance frequency. assumed accident performance of the Therefore, existing TS surveillance EMRVs, nor any plant structure, system, or Services Chilled Water) is requested. requirements are not reduced by the component previously evaluated. The Basis for proposed no significant proposed change does not involve the hazards consideration determination: proposed change, thus no margins of safety installation of new equipment, and installed As required by 10 CFR 50.91(a), the are reduced. equipment is not being operated in a new of licensee has provided its analysis of the Therefore, the proposed change does not different manner. The change in test issue of no significant hazards involve a significant reduction in a margin of safety. methodology ensures that the EMRVs remain consideration, which is presented capable of performing their safety functions. below: The NRC staff has reviewed the No set points are being changed which would licensee’s analysis and, based on this 1. Does the proposed change involve a alter the dynamic response of plant review, it appears that the three equipment. Accordingly, no new failure significant increase in the probability or modes are introduced. consequences of an accident previously standards of 10 CFR 50.92(c) are Therefore, the proposed change does not evaluated? satisfied. Therefore, the NRC staff create the possibility of a new or different Response: No. proposes to determine that the kind of accident from any accident Deletion of TS SR 4.7.12.1c is an amendment request involves no previously evaluated. administrative change since there are no significant hazards consideration. 3. Does the proposed change involve a valves in the essential services chilled water Attorney for licensee: N.S. Reynolds, significant reduction in a margin of safety? system for which the TS SR 4.7.12.1c is Esquire, Winston & Strawn, 1700 K Response: No. applicable. The deletion of the ‘‘during The proposed change will allow testing of shutdown’’ restriction from TS SRs 4.5.2e Street NW., Washington, DC 20006– the EMRV actuation electrical circuitry, (Safety Injection), 4.6.2.1d (Containment 3817 including the solenoid, and mechanical Spray), and 4.7.3b (Component Cooling NRC Branch Chief: David Terao actuation components, without causing the Water/Auxiliary Component Cooling Water) FirstEnergy Nuclear Operating EMRV to open. Accordingly, in-situ EMRV does not impact system operation nor does it cycling is avoided, reducing the potential for reduce TS SRs. Component actuations that Company, et al., Docket Nos. 50–334 valve seat leakage. The valves will be tested will be allowed to be performed online for and 50–412, Beaver Valley Power in accordance with the Inservice Test (IST) these TS SRs are either already actuated Station, Unit Nos. 1 and 2 (BVPS–1 and Program that involves testing the valve at a online for other TS SRs or the components 2), Beaver County, Pennsylvania test facility using steam. The combination of to be actuated online are currently stroked Date of amendment request: the IST and proposed actuator test provides online in accordance with the Inservice confidence that the EMRVs will perform their Testing Program. Therefore, the accident November 7, 2005 design function. mitigation features of the plant for previously Description of amendment request: The proposed change does not affect the evaluated accidents are not affected by the The amendment would revise the EMRV set points or the operational criteria proposed amendment. Technical Specifications (TSs), to adopt that directs the EMRVs to be manually Therefore, the proposed change does not NRC-approved Revision 4 to Technical opened during plant transients. There are no involve a significant increase in the Specification Task Force (TSTF) changes proposed which alter the set points probability or consequences of an accident at which protective actions are initiated, and Standard Technical Specification previously evaluated. Change Traveler, TSTF–449, ‘‘Steam there is no change to the operability 2. Does the proposed change create the requirements for equipment assumed to possibility of a new or different kind of Generator Tube Integrity.’’ The operate for accident mitigation. accident from any accident previously proposed amendment includes changes Therefore, the proposed change does not evaluated? to the TS definition of Leakage, TS 3/ involve a significant reduction in a margin of Response: No. 4.4.6, ‘‘Reactor Coolant System safety. Deletion of TS SR 4.7.12.1c is an Leakage,’’ TS 3/4.4.5, ‘‘Steam The NRC staff has reviewed the administrative change since there are no Generators,’’ and adds TS 6.19, ‘‘Steam licensee’s analysis and, based on this valves in the essential services chilled water Generator (SG) Program,’’ and TS 6.9.7, review, it appears that the three system for which the TS SR 4.7.12.1c is ‘‘Steam Generator Tube Inspection applicable. The deletion of the ‘‘during standards of 10 CFR 50.92(c) are shutdown’’ restriction from TS SRs 4.5.2e Report.’’ The proposed changes are satisfied. Therefore, the NRC staff (Safety Injection), 4.6.2.1d (Containment necessary in order to implement the proposes to determine that the proposed Spray), and 4.7.3b (Component Cooling guidance for the industry initiative on amendment involves no significant Water/Auxiliary Component Cooling Water) Nuclear Energy Institute (NEI) 97–06, hazards consideration. does not impact system operation nor does it ‘‘Steam Generator Program Guidelines.’’
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The NRC staff issued a notice of throughout each operating cycle and in the [kind] of accident from any accident opportunity for comment in the Federal unlikely event of a design basis accident. previously evaluated. The performance criteria are only a part of Register on March 2, 2005 (70 FR Criterion 3—The Proposed Change Does Not the SG Program required by the proposed 10298), on possible amendments Involve a Significant Reduction in [a] Margin change to the TS. The program, defined by adopting TSTF–449, including a model NEI 97–06, Steam Generator Program of Safety safety evaluation and model no Guidelines, includes a framework that The SG tubes in pressurized water reactors significant hazards consideration incorporates a balance of prevention, are an integral part of the reactor coolant (NSHC) determination, using the inspection, evaluation, repair, and leakage pressure boundary and, as such, are relied consolidated line item improvement monitoring. The proposed changes do not, upon to maintain the primary system’s process. The NRC staff subsequently therefore, significantly increase the pressure and inventory. As part of the reactor probability of an accident previously coolant pressure boundary, the SG tubes are issued a notice of availability of the unique in that they are also relied upon as models for referencing in license evaluated. The consequences of design basis accidents a heat transfer surface between the primary amendment applications in the Federal are, in part, functions of the DOSE and secondary systems such that residual Register on May 6, 2005 (70 FR 24126). EQUIVALENT I–131 in the primary coolant heat can be removed from the primary The licensee affirmed the applicability and the primary to secondary LEAKAGE system. In addition, the SG tubes isolate the of the following NSHC determination in rates resulting from an accident. Therefore, radioactive fission products in the primary its application dated November 7, 2005. limits are included in the plant technical coolant from the secondary system. In Basis for proposed no significant specifications for operational leakage and for summary, the safety function of [a] SG is hazards consideration determination: DOSE EQUIVALENT I–131 in primary maintained by ensuring the integrity of its coolant to ensure the plant is operated within tubes. As required by 10 CFR 50.91(a), an Steam generator tube integrity is a function analysis of the issue of no significant its analyzed condition. The typical analysis of the limiting design basis accident assumes of the design, environment, and the physical hazards consideration is presented condition of the tube. The proposed change that primary to secondary leak rate after the does not affect tube design or operating below: accident is 1 gallon per minute with no more environment. The proposed change is than [500 gallons per day or 720 gallons per expected to result in an improvement in the Criterion 1—The Proposed Change Does Not day] in any one SG, and that the reactor tube integrity by implementing the SG Involve a Significant Increase in the coolant activity levels of DOSE Program to manage SG tube inspection, Probability or Consequences of an Accident EQUIVALENT I–131 are at the TS values Previously Evaluated assessment, repair, and plugging. The before the accident. requirements established by the SG Program The proposed change requires a SG The proposed change does not affect the are consistent with those in the applicable Program that includes performance criteria design of the SGs, their method of operation, design codes and standards and are an that will provide reasonable assurance that or primary coolant chemistry controls. The improvement over the requirements in the the SG tubing will retain integrity over the proposed approach updates the current TSs current TSs. full range of operating conditions (including and enhances the requirements for SG For the above reasons, the margin of safety startup, operation in the power range, hot inspections. The proposed change does not is not changed and overall plant safety will standby, cooldown and all anticipated adversely impact any other previously be enhanced by the proposed change to the transients included in the design evaluated design basis accident and is an TS. specification). The SG performance criteria improvement over the current TSs. are based on tube structural integrity, Therefore, the proposed change does not The NRC staff proposes to determine accident induced leakage, and operational affect the consequences of a SGTR accident that the amendments request involves LEAKAGE. and the probability of such an accident is no significant hazards consideration. A SGTR [steam generator tube rupture] reduced. In addition, the proposed changes Attorney for licensee: Mary O’Reilly, event is one of the design basis accidents that do not affect the consequences of an MSLB, FirstEnergy Nuclear Operating are analyzed as part of a plant’s licensing rod ejection, or a reactor coolant pump Company, FirstEnergy Corporation, 76 basis. In the analysis of a SGTR event, a locked rotor event, or other previously South Main Street, Akron, OH 44308. bounding primary to secondary LEAKAGE evaluated accident. NRC Branch Chief: Richard J. Laufer. rate equal to the operational LEAKAGE rate limits in the licensing basis plus the Criterion 2—The Proposed Change Does Not Florida Power and Light Company, LEAKAGE rate associated with a double- Create the Possibility of a New or Different Kind of Accident From Any Previously Docket No. 50–389, St. Lucie Plant, Unit ended rupture of a single tube is assumed. No. 2, St. Lucie County, Florida For other design basis accidents such as a Evaluated MSLB [main steamline break], rod ejection, The proposed performance based Date of amendment request: October and reactor coolant pump locked rotor the requirements are an improvement over the 21, 2005. tubes are assumed to retain their structural requirements imposed by the current Description of amendment request: integrity (i.e., they are assumed not to technical specifications. Implementation of The proposed amendment will revise rupture). These analyses typically assume the proposed SG Program will not introduce the Technical Specifications to allow that primary to secondary LEAKAGE for all any adverse changes to the plant design basis operation with a reduced reactor coolant SGs is 1 gallon per minute or increases to 1 or postulated accidents resulting from system (RCS) flow rate of 300,000 gpm gallon per minute as a result of accident potential tube degradation. The result of the induced stresses. The accident induced implementation of the SG Program will be an and a reduction in the maximum leakage criterion introduced by the proposed enhancement of SG tube performance. thermal power to 89 percent of the rated changes accounts for tubes that may leak Primary to secondary LEAKAGE that may be thermal power. The definition of rated during design basis accidents. The accident experienced during all plant conditions will thermal power remains unchanged at induced leakage criterion limits this leakage be monitored to ensure it remains within 2700 MWt. The flow rate of 300,000 to no more than the value assumed in the current accident analysis assumptions. gpm is expected to conservatively accident analysis. The proposed change does not affect the bound an analyzed steam generator tube The SG performance criteria proposed design of the SGs, their method of operation, plugging level of 42 percent per steam change to the TS identify the standards or primary or secondary coolant chemistry generator. The re-analysis performed to against which tube integrity is to be controls. In addition, the proposed change measured. Meeting the performance criteria does not impact any other plant system or support this reduction in RCS flow used provides reasonable assurance that the SG component. The change enhances SG Westinghouse WCAP–9272–P–A tubing will remain capable of fulfilling its inspection requirements. methodology, the same methodology specific safety function of maintaining Therefore, the proposed change does not approved for St. Lucie Unit 2 in License reactor coolant pressure boundary integrity create the possibility of a new or different Amendment 138.
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Basis for proposed no significant provide adequate protection against fuel The proposed Technical Specifications hazards consideration determination: design limits. Evaluation of the steam line does not introduce new equipment operating As required by 10 CFR 50.91(a), the break and LOCA [Loss of Coolant Accident] modes, nor does the proposed change alter licensee has provided its analysis of the mass and energy releases determined that the existing system relationships. The proposed overall containment response remains amendment does not introduce new failure issue of no significant hazards acceptable. The performance requirements modes. consideration, which is presented for all systems have been verified to be Therefore, the proposed amendment will below: acceptable from design basis accidents’ not significantly increase the probability or (1) Operation of the facility in accordance consideration. The proposed amendment, the consequences of an accident previously with the proposed amendment would not therefore, will not involve a significant evaluated. involve a significant increase in the reduction in the margin of safety. 2. Does the proposed change create the probability or consequences of an accident The NRC staff has reviewed the possibility of a new or different kind of previously evaluated. licensee’s analysis and, based on this accident from any accident previously None of the proposed changes to the review, it appears that the three evaluated? Technical Specifications results in operation Response: No. standards of 50.92(c) are satisfied. The proposed changes do not introduce of the facility that adversely affects the Therefore, the NRC staff proposes to initiation of any accident previously new equipment operating modes, nor do they evaluated. There is no adverse impact on any determine that the amendment request alter existing system relationships. The plant system. Plant systems will continue to involves no significant hazards proposed changes do not introduce new function as designed, and all performance consideration. failure modes. They do not alter the requirements for these systems remain Attorney for licensee: M.S. Ross, equipment required for accident mitigation acceptable. The analysis, performed to Attorney, Florida Power & Light, P.O. and they appropriately consider the effects support the proposed changes, has included Box 14000, Juno Beach, Florida 33408– on supported systems when a support system evaluations and/or analyses of all the 0420. is inoperable. When support systems are analyzed accident analyses, including the NRC Branch Chief: Michael L. inoperable, actions are specified consistent effects of changes on the SG tube sleeve Marshall, Jr. with safe plant operation. design. The analyses and evaluations have Therefore, the proposed changes will not verified that the accident analyses acceptance Nuclear Management Company, LLC, create the possibility of a new or different criteria continue to be met. Dose Docket No. 50–263, Monticello Nuclear kind of accident from any accident consequences acceptance criteria have been Generating Plant, Wright County, previously evaluated. verified to be met for analyzed events. Minnesota 3. Does the proposed change involve a Therefore, the proposed changes do not significant reduction in the margin of safety? significantly increase the probability or Date of amendment request: July 25, Response: No. consequences of an accident previously 2005. The proposed change provides evaluated. Description of amendment request: specifications for the ESW System that are (2) Operation of the facility in accordance The proposed amendment would add consistent with current Technical with the proposed amendments would not new Technical Specifications Specification requirements for other create the possibility of a new or different requirements to provide limiting equipment. The proposed changes ensure kind of accident from any previously conditions for operation (LCOs) and that the ESW and other support systems will evaluated. action statements and corresponding be available when required and provides No new accident scenarios, failure adequate alternative actions when the mechanisms or limiting single failures are surveillance requirements for the support systems are not available. The introduced as a result of the proposed Emergency Service Water (ESW) system. allowed outage times for the ESW subsystem changes to the Technical Specifications. In the absence of such new requirement, is consistent with that allowed for other Although the allowable tube plugging level is the current requirement at Section equipment required for accident mitigation. increased, the criteria for tube plugging/ 3.5.A.4 simply specifies that the unit be Therefore, the proposed changes do not sleeving and the tube integrity considerations shutdown within 24 hours. involve a significant reduction in the margin remain unchanged. The proposed changes Basis for proposed no significant of safety. have no adverse effects on any safety-related hazards consideration determination: systems and do not challenge the The NRC staff has reviewed the performance or integrity of any safety-related As required by 10 CFR 50.91(a), the licensee’s analysis and, based on this system. The DNBR [Departure from Nucleate licensee has provided its analysis of the review, it appears that the three Boiling Ratio] limits and trip setpoints issue of no significant hazards standards of 10 CFR 50.92(c) are associated with the respective reactor consideration, which is presented satisfied. Therefore, the NRC staff protection system functions have verified below: proposes to determine that the that the accident analyses criteria continue to 1. Does the proposed change involve a amendment request involves no be met. Therefore, this amendment will not significant increase in the probability or significant hazards consideration. create the possibility of a new or different consequences of an accident previously Attorney for licensee: Jonathan Rogoff, kind of accident from any accident evaluated? previously evaluated. Esquire, Vice President, Counsel & Response: No. Secretary, Nuclear Management (3) Operation of the facility in accordance The Emergency Service Water (ESW) with the proposed amendments would not System is not an accident initiator. The Company, LLC, 700 First Street, involve a significant reduction in a margin of proposed change provides operability Hudson, WI 54016. safety. requirements and surveillance requirements NRC Branch Chief: L. Raghavan. The safety analyses of all analyzed design to ensure the ESW System is operable as Omaha Public Power District, Docket basis accidents, supporting the proposed required for accident mitigation. The changes to the Technical Specifications, proposed operability requirements and No. 50–285, Fort Calhoun Station, Unit continue to meet the applicable acceptance allowed outage time is consistent with the No. 1, Washington County, Nebraska criteria with respect to the radiological requirements for the systems supported by Date of amendment request: October consequences, specified acceptable fuel the ESW System. The [calculated 31, 2005. design limits (SAFDLs), primary and radiological] dose to the public and the Description of amendment request: secondary overpressurization, and 10 CFR Control Room operators [due to a postulated 50.46 requirements. The DNBR and the accident] are unaffected by the proposed Omaha Public Power District (the setpoint analyses are performed on a cycle- change. The proposed LCO provides licensee) has proposed to revise the specific basis to verify that the reactor direction with respect to actions to be taken Updated Safety Analysis Report (USAR) protection system functions continue to when support systems are inoperable. Safety Analysis, General, Section 14.1,
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as well as the radiological consequences Therefore, these changes do not create the Basis for proposed no significant analyses for the events of Seized Rotor possibility of a new or different kind of hazards consideration determination: (SR), Section 14.6.2.8; Main Steam Line accident from any previously evaluated. As required by 10 CFR 50.91(a), the Break (MSLB), Section 14.12.6; Control 3. Does the proposed change involve a licensee has provided its analysis of the significant reduction in a margin of safety? Element Assembly Ejection (CEAE), Response: No. issue of no significant hazards Section 14.13.4; and Steam Generator The calculated doses resulting from the consideration, which is presented Tube Rupture (SGTR), Section 14.14.3. proposed changes to USAR Sections 14.1.6, below: The USAR sections for radiological 14.6.2.8, 14.12.6, 14.13.4 and 14.14.3 remain 1. Does the proposed change involve a consequences of events need to be below the regulatory limits set by 10 CFR significant increase in the probability or revised because of the planned 50.67. In all events evaluated, with the consequences of an accident previously replacement of the steam generators and exception of the Control Room dose of the evaluated? pressurizer in the fall of 2006. MSLB concurrent iodine spike case, there is Response: No. Basis for proposed no significant no margin reduction. The Control Room dose These proposed changes affect only of the MSLB concurrent iodine spike case is operations in the spent fuel pool during hazards consideration determination: increased from 2.5 rem to 4.5 rem. This As required by 10 CFR 50.91(a), the spent fuel cask loading operations. Plant margin reduction is primarily due to the power operations and other spent fuel pool licensee has provided its analysis of the significant delay in the reactor coolant operations are not affected. There are no issue of no significant hazards reaching 212 F with the RSGs and RPZR (i.e., changes to the design or operation of the consideration, which is presented at 159.2 hours versus the 10.94 hours power plant that could affect system, below: applicable to the original steam generators). component or accident functions resulting This analysis has conservatively used a spike 1. Does the proposed change involve a from these changes. duration of 4 hours. If the updated analysis Fuel loading into the spent fuel casks in significant increase in the probability or took credit for the percentage of defective consequences of an accident previously the spent fuel pool will not require any fuels associated with Technical Specification evaluated? significant changes to spent fuel pool concentrations when developing the duration structures, systems, or components, nor will Response: No. of the concurrent iodine spike (i.e., used their performance requirements be altered. The proposed changes to the USAR discuss 0.28% defective fuel versus the The potential to handle a spent fuel cask was the changes to the Seized Rotor (SR), Control conservatively assumed 1% defective fuel considered in the original design of the plant. Element Assembly Ejection (CEAE), Steam used in the analysis), the analysis would Therefore, the response of the plant to Generator Tube Rupture (SGTR) and Main have resulted in an estimated spike duration previously analyzed Part 50 accidents and Steam Line Break (MSLB) events resulting of 2 hours instead of 4 hours and the control related radiological releases will not be from the installation of the replacement room dose would be significantly reduced. adversely impacted, and will bound those steam generators (RSGs) and the replacement Therefore, the proposed changes do not postulated during cask loading activities in pressurizer (RPZR). These changes do not involve a significant reduction in the safety the cask loading area. affect an accident initiator previously margin. Accordingly, the proposed changes do not evaluated in the USAR or the Technical The NRC staff has reviewed the involve a significant increase in the Specifications and will not prevent any probability or consequences of an accident safety systems from performing their accident licensee’s analysis and, based on this previously evaluated. mitigating function as discussed in the USAR review, it appears that the three 2. Does the proposed change create the or the Technical Specifications. standards of 10 CFR 50.92(c) are possibility of a new or different kind of In all events evaluated, with the exception satisfied. Therefore, the NRC staff accident from any accident previously of the Control Room dose of the MSLB proposes to determine that the evaluated? concurrent iodine spike case, there is no amendment request involves no Response: No. margin reduction. The Control Room dose of significant hazards consideration. These proposed changes affect only the MSLB concurrent iodine spike case is Attorney for licensee: James R. operations in the spent fuel pool during increased from 2.5 rem to 4.5 rem. The Curtiss, Esq., Winston & Strawn, 1400 L spent fuel cask loading operations. Plant calculated doses resulting from the proposed power operations and other spent fuel pool changes to USAR Sections 14.1.6, 14.6.2.8, Street, NW., Washington, DC 20005– operations are not affected. No new accident 14.12.6, 14.13.4 and 14.14.3 remain below 3502. scenarios, failure mechanisms, or single the regulatory limits set by 10 CFR 50.67. NRC Branch Chief: David Terao. failures are introduced as a result of the Therefore, these changes do not involve a Omaha Public Power District, Docket proposed changes. All systems, structures, significant increase in the probability or No. 50–285, Fort Calhoun Station, Unit and components previously required for consequences of any accident previously mitigation of an event remain capable of evaluated. No. 1, Washington County, Nebraska fulfilling their intended design function with 2. Does the proposed change create the Date of amendment request: these changes to the TS. possibility of a new or different kind of November 8, 2005. Fuel handling procedures and associated accident from any accident previously Description of amendment request: administrative controls for movement of evaluated? The proposed amendment would revise spent fuel in the spent fuel pool remain Response: No. the Fort Calhoun Station (FCS) applicable and are being appropriately The proposed changes are the result of augmented to accommodate spent fuel cask changes in the analysis of the radiological Technical Specifications (TS) to add a loading operations. Additionally, the soluble new Limiting Condition for Operation consequences of the SR, CEAE, SGTR and boron concentration required to maintain keff MSLB events of the replacement of the steam 2.8.3(6) and modify Table 3–4, Table 3– ≤0.95 for postulated accidents associated generators (SGs) and the pressurizer. The 5, and Design Features 4.3.1 to address with cask loading operations was also proposed changes do not modify or install criticality control during spent fuel cask evaluated. The results of the analyses, using any safety related equipment. They do, loading operations in the spent fuel a methodology previously approved by the however, change the licensing basis by using pool. This request applies only to spent NRC, demonstrate that the amount of soluble fuel gap fractions from Reference 7.6 in fuel cask loading in the spent fuel pool boron assumed to be in the pool water during accordance with previously accepted license and does not affect the licensing basis these postulated accidents (800 ppm [part per applications by other licensees and by million]) is much less than the value at assuming shorter concurrent iodine spike or invalidate our existing exemption which the spent fuel pool is normally durations in accordance with Section 2.2 of from the criticality monitoring maintained (approximately 1900 ppm). Appendix E of RG 1.183, since the activity requirements of Title 10, Code of Therefore, the possibility of a new or released during the eight-hour spike duration Federal Regulations (CFR) 70.24 for new different kind of accident from any accident exceeds the available release. and spent fuel storage. previously evaluated is not created.
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3. Does the proposed change involve a Pacific Gas and Electric Company, affected by this change. The addition of a significant reduction in a margin of safety? Docket Nos. 50–275 and 50–323, Diablo requirement to assess and manage the risk Response: No. Canyon Nuclear Power Plant, Unit Nos. introduced by this change will further An NRC-approved methodology was used 1 and 2, San Luis Obispo County, minimize possible concerns. Therefore, this change does not involve a significant to perform the criticality analyses that California provide the basis to incorporate a boron increase in the probability or consequences concentration and a new burnup versus Date of amendment requests: October of an accident previously evaluated. enrichment curve into the plant Technical 19, 2005. Criterion 2—The Proposed Change Does Not Specifications to ensure criticality safety Description of amendment requests: Create the Possibility of a New or Different margins are maintained during spent fuel The proposed change allows a delay Kind of Accident From Any Previously cask loading. Spent fuel casks at FCS are time for entering a supported system Evaluated loaded in the spent fuel pool in an area Technical Specification (TS) when the The proposed change does not involve a adjacent to the spent fuel racks. No physical inoperability is due solely to an physical alteration of the plant (no new or segregation such as a wall or gate exists inoperable snubber, if risk is assessed different type of equipment will be installed). between the spent fuel racks and spent fuel and managed consistent with the Allowing delay times for entering supported cask loading area. The cask loading area floor program in place for complying with the system TS when inoperability is due solely is approximately two feet lower than the requirements of 10 CFR 50.65(a)(4). to inoperable snubbers, if risk is assessed and floor on which the spent fuel racks are Limiting Condition for Operation (LCO) managed, will not introduce new failure located. Therefore, the spent fuel pool water 3.0.8 is added to the TS to provide this modes or effects and will not, in the absence flows in and around the spent fuel racks and allowance and define the requirements of other unrelated failures, lead to an accident whose consequences exceed the spent fuel casks being loaded in a common and limitations for its use. pool. Neutronic coupling between fuel in the consequences of accidents previously This change was proposed by the evaluated. The addition of a requirement to spent fuel racks and fuel in the spent fuel industry’s Technical Specification Task cask has been appropriately considered in assess and manage the risk introduced by this Force (TSTF) and is designated TSTF– change will further minimize possible the criticality analysis, including accident 372, Revision 4. The NRC staff issued a concerns. Thus, this change does not create events that postulate mis-loading of a fresh notice of opportunity for comment in the possibility of a new or different kind of fuel assembly into the cask and dropping a the Federal Register on November 24, accident from an accident previously fuel assembly between the spent fuel racks evaluated. and spent fuel cask during loading. 2004 (69 FR 68412), on possible The normal condition criticality analysis amendments concerning TSTF–372, Criterion 3—The Proposed Change Does Not was performed assuming no soluble boron in including a model safety evaluation and Involve a Significant Reduction in the Margin the spent fuel pool water and credit for fuel model no significant hazards of Safety burnup. The proposed new Technical consideration (NSHC) determination, The proposed change allows a delay time Specification requirement to permit only fuel using the consolidated line item for entering a supported system TS when the assemblies with the minimum required improvement process. The NRC staff inoperability is due solely to an inoperable burnup versus enrichment to be loaded into subsequently issued a notice of snubber, if risk is assessed and managed. The the spent fuel cask preserves this analysis availability of the models for referencing postulated seismic event requiring snubbers basis. The accident condition criticality in license amendment applications in is a low-probability occurrence and the analysis was performed assuming a the Federal Register on May 4, 2005 (70 overall TS system safety function would still be available for the vast majority of minimum of 800 ppm boron in the spent fuel FR 23252). The licensee affirmed the pool during cask loading operations. All anticipated challenges. The risk impact of the applicability of the following NSHC proposed TS changes was assessed following analyses account for uncertainties at a 95[-] determination in its application dated percent probability/95-percent confidence the three-tiered approach recommended in October 19, 2005. Regulatory Guide 1.177. A bounding risk level. The proposed new Technical Basis for proposed no significant assessment was performed to justify the Specification requirement to maintain a proposed TS changes. The proposed LCO minimum boron concentration of 800 ppm in hazards consideration determination: As required by 10 CFR 50.91(a), an 3.0.8 defines limitations on the use of the the spent fuel pool during spent fuel cask provision and includes a requirement for the loading operations preserves this analysis analysis of the issue of no significant hazards consideration is presented licensee to assess and manage the risk basis. For defense-in-depth, the spent fuel associated with operation with an inoperable pool boron concentration is typically below: snubber. The net change to the margin of maintained at approximately 1900 ppm Criterion 1—The Proposed Change Does Not safety is insignificant. Therefore, this change during normal operations and would not be Involve a Significant Increase in the does not involve a significant reduction in a expected to be reduced during spent fuel Probability or Consequences of an Accident margin of safety. cask loading operations. Previously Evaluated Therefore, there is no significant reduction The NRC staff proposes to determine The proposed change allows a delay time that the amendment request involves no in a margin of safety as a result of this for entering a supported system TS when the change. significant hazards consideration. inoperability is due solely to an inoperable Attorney for licensee: Richard F. snubber if risk is assessed and managed. The The NRC staff has reviewed the postulated seismic event requiring snubbers Locke, Esq., Pacific Gas and Electric licensee’s analysis and, based on this is a low-probability occurrence and the Company, P.O. Box 7442, San review, it appears that the three overall TS system safety function would still Francisco, California 94120. standards of 10 CFR 50.92(c) are be available for the vast majority of NRC Branch Chief: David Terao. satisfied. Therefore, the NRC staff anticipated challenges. Therefore, the probability of an accident previously Pacific Gas and Electric Company, proposes to determine that the Docket Nos. 50–275 and 50–323, Diablo amendment request involves no evaluated is not significantly increased, if at all. The consequences of an accident while Canyon Nuclear Power Plant, Unit Nos. significant hazards consideration. relying on allowance provided by proposed 1 and 2, San Luis Obispo County, Attorney for licensee: James R. LCO 3.0.8 are no different than the California Curtiss, Esq., Winston & Strawn, 1400 L consequences of an accident while relying on the TS required actions in effect without the Date of amendment requests: October Street, NW., Washington, DC 20005– 19, 2005. 3502. allowance provided by proposed LCO 3.0.8. Therefore, the consequences of an accident Description of amendment requests: NRC Branch Chief: David Terao. previously evaluated are not significantly The proposed amendments would
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update the Technical Specification (TS) during the rulemaking process, and by altered by this submittal. The overall RTS 5.3, ‘‘Unit Staff Qualifications,’’ operator promulgation of the revised 10 CFR 55 rule, and ESFAS functional capabilities will not be minimum qualification requirements concluded that this impact remains changed and assurance that action contained in the March 28, 1980, NRC acceptable as long as the licensed operator requirements of the reactor trip and training program is certified to be accredited engineered safety features systems are letter to all licensees with the more and is based on a systems approach to completed within the time limits assumed in recent NRC-approved operator training. The DCPP plant staff retraining and the accident analyses is unaffected by the qualification requirements contained in replacement training program meets the proposed amendment[s]. American National Standards Institute/ requirements of 10 CFR 50.120. Therefore, operation of the facility in American Nuclear Society (ANSI/ANS) Therefore, the proposed change does not accordance with the proposed amendment[s] 3.1–1993. In addition, the proposed create the possibility of a new or different will not involve a significant increase in the changes remove the TS 5.3.1 plant staff accident from any accident previously probability or consequences of an accident evaluated. previously evaluated. retraining and replacement training 2. Create the possibility of a new or program requirements which have been 3. Does the proposed change involve a significant reduction in a margin of safety? different kind of accident from any accident superseded by requirements contained Response: No. previously evaluated. in section 50.120 of Title 10 of the Code The proposed change is administrative in Response: No. of Federal Regulations (10 CFR). nature and does not affect the plant design, The proposed amendment[s] will not Basis for proposed no significant hardware, system operation, or operating change the physical plant or the modes of hazards consideration determination: procedures. The change does not exceed or plant operation defined in the operating As required by 10 CFR 50.91(a), the alter a design basis or safety limit and thus license[s]. The change does not involve the licensee has provided its analysis of the does not reduce the margin of safety. addition or modification of equipment nor Therefore, the proposed change does not does it alter the design or operation of plant issue of no significant hazards systems. consideration, which is presented involve a significant reduction in a margin of safety. Therefore, operation of the facility in below: accordance with the proposed amendment[s] 1. Does the proposed change involve a The NRC staff has reviewed the will not create the possibility of a new or significant increase in the probability or licensee’s analysis and, based on this different kind of accident from any accident consequences of an accident previously review, it appears that the three previously evaluated. evaluated? standards of 10 CFR 50.92(c) are 3. Does the change involve a significant Response: No. satisfied. Therefore, the NRC staff reduction in a margin of safety? The proposed change is an administrative proposes to determine that the Response: No. The measurement of instrumentation change to revise the Technical Specification amendment requests involve no (TS) 5.3.1 licensed operator minimum response times at the frequencies specified in significant hazards consideration. the technical specification provides qualification requirements and remove the Attorney for licensee: Richard F. plant staff retraining and replacement assurance that actions associated with the training program requirements from the TS. Locke, Esq., Pacific Gas and Electric reactor trip and engineered safety features The proposed change does not directly Company, P.O. Box 7442, San systems are accomplished within the time impact accidents previously evaluated. The Francisco, California 94120. limits assumed in the accident analyses. The Diablo Canyon Power Plant (DCPP) licensed NRC Branch Chief: David Terao. response time limits and the measurement frequencies remain unchanged by the operator training program is accredited by PSEG Nuclear LLC, Docket Nos. 50–272 the National Academy for Nuclear Training proposed amendment[s]. (NANT) and is based on a systems approach and 50–311, Salem Nuclear Generating There will be no effect on the manner in to training consistent with the requirements Station, Unit Nos. 1 and 2, Salem which safety limits or limiting safety system of 10 CFR 55. Although licensed operator County, New Jersey settings are determined nor will there be any effect on those plant systems necessary to qualifications and training may have an Date of amendment request: August indirect impact on accidents previously assure the accomplishment of protection 19, 2005. functions. evaluated, the NRC considered this impact Description of amendment request: during the rulemaking process, and by Therefore, the proposed changes do not promulgation of the revised 10 CFR 55 rule, The amendment would relocate the involve a significant reduction in a margin of concluded that this impact remains Technical Specification response time safety. acceptable as long as the licensed operator testing tables to the Updated Final The NRC staff has reviewed the training program is certified to be accredited Safety Analysis Report. licensee’s analysis and, based on this and is based on a systems approach to Basis for proposed no significant review, it appears that the three training. The DCPP plant staff retraining and hazards consideration determination: standards of 10 CFR 50.92(c) are replacement training program meets the As required by 10 CFR 50.91(a), the satisfied. Therefore, the NRC staff requirements of 10 CFR 50.120. licensee has provided its analysis of the Therefore, the proposed change does not proposes to determine that the issue of no significant hazards amendment request involves no involve a significant increase in the consideration, which is presented probability or consequences of an accident significant hazards consideration. previously evaluated. below: Attorney for licensee: Jeffrie J. Keenan, 2. Does the proposed change create the 1. Does the change involve a significant Esquire, Nuclear Business Unit—N21, possibility of a new or different accident increase in the probability or consequences P.O. Box 236, Hancocks Bridge, NJ from any accident previously evaluated? of an accident previously evaluated? 08038. Response: No. Response: No. NRC Branch Chief: Darrell J. Roberts. The proposed change is administrative in The proposed amendment[s] relocate the nature and does not affect the plant design, instrument response time limits for the South Carolina Electric & Gas Company, hardware, system operation, or operating reactor trip system (RTS) and engineered South Carolina Public Service procedures. The DCPP licensed operator safety feature actuation system (ESFAS) from Authority, Docket No. 50–395, Virgil C. training program is accredited by the NANT the technical specifications to the Updated Summer Nuclear Station, Unit No. 1, and is based on a systems approach to Final Safety Analysis Report (UFSAR). The Fairfield County, South Carolina training consistent with the requirements of proposed amendment[s] conform to the 10 CFR 55. Although licensed operator guidance given in Enclosures 1 and 2 of Date of amendment request: qualifications and training may have an Generic Letter 93–08. Neither the response November 15, 2005. indirect impact on accidents previously time limits nor the surveillance requirements Description of amendment request: evaluated, the NRC considered this impact for performing response time testing will be The amendment would revise the Virgil
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C. Summer Nuclear Station Technical do not change the response of the plant to Therefore, the proposed changes do not Specifications (TS) 3/4.3.1, ‘‘Reactor any accidents and have an insignificant create the possibility of a new or different Trip System Instrumentation,’’ and TS impact on the reliability of the RTS and kind of accident from any previously 3/4.3.2, ‘‘Engineered Safety Feature ESFAS signals. The RTS and ESFAS will evaluated. remain highly reliable and the proposed Actuation System Instrumentation,’’ to 3. Does this change involve a significant changes will not result in a significant reduction in a margin of safety? implement the allowed outage time and increase in the risk of plant operation. This Response: No. bypass test time changes approved by is demonstrated by showing that the impact The proposed changes do not affect the the Nuclear Regulatory Commission in on plant safety as measured by the increase acceptance criteria for any analyzed event the Westinghouse topical report WCAP– in CDF [core damage frequency] is less than nor is there a change to any Safety Analysis 14333–P–A, Rev. 1, ‘‘Probabilistic Risk 1.0E–06 per year and the increase in LERF Limit (SAL). There will be no effect on the Analysis of the Reactor Trip System and [large early release frequency] is less than manner in which safety limits, limiting safety Engineered Safety Features Actuation 1.0E–07 per year. In addition, for the AOT system settings, or limiting conditions for and bypass test time changes, the ICCDP operation are determined nor will there be System Test Times and Completion [incremental conditional core damage Times,’’ dated October 1998. any effect on those plant systems necessary probability] and ICLERP [incremental to assure the accomplishment of protection Basis for proposed no significant conditional large early release probability] functions. There will be no impact on the hazards consideration determination: values are less than 5.0E–07 and 5.0E–08, DNBR [departure from nucleate boiling ratio] As required by 10 CFR 50.91(a), the respectively. The proposed changes meet the limits, FQ, FDH, LOCA [loss-of-coolant licensee has provided its analysis of the acceptance criteria in Regulatory Guides accident] PCT [peak cladding temperature], issue of no significant hazards 1.174 and 1.177. Therefore, since the RTS peak local power density, or any other consideration, which is presented and ESFAS will continue to perform their margin of safety. The radiological dose functions with high reliability as originally below: consequence acceptance criteria continue to assumed, and the increase in risk as be met. 1. Does the proposed change involve a measured by the ‘‘CDF, ‘‘LERF, ICCDP, Redundant RTS and ESFAS trains are significant increase in the probability or ICLERP risk metrics is within the acceptance maintained, and diversity with regard to the consequences of an accident previously criteria of Regulatory Guides 1.174 and 1.177, signals that provide reactor trip and evaluated? there will not be a significant increase in the engineered safety features actuation is also Response: No. consequences of any accidents. maintained. All signals credited as primary Overall protection system performance will The proposed changes to the bypass test or secondary, and all operator actions remain within the bounds of the previously times and AOTs do not adversely affect credited in the accident analyses will remain performed accident analyses since no accident initiators or precursors nor alter the the same. The proposed changes will not hardware changes are proposed. The same design assumptions, conditions, or result in plant operation in a configuration reactor trip system (RTS) and engineered configuration of the facility or the manner in outside the design basis. The calculated safety feature actuation system (ESFAS) which the plant is operated and maintained. impact on risk is insignificant and meets the instrumentation will continue to be used. The proposed changes do not alter or prevent acceptance criteria contained in Regulatory The protection systems will continue to the ability of structures, systems, and Guides 1.174 and 1.177. Although there was function in a manner consistent with the components (SSCs) from performing their no attempt to quantify any positive human plant design basis. These changes to the intended function to mitigate the factors benefit due to increased AOTs and Technical Specifications do not result in a consequences of an initiating event to within bypass test times, it is expected that there condition where the design, material, and the applicable acceptance criteria. The would be a net benefit due to the reduced construction standards that were applicable proposed changes do not affect the source potential for spurious reactor trips and prior to the changes are altered. term, containment isolation, or radiological actuations associated with testing and The proposed changes will not modify any release assumptions used in evaluating the maintenance activities. system interface. The proposed changes will radiological consequences of an accident Implementation of the proposed changes is not affect the probability of any event previously evaluated. The proposed changes expected to result in an overall improvement initiators. There will be no degradation in the are consistent with safety analysis in safety, as follows: performance of, or an increase in the number assumptions and resultant consequences. Improvements in the effectiveness of the of challenges imposed on safety-related Therefore, the proposed changes do not operating staff in monitoring and controlling equipment assumed to function during an involve a significant increase in the plant operation will be realized. This is due accident. There will be no changes to normal probability or consequences of an accident to less frequent distraction of the operators plant operating parameters or accident previously evaluated. and shift supervisor to attend to RTS and mitigation performance. The proposed 2. Does the proposed change create the ESFAS instrumentation Actions with short changes will not alter any assumptions or possibility of a new or different kind of AOTs. change any mitigation actions in the accident from any accident previously The increased AOTs will provide more radiological consequence evaluations in the evaluated? time for trouble shooting and repair FSAR [final safety analysis report]. The Response: No. activities, therefore reducing the potential for determination that the results of the There are no hardware changes or any spurious trips and actuations. proposed changes are acceptable was changes in the method by which any safety- Therefore, the proposed changes do not established in the NRC SE [safety evaluation] related plant system performs its safety involve a significant reduction in a margin of issued for WCAP [Westinghouse Commercial function. The proposed changes will not safety. Atomic Power report]-14333, dated July 15, affect the normal method of plant operation. Pursuant to 10CFR50.91, the preceding 1998. Implementation of the proposed No performance requirements will be analyses provide a determination that the changes will result in an insignificant risk affected or eliminated. The proposed changes proposed Technical Specification changes impact. The proposed changes to Action 16 will not result in a physical alteration to any pose no significant hazard as delineated by of TS [Technical Specification] 3/4.3.2 are plant system or a change in the method by 10CFR50.92. also acceptable as demonstrated by meeting which any safety-related plant system the acceptance criteria contained in performs its safety function. There will be no The NRC staff has reviewed the Regulatory Guides 1.174 and 1.177. setpoint changes or changes to accident licensee’s analysis and, based on this The proposed changes to the AOTs analysis assumptions. review, it appears that the three [allowable outage times] and bypass test No new accident scenarios, transient times, reduce the potential for inadvertent precursors, failure mechanisms, or limiting standards of 10 CFR 50.929(c) are reactor trips and spurious ESF [engineered single failures are introduced as a result of satisfied. Therefore, the NRC staff safety feature] actuations, and therefore do these changes. There will be no adverse effect proposes to determine that the not increase the probability of any accident or challenges imposed on any safety-related amendment request involves no previously evaluated. The proposed changes system as a result of these changes. significant hazards consideration.
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Attorney for licensee: Thomas G. associated required actions is not an initiator The NRC staff proposes to determine Eppink, South Carolina Electric & Gas of any accident previously evaluated. that the amendment request involves no Company, Post Office Box 764, Therefore, the probability of an accident significant hazards consideration. Columbia, South Carolina 29218. previously evaluated is not significantly Attorney for licensee: M. Stanford increased. The consequences of an accident Blanton, Esq., Balch and Bingham, Post NRC Branch Chief: Evangelos C. while relying on required actions as allowed Marinos. by proposed LCO 3.0.4, are no different than Office Box 306, 1710 Sixth Avenue the consequences of an accident while North, Birmingham, Alabama 35201. Southern Nuclear Operating Company, NRC Branch Chief: Evangelos C. Inc., Docket Nos. 50–348 and 50–364, entering and relying on the required actions while starting in a condition of applicability Marinos. Joseph M. Farley Nuclear Plant, Units 1 of the TS. Therefore, the consequences of an and 2, Houston County, Alabama Notice of Issuance of Amendments to accident previously evaluated are not Facility Operating Licenses Date of amendment request: significantly affected by this change. The November 2, 2005. addition of a requirement to assess and During the period since publication of Description of amendment request: manage the risk introduced by this change the last biweekly notice, the will further minimize possible concerns. The proposed change allows entry into Commission has issued the following Therefore, this change does not involve a amendments. The Commission has a mode or other specified condition in significant increase in the probability or the applicability of a Technical determined for each of these consequences of an accident previously amendments that the application Specification (TS), while in a condition evaluated. statement and the associated required complies with the standards and Criterion 2—The Proposed Change Does Not requirements of the Atomic Energy Act actions of the TS, provided the licensee Create the Possibility of a New or Different performs a risk assessment and manages of 1954, as amended (the Act), and the Kind of Accident From Any Previously Commission’s rules and regulations. risk consistent with the program in Evaluated place for complying with the The Commission has made appropriate The proposed change does not involve a findings as required by the Act and the requirements of Title 10 of the Code of physical alteration of the plant (no new or Federal Regulations (10 CFR), Part 50, Commission’s rules and regulations in different type of equipment will be installed). 10 CFR Chapter I, which are set forth in Section 50.65(a)(4). Limiting Condition Entering into a mode or other specified the license amendment. for Operation (LCO) 3.0.4 exceptions in condition in the applicability of a TS, while Notice of Consideration of Issuance of individual TSs would be eliminated, in a TS condition statement and the Amendment to Facility Operating several notes or specific exceptions are associated required actions of the TS, will License, Proposed No Significant revised to reflect the related changes to not introduce new failure modes or effects Hazards Consideration Determination, LCO 3.0.4, and Surveillance and will not, in the absence of other unrelated failures, lead to an accident whose and Opportunity for A Hearing in Requirement 3.0.4 is revised to reflect consequences exceed the consequences of connection with these actions was the LCO 3.0.4 allowance. accidents previously evaluated. The addition published in the Federal Register as This change was proposed by the of a requirement to assess and manage the indicated. industry’s Technical Specification Task risk introduced by this change will further Unless otherwise indicated, the Force (TSTF) and is designated TSTF– minimize possible concerns. Thus, this Commission has determined that these change does not create the possibility of a 359. The NRC staff issued a notice of amendments satisfy the criteria for opportunity for comment in the Federal new or different kind of accident from an accident previously evaluated. categorical exclusion in accordance Register on August 2, 2002 (67 FR with 10 CFR 51.22. Therefore, pursuant 50475), on possible amendments Criterion 3—The Proposed Change Does Not to 10 CFR 51.22(b), no environmental concerning TSTF–359, including a Involve a Significant Reduction in a Margin impact statement or environmental of Safety model safety evaluation and model no assessment need be prepared for these significant hazards consideration The proposed change allows entry into a amendments. If the Commission has (NSHC) determination, using the mode or other specified condition in the prepared an environmental assessment applicability of a TS, while in a TS condition consolidated line item improvement under the special circumstances process. The NRC staff subsequently statement and the associated required actions of the TS. The TS allow operation of the provision in 10 CFR 51.12(b) and has issued a notice of availability of the made a determination based on that models for referencing in license plant without the full complement of equipment through the conditions for not assessment, it is so indicated. amendment applications in the Federal meeting the TS LCO. The risk associated with For further details with respect to the Register on April 4, 2003 (68 FR 16579). this allowance is managed by the imposition action see (1) the applications for The licensee affirmed the applicability of required actions that must be performed amendment, (2) the amendment, and (3) of the following NSHC determination in within the prescribed completion times. The the Commission’s related letter, Safety its application dated November 2, 2005. net effect of being in a TS condition on the Evaluation and/or Environmental Basis for proposed no significant margin of safety is not considered significant. Assessment as indicated. All of these hazards consideration determination: The proposed change does not alter the required actions or completion times of the items are available for public inspection As required by 10 CFR 50.91(a), an at the Commission’s Public Document analysis of the issue of no significant TS. The proposed change allows TS conditions to be entered, and the associated Room (PDR), located at One White Flint hazards consideration is presented required actions and completion times to be North, Public File Area 01F21, 11555 below: used in new circumstances. This use is Rockville Pike (first floor), Rockville, predicated upon the licensee’s performance Maryland. Publicly available records Criterion 1—The Proposed Change Does Not of a risk assessment and the management of will be accessible from the Agencywide Involve a Significant Increase in the plant risk. The change also eliminates current Probability or Consequences of an Accident Documents Access and Management allowances for utilizing required actions and Systems (ADAMS) Public Electronic Previously Evaluated completion times in similar circumstances, The proposed change allows entry into a without assessing and managing risk. The net Reading Room on the Internet at the mode or other specified condition in the change to the margin of safety is NRC Web site, http://www.nrc.gov/ applicability of a TS, while in a TS condition insignificant. Therefore, this change does not reading-rm/adams.html. If you do not statement and the associated required actions involve a significant reduction in a margin of have access to ADAMS or if there are of the TS. Being in a TS condition and the safety. problems in accessing the documents
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located in ADAMS, contact the PDR Date of initial notice in Federal Brief description of amendment: The Reference staff at 1 (800) 397–4209, Register: April 26, 2005 (70 FR 21454) amendment enables the licensee to (301) 415–4737, or by e-mail to The supplements dated May 3, July 6, make changes to the Updated Safety [email protected]. September 13, October 6, October 24, Analysis Report (USAR) to reflect the and November 15, 2005, provided use of the non-single-failure-proof Fuel Calvert Cliffs Nuclear Power Plant, Inc., additional information that clarified the Building Cask Handling Crane for dry Docket Nos. 50–317 and 50–318, Calvert application, did not expand the scope of spent fuel cask component lifting and Cliffs Nuclear Power Plant, Unit Nos. 1 the November 16, 2004 application as handling operations. and 2, Calvert County, Maryland originally noticed, and did not change Date of issuance: December 1, 2005 Date of application for amendments: the staff’s original proposed no Effective date: As of the date of January 27, 2005, as supplemented on significant hazards consideration issuance, with the implementation to November 2, 2005. determination as published in the begin immediately and be completed by Brief description of amendments: The Federal Register. the next periodic update to the USAR, amendments modify Technical The Commission’s related evaluation in accordance with 10 CFR 50.71(e). Specifications (TSs) requirements to of the amendments is contained in a Amendment No.: 149 adopt the provisions of Industry/TS Safety Evaluation dated November 17, Facility Operating License No. NPF– Task Force (TSTF) change TSTF–359, 2005. 47: The amendment allows revision of ‘‘Increased Flexibility in Mode No significant hazards consideration the USAR. Restraints.’’ comments received: No Date of initial notice in Federal Date of issuance: December 2, 2005 Register: April 26, 2005 (70 FR 21455). Duke Energy Corporation, Docket Nos. The supplemental letters dated April 19, Effective date: As of the date of 50–269 and 50–270, Oconee Nuclear issuance to be implemented within 60 July 12, September 21, November 14, Station, Units 1 and 2, Oconee County, and November 15, 2005, provided days. South Carolina Amendment Nos.: 276 and 253 additional information that clarified the Renewed Facility Operating License Date of application of amendments: application, did not expand the scope of Nos. DPR–53 and DPR–69: Amendments August 18, 2005, as supplemented by the application as originally noticed, revised the Technical Specifications. letter dated September 15, 2005 and did not change the staff’s original Date of initial notice in Federal Brief description of amendments: The proposed no significant hazards Register: May 10, 2005 (70 FR 24648) amendments revised the Technical consideration determination as The supplemental letter dated Specifications 3.5.2.6 and 3.5.3.6 to published in the Federal Register. November 2, 2005, provided additional accommodate the replacement of the The Commission’s related evaluation information that clarified the reactor building emergency sump of the amendment is contained in a application, did not expand the scope of suction inlet trash racks and screens Safety Evaluation dated December 1, the application as originally noticed, with strainers. 2005. and did not change the staff’s original Date of Issuance: November 1, 2005 No significant hazards consideration Effective date: As of the date of proposed no significant hazards comments received: No issuance and shall be implemented consideration determination as within 30 days from the date of Nebraska Public Power District, Docket published in the Federal Register. issuance. No. 50–298, Cooper Nuclear Station, The Commission’s related evaluation Amendment Nos.: 348/350 Nemaha County, Nebraska of these amendments is contained in a Renewed Facility Operating License Date of amendment request: May 25, Safety Evaluation dated December 2, Nos. DPR–38 and DPR–47: Amendments 2005 2005. revised the Technical Specifications. Brief description of amendment: The No significant hazards consideration Date of initial notice in Federal amendment deleted from the Cooper comments received: No Register: August 31, 2005 (70 FR Nuclear Station Technical Duke Energy Corporation, et al., Docket 51852) Specifications temporary footnotes that Nos. 50–413 and 50–414, Catawba The supplement dated September 15, have expired and are no longer in effect. Nuclear Station, Units 1 and 2, York 2005, provided additional information Date of issuance: December 5, 2005 County, South Carolina that clarified the application, did not Effective date: As of the date of expand the scope of the application as issuance and shall be implemented Date of application for amendments: originally noticed, and did not change within 30 days of issuance. November 16, 2004, as supplemented by the staff’s original proposed no Amendment No.: 213 letters dated May 3, July 6, September significant hazards consideration Facility Operating License No. DPR– 13, October 6, October 24 and November determination as published in the 46: Amendment revised the Technical 15, 2005 Federal Register. Specifications. Brief description of amendments: The The Commission’s related evaluation Date of initial notice in Federal amendments revised the Technical of the amendments is contained in a Register: July 5, 2005 (70 FR 38721) Specifications, on a one-time basis, to Safety Evaluation dated November 1, The Commission’s related evaluation allow the nuclear service water system 2005. of the amendment is contained in a headers for each unit to be taken out of No significant hazards consideration Safety Evaluation dated December 5, service for up to 14 days each for system comments received: No 2005. upgrades. No significant hazards consideration Entergy Gulf States, Inc., and Entergy Date of issuance: November 17, 2005 comments received: No Effective date: As of the date of Operations, Inc., Docket No. 50–458, issuance and shall be implemented River Bend Station, Unit 1, West PPL Susquehanna, LLC, Docket Nos. 50– within 60 days from the date of issuance Feliciana Parish, Louisiana 387 and 50–388, Susquehanna Steam Amendment Nos.: 228/223 Renewed Date of amendment request: March 8, Electric Station, Units 1 and 2, Luzerne Facility Operating License Nos. NPF–35 2005, as supplemented by letters dated County, Pennsylvania and NPF–52: Amendments revised the April 19, July 12, September 21, Date of application for amendments: Technical Specifications. November 14, and November 15, 2005 January 28, 2005
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Brief description of amendments: The the scope of the application as originally Services, U.S. Nuclear Regulatory amendments replace the reference to noticed, and did not change the NRC Commission, Washington, DC 20555– American Society of Mechanical staff’s original proposed no significant 0001, telephone: 301–415–6879; e-mail: Engineers Boiler and Pressure Vessel hazards consideration determination. [email protected]. Code (ASME Code) with a reference to The Commission’s related evaluation SUPPLEMENTARY INFORMATION: NRC is ASME Code for Operation and of the amendment is contained in a proposing to add new categories of Maintenance of Nuclear Power Plants in Safety Evaluation dated November 17, records in the system to include charge Technical Specification 5.5.6. 2005. card applications, terms and conditions Date of issuance: December 7, 2005 No significant hazards consideration for use of charge cards, charge card Effective date: As of the date of comments received: No training documentation, monthly issuance, and shall be implemented Dated at Rockville, Maryland, this 12th day reports regarding accounts, credit data, within 30 days. of December 2005. and related documentation; update the Amendment Nos.: 228 and 204 For the Nuclear Regulatory Commission. authority for the system by adding Facility Operating License Nos. NPF– Section 639 of the Consolidated 14 and NPF–22: The amendments Catherine Haney, Director, Division of Operating Reactor Appropriations Act, 2005 (Pub.L. 108– revised the Technical Specifications. 447); and incorporate three new routine Date of initial notice in Federal Licensing, Office of Nuclear Reactor Regulation. uses which will allow disclosure of Register: May 24, 2005 (70 FR 29799) information to the charge card issuing The Commission’s related evaluation [FR Doc. 05–24142 Filed 12–19–05; 8:45 am] BILLING CODE 7590–01–P bank, the Department of Interior, of the amendments is contained in a National Business Center, to collect Safety Evaluation dated December 7, severe travel card delinquencies by 2005. employee salary offset, and to a No significant hazards consideration NUCLEAR REGULATORY consumer reporting agency to obtain comments received: No COMMISSION credit reports. Union Electric Company, Docket No. Privacy Act of 1974, as Amended; A report on the proposed revisions is 50–483, Callaway Plant, Unit 1, Revisions to Existing System of being sent to OMB, the Committee on Callaway County, Missouri Records Homeland Security and Governmental Date of application for amendment: Affairs of the U.S. Senate, and the AGENCY: Nuclear Regulatory Committee on Government Reform of September 9, 2005, as supplemented by Commission. letters dated October 24 and November the U.S. House of Representatives as ACTION: Proposed revisions to an required by the Privacy Act and OMB 3, 2005 existing system of records. Brief description of amendment: The Circular No. A–130, Appendix I, ‘‘Federal Agency Responsibilities for amendment revises Surveillance SUMMARY: The Nuclear Regulatory Maintaining Records About Requirements (SRs) 3.7.3.1 and 3.7.3.2 Commission (NRC) is issuing public Individuals.’’ NRC’s actions are also and adds SR 3.7.3.3 in TS 3.7.3, ‘‘Main notice of its intent to modify an existing consistent with OMB Circular A–123, Feedwater Isolation Valves (MFIVs) and system of records, NRC–20, ‘‘Official ‘‘Management’s Responsibility for Main Feedwater Regulating Valves Travel Records—NRC,’’ to incorporate Internal Control.’’ (MFRVs) and Main Feedwater the collection and use of travel charge Regulating Valve Bypass Valves Accordingly, the NRC proposes to card records, including credit data, to amend NRC–20 to read as follows: (MFRVBVs).’’ The amendment also adds comply with the Consolidated Figure 3.7.3–1 to the TSs to specify the Appropriations Act, 2005 (Pub. L. 108– NRC–20 acceptable MFIV stroke, or closure, time 447). SYSTEM NAME: with respect to steam generator DATES: The revised system of records Official Travel Records—NRC. pressure. will become effective without further Date of issuance: November 17, 2005 notice on January 30, 2006 unless SYSTEM LOCATION: Effective date: Effective as of its date comments received on or before that of issuance, and shall be implemented Primary system—Division of date cause a contrary decision. If no later than entry into Mode 3 during Financial Services, Office of the Chief changes are made based on NRC’s the startup from Refueling Outage 15, Financial Officer, NRC, Two White Flint review of comments received, a new which is scheduled for the spring of North, 11545 Rockville Pike, Rockville, final notice will be published. 2007. Completion of the baseline testing Maryland. of the main feedwater isolation valves, ADDRESSES: Comments may be provided Duplicate system—Duplicate systems which is described in the licensee’s to the Chief, Rules and Directives may exist, in part, within the letters dated September 9 and October Branch, Division of Administrative organization where the employee 24, 2005, and in Section 4.1.4 of the Services, Office of Administration, U.S. actually works for administrative Safety Evaluation for this amendment, Nuclear Regulatory Commission, purposes, at the locations listed in shall be completed as part of the Washington, DC 20555–0001. Written Addendum I, Parts 1 and 2, published implementation of this amendment. comments should also be transmitted to on September 24, 2004 (69 FR 57579). the Chief of the Rules and Directives Amendment No.: 170 CATEGORIES OF INDIVIDUALS COVERED BY THE Facility Operating License No. NPF– Branch, either by means of facsimile SYSTEM: transmission to (301) 415–5144, or by e- 30: The amendment revised the Current and former NRC employees, mail to [email protected]. Technical Specifications. prospective NRC employees, Date of initial notice in Federal FOR FURTHER INFORMATION CONTACT: consultants, and invitational travelers Register: September 16, 2005 (70 FR Sandra S. Northern, Privacy Program for NRC programs. 54776)The supplemental letters dated Officer, FOIA/Privacy Act Team, October 24 and November 3, 2005, Records and FOIA/Privacy Services CATEGORIES OF RECORDS IN THE SYSTEM: provided additional information that Branch, Information and Records These records contain requests and clarified the application, did not expand Services Division, Office of Information authorizations for official travel, travel
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vouchers, passports, and related POLICIES AND PRACTICES FOR STORING, Dated at Rockville, Maryland, this 13th day documentation; charge card RETRIEVING, ACCESSING, RETAINING, AND of December, 2005. applications, terms and conditions for DISPOSING OF RECORDS IN THE SYSTEM: For the Nuclear Regulatory Commission. use of charge cards, charge card training STORAGE: Edward T. Baker III, documentation, monthly reports Maintained on paper in file folders, Director, Office of Information Services. regarding accounts, credit data, and on computer media, and on magnetic [FR Doc. E5–7547 Filed 12–19–05; 8:45 am] related documentation; all of which may tape. BILLING CODE 7590–01–P include, but are not limited to, an individual’s name, address, social RETRIEVABILITY: security number, and telephone Records are accessed by name, social NUCLEAR REGULATORY numbers. security number, authorization number, COMMISSION and voucher payment schedule number. AUTHORITY FOR MAINTENANCE OF THE SYSTEM: Availability of and Solicitation of SAFEGUARDS: Public Comments on Report on 5 U.S.C. 5701; 31 U.S.C. 716, 1104, Maintained in key locked file cabinets 1108, 3511, 3512, 3701, 3711, 3717, Seismic Considerations for the and in conserver files in a passcode Transition Break Size 3718; Federal Travel Regulations, 41 locked room. Passports and visas are CFR Parts 301–304; Federal Property maintained in a locked file cabinet. For AGENCY: Management Regulations, 41 CFR Part Nuclear Regulatory electronic records, an identification Commission. 101–41; Executive Order 9397; Section number, a password, and assigned ACTION: 639 of the Consolidated Appropriations access to specific programs are required Notice of opportunity for public Act, 2005 (Pub. L. 108–447). in order to retrieve information. comment.
ROUTINE USES OF RECORDS MAINTAINED IN THE RETENTION AND DISPOSAL: SUMMARY: On November 7, 2005, the SYSTEM, INCLUDING CATEGORIES OF USERS AND Paper records are retained for 6 years Nuclear Regulatory Commission (NRC) THE PURPOSES OF SUCH USES: and 3 months after period covered by published for public comment a In addition to the disclosures account, then destroyed through proposed rule in the Federal Register permitted under subsection (b) of the disposal in a Classified and Sensitive (70 FR 67598) on Risk-Informed Privacy Act, the NRC may disclose Unclassified Waste container in Changes to Loss-of-Coolant Accident information contained in this system of accordance with GRS 9. Electronic Technical Requirements. Under the records without the consent of the records are deleted after the expiration proposed § 50.46a rule, nuclear power subject individual if the disclosure is of the retention period authorized for plant licensees would be allowed to compatible with the purpose for which the disposable hard copy file or when implement a voluntary, risk-informed the record was collected under the no longer needed, whichever is later. alternative to the current requirements following routine uses: for analyzing the performance of SYSTEM MANAGER(S) AND ADDRESS: a. To the U.S. Treasury for payment; emergency core cooling systems (ECCS) Chief, Payment Policy and during loss-of-coolant accidents b. To the Department of State or an Obligations Team, Division of Financial embassy for passports or visas; (LOCAs). In addition, the proposed rule Services, Office of the Chief Financial would establish procedures and criteria c. To the General Services Officer, U.S. Nuclear Regulatory for requesting changes in plant design Administration and the Office of Commission, Washington, DC 20555– and procedures based upon the results Management and Budget for required 0001. of the new analyses of ECCS periodic reporting; NOTIFICATION PROCEDURE: performance during LOCAs. In the d. To the charge card issuing bank; Federal Register notice associated with Individuals seeking to determine e. To the Department of Interior, the publication of the proposed whether this system of records contains National Business Center, for collecting alternative § 50.46a rule, the information pertaining to themselves severe travel card delinquencies by Commission noted that the potential for should write to the Freedom of employee salary offset; seismically-induced pipe breaks was not Information Act and Privacy Act (FOIA/ f. To a consumer reporting agency to considered in determining the area of PA) Officer, Office of the Chief obtain credit reports; and g. For any of the transition break sizes 1 (TBSs). The Information Officer, U.S. Nuclear the routine uses specified in the Commission stated that work was Regulatory Commission, Washington, Prefatory Statement of General Routine ongoing to investigate the possible effect DC 20555–0001, and comply with the Uses. of seismically-induced pipe breaks on procedures contained in NRC’s Privacy the TBS selections and committed to Act regulations, 10 CFR Part 9. DISCLOSURE TO CONSUMER REPORTING put a report on the NRC Web site to AGENCIES : RECORD ACCESS PROCEDURE: facilitate public comment on the Disclosure Pursuant to 5 U.S.C. Same as ‘‘Notification procedure.’’ technical aspects of the issue. The NRC 552a(b)(12): staff has completed its report and has CONTESTING RECORD PROCEDURE: Disclosures of information to a posted it on the Rulemaking Forum Web consumer reporting agency, other than Same as ‘‘Notification procedure.’’ site, http://ruleforum.llnl.gov. to obtain credit reports, are not RECORD SOURCE CATEGORIES: DATES: Comment period expires on considered a routine use of records. Information is provided by the February 6, 2006. Comments received Disclosures may be made from this individual, NRC Agency staff, NRC after this date will be considered if it is system to ‘‘consumer reporting contractors, the charge card issuing practical to do so, but assurance of agencies’’ as defined in the Fair Credit bank, the consumer reporting agency, consideration cannot be given to Reporting Act (15 U.S.C. 1681a(f) and outside transportation agents. comments received after this date. (1970)) or the Federal Claims Collection EXEMPTIONS CLAIMED FOR THE SYSTEM Act of 1966, as amended (31 U.S.C. : 1 Different values for TBS were specified for 3701(a)(3) (1996)). None. PWRs and BWRs.
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ADDRESSES: You may submit comments staff at 1–800–397–4209, (301) 415– Written comments regarding the on the seismic report and the proposed 4737 or by e-mail to [email protected]. above information should be directed to rule by any one of the following FOR FURTHER INFORMATION CONTACT: the following persons: (i) Desk Officer methods. Please include the following Richard Dudley, Office of Nuclear for the Securities and Exchange number, RIN 3150–AH29, in the subject Reactor Regulation, U.S. Nuclear Commission, Office of Information and line of your comments. Comments on Regulatory Commission, Washington DC Regulatory Affairs, Office of rulemakings submitted in writing or in 20555–0001; telephone (301) 415–1116; Management and Budget, Room 10102, electronic form will be made available e-mail: [email protected]. New Executive Office Building, for public inspection. Because your Washington, DC 20503 or send an e- Dated at Rockville, Maryland, this 14th day _ comments will not be edited to remove of December, 2005. mail to David [email protected]; any identifying or contact information, and (ii) R. Corey Booth, Director/Chief For the Nuclear Regulatory Commission. the NRC cautions you against including Information Officer, Office of any information in your submission that Eileen McKenna, Information Technology, Securities and you do not want to be publicly Chief, Financial, Policy and Rulemaking Exchange Commission, 100 F Street, disclosed. Branch, Division of Policy and Rulemaking, NE., Washington, DC 20549. Comments Office of Nuclear Reactor Regulation. Mail comments to: Secretary, U.S. must be submitted to OMB within 30 Nuclear Regulatory Commission, [FR Doc. E5–7545 Filed 12–19–05; 8:45 am] days of this notice. BILLING CODE 7590–01–P Washington, DC 20555–0001, ATTN: Dated: December 12, 2005. Rulemakings and Adjudications Staff. Jonathan G. Katz, E-mail comments to: [email protected]. If Secretary. you do not receive a reply e-mail SECURITIES AND EXCHANGE [FR Doc. E5–7526 Filed 12–19–05; 8:45 am] confirming that we have received your COMMISSION comments, contact us directly at (301) BILLING CODE 8010–01–P 415–1966. You may also submit Submission for OMB Review; comments via the NRC’s rulemaking Comment Request SECURITIES AND EXCHANGE Web site at http://ruleforum.llnl.gov. COMMISSION Address questions about our rulemaking Upon Written Request, Copies Available website to Carol Gallagher (301) 415– From: Securities and Exchange Commission, Office of Filings and Submission for OMB Review; 5905; e-mail [email protected]. Comments Comment Request can also be submitted via the Federal Information Services, Washington, DC eRulemaking Portal http:// 20549. Upon Written Request, Copies Available www.regulations.gov. Extension: From: Securities and Exchange Hand deliver comments to: 11555 Form 10–SB; OMB Control No. 3235–0419; Commission, Office of Filings and Rockville Pike, Rockville, Maryland SEC File No. 270–367. Information Services, Washington, DC 20852, between 7:30 a.m. and 4:15 p.m. Notice is hereby given that pursuant 20549. Federal workdays. (Telephone (301) to the Paperwork Reduction Act of 1995 Extension: 415–1966). (44 U.S.C. 3501 et seq.) the Securities Regulation BTR; OMB Control No. 3235– Fax comments to: Secretary, U.S. and Exchange Commission 0579; SEC File No. 270–521. Nuclear Regulatory Commission at (301) (‘‘Commission’’) has submitted to the Notice is hereby given that pursuant 415–1101. Office of Management and Budget a to the Paperwork Reduction Act of 1995 Publicly available documents related request for extension of the previously (44 U.S.C. 3501 et seq.) the Securities to this rulemaking may be viewed approved collection of information and Exchange Commission electronically on the public computers discussed below. (‘‘Commission’’) has submitted to the located at the NRC’s Public Document Form 10–SB is used to register classes Office of Management and Budget a Room (PDR), O1 F21, One White Flint of securities of small business issuers request for extension of the previously North, 11555 Rockville Pike, Rockville, pursuant to Section 12 of the Securities approved collection of information Maryland. The PDR reproduction Exchange Act of 1934 to provide discussed below. contractor will copy documents for a material information necessary for Regulation Blackout Trade Restriction fee. Selected documents, including informed investment decisions. Every (‘‘Regulation BTR’’) clarifies the scope comments, may be viewed and issuer subject to Section 13(a) and 15(d) and application of Section 306(a) of the downloaded electronically via the NRC under the Exchange Act must file a Sarbanes-Oxley Act of 2002 (‘‘Act’’). rulemaking Web site at http:// periodic report with the Commission Section 306(a)(6) of the Act requires an ruleforum.llnl.gov. containing information about its issuer to provide timely notice to its Publicly available documents created business and financial condition. The directors and executive officers and to or received at the NRC after November information provided on Form 10–SB is the Commission of the imposition of a 1, 1999, are available electronically at mandatory and is available to the public blackout period that would trigger the the NRC’s Electronic Reading Room at upon request. We estimate that Form statutory trading prohibition of Section http://www.nrc.gov/reading-rm/ 10–SB takes approximately 133 hours 306(a)(1). The information provided adams.html. From this site, the public per response and is filed by 254 under Regulation BTR is mandatory and can gain entry into the NRC’s respondents. It is estimated that 25% of is available to the public. Agencywide Document Access and the 33,782 annual burden hours (8,446 Approximately 1,230 issuers file Management System (ADAMS), which burden hours) would be prepared by the Regulation BTR notices annually. We provides text and image files of NRC’s company. estimate that it takes 2 hours per public documents. If you do not have An agency may not conduct or response for an issuer to draft a notice access to ADAMS or if there are sponsor, and a person is not required to to directors and executive officers for a problems in accessing the documents respond to, a collection of information total annual burden of 2,460 hours. The located in ADAMS, contact the NRC unless it displays a currently valid issuer prepares 75% of the 2,460 annual Public Document Room (PDR) Reference control number. burden hours for a total reporting
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burden of (1,230 × 2 hrs × .75) 1,845 directly comparable GAAP financial 1934 requires certain broker-dealers hours. In addition, we estimate that an measure. Regulation G implemented the who carry customer accounts to provide issuer distributes a notice to five requirements of Section 401 of the statements of the broker-dealer’s directors and executive officers at an Sarbanes-Oxley Act of 2002. The financial condition to their customers. estimated 5 minutes per notice (1,230 information provided under Regulation Paragraph (5) of Rule 17a–5(c) provides blackout period × 5 notices × 5 minutes) G is mandatory and is available to the a conditional exemption from this for a total reporting burden of 512 public. We estimate that approximately requirement. It is estimated that hours. The combined annual reporting 14,000 public companies must comply approximately 375 broker-dealer burden is (1,845 hours + 512 hours) with Regulation G approximately six respondents with approximately 109 2,357 hours. times a year for a total of 84,000 million public customer accounts incur An agency may not conduct or responses annually. We estimated that it an average burden of 130,000 hours per sponsor, and a person is not required to takes approximately .5 hours per year to comply with this rule. respond to, a collection of information response (84,000 × .5 hours) for a total Rule 17a–5(c) does not contain record unless it displays a currently valid reporting burden of 42,000 hours retention requirements. Compliance control number. annually. with the rule is mandatory. Responses Written comments regarding the An agency may not conduct or are not confidential. above information should be directed to sponsor, and a person is not required to An agency may not conduct or the following persons: (i) Desk Officer respond to, a collection of information sponsor, and a person is not required to for the Securities and Exchange unless it displays a currently valid respond to, a collection of information Commission, Office of Information and control number. unless it displays a currently valid Regulatory Affairs, Office of Written comments regarding the control number. Management and Budget, Room 10102, above information should be directed to General comments regarding the New Executive Office Building, the following persons: (i) Desk Officer estimated burden hours should be Washington, DC 20503 or send an e- for the Securities and Exchange directed to the following persons: (i) mail to [email protected]; Commission, Office of Information and Desk Officer for the Securities and and (ii) R. Corey Booth, Director/Chief Regulatory Affairs, Office of Exchange Commission, Office of Information Officer, Office of Management and Budget, Room 10102, Information and Regulatory Affairs, Information Technology, Securities and New Executive Office Building, Office of Management and Budget, Exchange Commission, 100 F Street, Washington, DC 20503 or send an e- Room 10102, New Executive Office NE., Washington, DC 20549. Comments mail to [email protected]; Building, Washington, DC 20503 or by must be submitted to OMB within 30 and (ii) R. Corey Booth, Director/Chief sending an e-mail to: days of this notice. Information Officer, Office of [email protected]; and (ii) R. Dated: December 12, 2005. Information Technology, Securities and Corey Booth, Director/Chief Information Exchange Commission, 100 F Street, Officer, Office of Information Jonathan G. Katz, NE., Washington, DC 20549. Comments Technology, Securities and Exchange Secretary. must be submitted to OMB within 30 Commission, 100 F Street, NE., [FR Doc. E5–7527 Filed 12–19–05; 8:45 am] days of this notice. Washington, DC 20549. Comments must BILLING CODE 8010–01–P Dated: December 12, 2005. be submitted to the Office of Jonathan G. Katz, Management and Budget within 30 days of this notice. SECURITIES AND EXCHANGE Secretary. COMMISSION [FR Doc. E5–7528 Filed 12–19–05; 8:45 am] Dated: December 12, 2005. BILLING CODE 8010–01–P Jonathan Katz, Submission for OMB Review; Secretary. Comment Request [FR Doc. E5–7529 Filed 12–19–05; 8:45 am] SECURITIES AND EXCHANGE Upon Written Request, Copies Available BILLING CODE 8010–01–P COMMISSION From: Securities and Exchange Commission, Office of Filings and Submission for OMB Review; SECURITIES AND EXCHANGE Information Services, Washington, DC Comment Request 20549. COMMISSION Upon Written Request, Copies Available Extension: Submission for OMB Review; From: Securities and Exchange Regulation G; OMB Control No. 3235– Comment Request 0576; SEC File No. 270–518. Commission, Office of Filings and Information Services, Washington, DC Upon written request, copies available Notice is hereby given that pursuant 20549. from: Securities and Exchange to the Paperwork Reduction Act of 1995 Extension: Commission, Office of Filings and (44 U.S.C. 3501 et seq.) the Securities Rule 17a–5(c); SEC File No. 270–199; OMB Information Services, Washington, DC and Exchange Commission Control No. 3235–0199. 20549. (‘‘Commission’’) has submitted to the Notice is hereby given that pursuant Office of Management and Budget a to the Paperwork Reduction Act of 1995 Extension: request for extension of the previously (44 U.S.C. 3501 et seq.), the Securities Rule 10b–17. SEC File No. 270–427; OMB. approved collection of information and Exchange Commission Control No. 3235–0476. discussed below. (‘‘Commission’’) has submitted to the Notice is hereby given that pursuant Regulation G under the Securities Office of Management and Budget to the Paperwork Reduction Act of 1995 Exchange Act of 1934 (the ‘‘Exchange (‘‘OMB’’) a request for extension of the (44 U.S.C. 3501 et seq.) the Securities Act’’) requires registrants that publicly previously approved collection of and Exchange Commission disclose material information that information discussed below. (‘‘Commission’’) has submitted to the includes a non-GAAP financial measure Rule 17a–5(c) [17 CFR 240.17a–5(c)] Office of Management and Budget a to provide a reconciliation to the most under the Securities Exchange Act of request for extension of the previously
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approved collection of information Dated: December 12, 2005. hearing. Interested persons may request discussed below. Jonathan G. Katz, a hearing by writing to the Secretary of Rule 10b–17, Untimely Secretary. the Commission and serving Applicants announcements of record dates (17 CFR [FR Doc. E5–7530 Filed 12–19–05; 8:45 am] with a copy of the request personally or 240.10b–17), requires any issuer of a BILLING CODE 8010–01–P by mail. Hearing requests should be class of securities publicly traded by the received by the Commission by 5:30 use of any means or instrumentality of p.m. on January 4, 2006 and should be interstate commerce or of the mails or SECURITIES AND EXCHANGE accompanied by proof of service on of any facility of any national securities COMMISSION Applicants, in the form of an affidavit or, for lawyers, a certificate of service. exchange to give notice of the following [Release No. IC–27185; File No. 812–13094] actions relating to such class of Hearing requests should state the nature securities: (1) A dividend; (2) a stock Lincoln National Life Insurance of the writer’s interest, the reason for the split; or (3) a rights or other subscription Company, et al., Notice of Application request, and the issues contested. offering. Notice shall be (1) given to the Persons may request notification of a National Association of Securities December 14, 2005. hearing by writing to the Secretary of Dealers, Inc.; (2) in accordance with the AGENCY: The Securities and Exchange the Commission. procedures of the national securities Commission (‘‘Commission’’). ADDRESSES: Secretary, Securities and exchange upon which the securities are ACTION: Notice of Application for an Exchange Commission, 100 F Street, registered; or (3) may be waived by the order pursuant to Section 26(c) of the NE., Washington, DC 20549–9303. Commission. Investment Company Act of 1940 Applicants: Brian Burke, Esq., Lincoln The information required by Rule (‘‘1940 Act’’). National Life Insurance Company, 1300 10b–17 is necessary for the execution of South Clinton Street, Fort Wayne, IN Applicants: Lincoln National Life the Commission’s mandate under the 46802. Insurance Company (‘‘Lincoln Life’’); Exchange Act to prevent fraudulent, Lincoln National Variable Annuity FOR FURTHER INFORMATION CONTACT: manipulative, and deceptive acts and Account C (‘‘Lincoln Life Account C’’), Ellen J. Sazzman, Senior Counsel, at practices by broker-dealers. The and Lincoln Life Variable Annuity (202) 551–6762 or Harry Eisenstein, consequence of not requiring the Account Q (‘‘Lincoln Life Account Q’’, Branch Chief, at (202) 551–6795, Office information collection pursuant to Rule and together with Lincoln Life Account of Insurance Products, Division of 10b–17 is that sellers who have received C, the ‘‘Separate Accounts’’). Investment Management. distributions as recordholders may Filing Date: The application was filed SUPPLEMENTARY INFORMATION: Following dispose of the cash or stock dividends on May 28, 2004 and amended on is a summary of the application. The or other rights received as recordholders December 7, 2005. complete application may be obtained without knowledge of possible claims of Summary of Application: Lincoln Life for a fee from the Public Reference purchasers. and the Separate Accounts Branch of the Commission, 100 F Street, It is estimated that, on an annual (‘‘Applicants’’) request an order NE., Washington, DC 20549 (tel. 202– basis, there are approximately 29,430 pursuant to Section 26(c) of the 1940 551–5850). respondents and that each response Act to permit the Separate Accounts to takes about 10 minutes to complete, substitute (a) shares of Applicants’ Representations thus imposing approximately 4,905 AllianceBernstein Variable Products 1. Lincoln Life, located at 1300 South burden hours annually (29,430 × 10 Series Fund, Inc. (‘‘AllianceBernstein Clinton Street, Fort Wayne, Indiana minutes). We believe that the average VP’’) Growth and Income Portfolio— 46802, is a stock life insurance company hourly cost to produce and file a Class B for shares of AllianceBernstein incorporated under the laws of the State response under the rule is about $50. VP Growth Portfolio—Class B; (b) shares of Indiana on June 12, 1905. Lincoln Therefore, the annual reporting cost of Delaware VIP Trust (‘‘Delaware VIP’’) Life is principally engaged in offering burden for complying with this rule is Diversified Income Series—Standard life insurance policies and annuity about $245,250 (4,905 × $50). Class for shares of Delaware VIP Global policies and is licensed in all states An agency may not conduct or Bond Series—Standard Class; (c) shares (except New York) and the District of sponsor, and a person is not required to of Scudder VIT Equity 500 Index Columbia, Guam, and the Virgin respond to, a collection of information Fund—Class A for shares of Janus Islands. Lincoln Life is the depositor unless it displays a currently valid Aspen Series (‘‘Janus Aspen’’) and sponsor of the Separate Accounts. control number. Written comments Worldwide Growth—Institutional Class; Lincoln Life is wholly owned by regarding the above information should (d) shares of AllianceBernstein VP Lincoln National Corporation (‘‘LNC’’), be directed to the following persons: (i) Growth and Income Portfolio—Class B a publicly held insurance holding Desk Officer for the Securities and for shares of Neuberger Berman company incorporated under Indiana Exchange Commission, Office of Advisors Management Trust law on January 5, 1968. Information and Regulatory Affairs, (‘‘Neuberger Berman AMT’’) Partners— 2. The Board of Directors of Lincoln Office of Management and Budget, I Class; and (e) American Funds Life established Lincoln Life Account C Room 10102, New Executive Office Insurance Series (‘‘American Funds’’) pursuant to the laws of the State of Building, Washington, DC 20503 or by Growth Fund—Class 2 for Putnam Indiana on June 3, 1981 as a unit sending an e-mail to: Variable Trust (‘‘Putnam VT’’) Health investment trust. Lincoln Life Account [email protected]; and (ii) R. Sciences Fund—Class IB. The shares are C is registered under the 1940 Act as a Corey Booth, Director/Chief Information held by certain of the Separate Accounts unit investment trust (File No. 811– Officer, Office of Information to fund certain group and individual 03214). The assets of Lincoln Life Technology, Securities and Exchange variable annuity contracts (collectively, Account C support certain individual Commission, 100 F Street, NE., the ‘‘Contracts’’) issued by Lincoln Life. variable annuity contracts. Security Washington, DC 20549. Comments must Hearing or Notification of Hearing: An interests in Lincoln Life Account C be submitted to OMB within 30 days of order granting the application will be offered through such contracts have this notice. issued unless the Commission orders a been registered under the Securities Act
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of 1933 (‘‘1933 Act’’) (File Nos. 33– 5. The Contracts permit their owners relating to market timing, are that 25990, 333–50817, 333–68842, and 333– to allocate each Contract’s accumulated transfers are restricted to once every 112927). However, this application cash or contract value among available thirty days and Applicants reserve the affects only contracts registered under sub-accounts, each of which invests in right to further limit the number of File No. 33–25990. a different investment portfolio of an transfers. When transfer restrictions are 3. The Board of Directors of Lincoln underlying mutual fund. The Contracts imposed, Lincoln Life and the Separate Life established Lincoln Life Account Q offer thirty-nine investment options. Accounts reserve the right to waive pursuant to the laws of the State of 6. Currently, transfers of cash and/or these restrictions. Indiana on November 3, 1997 as a unit contract value can be made among and 7. Under the Contracts, Lincoln Life investment trust. Lincoln Life Account between the sub-accounts available as reserves the right to substitute shares of Q is registered under the 1940 Act as a investments under the Contracts one investment company for shares of unit investment trust (File No. 811– without the imposition of a transfer another investment company. 08569). The assets of Lincoln Life charge. However, Applicants reserve the 8. Lincoln Life has performed a Account Q support certain group right to impose a charge of $10 per thorough review of all the investment contracts. Security interests in Lincoln transfer on Contracts issued through options available under the Contracts Life Account Q offered through such Lincoln Life Account C if such transfer and has determined that several existing contracts have been registered under the exceeds the maximum number of funds offered under the Contracts 1933 Act (File No. 333–43373). transfers allowed in a contract year, warrant replacement. 4. The Separate Accounts are which varies from six to twelve, 9. As described below, Applicants comprised of sub-accounts established depending on the contract. Market propose to make certain substitutions of to receive and invest net purchase timing restrictions may also apply to shares of the Substitute Funds (listed in payments under the Contracts. Each transfers under Contracts issued by Column II) for shares of the Replaced sub-account invests exclusively in the Lincoln Life Account C. The only Funds (listed in Column I) held in sub- shares of a specified portfolio and restrictions for Contracts issued through accounts of their respective Separate supports the Contracts. Lincoln Life Account Q, except for those Accounts.
Column I Column II (Replaced funds) (Substitute funds)
AllianceBernstein Variable Products Series Fund, Inc. (‘‘AllianceBernstein VP’’): Growth Portfolio—Class B ...... AllianceBernstein VP Growth and Income Portfolio—Class B. Delaware VIP Trust (‘‘Delaware VIP’’): Global Bond Series—Standard Class ...... Delaware VIP Diversified Income Series—Standard Class. Janus Aspen Series (‘‘Janus Aspen’’): Worldwide Growth—Institutional Class ...... Scudder VIT Equity 500 Index Fund—Class A. Neuberger Berman Advisors Management Trust (‘‘Neuberger Berman AMT’’): Partners—I Class ...... AllianceBernstein VP Growth and Income Portfolio—Class B. Putnam Variable Trust (‘‘Putnam VT’’): American Funds Insurance Series (‘‘American Funds’’): Health Sciences Fund—Class IB ...... Growth Fund—Class 2
10. The investment objective of the seek reasonable income and reasonable both funds are stock funds seeking AllianceBernstein VP Growth Portfolio opportunity for appreciation through primarily domestic stock investments (Replaced Fund) is to provide long-term investments primarily in dividend- with good long-term growth prospects. growth of capital. Current income is paying common stocks of good quality AllianceBernstein Growth and Income incidental to the portfolio’s objective. (both income and capital appreciation). Portfolio also seeks good quality The portfolio invests primarily in equity To pursue this goal, the portfolio invests dividend paying prospects. Each fund securities of companies with favorable primarily in dividend-paying common normally invests primarily in stocks of earnings outlooks, and long-term growth stocks of large, well established ‘‘blue- large-sized domestic companies with rates are expected to exceed that of the chip’’ companies. The portfolio may the ability to invest in foreign stocks as United States (‘‘U.S.’’) economy over also invest in fixed-income and well. While each of these funds seeks to time. The portfolio emphasizes convertible securities and in securities achieve its objective through somewhat investments in large- and mid-cap of foreign issuers. The basic strategy of different investment strategies, companies. The portfolio also may the portfolio is to seek income Applicants believe that an investor in invest up to 25% of its total assets in producing securities that represent good the AllianceBernstein VP Growth lower-rated fixed-income securities and long-term investment opportunities. Portfolio is generally attempting to convertible bonds and generally up to 12. The investment objectives of the achieve the same long-term goal as that 20% of its assets in foreign securities. AllianceBernstein VP Growth Portfolio sought by the AllianceBernstein Growth The portfolio applies the principles of (Replaced Fund) and the and Income Portfolio investors. growth investing to select securities. AllianceBernstein Growth and Income 13. The investment objective of the The portfolio uses fundamental Portfolio (Substitute Fund) are Delaware VIP Global Bond Series company analysis to select stocks that it substantially similar. Both funds seek (Replaced Fund) is to seek current believes are good candidates to provide growth of capital (capital appreciation) income consistent with preservation of long-term growth of capital. over time with AllianceBernstein principal. The Series invests primarily 11. The investment objective of the Growth and Income Portfolio seeking in fixed-income securities that may also AllianceBernstein VP Growth and greater emphasis on income. While their provide the potential for capital Income Portfolio (Substitute Fund) is to specific investment strategies differ, appreciation. The Series is a global
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fund. Under normal circumstances, the Bond Series is generally attempting to invest in large capitalization domestic Series will invest at least 80% of its net achieve the same long-term goal as that equity securities, with Janus Aspen assets in debt obligations. In selecting sought by the Delaware VIP Diversified Worldwide Growth Portfolio also investments, the Series’ investment Income Series investors. investing a substantial portion of its manager strives to identify fixed-income 16. The investment objective of the assets in large capitalization foreign securities that provide high income Janus Aspen Worldwide Growth equity securities. While each of these potential, considers the value of Portfolio (Replaced Fund) is long-term funds seeks to achieve its objective anticipated future interest and principal growth of capital in a manner consistent through somewhat different investment payments, and generally prefers to with the preservation of capital. The strategies, Applicants believe that an purchase securities in countries where portfolio invests primarily in common investor in the Janus Aspen Worldwide the currency is undervalued or fair- stocks of companies of any size located Growth Portfolio is generally attempting valued compared to other countries throughout the world. The portfolio to achieve the same long-term goal as because these securities may offer normally invests in issuers from at least that sought by the Scudder VIT Equity greater return potential. The Series may five different countries, including the 500 Index Fund investors. invest a portion of its assets in high United States. The portfolio may, under 19. The investment objective of the yield securities based on the investment unusual circumstances, invest in fewer Neuberger Berman AMT Partners manager’s view of market conditions. than five countries or even a single Portfolio (Replaced Fund) is to seek The Series is considered ‘‘non- country. The portfolio manager applies growth of capital. To pursue this goal, diversified’’ under federal laws and a ‘‘bottom up’’ approach in choosing the portfolio invests mainly in common rules that regulate mutual funds. The investments. In other words, the stocks of mid- to large-capitalization Series is limited to a 25% investment in portfolio manager looks at companies companies. The portfolio seeks to any one issuer, but is not subject to this one at a time to determine if a company reduce risk by diversifying among many limit on a per country basis. is an attractive investment opportunity companies and industries. The manager 14. The investment objective of the and if it is consistent with the looks for well-managed companies with Delaware VIP Diversified Income Series portfolio’s investment policies. If the strong balance sheets whose stock prices (Substitute Fund) is to seek maximum portfolio manager is unable to find such are undervalued. The portfolio has the long-term total return consistent with investments, the portfolio’s uninvested ability to change its goal without reasonable risk. The Series invests assets may be held in cash or similar shareholder approval, although it does primarily in bonds allocated among investments. Within the parameters of not currently intend to do so. three sectors of the fixed-income its specific investment policies, the 20. The investment objective of the market. These sectors include: The High Portfolio will limit its investment in AllianceBernstein VP Growth and Yield Sector, the Investment Grade high-yield/high-risk bonds to less than Income Portfolio (Substitute Fund) is to Sector, and the International Sector. In 35% of its net assets. seek reasonable income and reasonable determining how much of the Series to 17. The investment objective of the opportunity for appreciation through allocate to each sector, the Series’ Scudder VIT Equity 500 Index Fund investments primarily in dividend- investment manager reviews economic (Substitute Fund) is to seek to replicate, paying common stocks of good quality and market conditions and interest rate as closely as possible, before the (both income and capital appreciation). trends as well as the potential risks and deduction of expenses, the performance To pursue this goal, the Portfolio invests rewards associated with each sector. of the Standard & Poors 500 Composite primarily in dividend-paying common The Series’ assets will periodically be Stock Price Index (the ‘‘S&P 500 Index’’) stocks of large, well established ‘‘blue- reallocated. Under normal which emphasizes stocks of large U.S. chip’’ companies. The Portfolio may circumstances, as little as 5% or as companies. Under normal also invest in fixed-income and much as 50% of the Series’ assets may circumstances the fund intends to invest convertible securities and in securities be invested in each of the High-Yield at least 80% of its assets, determined at of foreign issuers. The basic strategy of Sector and International Sector. Under the time of purchase, in stocks of the fund is to seek income producing normal circumstances, there is no companies included in the S&P 500 securities that represent good long-term minimum or maximum limit on the Index and in derivative instruments, investment opportunities. amount of the Series’ assets that may be such as futures contracts and options, 21. The investment objectives of the invested in the Investment Grade Sector. that provide exposure to the stocks of Neuberger Berman AMT Partners 15. The investment objectives of the companies in the S&P 500 Index. The Portfolio (Replaced Fund) and the Delaware VIP Global Bond Series fund invests for capital appreciation, AllianceBernstein Growth and Income (Replaced Fund) and the Delaware VIP not income; any dividend and interest Portfolio (Substitute Fund) are Diversified Income Series (Substitute income is incidental to the pursuit of substantially similar. Both funds seek Fund) are similar. The Delaware VIP this objective. Over the long term, the growth of capital (capital appreciation) Global Bond Series seeks current investment advisor seeks a correlation over time, with AllianceBernstein income consistent with preservation of between the performance of the fund, Growth and Income Portfolio seeking principal and the Delaware VIP before expenses, and the S&P 500 Index greater emphasis on income. While their Diversified Income Series seeks of 98% or better. A figure of 100% specific investment strategies differ maximum long-term total return would indicate perfect correlation. somewhat, both funds are stock funds consistent with reasonable risk. Both 18. The investment objectives of the seeking primarily domestic investments funds seek to invest the majority of their Janus Aspen Worldwide Growth with good long-term growth prospects. assets in fixed income securities. Both Portfolio (Replaced Fund) and the Neuberger Berman AMT Partners funds also invest a portion of their fund Scudder VIT Equity 500 Index Fund Portfolio employs a ‘‘value oriented assets in international fixed-income (Substitute Fund) are substantially investment approach, while the securities. While each of these funds similar in that the funds seek long-term AllianceBernstein Growth and Income seeks to achieve its objective through growth and capital (capital Portfolio places emphasis on dividend somewhat different investment appreciation), respectively. Both funds paying high quality equity investments. strategies, Applicants believe that an invest in common stocks with potential Each fund normally invests primarily in investor in the Delaware VIP Global for capital appreciation. Both funds stocks of large-sized domestic stock
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companies. While each of these funds companies with the potential for growth are substantially similar in that the seeks to achieve its objective through as a result of their particular products, funds seek growth of capital and capital somewhat different investment technology, patents or other market appreciation, respectively. Both funds strategies, Applicants believe that an advantages in the health sciences are domestic stock funds and invest the investor in the Neuberger Berman AMT industries. The fund invests mainly in majority of fund assets in equity Partners Portfolio is generally mid-sized and large companies. The securities of issuers domiciled in the attempting to achieve the same long- fund may invest in foreign investments. U.S. Both funds invest in ‘‘growth’’ term goal as that sought by the 23. The investment objective of the equity securities, with the Putnam VT AllianceBernstein Growth and Income American Funds Growth Fund Health Sciences Fund focusing Portfolio investors. (Substitute Fund) is growth of capital. principally on Health Sciences related 22. The investment objective of the The fund seeks to make investments ‘‘growth’’ equity securities. While each Putnam VT Health Sciences Fund grow by investing primarily in common of these funds seeks to achieve its (Replaced Fund) is to seek capital stocks of companies that appear to offer objective through somewhat different appreciation. The fund invests mainly superior opportunities for growth of investment strategies, Applicants in common stocks of companies in the capital. The fund may invest up to 15% believe that an investor in the Putnam health sciences industries, with a focus of its assets in equity securities of VIT Health Sciences Fund is generally on growth stocks. Under normal issuers domiciled outside the U.S. and attempting to achieve the same long- circumstances, the fund invests at least Canada and not included in Standard & term goal as that sought by the 80% of the fund’s net assets in Poor’s 500 Composite Index. The fund American Funds Growth Fund securities of (a) companies that derive at is designed for investors seeking capital investors. least 50% of their assets, revenues or appreciation through stocks. 25. The chart on the following pages profits from the pharmaceutical, health 24. The investment objectives of the compares the average annual total care services, applied research and Putnam VT Health Sciences Fund returns for the Replaced Funds and the development and medical equipment (Replaced Fund) and the American Substitute Funds for the past five and supplies industries, or (b) Funds Growth Fund (Substitute Fund) calendar year periods.
Total return of replaced funds for the periods indicated below Current Calendar Calendar Calendar Calendar Calendar Calendar Investment advisor/affiliated Fund affiliated investment year 2004 year 2003 year 2002 year 2001 year 2000 year 1999 w/applicants? w/applicants? option (percent) (percent) (percent) (percent) (percent) (percent)
REPLACED FUNDS: AllianceBernstein VP 14.5 34.7 ¥28.3 ¥23.7% ¥17.8 N/A Alliance Capital Manage- Non-Affiliate .. Yes. Growth Portfolio— ment LP/Non-Affiliate. Class B (Inception date: 6/1/99). Delaware VIP Global 13.0 20.4 25.1 ¥0.5 0.9 ¥3.6 Delaware Management Affiliate ...... Yes. Bond Series—Stand- Company/Affiliate. ard Class (Inception date: 5/2/96). Janus Aspen Worldwide 4.8 24.0 ¥25.5 ¥22.4 ¥15.7 64.5 Janus Capital Management Non-Affiliate .. Yes. Growth Portfolio—In- LLC/ Non-Affiliate. stitutional Class (In- ception date: 9/13/89). Neuberger Berman AMT 19.0 35.1 ¥24.1 ¥2.8 0.7 7.4 Neuberger Berman Manage- Non-Affiliate .. Yes. Partners Portfolio (In- ment Inc./ Non-Affiliate. ception date: 3/22/84). Putnam VT Health 7.1 18.4 ¥20.3 ¥19.8 38.9 ¥3.9 Putnam Investment Man- Non-Affiliate .. Yes. Sciences Fund— agement, LLC/Non-Affil- Class IB (Inception iate. date: 5/1/98). SUBSTITUTE FUNDS: AllianceBernstein VP 11.2 32.2 ¥22.3 0.2 13.6 N/A Alliance Capital Manage- Non-Affiliate .. Yes. Growth and Income ment LP/ Non-Affiliate. Portfolio—Class B (In- ception date: 6/1/99). Delaware VIP Diversi- 8.5 N/A N/A N/A N/A N/A Delaware Management Affiliate ...... Yes. fied Income Series— Company/Affiliate. Standard Class (In- ception date: 5/16/03). Scudder VIT Equity 500 10.6 28.2 ¥22.3 ¥12.2 ¥9.2 20.4 Deutsche Asset Manage- Non-Affiliate .. Yes. Index Fund—Class A ment, Inc./Non-Affiliate. (Inception date: 10/1/ 97). American Funds Growth 12.5 36.8 ¥24.5 ¥18.2% 4.5% 57.3% Capital Research and Man- Non-Affiliate .. Yes. Fund—Class 2 (Incep- agement Company/Non- tion date: 2/8/84). Affiliate.
26. The following chart shows the 2004), expense ratios, management fees, and 12b–1 fees for each of the Replaced approximate size (as of December 31, Funds for Calendar Year 2004.
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Gross cal- Net cal- Gross cal- Net cal- Net Assets† at endar year endar year endar year endar year Calendar Replaced Funds December 31, 2004 ex- 2004 ex- 2004 mgmt. 2004 mgmt. year 2004 2004 pense ratio◊ pense ratio◊ fee fee 12b–1 fee (in thousands) (percent) (percent) (percent) (percent) (percent)
AllianceBernstein VP Growth Portfolio—Class B (In- ception date: 6/1/99) ...... 290,000 1.13 1.13 0.75 0.75 0.25 Delaware VIP Global Bond Series—Standard Class (Inception date: 5/2/96) ...... 86,000 0.93 0.93 0.75 0.75 N/A Janus Aspen Worldwide Growth Portfolio—Institu- tional Class (Inception date: 9/13/89) ...... 2,491,921 0.63 0.63 0.60 0.60 N/A Neuberger Berman AMT Partners Portfolio (Inception date: 3/22/84) ...... 590,000 0.91 0.91 0.83 0.83 N/A Putnam VT Health Sciences Fund—Class IB (Incep- tion date: 5/1/98) ...... 162,000 1.10 1.10 0.70 0.70 0.25 † Reflects total assets of share class, where applicable, of the fund. ◊ Total annual expenses.
27. The next chart provides the 12b–1 fee for each of the Substitute approximate size (as of 12/31/04), Funds for Calendar Year 2004. expense ratios, management fees, and
Gross cal- Net cal- Gross cal- Net cal- Net Assets† at endar year endar year endar year endar year Calendar Substitute Funds December 31, 2004 ex- 2004 ex- 2004 mgmt. 2004 mgmt. year 2004 2004 pense ratio◊ pense ratio◊ fee fee 12b–1 fee (in thousands) (percent) (percent) (percent) (percent) (percent)
AllianceBernstein VP Growth and Income Portfolio— Class B (Inception date: 6/1/99) 1 ...... 2,672,000 0.85 0.85 0.55 0.55 0.25 Delaware VIP Diversified Income Series—Standard Class (Inception date: 5/16/03) 2 ...... 62,000 0.98 0.80 0.65 0.65 N/A Scudder VIT Equity 500 Index Fund—Class A (Incep- tion date: 10/1/97) ...... 790,000 0.29 0.29 0.20 0.20 N/A American Funds Growth Fund—Class 2 (Inception date: 2/8/84)...... 12,055,000 0.61 0.61 0.35 0.35 0.25 ◊ Total annual expenses. † Reflects total assets of share class, where applicable, of the Fund. 1 Expense information reflects a resolution of the AllianceBernstein board on September 7, 2004 making the Management Fee effective for the entire year of 2004. 2 The investment advisor for the Delaware VIP Diversified Income Series is Delaware Management Company (DMC). Since inception through April 30, 2005, the advisor contractually agreed to waive its management fee and/or reimburse the Series for expenses to the extent that total expenses (excluding any taxes, interest, brokerage fees, extraordinary expenses and certain insurance expenses) would not exceed 0.80%. Without such an arrangement, the total operating expense for the Series would have been 0.98% for the fiscal year 2004. Effective May 1, 2005 through April 30, 2006, DMC has contractually agreed to waive its management fee and/or reimbursed the Series for expenses to the extent that total expenses (excluding any taxes, interest, brokerage fees, extraordinary expenses and certain insurance expenses) will not exceed 0.80%. Under its Management Agreement, the Series pays a management fee based on average daily net assets as follows: 0.65% on the first $500 million, 0.60% on the next $500 million, 0.55% on the next $1,500 million, 0.50% on assets in excess of $2,500 million, all per year.
28. The Applicants proposed refers to both gross and net expense expense ratio of 1.13% and a substitutions would effectively ratios, and ‘‘management fee’’ includes management fee of .75%. Both funds consolidate the Lincoln Life assets of both gross and net management fees, as have the same 12b–1 fee (.25%). each Substitute Fund held by the well as any applicable 12b–1 fees. AllianceBernstein VP Growth and Separate Accounts with those of the 29. AllianceBernstein VP Growth and Income Portfolio also has performed corresponding Replaced Fund, with a Income Portfolio (Substitute Fund) has better for three time periods and lower goal of each Substitute Fund having an a lower expense ratio (.85%) and for two time periods compared to the expense ratio that is equal to or lower management fee (.55%) and is larger AllianceBernstein VP Growth Portfolio than the Replaced Fund. In the than the AllianceBernstein VP Growth (the 1999 calendar year time period is following comparisons, ‘‘expense ratio’’ Portfolio (Replaced Fund) which has an not comparable).
Replaced Fund Substitute Fund AllianceBernstein AllianceBernstein VP Growth VP Growth and Fees and expenses Portfolio Income Portfolio (percent) (percent) Class B Class B
Management Fee ...... 0.75 0.55 12b–1 Fee ...... 0.25 0.25 Other Expenses ...... 0.13 0.05 Total Expenses ...... 1.13 0.85
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Replaced Fund Substitute Fund AllianceBernstein AllianceBernstein VP Growth VP Growth and Fees and expenses Portfolio Income Portfolio (percent) (percent) Class B Class B
Waivers ...... Net Expenses ...... 1.13 0.85
30. Delaware VIP Diversified Income Global Bond Series (Replaced Fund) time periods to compare to Delaware Series (Substitute Fund) has a lower which has an expense ratio of .93% and VIP Global Bond Series, except for expense ratio (on a net basis after a management fee of .75%. Both the calendar year 2004 in which Delaware applicable contractual waivers) (.80%) Substitute Fund and the Replaced Fund VIP Diversified Income Series has and management fee (on a net basis after are affiliated with the Applicants. performed lower than Delaware VIP applicable contractual waivers) (.65%) Delaware VIP Diversified Income Series Global Bond Series. and is smaller than the Delaware VIP does not have applicable performance
Replaced Fund Substitute Fund Delaware VIP Delaware VIP Global Bond Diversified Income Fees and expenses Series Series (percent) (percent) Standard Class Standard Class
Management Fee ...... 0.75 0.65 12b–1 Fee ...... Other Expenses ...... 0.18 0.33 Total Expenses ...... 0.93 0.98 Waivers ...... 0.18 Net Expenses ...... 0.93 0.80
31. Scudder VIT Equity 500 Index Aspen Worldwide Growth Portfolio Index Fund also has performed better Fund (Substitute Fund) has a lower (Replaced Fund) which has an expense for five time periods and lower for one expense ratio (.29%) and management ratio of .63% and a management fee of time period compared to the Janus fee (.20%) and is smaller than Janus .60%. The Scudder VIT Equity 500 Aspen Worldwide Growth Portfolio.
Replaced Fund Substitute Fund Janus Aspen Scudder VIT Worldwide Growth Equity 500 Index Fees and expenses Portfolio Fund (percent) (percent) Institutional Class Class A
Management Fee ...... 0.60 0.20 12b–1 Fee ...... Other Expenses ...... 0.03 0.09 Total Expenses ...... 0.63 0.29 Waivers ...... Net Expenses ...... 0.63 0.29
32. AllianceBernstein VP Growth and Berman AMT Partners Portfolio better for three time periods and lower Income Portfolio (Substitute Fund) has (Replaced Fund) which has an expense for two time periods (the 1999 calendar a lower expense ratio (.85%) and a ratio of .91% and a management fee of year time period is not comparable) lower total management fee of .80% (the .83% (and no 12b–1 fee). The compared to the Neuberger Berman sum of .55% management fee plus .25% AllianceBernstein VP Growth and AMT Partners Portfolio. 12b–1 fee) and is larger than Neuberger Income Portfolio also has performed
Replaced Fund Substitute Fund Neuberger Ber- AllianceBernstein man AMT VP Growth and Fees and expenses Partners Portfolio Income Portfolio (percent) (percent) I Class Class B
Management Fee ...... 0.83 0.55 12b–1 Fee ...... 0.25
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Replaced Fund Substitute Fund Neuberger Ber- AllianceBernstein man AMT VP Growth and Fees and expenses Partners Portfolio Income Portfolio (percent) (percent) I Class Class B
Other Expenses ...... 0.08 0.05 Total Expenses ...... 0.91 0.85 Waivers ...... Net Expenses ...... 0.91 0.85
33. American Funds Growth Fund which has an expense ratio of 1.10% periods and lower for two time periods (Substitute Fund) has a lower expense and a management fee of .70%. Both compared to the Putnam VIT Health ratio (.61%) and a lower management funds have the same 12b–1 fee (.25%). Sciences Fund. fee (.35%) and is larger than Putnam VT The American Funds Growth Fund also Health Sciences Fund (Replaced Fund) has performed better for four time
Replaced Fund Substitute Fund Putnam VT Health American Funds Sciences Fund Growth Fund Fees and expenses (percnet) (percent) Class IB Class 2
Management Fee ...... 0.70 0.35 12b–1 Fee ...... 0.25 0.25 Other Expenses ...... 0.15 0.01 Total Expenses ...... 1.10 0.61 Waivers ...... Net Expenses ...... 1.10 0.61
34. By supplements to the most will also inform Contract owners that Redemption requests and purchase current prospectuses for the Contracts, the Applicants will not exercise any orders will be placed simultaneously so all owners and prospective owners of rights reserved under Contracts to that the contract values will remain the Contracts were notified of Lincoln impose additional restrictions on fully invested at all times. Life’s intention to take the necessary transfers until at least thirty days after 38. The proposed substitutions will actions, including seeking the order the substitutions, except that the take place at relative net asset value requested by the application, to effect Applicants may impose restrictions on with no change in the amount of any the substitutions described above. The transfers to limit ‘‘market timing’’ Contract owner’s contract value, cash supplements and prospectuses stated activities by Contract owners or their value, or death benefit or in the dollar that on the date of the proposed agents. The supplement will further value of his or her investment in any of substitutions (after the relief requested advise Contract owners that for at least the Separate Accounts. has been obtained and all necessary thirty days following the effective date 39. Contract owners will not incur systems support changes have been of the proposed substitutions, Lincoln any fees or charges as a result of the made), the Substitute Funds will replace Life will permit Contract owners proposed substitutions nor will their the Replaced Funds as the underlying affected by the substitutions to make rights or Lincoln Life’s obligations investments for affected sub-accounts. one transfer of contract value (or under the Contracts be altered in any 35. By means of an additional annuity unit exchange) out of the way. All expenses incurred in prospectus supplement or updated Substitute Fund sub-account to another connection with the proposed prospectus, Contract owners will be sub-account without the transfer (or substitutions, including legal, advised, at least thirty days in advance exchange) being treated as one of a accounting, brokerage and other fees of the substitutions, of the actual date of limited number of permitted transfers and expenses, will be paid by Lincoln the substitutions. In the pre-substitution (or exchanges) or a limited number of Life. In addition, the proposed notice, Applicants will advise Contract transfers (or exchanges) permitted substitutions will not impose any tax owners that from the date of the without a transfer charge. liability on Contract owners. The supplement until the date of the 36. At least sixty days before the date proposed substitutions will not cause proposed substitutions, they are of the proposed substitutions, affected the contract fees and charges currently permitted to make one transfer of Contract owners who have not already imposed by Lincoln Life and paid by contract value (or annuity unit been provided with a prospectus for existing Contract owners to be greater exchange) out of the Replaced Funds to each Substitute Fund will receive a after the proposed substitutions than any sub-account option within the prospectus that includes complete and before the proposed substitutions. No Contract without the transfer (or current information concerning the fees will be charged on the transfers exchange) being treated as one of a Substitute Funds. made at the time of the proposed limited number of transfers (or 37. Lincoln Life will redeem shares of substitutions because the proposed exchanges) allowed under the Contracts. each Replaced Fund in cash and substitutions will not be treated as a Further, such a transfer will not be purchase with the proceeds shares of transfer for the purpose of assessing subject to a transfer charge. The notice the corresponding Substitute Fund. transfer charges or for determining the
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number or remaining permissible Applicants’ Legal Analysis proposed substitutions are carried out, transfers in a Contract year. 1. Section 26(c) of the Act requires the all Contract owners will be permitted to 40. In addition to the supplements depositor of a registered unit investment allocate purchase payments and transfer and prospectuses distributed to Contract trust holding the securities of a single Contract values and cash values owners as described above, within five issuer to obtain Commission approval between and among approximately the business days after the proposed before substituting the securities held by same number of sub-accounts as they substitutions are completed, any the trust. Specifically, Section 26(c) could before the proposed substitutions. Contract owners affected by the states: Applicants note that Contract owners substitutions will be sent a written who do not wish to participate in a It shall be unlawful for any depositor or notice informing them that the trustee of a registered unit investment trust Substitute Fund will have an substitutions were carried out and that holding the security of a single issuer to opportunity to reallocate their they may make one transfer of Contract substitute another security for such security accumulated value among other value or cash value under a Contract unless the Commission shall have approved available sub-accounts without the invested in any one of the sub-accounts such substitution. The Commission shall imposition of any charge or limitation on the date of the notice to another sub- issue an order approving such substitution if (other than with respect to ‘‘market account available under their Contract the evidence establishes that it is consistent timing’’ activity.) with the protection of investors and the at no cost and without regard to the purposes fairly intended by the policy and Conclusion usual limit on the frequency of transfers provisions of this title. among the variable account options and Applicants submit that, for all the from the variable account options to the 2. Applicants state that the proposed substitution of shares of the Substitute reasons stated above, the proposed fixed account options. The notice will substitutions are consistent with the also reiterate that Lincoln Life will not Funds for those of the Replaced Funds appears to involve substitutions of protection of investors and the purposes exercise any rights reserved by it under fairly intended by the policy and the Contracts to impose additional securities within the meaning of Section 26(c) of the Act. Applicants also submit provisions of the Act. restrictions on transfers or to impose that the proposed substitutions meet the any charges on transfers (other than For the Commission, by the Division of standards that the Commission and its with respect to ‘‘market timing’’ Investment Management, pursuant to staff have applied to substitutions that activities) until at least thirty days after delegated authority. have been approved in the past. the proposed substitutions. Lincoln Life Jonathan G. Katz, Applicants therefore request an order will also send each Contract owner Secretary. from the Commission pursuant to current prospectuses for the Substitute Section 26(c) approving the proposed [FR Doc. 05–24248 Filed 12–19–05; 8:45 am] Funds involved to the extent that the substitutions under the terms of this BILLING CODE 8010–01–P Contract owner has not previously Application. received a copy. 3. The Contracts give Lincoln Life the 41. Lincoln Life has determined that right, subject to Commission approval, SECURITIES AND EXCHANGE all of the Substitute Funds that are the to substitute shares of another COMMISSION subject of this Application will be investment company for shares of an treated as affiliated funds. The investment company held by a sub- Sunshine Act Meeting Applicants agree that, to the extent that account of the Separate Accounts. the annualized expenses of each Applicants believe that the prospectuses FEDERAL REGISTER CITATION OF PREVIOUS Substitute Fund exceeds, for each fiscal for the Contracts and the Separate ANNOUNCEMENT: [To be announced]. period (such period being less than 90 Accounts contain appropriate disclosure STATUS: Closed meeting. days) during the twenty-four month of this right. period following the date of the 4. Applicants have concluded that, PLACE: 100 F Street, NE., Washington, substitutions, the 2004 net expense level although there are differences in the DC. of the corresponding Replaced Fund, objectives and policies of the Substitute DATE AND TIME OF PREVIOUSLY ANNOUNCED Lincoln Life will, for each Contract and Replaced Funds, their objectives MEETING: Tuesday, December 13, 2005. outstanding on the date of the proposed and policies are sufficiently consistent substitutions, make a corresponding to assure that following the CHANGE IN THE MEETING: Additional reduction in separate account (or sub- substitutions, the achievement of the items. account) expenses on the last day of core investment goals of the affected The following items have been added such fiscal period, such that the amount Contract owners in the Replaced Funds to the closed meeting scheduled for of the Substitute Fund’s net expenses, will not be frustrated. Tuesday, December 20, 2005: Opinion together with those of the corresponding 5. With respect to each proposed and a Regulatory matter regarding a separate account (or sub-account) will, substitution, Applicants represent that financial institution. on an annualized basis, be no greater Contract owners with balances invested than the sum of the net expenses of the in a Substitute Fund will have an Commissioner Campos, as duty Replaced Fund and the expenses of the expense ratio that is equal to or lower officer, voted to consider these items separate account (or sub-account) for the than the Replaced Fund. Applicants listed for the closed meeting in closed 2004 fiscal year. anticipate that Contract owners will be session and that no earlier notice thereof 42. The Applicants further agree that better off with the array of sub-accounts was possible. Lincoln Life will not increase total offered after the proposed substitutions At times, changes in Commission separate account charges (net of any than they have been with the array of priorities require alterations in the reimbursements or waivers) for any sub-accounts offered prior to the scheduling of meeting items. For further existing Contract owner on the date of substitutions. The proposed information and to ascertain what, if the substitutions for a period of twenty- substitutions retain for Contract owners any, matters have been added, deleted four months from the date of the the investment flexibility which is a or postponed, please contact the Office substitutions. central feature of the Contracts. If the of the Secretary at (202) 551–5400.
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Dated: December 15, 2005. Commission granted two extensions of margin rules and ascribed a margin Jonathan G. Katz, the pilot period.6 requirement. Furthermore, the sum of Secretary. The Exchange has proposed to add the margin required on the basic option [FR Doc. 05–24294 Filed 12–16–05; 11:13 definitions of a ‘‘long condor spread,’’ spreads that can be combined and am] ‘‘short iron butterfly spread’’ and ‘‘short netted to form a complex spread covers BILLING CODE 8010–01–P iron condor spread’’ to Rule 12.3(a). the maximum risk of the complex These definitions cover six of the seven spread and, as in the Circular, is the strategies identified in the Circular. margin requirement specified in the SECURITIES AND EXCHANGE Each definition covers two strategies proposed rules. Each of the subject COMMISSION identified in the Circular because each complex spread strategies has a known definition provides for a base strategy, and limited risk when configured as [Release No. 34–52950; File No. SR–CBOE– in which all options expire at the same specified in the proposed definitions. 2004–53] time, and a calendar spread strategy, in The Exchange has proposed to revise which a long option may expire after the current Rule 12.3(c)(5)(C)(6) to provide Self-Regulatory Organizations; other options expire concurrently. a margin requirement for each of the Chicago Board Options Exchange, The Exchange has proposed a revision long condor spread, short iron butterfly Incorporated; Order Approving a to its current definition of a butterfly spread and short iron condor spread. Proposed Rule Change and Partial spread to provide for the remaining The Exchange noted that the proposed Amendment No. 1 Relating to Margin strategy, a calendar spread version of rule prohibits European style options in Requirements for Complex Options the long butterfly spread. These the case of the calendar version of a Spreads revisions consist of (1) splitting the complex spread and requires that the current butterfly spread definition into interval between each option series be December 14, 2005. two definitions, one for the long equal in the case of all complex spread I. Introduction butterfly spread and one for the short strategies. Unlike the Circular, the butterfly spread, (2) fashioning the two proposed rules would not limit complex On July 30, 2004, the Chicago Board definitions so that they are consistent spreads to a margin account. The Options Exchange, Incorporated with the style and format of the new Exchange also has proposed a revision (‘‘CBOE’’ or the ‘‘Exchange’’) filed with definitions referred to in the prior to Rule 12.3(e)—Customer Cash the Securities and Exchange paragraph, and (3) providing for a Account—Spreads, that adds the long Commission (‘‘Commission’’) a calendar spread version in the long condor spread, short iron butterfly proposed rule change related to margin butterfly spread definition. spread and short iron condor spread as requirements for complex options In the Circular, call options were strategies permitted to be established spreads under Section 19(b)(1) of the utilized to construct three of the seven and carried in a cash account, provided Securities Exchange Act of 1934 (the strategy examples. Each of these three they are composed of cash-settled, ‘‘Act’’) 1 and Rule 19b–4.2 On August 23, strategies has a parallel application with European style options that all expire at 2005, the Exchange filed a partial put options. For brevity, the put option the same time. amendment to its proposed rule versions were not specifically identified The Exchange noted that it has change.3 The proposed rule change, as in the Circular, but the Circular was received no negative comments amended, was published in the Federal intended to apply to the put option concerning the Circular since it was Register on November 14, 2005.4 The counterpart of each of the strategies issued. Moreover, the Exchange is not Commission received no comments on demonstrated with call options. Both aware of any negative consequences as the proposal. the put and call option versions are a result of applying the margin requirements permitted by the Circular. II. Description provided for in the newly proposed rule definitions. The remaining four complex III. Discussion and Commission The CBOE has proposed to spread strategies originally identified in Findings incorporate the provisions of a the Circular involved both call options After careful review, the Commission Regulatory Circular (RG03–066—Margin and put options (that is, ‘‘iron’’ finds that the proposed rule change, as Requirements for Certain Complex strategies). Each of these four strategies amended, is consistent with the Spreads, dated August 13, 2003) (the has a reciprocal configuration (that is, requirements of the Act and the rules ‘‘Circular’’) into the Exchange’s margin the call options can precede the put and regulations thereunder applicable to rules (Chapter 12). The Circular presents options in ascending sequence of a national securities exchange.7 In an interpretation of current margin exercise prices). However, there is no particular, the Commission believes that requirements that allows the Exchange need to address the reciprocal variations the proposed rule change is consistent to derive, and put into effect, margin because there is no benefit from a with Section 6(b)(5) of the Act,8 which requirements for certain complex option margin requirement standpoint of requires that the rules of the exchange spreads. The Commission approved the including them in the iron strategy be designed, among other things, to Circular on a one-year pilot basis.5 The definitions. remove impediments to and perfect the According to the Exchange, each of mechanisms of a free and open market, 1 15 U.S.C. 78s(b)(1). the complex spreads identified in the and, in general, to protect investors and 2 17 CFR240.19b–4. proposed rule can be derived by the public interest. The Commission 3 SR–CBOE–2004–53: Amendment No. 1. CBOE, combining and netting two or more finds that amending the rules to permit in coordination with the New York Stock Exchange, option spreads (that is, the butterfly Inc. (‘‘NYSE’’), filed the partial amendment to complex option spread strategies that conform the complex spreads strategies to which its spread, the box spread and the time are the net result of combining two or rule amendments apply to those of the NYSE. spread) that already are identified in the 4 See Securities Exchange Act Release No. 52739 7 In approving this proposal rule change, the (Nov. 4, 2005); 70 FR 69173 (Nov. 14, 2005). 6 See Securities Exchange Act Release No. 50164 Commission notes that it has considered the 5 See Securities Exchange Act Release No. 48306 (Aug. 6, 2004), 69 FR 50405 (Aug. 16, 2004) and proposed rule’s impact on efficiency, competition, (Aug. 8, 2003), 68 FR 48974 (Aug. 15, 2003) Securities Exchange Act Release No. 51407 (Mar. and capital formation. 15 U.S.C. 78c(f). (approving SR–CBOE–2003–24). 22, 2005), 70 FR 15669 (Mar. 28, 2005). 8 15 U.S.C. 78f(b)(5).
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more spread strategies that are currently these changes become effective February However, because of improvements in recognized in the Exchange’s margin 1, 2006. The text of the proposed rule the processing and reporting of rules is consistent with the change is available on the CBOE’s Web transactions, the CBOE believes that requirements of Section 6(b)(5) because site (http://www.cboe.com), at the there are no longer significant delays in the amendments will allow the CBOE’s Office of the Secretary, and at the reporting of closing prices; and Exchange to set levels of margin that the Commission’s Public Reference therefore, a two minute session is no more precisely represent the actual net Room. longer needed to trade options after the risk of the option positions in the underlying securities close trading. II. Self-Regulatory Organization’s account and enable customers to Additionally, the Exchange believes that Statement of the Purpose of, and implement these strategies more pricing aberrations can occur if an Statutory Basis for, the Proposed Rule efficiently. option is traded when the underlying Change stock is no longer trading, since there is IV. Conclusion In its filing with the Commission, the a close relationship in the price of the It is therefore ordered, pursuant to Exchange included statements underlying stock and the overlying Section 19(b)(2) of the Act,9 that the concerning the purpose of and basis for option. As a result, the CBOE believes proposed rule change (File No. SR– the proposed rule change and discussed that it is difficult for the market to price CBOE–2004–53), as amended, be, and it any comments it received on the options accurately when the underlying hereby is, approved. proposed rule change. The text of these security is not trading. For the Commission, by the Division of statements may be examined at the As noted above, the Exchange also Market Regulation, pursuant to delegated places specified in Item IV below. The proposes to change the closing time for authority.10 Exchange has prepared summaries, set narrow-based indexes under CBOE Rule Jonathan G. Katz, forth in sections A, B, and C below, of 24.6 because these indexes are subject to Secretary. the most significant aspects of such the same pricing problems as options on [FR Doc. E5–7522 Filed 12–19–05; 8:45 am] statements. individual stocks. According to the BILLING CODE 8010–01–P A. Self-Regulatory Organization’s CBOE, a significant news announcement Statement of the Purpose of, and on one component of a narrow-based Statutory Basis for, the Proposed Rule index could have a significant effect on SECURITIES AND EXCHANGE Change that index. However, the Exchange is COMMISSION not at this time proposing to change the 1. Purpose [Release No. 34–52949; File No. SR–CBOE– closing time of 3:15 p.m. for broad- 2005–104] The purpose of this rule change is to based index options because it does not amend the CBOE’s rules governing the believe that a significant news Self-Regulatory Organizations; hours of trading in equity options and announcement by the issuer of one Chicago Board Options Exchange, narrow-based index options. component stock of a broad-based index Incorporated; Notice of Filing of a Specifically, the CBOE proposes to is likely to have a significant effect on Proposed Rule Change to Amend its amend its rules to change the close of the price of that broad-based index. Rules Governing the Hours of Trading the normal trading hours in equity Accordingly, the CBOE proposes to in Equity Options and Narrow-Based options and in narrow-based index amend its rules, including CBOE Rules Index Options options from 3:02 p.m. (Chicago time) to 6.1, 6.2, 12.3, 24.6, and 24.16, in which 3 p.m. (Chicago time). After the change, references are made to a 3:02 p.m. December 13, 2005. the time of the close of trading in these closing time for equity options and Pursuant to Section 19(b)(1) of the CBOE options will correspond to the narrow-based index options. Securities Exchange Act of 1934 normal time set for the close of trading The Exchange notes that if it were to (‘‘Act’’),1 and Rule 19b–4 thereunder,2 on the primary exchanges listing the unilaterally modify its closing time, the notice is hereby given that on December stocks underlying the CBOE options. existence of dissimilar closing times 6, 2005, the Chicago Board Options The primary exchanges generally close applicable to the different options Exchange, Incorporated (‘‘CBOE’’ or at 3 p.m. (Chicago time). exchanges would likely lead to ‘‘Exchange’’) filed with the Securities According to the Exchange, in 1997, confusion for options investors and and Exchange Commission the CBOE decided to change its closing broker–dealers. Accordingly, in (‘‘Commission’’) the proposed rule time for equity options and narrow- September 2005, the Exchange change as described in Items I, II, and based index options from 3:10 p.m. to requestedfrom the Commission’s III below, which Items have been 3:02 p.m. At the time, the CBOE Division of Market Regulation express prepared by the CBOE. The Commission determined that there were reasons to authorization to jointly discuss this is publishing this notice to solicit continue trading options for a limited operational issue with the other options comments on the proposed rule change period of time after the close of trading exchanges who are participants in the from interested persons. 3 of the primary markets for the Options Price Reporting Authority, and I. Self-Regulatory Organization’s underlying securities. Specifically, the received such authorization.4 The CBOE Statement of the Terms of Substance of Exchange believed that the extended believes that all of the options the Proposed Rule Change period allowed for options traders to exchanges will make similar changes to The CBOE proposes to amend its rules respond to late reports of closing prices over the consolidated tape. If the price 3 See letter from Joanne Moffic-Silver, Executive governing the hours of trading in equity Vice President, General Counsel & Corporate options and narrow-based index of a late reported trade on an underlying Secretary, CBOE, to Robert L.D. Colby, Deputy options. The Exchange proposes that security was substantially different from Director, Division of Market Regulation the previous reported price, the (‘‘Division’’), Commission, dated September 16, 2005. 9 extended trading session gave options 15 U.S.C. 78s(b)(2). 4 See letter from Robert L.D. Colby, Deputy 10 17 CFR 200.30–3(a)(12). traders the opportunity to bring options Director, Division, Commission, to Joanne Moffic- 1 15 U.S.C. 78s(b)(1). quotes in line with the closing price of Silver, Executive Vice President, General Counsel 2 17 CFR 240.19b–4. the underlying security. and Secretary, CBOE, dated September 16, 2005.
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their rules to revise the closing time in Electronic Comments SECURITIES AND EXCHANGE equity options and narrow-based index • Use the Commission’s Internet COMMISSION options from 3:02 p.m. (Chicago time) to comment form at (http://www.sec.gov/ 3 p.m. (Chicago time). According to the rules/sro.shtml); or [Release No. 34–52948; File No. SR–MSRB– CBOE, the options exchanges 2005–11] • Send an e-mail to rule- collectively have determined that they [email protected]. Please include File would implement this new closing time Self-Regulatory Organizations; Number SR–CBOE–2005–104 on the on February 1, 2006. Municipal Securities Rulemaking subject line. Board; Notice of Filing of Proposed 2. Statutory Basis Paper Comments Rule Change and Amendment No. 1 Thereto Relating to Definition of The Exchange believes that the • Send paper comments in triplicate Solicitation Under MSRB Rules G–37 proposed rule change is consistent with to Jonathan G. Katz, Secretary, and G–38 the Section 6(b) of the Act 5 in general, Securities and Exchange Commission, and furthers the objectives of Section 100 F Street, NE., Washington, DC December 13, 2005. 6(b)(5) of the Act 6 in particular because 20549–9303. Pursuant to section 19(b)(1) of the it is designed to prevent fraudulent and All submissions should refer to File Securities Exchange Act of 1934 manipulative acts and practices, to 1 2 Number SR–CBOE–2005–104. This file (‘‘Act’’), and Rule 19b–4 thereunder, promote just and equitable principles of number should be included on the notice is hereby given that on June 10, trade, and, in general, to protect subject line if e-mail is used. To help the 2005, the Municipal Securities investors and the public interest. Commission process and review your Rulemaking Board (‘‘MSRB’’ or B. Self-Regulatory Organization’s comments more efficiently, please use ‘‘Board’’) filed with the Securities and Statement on Burden on Competition only one method. The Commission will Exchange Commission (‘‘SEC’’ or post all comments on the Commission’s ‘‘Commission’’) the proposed rule The CBOE does not believe that the Internet Web site (http://www.sec.gov/ change as described in Items I, II, and proposed rule change will impose any rules/sro.shtml). Copies of the III below, which Items have been burden on competition that is not submission, all subsequent prepared by the MSRB. On December 7, necessary or appropriate in furtherance 2005, the MSRB filed Amendment No. amendments, all written statements 3 of the purposes of the Act. with respect to the proposed rule 1 to the proposed rule change. The change that are filed with the Commission is publishing this notice to C. Self-Regulatory Organization’s solicit comments on the proposed rule Statement on Comments on the Commission, and all written communications relating to the change, as amended, from interested Proposed Rule Change Received From persons. Members, Participants or Others proposed rule change between the Commission and any person, other than I. Self-Regulatory Organization’s No written comments were solicited those that may be withheld from the Statement of the Terms of Substance of or received with respect to the proposed public in accordance with the the Proposed Rule Change provisions of 5 U.S.C. 552, will be rule change. The MSRB has filed with the available for inspection and copying in Commission a proposal consisting of an III. Date of Effectiveness of the the Commission’s Public Reference interpretive notice relating to the Proposed Rule Change and Timing for Section. Copies of such filing also will definition of solicitation for purposes of Commission Action be available for inspection and copying Rules G–37 and G–38. The text of the at the principal office of the CBOE. All Within 35 days of the date of proposed rule change, as amended, is comments received will be posted publication of this notice in the Federal available on the MSRB’s Web site without change; the Commission does Register or within such longer period (i) (http://www.msrb.org), at the MSRB’s not edit personal identifying as the Commission may designate up to principal office, and at the information from submissions. You 90 days of such date if it finds such Commission’s Public Reference Room. longer period to be appropriate and should submit only information that publishes its reasons for so finding or you wish to make available publicly. All II. Self-Regulatory Organization’s (ii) as to which the Exchange consents, submissions should refer to File Statement of the Purpose of, and the Commission will: Number SR–CBOE–2005–104 and Statutory Basis for, the Proposed Rule should be submitted on or before Change (A) By order approve such proposed January 10, 2006. rule change, or In its filing with the Commission, the For the Commission, by the Division of MSRB included statements concerning (B) Institute proceedings to determine Market Regulation, pursuant to delegated the purpose of and basis for the whether the proposed rule change authority.7 proposed rule change and discussed any should be disapproved. Jonathan G. Katz, comments it received on the proposed IV. Solicitation of Comments Secretary. rule change. The text of these statements [FR Doc. E5–7549 Filed 12–19–05; 8:45 am] may be examined at the places specified Interested persons are invited to BILLING CODE 8010–01–P in Item IV below. The MSRB has submit written data, views, and prepared summaries, set forth in arguments concerning the foregoing, 7 17 CFR 200.30–3(a)(12). including whether the proposed rule 1 15 U.S.C. 78s(b)(1). 1 15 U.S.C. 78s(b)(1). change is consistent with the Act. 2 17 CFR 240.19b–4. 2 17 CFR 240.19b–4. Comments may be submitted by any of 3 Amendment No. 1 clarifies that the central 3 Amendment No. 1 clarifies that the central the following methods: element in determining whether a communication element in determining whether a communication is a solicitation is whether the communication is a solicitation is whether the communication occurs with the purpose of obtaining or retaining occurs with the purpose of obtaining or retaining 5 15 U.S.C. 78f(b). municipal securities business, and makes certain municipal securities business, and makes certain 6 15 U.S.C. 78f(b)(5). other changes. other changes.
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sections A, B, and C below, of the most conduit borrowers, and communications solicitation.9 The September 2004 significant aspects of such statements. by non-affiliated professionals. Notice sought comments on revised draft amendments to Rule G–38 A. Self-Regulatory Organization’s 2. Statutory Basis prohibiting a dealer from making Statement of the Purpose of, and The MSRB believes that the proposed payments for the solicitation of Statutory Basis for, the Proposed Rule rule change, as amended, is consistent municipal securities business on its Change with section 15B(b)(2)(C) of the Act,6 behalf to any person who is not an 1. Purpose which provides that the MSRB’s rules associated person of the dealer. The shall: September 2004 Notice also provided The MSRB has recently amended Rule more detailed guidance on the G–38, on solicitation of municipal be designed to prevent fraudulent and manipulative acts and practices, to promote definition of solicitation. The MSRB securities business, to prohibit brokers, received comments from 19 dealers and municipal securities dealers just and equitable principles of trade, to foster cooperation and coordination with commentators, five of which provided (‘‘dealers’’) from making direct or persons engaged in regulating, clearing, comments on the definition of indirect payments to any persons who settling, processing information with respect solicitation.10 The comments received 4 are not affiliated persons of the dealers to, and facilitating transactions in municipal on the April and September 2004 for solicitations of municipal securities securities, to remove impediments to and Notices relating to the definition of 5 business on behalf of the dealers. The perfect the mechanism of a free and open solicitation are discussed below.11 proposed rule change provides market in municipal securities, and, in interpretive guidance on the definition general, to protect investors and the public Communications With Conduit of ‘‘solicitation’’ as used in Rule G–38 interest. Borrowers and in Rule G–37, on political The MSRB believes that the proposed In the April 2004 Notice, the MSRB contributions and prohibitions of rule change, as amended, is consistent asked whether a communication with a municipal securities business. This with the Act because it will further conduit borrower to hire a dealer as an definition is important for purposes of investor protection and the public underwriter for a private activity bond determining whether dealer payments to interest by ensuring that dealers issue where the issuer ultimately must non-affiliated persons of the dealer understand their obligations under approve the underwriter for the issue would be prohibited under Rule G–38. MSRB rules designed to maintain should be considered an indirect In addition, the definition is central to standards of fair practice and communication with the issuer. In the determining whether communications professionalism, thereby helping to September 2004 Notice, the MSRB by dealer personnel would result in maintain public trust and confidence in stated that, from a literal perspective, such personnel being considered the integrity of the municipal securities any communication by a dealer with a municipal finance professionals of the market. conduit borrower intended to cause the dealer for purposes of Rule G–37. borrower to select the dealer to serve as The proposed rule change makes clear B. Self-Regulatory Organization’s underwriter for a conduit issue could be that the central element in determining Statement on Burden on Competition considered a solicitation of municipal whether a communication is a The MSRB does not believe that the securities business. This is because the solicitation is whether the proposed rule change, as amended, will communication occurs with the purpose result in any burden on competition that 9 Letters commenting on the definition of solicitation consisted of letters from Jerry L. of obtaining or retaining municipal is not necessary or appropriate in Chapman (‘‘Mr. Chapman’’), to Ernesto A. Lanza, securities business. As a general furtherance of the purposes of the Act Senior Associate General Counsel, MSRB, dated proposition, the proposed rule change since it would apply equally to all April 22, 2004; Maud Daudon, Managing Director, provides that a communication made dealers. Investment Banking, and John Rose, President & CEO, Seattle-Northwest Securities Corporation under circumstances reasonably (‘‘Seattle-Northwest’’) to Christopher A. Taylor, calculated to obtain or retain municipal C. Self-Regulatory Organization’s Statement on Comments on the MSRB Executive Director, dated May 19, 2004; securities business could be considered Gordon Reis III, Managing Principal, Seasongood & a solicitation unless the circumstances Proposed Rule Change Received From Mayer, LLC (‘‘Seasongood’’) to Mr. Taylor, dated Members, Participants, or Others May 20, 2004; Bruce Moland, Vice President & indicate otherwise. The proposed rule Assistant General Counsel, Wells Fargo & Company change provides numerous examples of The MSRB published notices for (‘‘Wells Fargo’’), to Mr. Lanza dated June 2, 2004; circumstances where a communication comment on draft amendments to Rule Sarah A. Miller, General Counsel, ABA Securities may or may not be considered a G–38 on April 5, 2004 (the ‘‘April 2004 Association (‘‘ABASA’’), to Mr. Lanza dated June 4, 7 2004; Lynette Kelly Hotchkiss, Senior Vice solicitation, including guidance on Notice’’) and September 29, 2004 (the President and Associate General Counsel, Bond communications with issuer ‘‘September 2004 Notice’’).8 The April Market Association (‘‘BMA’’), to Mr. Lanza dated representatives, promotional 2004 Notice sought comments on draft June 4, 2004; Robyn A. Huffman, Vice President communications, work-related amendments limiting payments by a and Associate General Counsel, Goldman Sachs & Co. (‘‘Goldman’’), to Mr. Lanza dated June 4, 2004; communications, communications with dealer for the solicitation of municipal and James S. Keller, Chief Regulatory Counsel, PNC securities business on its behalf solely Capital Markets, Inc. (‘‘PNC’’), to Mr. Lanza dated 4 Rule G–38(b)(ii) generally defines an affiliated to its associated persons, and also June 4, 2004. person of a dealer as an employee or other provided certain guidance on the 10 Letters commenting on the definition of personnel of the dealer or of an affiliated company solicitation consisted of letters from Ms. Daudon of the dealer. definition of solicitation. The MSRB and Mr. Rose, Seattle-Northwest, to Mr. Lanza dated 5 Municipal securities business is defined in Rule received comments from 28 December 13, 2004; Mr. Moland, Wells Fargo, to G–37 as the purchase of a primary offering from the commentators, eight of which provided Mr. Lanza dated December 15, 2004; Ms. Hotchkiss, issuer on other than a competitive bid basis (e.g., comments on the definition of BMA, to Mr. Lanza dated December 15, 2004; Ms. negotiated underwriting), the offer or sale of a Huffman, Goldman, to Mr. Lanza dated December primary offering on behalf of an issuer (e.g., private 15, 2004; and Ms. Miller, ABASA, to Mr. Lanza placement or offering of municipal fund securities), 6 15 U.S.C. 78o–4(b)(2)(C). dated December 17, 2004. and the provision of financial advisory, consultant 7 See MSRB Notice 2004–11 (April 5, 2004). 11 The remaining comments received on the April or remarketing agent services to an issuer for a 8 See MSRB Notice 2004–32 (September 29, and September 2004 Notices were discussed in SR– primary offering in which the dealer was chosen on 2004), as modified by MSRB Notice 2004–33 MSRB–2005–04. See Exchange Act Release No. other than a competitive bid basis. (October 12, 2004). 51561, 70 FR 20782 (April 21, 2005).
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conduit borrower eventually conduit borrower might later be Comments Received. In response to communicates its selection of the dealer considered a solicitation since the the April 2004 Notice, ABASA stated to the conduit issuer for approval, with dealer does not know if the issuer that, in a bank holding company, the result that this series of ultimately used will meet the bankers should be free to inform issuers communications becomes an indirect requirements for rebutting the that affiliated dealers have municipal communication by the dealer through presumption that a communication with securities capabilities and provide the conduit borrower to the conduit the borrower is a solicitation. contact information without such issuer with the intent of obtaining MSRB Response. The MSRB believes communication being deemed a municipal securities business. However, that ABASA and BMA incorrectly solicitation. PNC stated that the draft if the dealer can establish that no implied that the only way for a dealer amendment would ‘‘negatively impact reasonable nexus could exist between to rebut the presumption that a the ability of affiliated companies to the making of contributions to officials communication with a conduit borrower conduct banking business and make of the conduit issuer and the selection is a solicitation is by establishing that a referrals. It would require dealers to of the underwriter for such conduit conduit issuer historically defers to its disassemble the structures and controls financing, then a communication with conduit borrowers’ selections of that have been created to address the borrower would be deemed not to be underwriters. The September 2004 requirements of the rule.’’ a solicitation for purposes of Rule G–38. Notice provided that a communication ABASA appreciated the clarification For example, if a conduit issuer would not be considered a solicitation of the ‘‘inform and refer’’ concept historically defers to its conduit if there is no reasonable nexus between provided in the September 2004 Notice. borrowers’ selections of underwriters the making of contributions to officials However, ABASA continued to object without influencing the selection, of a conduit issuer and the selection of that the MSRB viewed the receipt of a communications with the conduit the underwriter for a conduit financing. finder’s fee or referral fee as causing a borrower to obtain the underwriting The method mentioned by ABASA and communication to be considered a assignment would not be treated as a BMA was simply one example of how solicitation. ABASA stated that this solicitation, even if that communication a dealer could establish that there was would significantly add to the is relayed by the conduit borrower to no such reasonable nexus. regulatory burden of bank dealers and, the conduit issuer. at a minimum, the MSRB should Nonetheless, the MSRB agrees that a Comments Received. Several exempt any referral fees permitted dealer’s communication with a conduit commentators stated that under the Gramm-Leach-Bliley Act. communications with conduit borrower generally should not be PNC stated that dealer personnel should borrowers should not be considered deemed an indirect solicitation of the be permitted to approach issuer solicitations, or that the circumstances issuer unless a reasonable nexus can be representatives to inform them of the under which they are so considered established between the making of dealer’s municipal securities should be narrowly drawn. ABASA, contributions to officials of the conduit capabilities without such BMA, PNC and Wells Fargo stated that issuer within the meaning of Rule G–37 communication being considered a communications with conduit and the selection of the underwriter for solicitation, but Mr. Chapman borrowers generally should not be such conduit financing. A disagreed. considered solicitations, whereas Mr. determination of whether such a MSRB Response. The MSRB believes Chapman stated that communications reasonable nexus could exist depends that the guidance provided in the should be treated as solicitations. The on the specific facts and circumstances. September 2004 Notice on this topic is ABA noted that, in conduit financings, The proposed rule change reflects this appropriate and has not made any typically a complete package (including position. further changes. the underwriter) is presented to the Inform and Refer Technical Experts selected conduit issuer, with the issuer either accepting or rejecting the In the April 2004 Notice, the MSRB Comments Received. BMA, Goldman package. BMA stated that in a conduit noted that, where an issuer and Seattle-Northwest requested that deal, if an employee is only representative asks an associated person the MSRB explicitly exempt communicating with a private obligor of a dealer whether the dealer has communications by attorneys, and not with the issuer, then there is no municipal securities capabilities, a accountants, engineers and legislative possibility that a contribution made by limited affirmative response by the lobbyists with issuers from the that employee to an official of such associated person, together with the definition of solicitation. They noted issuer would influence the underwriter provision to the issuer representative of that such technical experts were selection process. ABASA and Wells contact information for dealer personnel exempted from former Rule G–38 Fargo asked, in the alternative, that the who handle municipal securities relating to consultants 12 and argued that MSRB provide more specific guidance business, generally would not be such exclusion should be continued in on what would cause a communication presumed to be a solicitation by such revised Rule G–38. BMA argued that to be a solicitation. associated person. In the September ABASA and BMA characterized the 2004 Notice, the MSRB provided further 12 Attorneys, accountants and engineers were elaboration and additional examples, excluded from the definition of consultant under MSRB’s guidance in the September 2004 former Rule G–38 only so long as their sole basis Notice as creating a presumption that a noting in particular that the associated of compensation from the dealer was the actual communication with a conduit borrower person could have an MFP of the dealer provision of legal, accounting or engineering is a solicitation which can be rebutted contact the issuer representative directly services on the municipal securities business that in response to such an inquiry. In both the dealer is seeking. As BMA noted, the rule did only under narrowly drawn not exempt legislative lobbying; rather, the MSRB circumstances. They also observed that notices, the MSRB stated that, if the had noted in a Question and Answer guidance that many communications with conduit associated person receives the activity of lobbying legislators for legislation borrowers occur before the identity of compensation such as a finder’s or granting an issuer authority to issue certain types of municipal securities would not, by itself, result the issuer has been determined. As a referral fee for such business, the in the lobbyist being considered a consultant. See result, they suggested that a dealer often associated person generally would be Rule G–38 Question & Answer #5, dated February cannot know if a communication with a viewed as having solicited the business. 28, 1996, published in MSRB Rule Book.
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‘‘the MSRB’s broad interpretation of the Electronic Comments SECURITIES AND EXCHANGE meaning of solicitation means that • COMMISSION broker-dealers would be prohibited from Use the Commission’s Internet comment form (http://www.sec.gov/ hiring outside persons to perform [Release No. 34–52947; File No. SR–NASD– necessary services given that they rules/sro.shtml); or 2005–132] would have to, as a practical matter, • Send an e-mail to rule- attend * * * meetings with issuers and [email protected]. Please include File Self-Regulatory Organizations; will ultimately make the broker-dealer Number SR–MSRB–2005–11 on the National Association of Securities more appealing to the issuer by doing a subject line. Dealers, Inc.; Notice of Filing and good job.’’ PNC stated that including Immediate Effectiveness of a Proposed conversations through or with Paper Comments Rule Change Relating to a Session Fee secondary participants of an issue Increase for the Regulatory Element of • Send paper comments in triplicate would not serve to enhance the goal of the Continuing Education the rule. Seasongood stated that all to Jonathan G. Katz, Secretary, Requirements of NASD Rule 1120 contact by or through third parties Securities and Exchange Commission, should be considered a solicitation. Station Place, 100 F Street, NE., December 13, 2005. MSRB Response. The proposed rule Washington, DC 20549–9303. Pursuant to Section 19(b)(1) of the change makes clear that, so long as non- All submissions should refer to File Securities Exchange Act of 1934 1 2 affiliated persons providing legal, Number SR–MSRB–2005–11. This file (‘‘Act’’), and Rule 19b–4 thereunder, accounting, engineering or other number should be included on the notice is hereby given that on November 13 professional services are not being subject line if e-mail is used. To help the 22, 2005, the National Association of paid directly or indirectly for their Commission process and review your Securities Dealers, Inc. (‘‘NASD’’) filed 14 with the Securities and Exchange solicitation activities, they would not comments more efficiently, please use become subject to Rule G–38. The Commission (‘‘Commission’’) the only one method. The Commission will MSRB believes that this language proposed rule change as described in post all comments on the Commission’s adequately addresses the concerns Items I, II, and III below, which Items Internet Web site (http://www.sec.gov/ raised by the commentators. have been prepared by the NASD. rules/sro.shtml). Copies of the NASD has designated this proposal as III. Date of Effectiveness of the submission, all subsequent one establishing or changing a due, fee, Proposed Rule Change and Timing for amendments, all written statements or other charge imposed by the NASD Commission Action with respect to the proposed rule under Section 19(b)(3)(A)(ii) of the Act,3 Within 35 days of the date of change that are filed with the and Rule 19b–4(f)(2) thereunder,4 which publication of this notice in the Federal Commission, and all written renders the proposal effective upon Register or within such longer period (i) communications relating to the filing with the Commission. The as the Commission may designate up to proposed rule change between the Commission is publishing this notice to 90 days of such date if it finds such Commission and any person, other than solicit comments on the proposed rule longer period to be appropriate and those that may be withheld from the change from interested persons. publishes its reasons for so finding or public in accordance with the I. Self-Regulatory Organization’s (ii) as to which the self-regulatory provisions of 5 U.S.C. 552, will be Statement of the Terms of Substance of organization consents, the Commission available for inspection and copying in the Proposed Rule Change will: the Commission’s Public Reference A. By order approve such proposed Room. Copies of such filing also will be NASD is proposing to amend Section rule change, or available for inspection and copying at 4 of Schedule A to the NASD By-Laws B. Institute proceedings to determine the MSRB’s offices. All comments to increase the session fee for the whether the proposed rule change received will be posted without change; Regulatory Element of the continuing should be disapproved. the Commission does not edit personal education requirements of NASD Rule IV. Solicitation of Comments identifying information from 1120. Below is the text of the proposed rule change. Proposed new language is Interested persons are invited to submissions. You should submit only information that you wish to make in italics; proposed deletions are in submit written data, views, and [brackets]. arguments concerning the foregoing, available publicly. All submissions including whether the proposed rule should refer to File Number SR–MSRB– SCHEDULE A TO NASD BY-LAWS change, as amended, is consistent with 2005–11 and should be submitted on or * * * * * the Act. Comments may be submitted by before January 10, 2006. Section 4—Fees any of the following methods: For the Commission, by the Division of Market Regulation, pursuant to delegated (a) through (e) No change. 13 The proposed rule change does not enumerate authority.15 (f) There shall be a session fee of all professional services that may be provided in Jonathan G. Katz, connection with municipal securities business but [$60.00] $75.00 assessed as to each makes clear that such services are not strictly Secretary. individual who is required to complete limited to legal, accounting and engineering [FR Doc. E5–7523 Filed 12–19–05; 8:45 am] the Regulatory Element of the services (e.g., another dealer serving as a syndicate Continuing Education Requirements member). BILLING CODE 8010–01–P 14 The proposed rule change reminds dealers that pursuant to Rule 1120. the term ‘‘payment’’ under MSRB rules is broadly * * * * * defined and can include, depending on the facts and circumstances, quid pro quo arrangements 1 whereby a non-affiliated person solicits municipal 15 U.S.C. 78s(b)(1). securities business for the dealer in exchange for 2 17 CFR 240.19b–4. being hired by the dealer to provide other unrelated 3 15 U.S.C. 78s(b)(3)(A)(ii). services. 15 17 CFR 200.30–3(a)(12). 4 17 CFR 240.19b–4(f)(2).
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II. Self-Regulatory Organization’s to reduce the reserves to a level B. Self-Regulatory Organization’s Statement of the Purpose of, and necessary to support current and Statement on Burden on Competition Statutory Basis for, the Proposed Rule expected programs and expenses. The NASD does not believe that the Change Council decided to review the reserve proposed rule change will impose any In its filing with the Commission, level and evaluate the Regulatory burden on competition that is not NASD included statements concerning Element session fee on an annual basis. necessary or appropriate in furtherance the purpose of and basis for the The 2004 financial review and of the purposes of the Act. proposed rule change and discussed any evaluation produced no change in the C. Self-Regulatory Organization’s comments it received on the proposed Regulatory Element session fee. In Statement on Comments on the rule change. The text of these statements September 2005, the Council’s annual may be examined at the places specified Proposed Rule Change Received From financial review and evaluation Members, Participants or Others in Item IV below. NASD has prepared revealed that unless the Regulatory summaries, set forth in Sections A, B, Element session fee were adjusted, the NASD has neither solicited nor and C below, of the most significant Council’s reserves were likely to be received comments on the proposed aspects of such statements. insufficient in 2006. The reasons for the rule change. A. Self-Regulatory Organization’s declining surplus are: (1) Lower than III. Date of Effectiveness of the Statement of the Purpose of, and projected session volume resulting in a Proposed Rule Change and Timing for Statutory Basis for, the Proposed Rule significant decrease in actual revenue Commission Action Change over projected revenue; (2) higher The foregoing rule change has become 1. Purpose delivery-related expenses beginning in effective pursuant to Section 2006; and (3) costs associated with the 19(b)(3)(A)(ii) of the Act 10 and Rule The Regulatory Element, a computer- rebuilding of PROCTOR .7 At its 19b–4(f)(2) thereunder,11 because it based education program administered September 2005 meeting, the Council establishes or changes a due, fee, or by NASD to help ensure that registered voted unanimously to increase the other charge imposed by the NASD. persons are kept up-to-date on Accordingly, the proposal will take regulatory, compliance, and sales Regulatory Element session fee from $60 practice matters in the industry, is a to $75, effective January 1, 2006, in effect upon filing with the Commission. component of the Securities Industry order to meet costs and maintain an At any time within 60 days of the filing Continuing Education Program adequate reserve in 2006. of the proposed rule change, the Commission may summarily abrogate (‘‘Program’’) under NASD Rule 1120. The proposed implementation date is such rule change if it appears to the The Securities Industry/Regulatory January 1, 2006. Council on Continuing Education Commission that such action is (‘‘Council’’) 5 was organized in 1995 to 1. Statutory Basis necessary or appropriate in the public interest, for the protection of investors, facilitate cooperative industry/ NASD believes that the proposed rule regulatory coordination of the or otherwise in furtherance of the change is consistent with the provisions 12 administration and future development purposes of the Act. of Section 15A of the Act,8 in general, of the Program in keeping with IV. Solicitation of Comments applicable industry regulations and and furthers the objectives of Sections Interested persons are invited to changing industry needs. Its roles 15A(b)(5) and 15A(b)(6) of the Act in 9 submit written data, views, and include recommending and helping particular. Section 15A(b)(5) of the Act arguments concerning the foregoing, develop specific content and questions requires, among other things, that NASD including whether the proposed rule for the Regulatory Element, defining rules provide for the equitable change is consistent with the Act. minimum core curricula for the Firm allocation of reasonable dues, fees, and Comments may be submitted by any of Element component of the Program, and other charges among members and developing and updating information issuers and other persons using any the following methods: about the Program for industry-wide facility or system that NASD operates or Electronic Comments dissemination. controls. Further, Section 15A(b)(6) of • Use the Commission’s Internet It is the Council’s responsibility to the Act provides that NASD rules must comment form (http://www.sec.gov/ maintain the Program on a revenue be designed to prevent fraudulent and rules/sro.shtml); or neutral basis while maintaining manipulative acts and practices, to • Send an e-mail to rule- adequate reserves for unanticipated promote just and equitable principles of 6 [email protected]. Please include File future expenditures. In December 2003, trade, and, in general, to protect Number SR–NASD–2005–132 on the the Council voted to reduce the investors and the public interest. NASD subject line. Regulatory Element session fee from $65 believes that the proposed rule change to $60 effective January 1, 2004, in order Paper Comments is designed to accomplish these ends by • enabling the Program to be maintained Send paper comments in triplicate 5 The Council currently consists of 20 to Jonathan G. Katz, Secretary, individuals, 14 of whom are securities industry on a revenue neutral basis while professionals associated with NASD member firms, maintaining adequate reserves for Securities and Exchange Commission, and six of whom represent self-regulatory unanticipated future expenditures. 100 F Street, NE., Washington, DC organizations (the American Stock Exchange LLC, 20549–9303. the Chicago Board Options Exchange, Inc., the Municipal Securities Rulemaking Board, NASD, the 7 PROCTOR is a technology system that All submissions should refer to File New York Stock Exchange, Inc., and the supports computer-based testing and training. The Number SR–NASD–2005–132. This file Philadelphia Stock Exchange, Inc.). Regulatory Element program uses PROCTOR to number should be included on the 6 The Regulatory Element session fee was initially package content, deliver, score and report results, subject line if e-mail is used. To help the set at $75 when NASD established the continuing and maintain and generate statistical data related to education requirements in 1995. The fee was the Program. 10 reduced in 1999 to $65 and again in 2004 to $60. 15 U.S.C. 78s(b)(3)(A)(ii). The proposed fee increase returns the Regulatory 8 15 U.S.C. 78o–3. 11 17 CFR 240.19.b–4(f)(2). Element session fee to its original level. 9 15 U.S.C. 78o–3(b)(5) and (b)(6). 12 15 U.S.C. 78s(b)(3)(C).
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Commission process and review your Items I and II below, which Items have statements may be examined at the comments more efficiently, please use been prepared by the Exchange. On places specified in Item III below. The only one method. The Commission will December 13, 2005, the Exchange filed Exchange has prepared summaries, set post all comments on the Commission’s Amendment No. 1 to the proposed rule forth in Sections A, B, and C below, of Internet Web site (http://www.sec.gov/ change.3 The Commission is publishing the most significant aspects of such rules/sro.shtml). Copies of the this notice and order to solicit statements. submission, all subsequent comments on the proposed rule change, A. Self-Regulatory Organization’s amendments, all written statements as amended, from interested persons Statement of the Purpose of, and with respect to the proposed rule and to approve the proposed rule Statutory Basis for, the Proposed Rule change that are filed with the change, as amended, on an accelerated Change Commission, and all written basis. communications relating to the 1. Purpose I. Self-Regulatory Organization’s proposed rule change between the Statement of the Terms of Substance of The Exchange proposes a Pilot to put Commission and any person, other than the Proposed Rule Change into operation Phase 1 of the Hybrid those that may be withheld from the Market initiative with respect to a group The Exchange is proposing a pilot to public in accordance with the of securities, known as Phase 1 6 Pilot put into operation Phase 1 of the NYSE provisions of 5 U.S.C. 552, will be securities (‘‘Pilot securities’’). The Pilot HYBRID MARKET SM (‘‘Hybrid available for inspection and copying in would commence following Market’’) initiative, as proposed in SR– the Commission’s Public Reference Commission approval of the Pilot, NYSE–2004–05 and amendments Room. Copies of the filing also will be during the week of December 12, 2005 thereto (‘‘Hybrid Market filings’’) with available for inspection and copying at and would terminate the earlier of: (1) respect to a group of securities trading the principal offices of the NASD. All 90 calendar days from the date of on the Exchange (‘‘Pilot’’).4 In addition, comments received will be posted Commission approval, if granted, or (2) the Pilot will implement certain system without change; the Commission does Commission approval of the Exchange’s not edit personal identifying changes discussed in SR–NYSE–2005– 5 Hybrid Market proposal, if granted. information from submissions. You 57. This filing sets forth amended rules Approximately 200 securities out of should submit only information that (previously described in the Hybrid the 3,600 securities listed on the you wish to make available publicly. All Market filings) which would be Exchange (approximately 5%) have operational during the Phase 1 pilot as submissions should refer to File been identified as Pilot securities and well as certain new proposals, discussed Number SR–NASD–2005–132 and are listed on Exhibit 3 of the filing.7 In herein. The text of the proposed rule should be submitted on or before addition, the list of Pilot securities will change is available on NYSE’s Web site January 10, 2006. be posted on the Exchange’s Web site. (http://www.nyse.co), at the principal For the Commission, by the Division of The Pilot will allow the Exchange to Market Regulation, pursuant to delegated office of the Exchange, and at the conduct real-time system and user authority.13 Commission’s Public Reference Room. testing of certain features of the Hybrid Jonathan G. Katz, II. Self-Regulatory Organization’s Market filings in order to be in a Secretary. Statement of the Purpose of, and position to comply with the [FR Doc. E5–7521 Filed 12–19–05; 8:45 am] Statutory Basis for, the Proposed Rule implementation of Regulation NMS.8 BILLING CODE 8010–01–P Change The Exchange believes the Pilot will In its filing with the Commission, the prove beneficial from both a technology Exchange included statements and a training perspective. It will give SECURITIES AND EXCHANGE concerning the purpose of and basis for the Exchange the opportunity to identify COMMISSION the proposed rule change and discussed and address any system problems and to [Release No. 34–52954; File No. SR–NYSE– any comments it received on the identify and incorporate beneficial 2005–87] proposed rule change. The text of these system changes that become apparent as a result of usage in real time and under Self-Regulatory Organizations; New 3 See Partial Amendment dated December 13, real market conditions. The ability to York Stock Exchange, Inc.; Notice of 2005 (‘‘Amendment No. 1’’). In Amendment No. 1, have such real time user interface will Filing and Order Granting Accelerated the Exchange submitted Exhibit 3 to the proposed be invaluable, as it is impossible to Approval of a Proposed Rule Change rule change, which identified the securities that accurately anticipate behavioral changes would be included in the Pilot, and corrected a and Amendment No. 1 Thereto typographical error. in a development or mock-trading Relating to the Pilot to Put Into 4 See Securities Exchange Act Release No. 50173 Operation Phase 1 of the NYSE (August 10, 2004), 69 FR 50407 (August 16, 2004) 6 See Securities Exchange Act Release No. 51906 HYBRID MARKET SM (Amendment No. 1 to SR–NYSE–2004–05); (June 22, 2005), 70 FR 37463 (June 29, 2005) Securities Exchange Act Release No. 50667 (Amendment No. 5 to SR–NYSE–2004–05). December 14, 2005. (November 15, 2004), 69 FR 67980 (November 22, 7 The NYSE selected the Pilot securities based on 2004) (Amendment Nos. 2 and 3 to SR–NYSE– the following criteria: (1) Trading location so as to Pursuant to Section 19(b)(1) of the 2004–05) (The Exchange withdrew Amendment No. include in the Pilot securities from each room and Securities Exchange Act of 1934 4 and replaced it with Amendment No. 5); post on the floor; (2) crowd participation so as to (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 Securities Exchange Act Release No. 51906 (June include securities that generally have crowd notice is hereby given that on December 22, 2005), 70 FR 37463 (June 29, 2005) (Amendment participation; (3) trading characteristics so as to 9, 2005, the New York Stock Exchange, No. 5 to SR–NYSE–2004–05). See also Amendment include securities whose trading characteristics are No. 6 to SR–NYSE–2004–05 (September 16, 2005) typically less volatile to minimize the likelihood of Inc. (‘‘NYSE’’ or ‘‘Exchange’’) filed with and Amendment No. 7 to SR–NYSE–2004–05 disruptions during the systems testing; and (4) the Securities and Exchange (October 10, 2005). specialist firm so as to include each of the equity Commission (‘‘Commission’’) the 5 See Securities Exchange Act Release No. 52362 specialist firms on the floor. The Pilot securities proposed rule change as described in (August 30, 2005), 70 FR 53701 (September 9, 2005) represent approximately 10% of the average daily (SR–NYSE–2005–57). While submitted as effective NYSE trading volume. Telephone call between upon filing, the Exchange intended to implement Nancy Reich Jenkins, NYSE and Kelly Riley, SEC 13 17 CFR 200.30–3(a)(12). these changes upon approval of the Hybrid Market on December 14, 2005. 1 15 U.S.C. 78s(b)(1). filings by the Commission, if such approval is 8 See Securities Exchange Act Release No. 51808 2 17 CFR 240.19b–4. granted. (June 9, 2005), 70 FR 37496 (June 29, 2005).
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environment. In addition, the Pilot will current operations under current NYSE systems or Exchange systems that have allow users to gain essential practical rules. been activated otherwise become experience with the new systems and unavailable, a Floor broker who is Phase 1 Pilot processes in a well-modulated way. unable to enter his or her own Floor The Exchange anticipates that the During the Pilot, the following rules broker agency interest has the following Pilot will operate with minimal and provisions of the Hybrid Market options: problems given the amount and degree initiative as outlined in the Hybrid (i) Request a specialist to enter the of testing and training that has occurred Market filings will be operational. To agency interest on behalf of the Floor to date. In addition, the Exchange plans eliminate possible confusion as to what broker who is unable to enter it for to phase-in the Pilot, if approved, to rule provisions apply to Pilot securities, himself or herself; allow for a controlled and moderated the Exchange has identified those new (ii) Send an order through roll out of the new systems and or amended rules which will be SuperDot; 10 capabilities.9 operational during the Pilot with a ‘‘P.’’ (iii) Send a CAP–DI order 11 to the There has been extensive testing of Where part of a provision of a proposed specialist; the approximately 15 Exchange systems Hybrid Market rule will be operational (iv) Trade manually in the Crowd, as impacted by the Pilot, individually and during the Pilot, but another part of the is done today; collectively, both in development and proposed rule will not, the Exchange (v) Ask another Floor broker to production environments. This testing has noted this in the attached rule text represent the order through his or her occurred at all levels, including with the designation that the section is agency interest file; or development testing, automation ‘‘intentionally omitted.’’ In addition, (vi) Send an order for Direct+ testing, SIAC testing, NYSE testing, during the Pilot, all other Exchange execution. rules apply to Pilot securities as they do integrated system testing and code Rule 70.20(f)(P) reviews, production environment today. testing, fall-back and recovery testing, NYSE Direct+ (Exchange Rules 1000– The Hybrid Market filings described and regression and new functionality 1005) proposed rule 70.20(f) which requires testing. cancellation of agency interest files During the Pilot, NYSE Direct+ In addition, there has been when the broker leaves the Crowd. In (‘‘Direct+’’) will continue to operate as comprehensive training for both Floor connection with the Pilot, the Exchange it does today under current Exchange brokers and specialists, individually proposes to amend this provision to Rules 1000–1005 and subject to the and together in a mock trading clarify that a Floor broker may leave the same availability, restrictions and environment. Training was conducted Crowd without canceling his or her conditions, as outlined in those rules. by the Exchange and was supplemented agency interest files in order to recharge in most cases by firm-specific training NYSE Floor Broker Agency Interest his or her handheld device. See conducted by member organizations for Files (Exchange Rule 70.20(a)–(l)(P)) proposed Exchange Rule 70.20(f)(P). their employees. In addition, the During the Pilot, the Exchange is NYSE Specialist Interest Files SM Exchange training environment was proposing to activate the Floor broker (Exchange Rule 104(c)(P)) made available to proprietary system agency file to permit brokers to enter vendors for their training sessions. During the Pilot, specialists will be their interest at or outside the best bid able to manually layer their interest at Moreover, the Exchange intends to and offer in Pilot securities (also have available at all times during the and outside the best bid and offer, referred to as ‘‘e-Quoting’’). The which will give specialists’ bids and Pilot two versions of the operating following sections of proposed software—the new version that would offers persistent standing (also referred Exchange Rule 70.20, described in the to as s-Quotes). See Exchange Rule be operational and the original, pre-Pilot Hybrid Market filings, would apply version. If a problem develops during 104(c)(P). This means that if the during the Pilot: specialist bids/offers at a price that is the Pilot, the Exchange will be able to • 70.20(a)(i)(ii) not the best bid/offer, but layers its revert to the pre-Pilot software within • 70.20(b) an average time of two minutes or less. • 70.20(c)(i)–(iv): Floor brokers will interest below/above such best bid/offer, Accordingly, the Exchange believes be able to populate the reserve file but the specialist’s interest will remain in that the extensiveness of the testing and it will be visible to the specialist in this the specialist interest file and be training, the phase-in approach and the phase available to be displayed as the best bid/ fall-back capabilities provide significant • 70.20(e) offer should better bids/offers be assurances that the Pilot will operate as • 70.20(f) exhausted. The Hybrid Market filings expected. However, in the event systems • 70.20(i)–(l) discuss the specialists’ ability to do this • or other problems arise with the Pilot 70.30 systemically via algorithmically that adversely impact investors or During the Pilot, the following generated messages sent via the NYSE SM impede the Exchange’s ability to sections of proposed Rule 70.20 would Specialist API (‘‘API’’). During the not apply: Pilot, however, specialists will not be maintain a fair and orderly market, the • Exchange will immediately terminate Rule 70.20(d)(i)–(ii): Sweep the Pilot in whole or in part, as functionality 10 SuperDot is an electronic order-routing • Rule 70.20(g)–(h): Feature system used by NYSE member firms to send market appropriate, and return trading to permitting brokers to exclude their and limit orders to the NYSE. interest from the aggregate information 11 See Exchange Rule 123A.30. The CAP–DI order 9 The NYSE intends to phase in the Pilot guides the specialist to represent the order to ensure gradually, beginning with a single security on the available to the specialist that the elected or converted portion goes along first day of the Pilot and expanding gradually over The above sections that are not with the market, by not initiating a significant price the course of four weeks. The timing of the phase- applicable during the Pilot are change or lagging behind the market. CAP–DI in will be adjusted depending on the extent and intentionally omitted from the proposed orders are subject to a number of restrictions significance of any technical or user interface intended to minimize the specialist’s discretion in problems that might arise. Telephone call between rule text. handling such orders. Elected and converted CAP– Nancy Reich Jenkins, NYSE and Kelly Riley, SEC In the event that a proprietary vendor DI orders that are not executed revert to CAP–DI on December 14, 2005. system has not been activated or vender status.
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able to use systems employing interest, which arrived first and has respect to the Pilot, the Exchange is algorithms to generate messages to bid, priority; 1,000 shares of broker agency proposing additional changes to Rule 13 offer, or trade via the API. Accordingly, interest comprised of two brokers’ bids to add language that provides for the for the purposes of the Pilot, the for 500 shares each at 20.07, and 1,000 possibility of manual representation of Exchange is proposing a new rule to shares of specialist interest. A market stop and stop limit orders in the Crowd. provide specialists with the ability to order to sell 3,000 shares arrives and Converted CAP–DI Orders and Direct+ manually layer interest at and outside trades with the 20.05 bid, as follows: the Exchange best bid and offer. See 3,000 shares trade and this is reported In addition, commencing with the proposed Exchange Rule 104(c)(P). by the specialist via the Smart Report Pilot, converted CAP–DI orders will be During the Pilot, specialists will not Template and the system assigns the systemically represented to enable them be able to disseminate NYSE Specialist contra-parties as follows: 1,000 shares of to participate in NYSE Direct+ Files SM via NYSE OPENBOOK or book interest trade first (priority), and executions under current Rules 1000– other Exchange data distribution the remaining 2,000 shares are split 1005.14 channels. equally (1,000 shares each) between the Automation of Parity Between Specialist During the Pilot, specialists will not floor broker agency interest files and and Elected CAP–DI Orders be able to have systems using algorithms specialist interest file, as they are on to send messages via the API to layer parity. Exchange Rule 123A.30 provides that their interest or to otherwise trade or a Floor broker may permit a specialist Automatic Execution of CAP–DI Orders quote, nor will the specialist’s reserve to trade on parity with CAP–DI orders. and Stop Orders capability be operational. Therefore, The rule currently provides that if a proposed Exchange Rules 104(b)–(h) Currently, when a trade occurs, the specialist is on parity with one or more will not be in effect. Exchange’s system notifies the specialist CAP–DI orders, at no time may the if any CAP–DI or stop orders have been specialist participate for its own account Priority, Parity, and Yielding: Exchange elected by such trade. The specialist has in an amount in excess of that which Rules 70.20(b)(P), 72(c)–(g)(P), to then determine if there is any each CAP–DI order would receive, 104.10(6)(i)(C)P, 108(a)(P) liquidity against which the elected except that the specialist may During the Pilot, the systemic orders (or portions thereof) can trade. If participate for its own account to an programming of priority, parity and so, the specialist manually executes and extent greater than any particular CAP– yielding, as proposed by the Hybrid reports trades involving the elected DI order where the size specified on Market filings, other than the yielding volume. such order has been satisfied. A requirements for additional specialist The Commission recently published specialist trading on parity with a CAP– interest, will be operational. As a result, an Exchange filing that provides that DI order remains subject to the the following rules will apply during elected stop and CAP–DI volume will be limitations in Exchange Rule 104.10 as the Pilot: 70.20(b)(P), 72(c)–(g)(P), automatically executed 12 to the extent to transactions for his or her own 104.10(6)(i)(C)(P), and 108(a)(P). that contra-side interest is available to account effected on destabilizing ticks. The most substantive change that will trade with the elected orders.13 These Commencing with the Pilot, the apply to trading in Pilot securities will executions will be automatically Exchange will systemically ensure that be that Floor brokers will lose their reported, including the relevant the specialist’s participation when current ability to object to the specialist information regarding participants to trading along with CAP–DI orders is in trading on parity with their orders the execution (See Exchange Rule accordance with the parity requirements unless the specialist is manually trading 123A.30, discussed below). Elected of Rule 123A.30. The system will assign with them in the Crowd. However, a CAP–DI volume unable to trade will the proper number of shares to the Floor broker’s use of an e-Quote automatically revert to CAP–DI status, specialist and CAP–DI orders. The implicitly suggests his or her agreement and elected stop limit orders unable to Exchange filed 15 this change for that the specialist can be on parity with trade will become a limit order on the immediate effectiveness pursuant to his or her orders. A Floor broker who Display Book. Elected stop orders will Section 19(b)(3)(A) of the Act 16 and does not want to permit the specialist to be executed in the same manner as any Rule 19b–4(f)(5) 17 thereunder. trade on parity with his or her orders market order. The rules regarding the election and execution of CAP–DI and Automatic Conversions of CAP–DI may send the order through SuperDot, Orders enter a Direct+ order, or hit a bid/take stop orders remain the same. The an offer. implementation of this process will Current Exchange Rule 123A.30 also A Floor broker who is manually commence with the Pilot. provides that specialists have the bidding or offering (i.e., not through his In connection with the Pilot, the ability, subject to certain restrictions or her agency interest file) will not be Exchange is proposing changes to Rule noted in the rule, to convert CAP–DI able to participate in an execution 76 to clarify that elected stop and stop orders to participate in transactions or involving e-Quotes and/or s-Quotes or, limit orders are exempt from the to bid or offer, without an electing trade. as today, in Direct+ executions. requirement that a member expose the Proposed Exchange Rule order for possible price improvement 123A.30(a)(P) 18 provides in part that the Other Exchange Rules before crossing it. elected or converted portion of a During the Pilot, the following rules, In addition, the Exchange is ‘‘percentage order that is convertible on as amended in the Hybrid Market filings proposing amendments to Rule 13 with a destabilizing tick and designated would apply to Pilot securities: respect to stop and stop limit orders. Exchange Rules 60(e)(P), 117P, 122P, Certain of these changes were proposed 14 See id. 123(e)P, and 132B(a)(D)(P). in the Hybrid Market filings. With 15 See id. 16 15 U.S.C. 78s(b)(3)(A). Pilot Trading Example 12 This automatic execution will not be done 17 17 CFR 240.19b–4(f)(5). through NYSE Direct+, but rather a different 18 This rule is parallel to amendments made to The Exchange quotation is 20.05 bid, system. Therefore, such execution is not subject to Rule 123A.30. See Securities Exchange Act Release offered at 20.07, 3,000 x 300. The bid the volume limitations of the Direct+ rules. No. 51906 (June 22, 2005), 70 FR 37463 (June 29, consists of: 1,000 shares of book 13 See supra note 5. 2005) (Amendment No. 5 to SR–NYSE–2004–05).
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immediate execution or cancel election’’ that he or she can take appropriate Paper Comments (‘‘CAP–DI order’’) may be automatically action. • Send paper comments in triplicate executed. An elected or converted CAP– 2. Statutory Basis to Jonathan G. Katz, Secretary, DI order on the same side of the market Securities and Exchange Commission, as an automatically executed electing The Exchange believes that the 100 F Street, NE., Washington, DC order may participate in a transaction at proposed rule change, as amended, is 20549–9303. the bid (offer) price if there is volume consistent with Section 6(b)(5) of the All submissions should refer to File 21 associated with the bid (offer) remaining Act in that it is designed to promote Number SR–NYSE–2005–87. This file after the electing order is filled in its just and equitable principles of trade, to number should be included on the entirety. An elected or converted CAP– foster cooperation and coordination subject line if e-mail is used. To help the DI order on the contra-side of the market with persons engaged in regulating, Commission process and review your as an automatically executed electing clearing, settling, processing comments more efficiently, please use order may participate in a transaction at information with respect to, and only one method. The Commission will the bid (offer) price if there is volume facilitating transactions in securities, to post all comments on the Commission’s remaining in the electing order. remove impediments to and perfect the Internet Web site (http://www.sec.gov/ In addition, the Exchange is mechanism of a free and open market rules/sro.shtml). Copies of the proposing to add new section (iv)(P) to and a national market system and, in submission, all subsequent proposed Exchange Rule 123A.30(a)(P) general, to protect investors and the amendments, all written statements to provide that when a specialist is public interest. The Exchange believes with respect to the proposed rule bidding or offering and an automatic that the proposed rule change, as change that are filed with the execution occurs with such bid/offer, amended, is also designed to support Commission, and all written marketable CAP–DI orders on the the principles of Section 11A(a)(1) of communications relating to the 22 Display Book on the same side as the the Act in that it seeks to assure proposed rule change between the specialist’s interest will be economically efficient execution of Commission and any person, other than automatically actively converted to securities transactions, make it those that may be withheld from the participate in this execution, with the practicable for brokers to execute public in accordance with the system assigning the proper number of investors’ orders in the best market and provisions of 5 U.S.C. 552, will be shares to the specialist and CAP–DI provide an opportunity for investors’ available for inspection and copying in orders, as discussed above. This will orders to be executed without the the Commission’s Public Reference allow CAP–DI orders to better participation of a dealer. Room. Copies of such filing also will be participate in executions. B. Self Regulatory Organization’s available for inspection and copying at However, in certain instances, an Statement on Burden on Competition the principal office of the Exchange. All comments received will be posted automatic conversion of marketable The Exchange does not believe that CAP–DI orders will not occur even without change; the Commission does the proposed rule change, as amended, not edit personal identifying though the specialist is trading for its will impose any burden on competition own account. This will occur where the information from submissions. You that is not necessary or appropriate in should submit only information that execution that included automatically furtherance of the purposes of the Act. converted CAP–DI orders elects a you wish to make available publicly. All contra-side stop or stop limit order. In C. Self-Regulatory Organization’s submissions should refer to File this situation, pursuant to current Statement on Comments on the Number SR–NYSE–2005–87 and should Exchange Rule 123A.40, the specialist, Proposed Rule Change Received From be submitted on or before January 10, as party to the election of the stop order, Members, Participants or Others 2006. owes such elected stop order an See the SEC’s Web site (http:// IV. Commission’s Finding and Order execution at the same price as the www.sec.gov) for the comment letters Granting Accelerated Approval of the specialist traded. The execution of such received on the Hybrid Market initiative Proposed Rule Change stop orders, in which the specialist is and a copy of the Exchange’s response The Commission finds that the the contra-party, may be manual 19 or to the letters. proposed rule change, as amended, is automatic,20 depending upon whether consistent with the requirements of the any specialist interest remains at the III. Solicitation of Comments Act and the rules and regulations execution price. In either situation, Interested persons are invited to thereunder applicable to a national marketable CAP–DI interest at that price submit written data, views and securities exchange.23 Specifically, the will not be automatically converted to arguments concerning the foregoing, Commission finds that approval of the participate along with the specialist. including whether the proposed rule proposed rule change is consistent with However, the specialist will be alerted change, as amended, is consistent with Section 6(b)(5) of the Act because the to the fact there are CAP–DI orders on the Act. Comments may be submitted by proposal is designed to promote just and the Display Book capable of trading so any of the following methods: equitable principles of trade, to remove impediments to and perfect the 19 Electronic Comments If there is no specialist interest remaining in the mechanism of a free and open market bid/offer, and the specialist must guarantee an • Use the Commission’s Internet execution to the stop order at the electing price comment form (http://www.sec.gov/ and a national market system, and, in pursuant to Rule 123A.40, the specialist must do a general, to protect investors and the manual transaction to guarantee that the stop order rules/sro.shtml); or • Send an e-mail to rule- public interest. receives the same price as the specialist. With this proposed rule change, the 20 If there is specialist interest remaining in the [email protected]. Please include File Exchange has requested temporary bid/offer and the specialist must guarantee an Number SR–NYSE–2005–87 on the execution to the stop order at the electing price subject line. pursuant to Rule 123A.40, the Display Book system 23 In approving this proposal, the Commission has will automatically execute the remaining specialist considered the proposed rule’s impact on interest against the elected stop order at the same 21 15 U.S.C. 78f(b)(5). efficiency, competition, and capital formation. 15 price the specialist traded. 22 15 U.S.C. 78k–1(a)(1). U.S.C. 78c(f).
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approval by the Commission of certain Act,27 for approving the proposed rule SECURITIES AND EXCHANGE features of its Hybrid Market, so that it change prior to the thirtieth day after COMMISSION may begin live systems testing in a the date of publication of the notice in [Release No. 34–52951; File No. SR–NYSE– limited group of stocks. According to the Federal Register. The Pilot, which 2004–39] the Exchange, this Pilot is necessary so as discussed above is limited in scope that the Exchange can maintain its and duration, will allow the NYSE to Self-Regulatory Organizations; New planned implementation schedule for conduct real-time system and user York Stock Exchange, Inc.; Order the Hybrid Market and meet the testing of certain features of the Approving a Proposed Rule Change 24 Regulation NMS compliance dates. proposed Hybrid Market. According to and Partial Amendment No. 1 To The Commission recognizes that certain NYSE, such testing should be beneficial Amend Exchange Rule 431 (Margin of the processes that NYSE has from both a technology and a training Requirements) proposed to begin testing have generated comment in the Hybrid perspective. Although preliminary steps December 14, 2005. have been taken—the NYSE has Market filings. The Commission wishes I. Introduction to emphasize that it continues to review provided training for both Floor brokers the larger Hybrid Market filings, and specialists, many member On July 12, 2004, the New York Stock including the processes included in this organizations also provided firm- Exchange, Inc. (the ‘‘Exchange’’ or Pilot.25 The Commission is considering specific training for their employees, ‘‘NYSE’’) filed with the Securities and all of the comments submitted in and proprietary system vendors were Exchange Commission (‘‘SEC’’ or the response to the Hybrid Market filings able to utilize the NYSE trading ‘‘Commission’’) a proposed rule change and has not reached a decision on environment for their training to amend specified provision of whether they should be approved or sessions—the Pilot should give the Exchange Rule 431 (margin disapproved. The Commission, requirements) pursuant to Section Exchange the opportunity, in advance of 1 however, believes that due to the 19(b)(1) of the Securities Exchange Act the compliance date of Regulation NMS, 2 limited nature of the Pilot and its short of 1934 (the ‘‘Exchange Act’’) and Rule to identify and address any system 3 duration, that it is consistent with the 19b–4 thereunder. On September 29, problems with these particular rules 2005, the Exchange filed a partial Act to allow NYSE to begin testing its under the proposed Hybrid Market. new systems with this Pilot. amendment to its proposed rule Further, the Pilot should allow users to change.4 The proposed rule change, as The NYSE explained in its filing that gain essential practical experience with it has tested these functions extensively amended, was published for comment the new systems and processes. but that it needs to test them in an in the Federal Register on November 10, Therefore, the Commission finds that 5 actual trading environment to ensure 2005. The Commission received no that they operate as intended. immediate implementation of the Pilot, comments on the proposal. which is limited in both scope and Accordingly, NYSE represented that it II. Description does not anticipate any significant duration, should permit NYSE to remain problems arising from the Pilot. on schedule to implement the Hybrid The Exchange has proposed However, NYSE will immediately Market filings, if approved by the amendments to Rule 431 (margin terminate the Pilot, in whole or in part, Commission so that it may meet the requirements) that will recognize as appropriate, should any systems or Regulation NMS compliance dates. specific additional complex option other problems arise that adversely spread strategies and set margin V. Conclusion impact the protection of investors or requirements commensurate with the risk of such spread strategies. These impede its ability to maintain a fair and It is therefore ordered, pursuant to orderly market, and return trading to its complex spread strategies are a Section 19(b)(2) of the Act, that the combination of two or more basic option current operations under current NYSE proposed rule change (SR–NYSE–2005– 26 spreads that are already covered under rules. 87), as amended, is hereby approved on The Commission finds good cause, Exchange Rule 431. In addition, the an accelerated basis until March 14, pursuant to Section 19(b)(2) of the Exchange has proposed the elimination 2006 or the Commission otherwise acts of the two-dollar standard exercise price 24 NYSE has represented that it has proposed the on the Hybrid Market filings. interval limitation for listed options and Hybrid Market with the intent that it will entitle By the Commission. certain terminology with respect to NYSE quotations to protection under Rule 611 as ‘‘permitted offsets,’’ as defined in its Jonathan G. Katz, well as to comply with its obligations under this Rule. The proposed amendments rule. The compliance date for certain rules adopted Secretary. under Regulation NMS is June 29, 2006. 17 CFR described below have been developed in 242.611. [FR Doc. 05–24251 Filed 12–19–05; 8:45 am] conjunction with the Chicago Board 25 The Commission notes that the scope of the BILLING CODE 8010–01–P Options Exchange (‘‘CBOE’’). Pilot is extremely limited. This Pilot is intended to enable NYSE to technologically test certain features A. Complex Option Spreads of its Hybrid Market proposal. Other significant features of the Hybrid Market proposal, such as the As noted, the Exchange has proposed expansion of Direct+ and the ability of specialists amendments to Rule 431 to recognize to electronically interact with the Display Book, are not included in this Pilot. The NYSE represented 1 15 U.S.C. 78s(b)(1). that it expects to be able to use the results of the 2 systems testing in evaluating and addressing any 15 U.S.C. 78a et seq. technology issues related to its Hybrid Market 3 17 CFR 240.19b–4. proposal that become apparent. 4 SR–NYSE–2004–39: Amendment No. 1. The 26 The Exchange stated that it would be able to NYSE, in coordination with the Chicago Board revert back to pre-Pilot operations within an Options Exchange, Incorporated (‘‘CBOE’’), filed the average of two minutes or less. The Exchange will partial amendment to conform the complex options notify the public via its Web site if the Pilot is spreads strategies to which its rule amendments terminated in whole or in part. In addition, the apply to those of the CBOE. Exchange will notify floor members at the post if 5 See Securities Exchange Act Release No. 52738 the Pilot is terminated in whole or in part. 27 15 U.S.C. 78s(b)(2). (Nov. 4, 2005); 70 FR 68501 (Nov. 10, 2005).
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certain additional complex option spreads must be carried in a margin with one-dollar strike intervals in a spread strategies that are the net result account; (b) European-style options are number of classes. The Exchange stated of combining two or more spread prohibited for complex spread that as a result, the use of securities to strategies that are currently recognized combinations having a long option hedge option series that have one-dollar in the Exchange’s margin rules. The series that expires after the other option strike intervals has unintentionally netting of contracts in option series series. Only American-style options may become more restrictive. common to each of the currently be used in these combinations. The Exchange has proposed a rule recognized spreads in an aggregation Additionally, the intervals between change to eliminate the two-dollar reduces it to the complex spread exercise prices must be equal, and each standard exercise price interval strategies outlined below. complex spread must comprise four limitation for listed options and the The Exchange states that basic option option series, with the exception of a definition of ‘‘in-or-at-the-money.’’ As spreads can be paired in such ways that Long Calendar Butterfly Spread, which proposed, Rule 431(f)(2)(J) would they offset each other in terms of risk. must comprised of three option series. require permitted offset transactions be The total risk of the combined spreads According to the Exchange, the sum effected for specialist or market-making is less than the sum of the risk of both of the margin required on each currently purposes such as hedging, risk spread positions if viewed as stand- recognized spread in each of the reduction, rebalancing of positions, alone strategies. The specific complex applicable aggregations renders a liquidation, or accommodation of spread strategies listed below are margin requirement for the subject customer orders, or other similar structured using the same principles as, complex spread strategies as stated specialist or market-making purposes, and are essentially expansions of, the below. The additional complex option while prohibiting trading in an advanced spreads currently allowed in strategies and maintenance margin underlying security that is not related to Rule 431. requirements are as follows: (1) A Long specialist or market making option Currently, Rule 431 recognizes and Condor Spread comprised of two long activities, or that does not constitute a prescribes margin requirements for Butterfly Spreads; (2) a Short Iron reasonable hedge. advanced spread strategies known as the Butterfly Spread comprised of one long Because clearing firms have risk ‘‘butterfly spread’’ and the ‘‘box Butterfly Spread and one short Box monitoring systems that alert them to spread.’’ However, the Exchange noted Spread; (3) a Short Iron Condor Spread unhedged positions and haircut that these option spreads are limited in comprised of two long Butterfly Spreads requirements pursuant to Rule 15c3–1 8 scope and that its proposal expands and one short Box Spread; (4) a Long of the Exchange Act 9 perform a similar upon the types of pairings that would Calendar Butterfly Spread comprised of function as NYSE margin requirements qualify for butterfly spread and box one long Calendar Spread and one long relative to providing adequate risk spread treatment. Butterfly Spread; (5) a Long Calendar coverage to broker-dealers, the Exchange Exchange Rule 431(f)(2)(G)(i) Condor Spread comprised of one long believes that the elimination of the two- recognizes ‘‘calendar spreads,’’ also Calendar Spread and two long Butterfly dollar standard exercise price limitation known as ‘‘time spreads,’’ but these Spreads; (6) a Short Calendar Iron and definition of ‘‘in-or-at-the-money’’ spreads are not identified as such. The Butterfly Spread comprised of one long will not diminish the ‘‘safety and Exchange has proposed to define this Calendar Spread plus one long Butterfly soundness’’ protections that Rule 431 term as ‘‘the sale of one option and the Spread and one short Box Spread; and provides. simultaneous purchase of an option (7) a Short Calendar Iron Condor Spread III. Discussion and Commission with a more distant expiration date, comprised of one Long Calendar Spread Findings both specifying the same underlying plus two long Butterfly Spreads and one component with the same exercise price After careful review, the Commission short Box Spread. finds that the proposed rule change, as where the long options do not expire The Exchange stated that the purpose amended, is consistent with the before the short option with the longest and benefit of the proposal is to set requirements of the Act and the rules term expiration’’ in the definition levels of margin that more precisely and regulations thereunder applicable to section of the Rule (NYSE 431(f)(2)(C)) represent the actual net risk of the a national securities exchange.10 In because some of the complex spreads option positions in the account and to particular, the Commission believes that recognized in this proposal will include enable customers to implement these the proposed rule change is consistent this component of spread strategies. strategies more efficiently. The Exchange noted that to be eligible with Section 6(b)(5) of the Exchange for the margin requirements in the B. Permitted Offsets Act,11 which requires that the rules of proposal, a complex spread must be Currently, Exchange Rule 431(f)(2)(J) the exchange be designed, among other consistent with one of the seven limits permitted offsets 6 for specialists things, to remove impediments to and patterns specified below. The expiration and market makers in options to option perfect the mechanisms of a free and months and the sequence of the exercise series that are ‘‘in-or-at-the-money.’’ 7 open market, and, in general, to protect prices must correspond to the same Recently, various options exchanges investors and the public interest. The pattern, and the intervals between the have provided for the listing of options Commission finds that amending the exercise prices must be equal. rules to permit complex option spread Under the proposal, members and 6 NYSE Rule 431(f)(2)(J) defines a permitted offset strategies that are the net result of member organizations will be required position as, in the case of an option in which a combining two or more spread strategies to obtain initial and maintenance specialist makes a market, a position in the that are currently recognized in the margin for the subject complex spreads, underlying asset or other related assets, and in the Exchange’s margin rules is consistent case of other securities in which a specialist makes whether established outright or through a market, a position in options overlying the netting, of not less than the sum of the securities in which a specialist makes a market. 8 17 CFR 240.15c3–1. margin required on each basic spread in 7 NYSE Rule 431(f)(2)(J) defines the term ‘‘in or 9 15 U.S.C. 78a. 10 the equivalent aggregation. at the money’’ as the current market price of the In approving this proposed rule change, the underlying security is not more than two standard Commission notes that it has considered the The Exchange noted that the basic exercise intervals below (with respect to a call proposed rule’s impact on efficiency, competition, requirements for complex options option) or above (with respect to a put option) the and capital formation. 15 U.S.C. 78c(f). spreads are as follows: (a) The complex exercise price of the option. 11 15 U.S.C. 78f(b)(5).
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with the requirements of Section 6(b)(5) regulatory organization pursuant to the transaction fees associated with because the amendments will allow the Section 19(b)(3)(A) of the Act 3 and Rule such executions at $1,000 per strategy Exchange to set levels of margin that 19b–4(f)(2) thereunder,4 which renders execution, with a monthly cap of more precisely represent the actual net the proposal effective upon filing with $50,000 per initiating firm. risk of the option positions in the the Commission. The Commission is Certain classes of options listed on account and enable customers to publishing this notice to solicit PCX have as their underlying issue implement these strategies more comments on the proposed rule change licensed products that carry a royalty efficiently. from interested persons. fee on every contract traded. These fees The Commission further finds are assessed by the issuing agency, and elimination of the two-dollar standard I. Self-Regulatory Organization’s Statement of the Terms of Substance of are not Exchange transaction fees. exercise price interval limitation for the Proposed Rule Change License fees, or royalty fees, that are listed options and elimination of the charged to the Exchange are passed on definition of ‘‘in-or-at-the-money’’ are PCX proposes to amend its Schedule to the actual participants executing the consistent with the requirements of of Fees and Charges in order to include trade. Even though some of the fees are Section 6(b)(5). The rules changes a provision that deals with royalty, or passed on, the fee cap would prevent license fees, that are passed on to should allow specialists and market PCX from recovering these fees in their market participants on options trades makers to hedge risk related to their entirety if they were to be included as that are part of an Option Strategy options positions while prohibiting transaction fees. If royalty fees are Execution. trading in an underlying security that is included as transaction fees, PCX would not related to specialist or market The text of the proposed rule change is available on the Exchange’s Internet face the possibility of having to pay out making option activities, or that does substantial fees while the fee cap would not constitute a reasonable hedge. Web site (http://www.pacificex.com), at the Exchange’s principal office, and at limit the amount the Exchange would be IV. Conclusion the Commission’s Public Reference able to pass on to trade participants. Because of the negative financial It is therefore ordered, pursuant to Room. implications to the Exchange, PCX will Section 19(b)(2) of the Act,12 that the II. Self-Regulatory Organization’s not include license or royalty fees, proposed rule change (File No. SR– Statement of the Purpose of, and which are passed on to trade NYSE–2004–39), as amended, be, and it Statutory Basis for, the Proposed Rule participants in connection with trades hereby is, approved. Change that are done as part of an Options For the Commission, by the Division of In its filing with the Commission, the Strategy Execution, as part of the Market Regulation, pursuant to delegated transaction fees counting towards both authority.13 Exchange included statements concerning the purpose of, and basis for, the $1,000 per trade transaction fee cap Jonathan G. Katz, the proposed rule change and discussed and the $50,000 per month fee cap. Secretary. any comments it received on the 2. Statutory Basis [FR Doc. E5–7525 Filed 12–19–05; 8:45 am] proposed rule change. The text of these BILLING CODE 8010–01–P statements may be examined at the The Exchange believes that proposal places specified in Item IV below. The is consistent with Section 6(b) of the Exchange has prepared summaries, set Act,5 in general, and Section 6(b)(4) 6 in SECURITIES AND EXCHANGE forth in Sections A, B, and C below, of particular, in that it provides for the COMMISSION the most significant aspects of such equitable allocation of dues, fees, and [Release No. 34–52935; File No. SR–PCX– statements. other charges among its members. 2005–127] A. Self-Regulatory Organization’s B. Self-Regulatory Organization’s Self-Regulatory Organizations; Pacific Statement of the Purpose of, and Statement on Burden on Competition Exchange, Inc.; Notice of Filing and Statutory Basis for, the Proposed Rule Change The Exchange does not believe that Immediate Effectiveness of Proposed the proposed rule change will impose Rule Change Relating to Exchange 1. Purpose any burden on competition that is not Fees and Charges PCX is proposing this change to the necessary or appropriate in furtherance December 9, 2005. PCX Schedule of Rates and Charges so of the purposes of the Act. Pursuant to Section 19(b)(1) of the that the Exchange may continue to pass C. Self-Regulatory Organization’s Securities Exchange Act of 1934 on the full amount of any royalty or Statement on Comments on the (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 license fees to trade participants, even Proposed Rule Change Received From notice is hereby given that on November when total transaction fees are capped Members, Participants or Others 25, 2005, the Pacific Exchange, Inc. in association with a defined Options (‘‘PCX’’ or ‘‘Exchange’’) filed with the Strategy Execution. PCX has established No written comments were solicited Securities and Exchange Commission a cap on the transaction fees it charges or received with respect to the proposed (‘‘Commission’’) the proposed rule to market participants that engage in rule change. change as described in Items I, II, and certain strategy executions, as defined III. Date of Effectiveness of the III below, which Items have been in the PCX Schedule of Fees and Proposed Rule Change and Timing for prepared by the Exchange. PCX has Charges. PCX represents that the cap Commission Action designated this proposal as one was established because the referenced establishing or changing a due, fee, or Options Strategy Executions are The foregoing proposed rule change other charge imposed by a self- generally large volume trades done by has become effective pursuant to professionals whose profit margins are Section 19(b)(3)(A)(ii) of the Act 7 and 12 15 U.S.C. 78s(b)(2). generally narrow. The Exchange caps 13 17 CFR 200.30–3(a)(12). 5 15 U.S.C. 78f(b). 1 15 U.S.C. 78s(b)(1). 3 15 U.S.C. 78s(b)(3)(A). 6 15 U.S.C. 78f(b)(4). 2 17 CFR 240.19b–4. 4 17 CFR 240.19b–4(f)(2). 7 15 U.S.C. 78s(b)(3)(A)(ii).
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Rule 19b–4(f)(2) 8 thereunder because it should submit only information that publication. You can obtain copies of establishes or changes a due, fee, or you wish to make available publicly. All the collection instruments by calling the other charge imposed by the Exchange. submissions should refer to File SSA Reports Clearance Officer at 410– At any time within 60 days of the filing Number SR–PCX–2005–127 and should 965–0454 or by writing to the address of the proposed rule change, the be submitted on or before January 10, listed above. Commission may summarily abrogate 2006. 1. Reporting Changes that Affect Your such rule change if it appears to the For the Commission, by the Division of Social Security Payment—20 CFR Commission that such action is Market Regulation, pursuant to delegated 404.301–305, .310–311, .330–.333, .335– necessary or appropriate in the public authority.9 .341, .350–.352, .370–.371, .401–.402, interest, for the protection of investors, Jonathan G. Katz, .408(a), .421–.425, .428–.430, .434–.437, or otherwise in furtherance of the Secretary. .439–.441, .446–.447, .450–.455, .468— purposes of the Act. 0960–0073. SSA uses the information [FR Doc. E5–7524 Filed 12–19–05; 8:45 am] IV. Solicitation of Comments collected on Form SSA–1425 to BILLING CODE 8010–01–P determine continuing entitlement to Interested persons are invited to Title II Social Security benefits and to submit written data, views, and determine the proper benefit amount. arguments concerning the foregoing, SOCIAL SECURITY ADMINISTRATION The respondents are Title II including whether the proposed rule Agency Information Collection beneficiaries receiving SSA retirement, change is consistent with the Act. disability or survivor’s auxiliary benefits Comments may be submitted by any of Activities: Proposed Request and Comment Request who need to report an event that could the following methods: affect payments. Electronic Comments The Social Security Administration Type of Request: Extension of an (SSA) publishes a list of information OMB-approved information collection. • Use the Commission’s Internet collection packages that will require Number of Respondents: 36,000. comment form (http://www.sec.gov/ clearance by the Office of Management Frequency of Response: 1. rules/sro.shtml); or • and Budget (OMB) in compliance with Average Burden Per Response: 5 Send an e-mail to rule- minutes. [email protected]. Please include File Pub. L. 104–13, the Paperwork Reduction Act of 1995, effective October Estimated Annual Burden: 3,000 No. SR–PCX–2005–127 on the subject hours. line. 1, 1995. The information collection packages that may be included in this 2. Workers’ Compensation/Public Paper Comments notice are for new information Disability Questionnaire—20 CFR 404.408—0960–0247. Section 224 of the • Send paper comments in triplicate collections, approval of existing Social Security Act provides for the to Jonathan G. Katz, Secretary, information collections, revisions to reduction of disability insurance Securities and Exchange Commission, OMB-approved information collections, benefits (DIB) when the combination of Station Place, 100 F Street, NE., and extensions (no change) of OMB- DIB and any workers’ compensation Washington, DC 20549–9303. approved information collections. SSA is soliciting comments on the (WC) and/or certain Federal, State or All submissions should refer to File local public disability benefits (PDB) Number SR–PCX–2005–127. This file accuracy of the agency’s burden estimate; the need for the information; exceeds 80% of the worker’s number should be included on the predisability earnings. Form SSA–546 is subject line if e-mail is used. To help the its practical utility; ways to enhance its quality, utility, and clarity; and on ways used to collect the data necessary to Commission process and review your determine whether or not the worker’s comments more efficiently, please use to minimize burden on respondents, including the use of automated receipt of WC/PDB payments will cause only one method. The Commission will a reduction of DIB. The respondents are post all comments on the Commissions collection techniques or other forms of information technology. Written applicants for the Title II DIB. Internet Web site (http://www.sec.gov/ Type of Request: Extension of an rules/sro.shtml). Copies of the comments and recommendations regarding the information collection(s) OMB-approved information collection. submission, all subsequent Number of Respondents: 100,000. amendments, all written statements should be submitted to the OMB Desk Officer and the SSA Reports Clearance Frequency of Response: 1. with respect to the proposed rule Average Burden Per Response: 15 Officer. The information can be mailed change that are filed with the minutes. and/or faxed to the individuals at the Commission, and all written Estimated Annual Burden: 25,000 addresses and fax numbers listed below: communications relating to the hours. proposed rule change between the (OMB), Office of Management and 3. Medicaid Use Report—20 CFR Commission and any person, other than Budget, Attn: Desk Officer for SSA, 416.268—0960–0267. The information those that may be withheld from the Fax: 202–395–6974. required by this regulation is used by public in accordance with the (SSA), Social Security Administration, SSA to determine if an individual is provisions of 5 U.S.C. 552, will be DCFAM, Attn: Reports Clearance entitled to special Title XVI available for inspection and copying in Officer, 1333 Annex Building, 6401 Supplemental Security Income (SSI) the Commission’s Public Reference Security Blvd., Baltimore, MD 21235, payments and, consequently, to Room. Copies of the filing also will be Fax: 410–965–6400. Medicaid benefits. The respondents are available for inspection and copying at I. The information collections listed SSI recipients whose payments were the principal office of PCX. All below are pending at SSA and will be stopped based on earnings. comments received will be posted submitted to OMB within 60 days from Type of Request: Extension of an without change; the Commission does the date of this notice. Therefore, your OMB-approved information collection. not edit personal identifying comments should be submitted to SSA Number of Respondents: 60,000. information from submissions. You within 60 days from the date of this Frequency of Response: 1. Average Burden Per Response: 3 8 17 CFR 240.19b–4(f)(2). 9 17 CFR 200.30–3(a)(12). minutes.
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Estimated Annual Burden: 3,000 diversity of providers in response to the to do so. The respondents are private hours. less restrictive participation persons or groups who wish to 4. Supplemental Security Income requirements and increased consumer reproduce, duplicate, or privately print Claim Information Notice—20 CFR demand for services. an SSA application or form. 416.210—0960–0324. Form SSA– Type of Request: Extension of an The National Employment Activity and L8050–U3 is used by SSA to ensure that OMB-approved information collection. Disability Survey all sources of potential income that can Number of Respondents: 9. be used to provide for an SSI The National Employment Activity Frequency of Response: 36. beneficiary’s own support and and Disability Survey will collect data Average Burden Per Response: 8 maintenance are utilized. SSI is on the work-related activities of SSI and minutes. intended to supplement other income SSDI beneficiaries as the TTW program, Estimated Annual Burden: 43 hours. an individual has available. and other initiatives designed to 2. Public Information Campaign— Respondents are businesses and improve beneficiary employment 0960–0544. SSA sends public applicants/recipients of SSI who may be outcomes, are implemented. The TTW information materials (e.g.: public eligible for benefits from public or Survey is specifically designed to be a service announcements, news releases, private programs. significant resource for the formal educational tapes) to public Type of Request: Extension of an evaluation of TTW, but SSA anticipates broadcasting systems so these media OMB-approved information collection. that the survey will provide useful sources can inform the general public Number of Respondents: 7,500. information for a variety of evaluation about the Agency’s various programs Frequency of Response: 1. and policy analysis purposes, especially and activities. To track media usage of Average Burden Per Response: 10 related to current efforts that attempt to these materials, SSA conducts the minutes. improve return to work. The survey Public Information Campaign, a bi- Estimated Annual Burden: 1,250 questionnaire focuses on information annual solicitation of feedback from the hours. about beneficiaries and their work- target public media sources via business 5. Application Statement for Child’s related activities that cannot be obtained reply cards. The respondents are public Insurance Benefits—20 CFR 404.350– from SSA’s administrative records. The broadcasting systems who are sent 0368, 404.603, and 416.350—0960– survey will provide information about: information about various SSA 0010. Title II of the Social Security Act (1) Beneficiaries who assign their programs to disseminate to the public. provides for the payment of monthly Tickets to ENs, and their experience in Note: Please note that this collection benefits to the children of an insured the program; (2) beneficiaries who do was accidentally allowed to expire by retired, disabled, or deceased worker, if not assign their Tickets, and the reasons OMB. certain conditions are met. Form SSA– why they do not, including involuntary Type of Request: Extension of an 4–BK is used by SSA to collect non-participants; (3) the employment OMB-approved information collection. information needed to determine outcomes of Ticket users and other Number of Respondents: 8,000. whether the child or children are beneficiaries; and (4) the use of Frequency of Response: 2. entitled to benefits. The respondents are employment services by Ticket users Average Burden Per Response: 1 children of the worker or individuals and other beneficiaries. The minute. who complete this form on their behalf. respondents will be selected from SSI Estimated Annual Burden: 267 hours. Type of Request: Revision of an OMB- and SSDI disabled beneficiaries who Dated: December 13, 2005. approved information collection. meet the Ticket to Work program Elizabeth A. Davidson, Number of Respondents: 1,740,000. eligibility requirements. Reports Clearance Officer, Social Security Frequency of Respondents: 1. Type of Request: Extension of an Administration. Average Burden Per Response: 15 OMB-approved information collection. [FR Doc. E5–7514 Filed 12–19–05; 8:45 am] minutes. Number of Respondents: 5,538. Estimated Annual Burden: 435,000 Frequency of Response: 1. BILLING CODE 4191–02–P hours. Average Burden Per Response: 47 6. National Employment Activity and minutes. Disability Survey—0960–0666 Estimated Annual Burden: 4,338 DEPARTMENT OF TRANSPORTATION hours. Background II. The information collections listed Federal Aviation Administration The Ticket to Work (TTW) program below have been submitted to OMB for Agency Information Collection Activity was established by the Ticket to Work clearance. Your comments on the Under OMB Review, Request for and Work Incentives Improvement Act information collections would be most Comments; Approval of a New of 1999. The program will provide useful if received by OMB and SSA Information Collection Activity, Pilot eligible Social Security Disability within 30 days from the date of this Training and Experience With Insurance (SSDI) and SSI disability publication. You can obtain a copy of Transport Category Rudder Control beneficiaries with a Ticket, which can the OMB clearance packages by calling Systems be used to obtain vocational the SSA Reports Clearance Officer at rehabilitation (VR) or employment 410–965–0454, or by writing to the AGENCY: Federal Aviation services through participating providers, address listed above. Administration (FAA), DOT. called Employment Networks (ENs). 1. Private Printing and Modification ACTION: Notice and request for The goal of the TTW program is to assist of Prescribed Applications and Other comments. participants in returning to work at a Forms—20 CFR 422.527—0960–0663. level above the Substantial Gainful This regulation mandates that non- SUMMARY: The FAA invites public Activity (SGA) level. The program is government persons or organizations comments about our intention to request expected to increase beneficiary who wish to reproduce, duplicate, or the Office of Management and Budget’s demand for employment-related privately print any application or other (OMB) approval for a new information services and activities. It is also form owned by SSA must receive collection. The FAA has undertaken an expected to increase the number and written authorization from the Agency effort to improve aviation safety by
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collecting data on pilots’ training and DEPARTMENT OF TRANSPORTATION Agency will use the information as a experience with transport category customer service standard and to rudder control systems. A Federal Federal Aviation Administration continually improve ACSEP. Register notice for public comment was Agency Information Collection Activity ADDRESSES: Send comments to the published on April 12, 2005, vol 70, Office of Information and Regulatory #69, page 19144. Under OMB Review, Request for Comments; Renewal of an Approved Affairs, Office of Management and DATES: Please submit comments by Information Collection Activity, Aircraft Budget, 725 17th Street, NW., January 19, 2006. Certification Systems Evaluations Washington, DC 20503, Attention FAA Program (ACSEP) Evaluation Desk Officer. FOR FURTHER INFORMATION CONTACT: Judy Customer Feedback Report Comments are invited on: Whether Street on (202) 267–9895. the proposed collection of information AGENCY SUPPLEMENTARY INFORMATION: : Federal Aviation is necessary for the proper performance Administration (FAA), DOT. of the functions of the Department, Federal Aviation Administration (FAA) ACTION: Notice and request for including whether the information will comments. have practical utility; the accuracy of Title: Pilot Training and Experience the Department’s estimates of the with Transport Category Rudder Control SUMMARY: The FAA invites public burden of the proposed information Systems. comments about our intention to request collection; ways to enhance the quality, Type of Request: Approval of a new the Office of Management and Budget’s utility and clarity of the information to collection. (OMB) approval for the renewal of a be collected; and ways to minimize the currently approved information OMB Control Number: 2120–xxxx. burden of the collection of information collection. The information will be on respondents, including the use of Form(s): None. collected from holders of FAA automated collection techniques or Affected Public: A total of 1,000 production approvals and selected other forms of information technology. pilots. suppliers to obtain their input on how well the agency is performing the Issued in Washington, DC, on December Frequency: The information is administration and conduct of the 14, 2005. conducted on a one-time basis. Aircraft Certification Systems Judith D. Street, Estimated Average Burden Per Evaluation Program (ACSEP). The FAA Information Collection Clearance Response: 30 minutes. Agency will use the information as a Officer, Information Systems and Technology Services Staff, ABA–20. Estimated Annual Burden Hours: An customer service standard to [FR Doc. 05–24274 Filed 12–19–05; 8:45 am] estimated 500 hours annually. continually improve ACSEP. A notice was published in the Federal Register BILLING CODE 4910–13–M Abstract: The FAA has undertaken an announcing our intention to request effort to improve aviation safety by renewal of this collection on September collecting data on pilots’ training and 6, 2005, vol 70, #171, pages 53039– DEPARTMENT OF TRANSPORTATION experience with transport category 53040. rudder control systems. Federal Aviation Administration DATES: Please submit comments by ADDRESSES: Send comments to the January 19, 2006. Agency Information Collection Activity Office of Information and Regulatory FOR FURTHER INFORMATION CONTACT: Judy Under OMB Review, Request for Affairs, Office of Management and Street on (202) 267–9895. Comments; Renewal of an Approved Budget, 725 17th Street, NW., Information Collection Activity, Pilots SUPPLEMENTARY INFORMATION: Washington, DC 20503, Attention FAA Convicted of Alcohol or Drug-Related Desk Officer. Federal Aviation Administration (FAA) Motor Vehicle Offenses or Subject to Comments are invited on: Whether Title: Aircraft Certification Systems State Motor Vehicle Administrative the proposed collection of information Evaluations Program (ACSEP) Procedures is necessary for the proper performance Evaluation Customer Feedback Report. AGENCY: Federal Aviation of the functions of the Department, Type of Request: Renewal of an Administration (FAA), DOT. including whether the information will approved collection. have practical utility; the accuracy of OMB Control Number: 2120–0605. ACTION: Notice and request for the Department’s estimates of the Form(s): ACSEP Customer Service comments. burden of the proposed information Feedback Form. collection; ways to enhance the quality, Affected Public: A total of 200 pilots. SUMMARY: The FAA invites public utility and clarity of the information to Frequency: The information is comments about our intention to request be collected; and ways to minimize the conducted on an as-needed basis. the Office of Management and Budget’s burden of the collection of information Estimated Average Burden Per (OMB) approval for the renewal of a on respondents, including the use of Response: Approximately 30 minutes currently approved information automated collection techniques or per response. collection. 14 CFR Part 61 requires other forms of information technology. Estimated Annual Burden Hours: An airmen to notify the FAA of any estimated 100 hours annually. conviction or administrative action Issued in Washington, DC, on December Abstract: The information will be resulting from any alcohol or drug 14, 2005. collected from holders of FAA related motor vehicle offense within 60 Judith D. Street, production approvals and selected days of the offense. A notice was FAA Information Collection Clearance suppliers to obtain their input on how published in the Federal Register Officer, Information Systems and Technology well the agency is performing the announcing our intention to request Services Staff, ABA–20. administration and conduct of the renewal of this collection on September [FR Doc. 05–24273 Filed 12–19–05; 8:45 am] Aircraft Certification Systems 6, 2005, vol 70, #171, pages 53039– BILLING CODE 4910–13–M Evaluation Program (ACSEP). The 53040.
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DATES: Please submit comments by DEPARTMENT OF TRANSPORTATION agencies to develop and, as needed, January 19, 2006. revise implementing procedures Federal Aviation Administration consistent with the CEQ regulations. FOR FURTHER INFORMATION CONTACT: Judy [Docket No. FAA 2005 22020] The FAA’s current Order 1050.1E, Street on (202) 267–9895. Environmental Impacts: Policies and SUPPLEMENTARY INFORMATION: Environmental Impacts: Policies and Procedures, provides FAA’s policy and Procedures procedures for complying with the Federal Aviation Administration (FAA) requirements of: (a) The CEQ AGENCY: Federal Aviation Title: Pilots Convicted of Alcohol or regulations for implementing the Administration, DOT. procedural provisions of NEPA; (b) Drug-Related Motor Vehicle Offenses or ACTION: Notice; request for comment. Department of Transportation (DOT) Subject to State Motor Vehicle Order DOT 5610.1C, Procedures for Administrative Procedures. SUMMARY: The Federal Aviation Considering Environmental Impacts, Type of Request: Renewal of an Administration (FAA) proposes to and (c) other applicable environmental approved collection. revise its procedures for implementing laws, regulations, and executive orders the National Environmental Policy Act, OMB Control Number: 2120–0543. and policies. The FAA is proposing to Order 1050.1E, Environmental Impacts: amend Order 1050.1E with Order Form(s): None. Policies and Procedures, with proposed 1050.1E, Change 1. Affected Public: A total of 970 pilots. Order 1050.1E, Change 1. The revisions in proposed Order 1050.1E, Change 1, Request for Comment Frequency: The information is include: Changes for clarification; conducted on an as-needed basis. As part of revising its environmental changes for consistency; a change for order, the FAA is seeking public Estimated Average Burden Per addition of information; corrections; comment regarding the proposed Response: Approximately 10 minutes editorial changes, and the addition of changes as described in the following per response. Categorical Exclusion 311f for synopsis of changes. Estimated Annual Burden Hours: An prohibited areas. This notices provides Synopsis of Proposed Changes estimated 162 hours annually. the public opportunity to comment on the proposed changes. All comments on The proposed FAA Order 1050.1E, Abstract: 14 CFR Part 61 requires the proposed changes will be airmen to notify the FAA of any Change 1, Environmental Impacts: considered in preparing the final Policies and Procedures, includes conviction or administrative action version of FAA Order 1050.1E, Change resulting from any alcohol or drug additions or changes to the current 1. version of FAA Order 1050.1E which related motor vehicle offense within 60 DATES: Comments must be received on may be of interest to the public and days of the offense. or before January 19, 2005. other government agencies and ADDRESSES: Send comments to the ADDRESSES: Comments should be organizations. The revised Order Office of Information and Regulatory mailed, in triplicate, to the Federal 1050.1E, Change 1, would institute Affairs, Office of Management and Aviation Administration (FAA) Office of changes in the following chapters and Budget, 725 17th Street, NW., the Chief Counsel, Attn: Rules Docket sections of Appendices A and C. Washington, DC 20503, Attention FAA (AGC–200), Docket No. FAA 2005 Changes are shown by italic text. Desk Officer. 22020, 800 Independence Avenue, SW., Chapter 3. Advisory and Emergency Room 915G, Washington, DC 20591. Comments are invited on: Whether Actions and Categorical Exclusions the proposed collection of information Comments may be inspected in Room is necessary for the proper performance 915G between 8:30 a.m. and 5 p.m., (1) Ch. 3, Para 301c: Change for clarification. The category of ‘‘warning of the functions of the Department, weekdays except Federal Holidays. Commenters who wish the FAA to areas’’ has been added to the list of including whether the information will acknowledge the receipt of their advisory actions. FAA regulations have practical utility; the accuracy of comments must submit with their define ‘‘warning area’’ as airspace of the Department’s estimates of the comments a self-addressed, stamped defined dimensions, extending from 3 burden of the proposed information postcard on which the following nautical miles outward from the coast of collection; ways to enhance the quality, statement is made: ‘‘Comments to the United States, that contain activity utility and clarity of the information to Docket No. FAA 2005 22020.’’ The that may be hazardous to be collected; and ways to minimize the postcard will be dated-stamped by the nonparticipating aircraft. (see 14 CFR burden of the collection of information FAA and returned to the commenter. § 1.1). The purpose of a warning area is on respondents, including the use of SUPPLEMENTARY INFORMATION: The to warn nonparticipating pilots of the automated collection techniques or National Environmental Policy Act potential danger. Designation of a other forms of information technology. (NEPA) and implementing regulations warning area is not necessary for the Issued in Washington, DC, on December promulgated by the Council on hazardous activity to occur. Therefore, 14, 2005. Environmental Quality (CEQ) (40 CFR the FAA is proposing to classify designation of warning areas, like Judith D. Street, parts 1500–1508) establish a broad national policy to protect the quality of designation of alert areas, as an advisory FAA Information Collection Clearance action. Officer, Information Systems and Technology the human environment and provide Services Staff, ABA–20. policies and goals to ensure that 301c. Designation of alerts areas and warning areas under FAA Order 7400.2, [FR Doc. 05–24275 Filed 12–19–05; 8:45 am] environmental considerations and associated public concerns are given Procedures for Handling Airspace BILLING CODE 4910–13–M careful attention and appropriate weight Matters. in all decisions of the Federal (2) Ch. 3, Para. 304c: Change for Government. Section 102(2) of NEPA clarification. The paragraph was revised and 40 CFR 1505.1 require Federal to include coastal zones in the list of
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examples of a natural, ecological, or total structure height reaching (6) Ch. 4, Para 401p.(5): Change for scenic resource. approximately 50-ft in height. (ATO, clarification. Text was added to the 304c. An impact on natural, APP, AST) paragraph to differentiate between ecological (e.g., invasive species), or (4) Ch. 3, Para. 311f: Addition of temporary and permanent changes to scenic resources of Federal, Tribal, Categorical Exclusion (CATEX) 311f., SUA and to be consistent with State, or local significance (for example: Establishment or modification of categorical exclusion 307e. Permanent Federally listed or proposed prohibited areas. In its initial notice changes to SUA normally require an EA. endangered, threatened, or candidate concerning Order 1050.1E, the FAA Temporary changes (e.g., temporary species or designated or proposed proposed a CATEX for the military operations area (MOA)) are critical habitat under the Endangered ‘‘[e]stablishment or modification of established by issuing a Notice to Species Act); resources protected by the Special Use Airspace (SUA), (e.g., Airman (NOTAM). NOTAMs are Fish and Wildlife Coordination Act; restricted areas, warning areas), and categorically excluded actions under wetlands; floodplains; coastal zones; military training routes for subsonic Paragraph 307e. prime, unique, State or locally operations that have a base altitude of (5) The provisions of p(1)–(4) of this important farmlands; energy supply and 3,000 feet above ground level (AGL), or paragraph are not applicable to special natural resources; and wild and scenic higher.’’ In the preamble to the final use airspace actions if minor rivers, including study or eligible river Order 1050.1E, the FAA announced that adjustments are made such as raising segments and solid waste management. it was removing this CATEX for further the altitudes; if a change is made in the (3) Ch. 3, Para. 309c: Editorial Change. study. For the reasons given below, the designation of the controlling or using The word ‘‘system’’ was removed FAA is now proposing a separate agency; or if the special use airspace following the word ‘‘ILS’’ in line 11. CATEX for prohibited areas, a type of action is temporary in nature and does The word was removed because it was SUA. not exceed 90 days (e.g., temporary duplicative. The sentence now reads Prohibited areas are airspace military operations area (MOA)). ‘‘* * * (establishment or relocation of designated under 14 CFR part 73 within (7) Ch. 4, Para 404e: Change for an ILS is not included * * *’’. which no person may operate an aircraft consistency. Two sentences would be 309c. Federal financial assistance for, without permission of the using agency revised to change ‘‘should’’ to ‘‘shall’’ or ALP approval of, or FAA installation (see 14 CFR 1.1). The FAA establishes and ‘‘coordinated’’ to ‘‘reviewed’’ to be or upgrade of facilities and equipment, prohibited areas when necessary to consistent with Para. 406c. The other than radars, on designated airport prohibit flight over an area on the sentences now read ‘‘For projects that or FAA property or launch facility. surface in the interest of national originate in or are approved at FAA Facilities and equipment means FAA security or welfare. It is possible that the headquarters, the EA and FONSI should communications, navigation, establishment or modification of a be coordinated with AGC for legal surveillance and weather systems. prohibited area could necessitate a sufficiency. For projects that originate in Weather systems include revision of air traffic control procedures. and are approved by the regions, the EA hygrothermometers, Automated However, such a revision generally and FONSI should be reviewed by Weather Observing System (AWOS), would only affect aircraft operating Regional Counsel’’. Automatic Surface Observation System under instrument flight rules over 3,000 404e. Internal review of the EA is (ASOS), Stand Alone Weather Sensors feet AGL unless they are arriving or conducted by potentially affected FAA (SAWS), Runway Visual Range (RVR), departing within an airport program offices having an interest in the other essentially similar facilities and environment. Prohibited areas are not proposed action to assure that all FAA equipment that provides for normally established within the airport concerns have been addressed modernization or enhancement of the environment. Revised air traffic control technically, and with AGC or Regional service provided by these facilities. procedures at 3,000 feet or more AGL Counsel to assure that the EA is legally Navigational aids include Very High are already covered by the CATEX in sufficient. For projects that originate in Frequency Omnidirectional Range paragraph 311i of Order 1050.1E, as are or are approved at FAA headquarters, (VOR), VOR Test facility (VOT), co- procedures below 3,000 feet AGL that the EA and FONSI shall be reviewed by located VOR’s and Tactical Aircraft do not cause air traffic to be routinely AGC for legal sufficiency. For projects Control and Navigation (TACAN) routed over noise sensitive areas. The that originate in and are approved by (VORTAC), Low Power TACAN, proposed CATEX below incorporates the regions, the EA and FONSI shall be Instrument Landing System (ILS) relevant language from the existing reviewed by Regional Counsel. The equipment or components of ILS CATEX in paragraph 311i. responsible FAA official should contact equipment (establishment or relocation 311f. Establishment or modification of the program offices to determine of an ILS is not included; an EA is prohibited areas, unless the appropriate levels of coordination. The normally required; see paragraph 401i), establishment or modification would responsible FAA official should consult Wide Area Augmentation System affect instrument procedures conducted with AEE (AEE–200) for general advice (WAAS), Local Area Augmentation below 3,000 feet AGL that cause air on compliance with NEPA and other System (LAAS), other essentially similar traffic to be routinely routed over noise applicable environmental laws, facilities and equipment, and equipment sensitive areas. (ATO) regulations, and executive orders, that provides for modernization or (5) Ch. 4, Para 401p: Change for especially for actions of national enhancement of the service provided by clarification. Text was added to the importance or which are highly that facility, such as conversion of VOR paragraph to clarify the types of SUA controversial. to VORTAC or conversion to Doppler actions that are subject to environmental (8) Ch. 5, Para 506b: Change for VOR (DVOR), or conversion of ILS to review. consistency with CEQ regulations. As category II or III standards. FAA Order 401p. Special Use Airspace (unless written, the text appears to require that 6820.10 ‘‘VOR, VOR/DME, and TACAN otherwise explicitly listed as an the environmentally preferred Siting Criteria’’ governs the installation advisory action or categorically alternative be identified in the EIS’s of VOR/VOT/VORTAC-type equipment. excluded under Chapter 3 of this Order). Executive Summary. CEQ regulations These facilities are typically located This airspace shall not be designated, encourage, but do not require within a 150 ft. × 150 ft parcel, with a established, or modified until: identification of the environmentally
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preferred alternative until the ROD is alternative: It must be reasonable, Overview, presents an overview of the prepared. The words ‘‘identifies any feasible, and achieve the project’s components of a ROD. environmentally preferred’’ have been purpose. The extent of active (11) Ch. 5, text box on page 5–16: removed from line 6 and the underlined participation in the NEPA process by Change for clarification. The phrase ‘‘for text had been added. the proponent of the alternative also the first time’’ was inserted. 506b. Executive Summary. An bears on the extent to which a proffered FAA encourages all interested parties executive summary will be included to alternative deserves consideration. To to provide comments concerning the adequately and accurately summarize provide a clear basis of choice amongst scope and content of the Draft EIS. the EIS. The summary describes the the alternatives, graphic or tabular Comments should be as specific as proposed action, stresses the major presentation of the comparative impact possible and address the analysis of conclusions, areas of controversy is recommended. This section also potential environmental impacts and (including issues raised by agencies and presents a brief discussion of the adequacy of the proposed action or the public), and the issues to be alternatives that were not considered merits of alternatives and the mitigation resolved (including the choice among reasonable due to their inadequacy in being considered. Reviewers should alternatives). It also discusses major meeting the purpose and need for the organize their participation so that it is environmental considerations and how proposed action. The FEIS must meaningful and makes the agency aware these have been addressed; summarizes specifically and individually identify of the viewer’s interests and concerns the analysis of alternatives; and agency the preferred alternative. Criteria other using quotations and other specific preferred and sponsor preferred than those included in the affected references to the text of the Draft EIS alternatives. If the agency has identified environment and environmental and related documents. Matters that an environmentally preferred consequences section of the EIS may be could have been raised with specifically alternative, it may also be included. It applied to identify the preferred during the comment period on the Draft discusses mitigation measures, alternative. EIS may not be considered if they are including planning and design to avoid (10) Ch. 5, Para 512: Change for raised for the first time later in the or minimize impacts. It identifies consistency CEQ regulations. A phrase decision process. This commenting interested agencies, lists permits, was inserted indicating that the ROD procedure is intended to ensure that licenses, and other approvals that must must identify all alternatives substantive comments and concerns are be obtained, and reflects compliance considered, including the made available to the FAA in a timely with other applicable environmental environmentally preferred alternative. manner so that the FAA has an laws, regulations and executive orders. 5.12. Following the time periods opportunity to address them. (9) Ch. 5, Para 506e: Change for described in 40 CFR 1506.10 (i.e., 90 (12) Ch. 5, Para. 509a.(1) and (4): consistency with CEQ regulations. Two days from DEIS Notice of Availability Change for consistency with AEE sentences were removed and two (NOA) issuance and 30 day waiting policy. Both paragraphs indicate that an sentences were modified to be period for FEIS NOA issuance), the FEIS originating in Headquarters (1) and consistent with CEQ regulation, 40 CFR agency’s decisionmaker may make a regions (4) should be forwarded to the 1505.2(b) regarding the timing of the decision on the Federal action. The ROD Office of Environment and Energy (AEE) identification of the environmentally presents the agency’s decision on the for review and concurrence. As a matter preferred alternative. This paragraph actions, identifies all alternatives of policy, AEE does not review FEISs, now requires that the environmentally considered by the agency, specifying most of which are sent to AEE for preferred alternative be identified in the which alternatives were considered to be information only. AEE does not review EIS. However, federal agencies are not environmentally preferable, identifies and concur unless AEE is specifically required under the CEQ regulations to applicable mitigation and monitoring requested to review and concur on a discuss the environmentally preferred actions required, and as necessary, can document for a specific purpose. Both alternative until the record of decision. be used to clarify and respond to issues paragraphs have been revised to reflect If an environmentally preferred raised on the FEIS. The ROD may this policy. alternative is known to the agency discuss preferences among alternatives 509a. Internal review is coordinated before the ROD, it can be disclosed at based on relevant factors including as follows: that time. economic and technical considerations (1) FEIS’s originating in headquarters. 506e. This section is the heart of the and agency statutory missions. The ROD The office or service director shall send EIS (see 40 CFR 1502.14; see also 40 shall identify and discuss all factors a copy of the FEIS to AGC to review for CFR 1502.10(e) and 40 CFR 1505.2 for including any essential consideration legal sufficiency and concurrence. The more information on alternatives). It and national policies that were balanced responsible office or service director will presents a comparative analysis of the by the agency in making its decision send a copy of the FEIS to AEE for no action alternative, the proposed and state how those considerations information unless review and action and other reasonable alternatives entered into the decision. The ROD concurrence are specifically requested. to fulfill the purpose and need for the shall state whether all practicable means After the office or service director action. Although CEQ encourages to avoid or minimize environmental approves the FEIS, the responsible FAA Federal agencies to identify the harm from the alternatives selected have official will file it with EPA (see environmentally preferred alternatives been adopted, and if not adopted, why paragraphs 509a(6) and 512). in the EIS (see CEQs ‘‘40 Most Asked they were not adopted. The draft ROD (4) FEIS’s originating in regions or Questions,’’ number 6), CEQ regulations should accompany the proposed FEIS centers, but where authority to approve do not require that discussion until the during the internal review prior to the FEIS is retained in headquarters. ROD. Reasonable alternatives not within approval only when headquarters’ The applicable division manager or the jurisdiction of the lead agency concurrence is required. The center shall send the proposed FEIS to should be considered (see 40 CFR decisionmaker must obtain concurrence the appropriate headquarters’ office or 1502.14(c)). The FAA may include before approving the ROD. After service director. The office or service alternatives proposed by the public or approving the ROD, the decisionmaker will provide the FEIS to AGC for review. another agency. However, they must may begin implementing the selected The office or service director will meet the basic criteria for any action. Figure 5–4, Record of Decision provide the FEIS to AEE for information
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unless review is specifically requested. not approve any program or project that CFR part 261, including ignitability, Following approval, the FEIS will be requires the use of any publicly owned corrosivity, reactivity, or toxicity. filed with EPA. Presently, approval for land from a public park, recreation area, (17) Appendix A, Section 11. these types of FEIS’s is being delegated, or wildlife and waterfowl refuge of Historical, Architectural, Archeological, if comments on the DEIS have been national, State, or local significance or and Cultural Resources: Change for incorporated. (See paragraph 507.) land from a historic site of national, clarification. Paragraph 11.2b. was (13) Appendix A, Section 3. Coastal State, or local significance as revised to remove contradictory Resources: Change for correction. determined by the officials having Paragraph 3.2b.(2) was revised to clarify jurisdiction thereof, unless there is no language. The beginning of the sentence what should be included concerning feasible and prudent alternative to the indicated that identifying the area of coastal zone consistency in an EA or EIS use of such land and such program, and potential effect (APE) was only required for a direct Federal action, e.g. an the project includes all possible if the undertaking may have an adverse activity that the FAA itself is planning to minimize harm resulting effect. The beginning of the sentence, ‘‘If undertaking such as establishment of a from the use. This order continues to an undertaking may have an adverse navigational aid. Title 16 U.S.C. refer to section 4(f) because it would effect,’’ has been deleted. 1456(e)(2), states that the CZMA shall create needless confusion to do 11.2b. Determination of Undertaking. not be construed to supersede laws otherwise; the policies section 4(f) The responsible FAA official determines applicable to Federal agencies. Title 15 engendered are widely referred to as whether the proposed action is an CFR 930.32(a) further provides that a ‘‘section 4(f)’’ matters. ‘‘undertaking,’’ as defined in 36 CFR Federal agency may determine that full (15) Appendix A, Section 9. 800.16(y) (and not an undertaking that consistency with the policies of a Floodplains: Change for clarification. is merely subject to State or local management program is prohibited by Currently paragraphs 9.2c and 9.2g existing law applicable to the agency. regulation administered pursuant to a contain the same extensive notification delegation or approval by a Federal 3.2b. CZMA. When a proposed action requirements for both encroachments affects (changes the manner of use or agency), and whether it is a type of and significant encroachments. DOT activity that has the potential to cause quality of land, water or other coastal Order 5650.2 paragraph 7 makes a adverse effects on historic properties resources, or limits the range of their distinction between notification uses) the coastal zone in a State with an eligible for or listed on the NRHP. If the requirements for encroachments and approved coastal zone management agency determines, and the SHPO/ significant encroachments. Paragraph (CZM) program, the EA or EIS shall 9.2c is being revised to clarify the THPO does not object, that an include the following: distinction between the notification undertaking does not have the potential (2) For activities that the FAA itself to have an effect on historic properties, undertakes, the EA or EIS should requirements for encroachments and significant encroachments. a historical or cultural resource survey include the same information listed is not necessary and the FAA may issue above for federally assisted activities. If 9.2c. If the agency finds that the only practicable alternative requires siting in a determination that the action has no the State or local agency that effect. The first step is to identify the administers the CZM program objects to the base floodplain, a floodplain area of potential effect (APE) and the the consistency determination, then the encroachment would occur and further historical or cultural resources within it FAA may proceed with the federal environmental analysis is needed. The activity only if the FAA determines that FAA shall, prior to taking the action, (see Secretary’s Standards and full consistency is prohibited by existing design or modify the proposed action to Guidelines for Identification). laws specifically applicable to the minimize potential harm to natural (18) Appendix C, Figure 3. Related agency, such as aviation laws. In such floodplain values or within the base Memoranda and Guidance: Change for a case, the EA or EIS should further floodplain. The action is to be correction. The date of the state that the FAA provided the State or consistent with regulations issued Memorandum of Understanding local agency with a written statement according to section 2(d) of E.O. 11988. between the FAA and the Department of The FAA shall also provide the public clearly describing the statutory Defense was updated. The description with an opportunity to review the provisions, legislative history, or other of the Memorandum was also revised to encroachment through its public legal authority that limits the FAA’s more accurately describe the document. discretion to be fully consistent with the involvement process and any public hearing presentations shall include enforceable policies of the CZM Memoranda & program. identification of encroachments. guidance Description (14) Appendix A, Section 6. (16) Appendix A, Section 10. Department of Transportation Act, Hazardous Material, Pollution Memorandum of Un- Addresses environ- Section 4(f): Change for correction. Prevention, and Solid Waste: Change for derstanding (MOU) mental review of Paragraph 6.1a. is being revised to correction and consistency. Paragraph between the FAA special use air- correct a misstatement regarding the 10.1d (2). The definition of hazardous and the Department space actions. waste under the Resource Conservation of Defense, Octo- legislative history of 49 U.S.C. 303(c). ber 4, 2005. Section 4(f) was not recodified and and Recovery Act (RCRA) is slightly renumbered as part of the 1994 different than that in EPA regulation 40 recodification of aviation statutes. CFR 261.1. Paragraph 10.1d(2) Issued in, Washington, DC December 12, 6.1a. The Federal statute that governs referenced both definitions. FAA uses 2005. impacts in this category is commonly the EPA regulatory definition for Carl E. Burleson, known as the Department of purposes of NEPA compliance so we Federal Aviation Administration, Director, Transportation (DOT) Act, section 4(f) propose to delete the reference to the Office of Environment and Energy. provisions. Section 4(f) of the DOT Act, RCRA definition. [FR Doc. 05–24132 Filed 12–19–05; 8:45 am] which is codified and numbered as (2) Hazardous Waste—a waste is BILLING CODE 4910–13–M section 303(c) of 49 U.S.C., provides considered hazardous if it is listed in, or that the Secretary of Transportation will meets the characteristics described in 40
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DEPARTMENT OF TRANSPORTATION 0568, Emergency Order No. 24. The Federal Railroad Administration (FRA) expiration date for this collection of hereby announces that it is seeking Federal Railroad Administration information is March 31, 2006. renewal of the following currently The following information collections approved information collection Agency Information Collection were re-approved: (1) OMB No. 2130– activities. Before submitting these Activities 0533, Qualifications For Locomotive information collection requirements AGENCY: Federal Railroad Engineers (49 CFR part 240). The new (ICRs) for clearance by the Office of Administration, DOT. expiration date for this information Management and Budget (OMB), FRA is ACTION: Notice of OMB approvals. collection is August 31, 2008. (2) OMB soliciting public comment on specific No. 2130–0552, Locomotive Cab aspects of the activities identified SUMMARY: In compliance with the Sanitation Standards (49 CFR part 229). below. Paperwork Reduction Act of 1995 (44 The new expiration date for this DATES: Comments must be received no U.S.C. 3501 et seq.) and 5 CFR information collection is August 31, later than February 21, 2006. 1320.5(b), this notice announces that 2008. (3) OMB No. 2130–0517, new information collections Supplemental Qualifications Statement ADDRESSES: Submit written comments requirements (ICRs) listed below have For Railroad Safety Inspector on any or all of the following proposed been approved by the Office of Applicants (Form FRA F 120). The new activities by mail to either: Mr. Robert Management and Budget (OMB). These expiration date for this information Brogan, Office of Safety, Planning and new ICRs pertain to 49 CFR parts 222, collection is August 31, 2008. (4) OMB Evaluation Division, RRS–21, Federal 229, and 236. Additionally, FRA hereby No. 2130–0539, Roadway Worker Railroad Administration, 1120 Vermont announces that other ICRs listed below Protection: Roadway Maintenance Ave., NW., Mail Stop 17, Washington, have been re-approved by the Office of Machines (49 CFR part 214) (Form FRA DC 20590, or Mr. Victor Angelo, Office Management and Budget (OMB). These F 6180.119). The new expiration date of Support Systems, RAD–20, Federal ICRs pertain to Parts 214, 216, 229, 238, for this information collection is August Railroad Administration, 1120 Vermont and 240. The OMB approval numbers, 31, 2008. (5) OMB No. 2130–0544, Ave., NW., Mail Stop 35, Washington, titles, and expiration dates are included Passenger Equipment Safety Standards DC 20590. Commenters requesting FRA herein under supplementary (Current Rule) (49 CFR parts 216 and to acknowledge receipt of their information. 238). The new expiration date for this respective comments must include a self-addressed stamped postcard stating, FOR FURTHER INFORMATION CONTACT: Mr. information collection is November 30, ‘‘Comments on OMB control number Robert Brogan, Office of Planning and 2008. Evaluation Division, RRS–21, Federal Persons affected by the above 2130–0017 or on OMB control number Railroad Administration, 1120 Vermont referenced information collections are 2130–0506.’’ Alternatively, comments Ave., NW., Mail Stop 17, Washington, not required to respond to any may be transmitted via facsimile to DC 20590 (telephone: (202) 493–6292), collection of information unless it (202) 493–6265 or (202) 493–6170, or e- or Victor Angelo, Office of Support displays a currently valid OMB control mail to Mr. Brogan at Systems, RAD–20, Federal Railroad number. These approvals by the Office [email protected], or to Mr. Administration, 1120 Vermont Ave., of Management and Budget (OMB) Angelo at [email protected]. NW., Mail Stop 35, Washington, DC certify that FRA has complied with the Please refer to the assigned OMB control 20590 (telephone: (202) 493–6470). provisions of the Paperwork Reduction number in any correspondence (These telephone numbers are not toll- Act of 1995 (Pub. L. 104–13) and with submitted. FRA will summarize free.) 5 CFR 1320.5(b) by informing the public comments received in response to this about OMB’s approval of the notice in a subsequent notice and SUPPLEMENTARY INFORMATION: The include them in its information Paperwork Reduction Act of 1995 information collection requirements of the above cited forms and regulations. collection submission to OMB for (PRA), Public Law No. 104–13, section approval. 2, 109 Stat. 163 (1995) (codified as Authority: 44 U.S.C. 3501–3520. FOR FURTHER INFORMATION CONTACT: revised at 44 U.S.C. 3501–3520), and its Issued in Washington, DC on December 15, Mr. implementing regulations, 5 CFR part 2005. Robert Brogan, Office of Planning and 1320, require Federal agencies to D.J. Stadtler, Evaluation Division, RRS–21, Federal Railroad Administration, 1120 Vermont display OMB control numbers and Director, Office of Budget, Federal Railroad inform respondents of their legal Administration. Ave., NW., Mail Stop 17, Washington, DC 20590 (telephone: (202) 493–6292) significance once OMB approval is [FR Doc. E5–7568 Filed 12–19–05; 8:45 am] or Victor Angelo, Office of Support obtained. The following new FRA BILLING CODE 4910–06–P information collections were approved Systems, RAD–20, Federal Railroad in the past nine months: (1) OMB No. Administration, 1120 Vermont Ave., 2130–0553, Positive Train Control (49 DEPARTMENT OF TRANSPORTATION NW., Mail Stop 35, Washington, DC CFR 236) (Final Rule). The expiration 20590 (telephone: (202) 493–6470). date for this collection of information is Federal Railroad Administration (These telephone numbers are not toll- August 31, 2008. (2) OMB No. 2130– free.) 0560, Use of Locomotive Horns at Proposed Agency Information SUPPLEMENTARY INFORMATION: The Highway-Rail Grade Crossings (49 CFR Collection Activities; Comment Paperwork Reduction Act of 1995 222 and 229) (Final Rule). The Request (PRA), Public Law No. 104–13, § 2, 109 expiration date for this collection of AGENCY: Federal Railroad Stat. 163 (1995) (codified as revised at information is July 31, 2008. (3) OMB Administration, DOT. 44 U.S.C. 3501–3520), and its No. 2130–0004, Locomotive Safety ACTION: Notice. implementing regulations, 5 CFR part Standards and Event Recorders (49 CFR 1320, require Federal agencies to 229) (Final Rule). The expiration date SUMMARY: In accordance with the provide 60-days notice to the public for for this collection of information is Paperwork Reduction Act of 1995 and comment on information collection August 31, 2008. (4) OMB No. 2130– its implementing regulations, the activities before seeking approval for
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reinstatement or renewal by OMB. 44 organizes information collection responsible for highway-rail crossing U.S.C. 3506(c)(2)(A); 5 CFR 1320.8(d)(1), requirements in a ‘‘user friendly’’ format safety. Following the official 1320.10(e)(1), 1320.12(a). Specifically, to improve the use of such information; establishment of the National Inventory FRA invites interested respondents to and (iii) accurately assess the resources in 1975, the Federal Railroad comment on the following summary of expended to retrieve and produce Administration (FRA) assumed the proposed information collection information requested. See 44 U.S.C. principal responsibility as custodian for activities regarding (i) Whether the 3501. the maintenance and continued information collection activities are Below is a brief summary of the development of the U.S. DOT/AAR necessary for FRA to properly execute currently approved ICRs that FRA will National Highway-Rail Crossing its functions, including whether the submit for clearance by OMB as Inventory Program. The major goal of activities will have practical utility; (ii) required under the PRA: the Program is to provide Federal, State, the accuracy of FRA’s estimates of the Title: U.S. DOT Crossing Inventory and local governments, as well as the burden of the information collection Form. railroad industry, information for the activities, including the validity of the OMB Control Number: 2130–0017. improvement of safety at highway-rail methodology and assumptions used to Type of Request: Extension of a crossings. Good management practices determine the estimates; (iii) ways for currently approved collection. necessitate maintaining the database FRA to enhance the quality, utility, and Abstract: Form FRA F 6180.71 is a with current information. The data will clarity of the information being voluntary form, and is used by States continue to be useful only if maintained collected; and (iv) ways for FRA to and railroads to periodically update and updated as inventory changes minimize the burden of information certain site specific highway-rail occur. FRA previously cleared the collection activities on the public by crossing information which is then reporting and recordkeeping burden for automated, electronic, mechanical, or transmitted to FRA for input into the this form under Office of Management other technological collection National Inventory File. This and Budget (OMB) Clearance Number techniques or other forms of information information has been collected on the 2130–0017. OMB approved the burden technology (e.g., permitting electronic U.S. DOT–AAR Crossing Inventory for this form through July 31, 2006. FRA submission of responses). See 44 U.S.C. Form (previous designation of this form) is requesting a new three year approval 3506(c)(2)(A)(I)–(iv); 5 CFR since 1974 and maintained in the from OMB for this information 1320.8(d)(1)(I)–(iv). FRA believes that National Inventory File database since collection. soliciting public comment will promote 1975. The primary purpose of the Form Number(s): Form FRA F its efforts to reduce the administrative National Inventory File is to provide for 6180.71. and paperwork burdens associated with the existence of a uniform database the collection of information mandated which can be merged with accidents Affected Public: Businesses. by Federal regulations. In summary, data and used to analyze information for Respondent Universe: 650 Railroads. FRA reasons that comments received planning and implementation of Frequency of Submission: On will advance three objectives: (i) Reduce crossing safety programs by public, occasion; monthly. reporting burdens; (ii) ensure that it private, and governmental agencies Reporting Burden:
Respondent Average time universe Total annual responses per response Total annual Total annual (railroads) (minutes) burden hours burden cost
Crossing Inventory—Forms ...... 650 2,219 forms...... 15 555 $32,745 Crossing Inventory—Mass Update 650 250 printouts (4,304 updated 30 125 7,375 Printouts. records). Crossing Inventory—Disc/Tape (non- 650 700 discs/tapes (103,040 records 30 350 20,650 GX). updated). Crossing Inventory—GX Electronic 650 9,140 records updated ...... 3 457 26,963 Updates.
Total Responses: 118,703. signed stating that such movement is informs all interested parties that it may Estimated Total Annual Burden: being made under the authority of the not conduct or sponsor, and a 1,487 hours. order. The Order does not require respondent is not required to respond Status: Regular Review. retaining cards or tags. When a car to, a collection of information unless it Title: Identification of Cars Moved in bearing a tag for movement under the displays a currently valid OMB control Accordance with Order 13528. Order arrives at its destination, the tags number. OMB Control Number: 2130–0506. are simply removed. Type of Request: Extension of a Form Number(s): None. Authority: 44 U.S.C. 3501–3520. currently approved collection. Affected Public: Businesses. Issued in Washington, DC on December 15, Abstract: This collection of Respondent Universe: 685 railroads. 2005. information identifies a freight car being Frequency of Submission: On D.J. Stadtler, moved within the scope of Order 13528 occasion. (Order). See CFR part 232, Appendix B. Total Responses: 800 tags. Director, Office of Budget, Federal Railroad Otherwise, an exception will be taken, Average Time Per Response: 5 Administration. and the car will be set out of the train minutes per tag. [FR Doc. E5–7569 Filed 12–19–05; 8:45 am] and not delivered. The information that Estimated Total Annual Burden: 67 BILLING CODE 4910–06–P must be recorded is specified at 49 CFR hours. Part 232, Appendix B, requiring that a Status: Regular Review. car be properly identified by a card Pursuant to 44 U.S.C. 3507(a) and 5 attached to each side of the car and CFR 1320.5(b), 1320.8(b)(3)(vi), FRA
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DEPARTMENT OF TRANSPORTATION trains are approximately 25 per day, 21 Anyone is able to search the BNSF trains, 2 Amtrak trains, and 2 electronic form of all comments Federal Railroad Administration Union Pacific Railroad trains. received into any of our dockets by the BNSF is currently developing an name of the individual submitting the Petition for Waiver of Compliance installation, test, and implementation comment (or signing the comment, if In accordance with Title 49 Code of plan for this second pilot test area. submitted on behalf of an association, Federal Regulations (CFR), Parts 211.9 BNSF’s present implementation business, labor union, etc.). You may and 211.41 notice is hereby given that guidelines would follow the same review DOT’s complete Privacy Act the Federal Railroad Administration methodologies as previously used in the Statement in the Federal Register (FRA) has received a request to expand Beardstown test area with regards to published on April 11, 2000 (Volume an existing waiver of compliance from personnel training and the testing of the 65, Number 70; Pages 19477–78). The certain requirements of Federal railroad test area’s unique components such as Statement may also be found at http:// safety regulations. The individual grade, track configuration, and track dms.dot.gov. petition is described below, including database. In addition, BNSF’s plan for Issued in Washington, DC on December 15, the parties seeking the extension, the this area would include a phased 2005. nature of the extension being requested methodology as was done in the Grady C. Cothen, Jr., and the petitioner’s arguments in favor Beardstown test area where Phase 1 Deputy Associate Administrator for Safety of relief. included no enforcement with ETMS Standards and Program Development. active, Phase 2 included enforcement [FR Doc. E5–7565 Filed 12–19–05; 8:45 am] Burlington Northern and Santa Fe with ETMS active, and Phase 3 is a BILLING CODE 4910–06–P Railway Company continuance of Phase 2 with some relief [Docket Number FRA–2003–15432] from detail reporting. This approach has The Burlington Northern and Santa Fe proven to be productive and DEPARTMENT OF TRANSPORTATION Railway Company (BNSF) seeks comprehensive. Federal Railroad Administration permission to expand the current The expansion would begin with Electronic Train Management System wayside and locomotive equipment [Docket Number FRA–2005–23226] (ETMS) waiver granted on June 23, installation in the beginning of 2006. 2004, into another area of their rail Upon completion of the wayside Notice of Application for Approval of network. The extension of this pilot will installation, the track database Discontinuance or Modification of a allow BNSF to further demonstrate the verification and locomotive testing Railroad Signal System or Relief From objectives of ETMS on different track would commence. Finally, the phased the Requirements of Title 49 Code of configurations and operational revenue demonstration would begin Federal Regulations Part 236 upon the successful completion of the scenarios. This extension will also allow Pursuant to Title 49 Code of Federal verification and validation testing. BNSF to demonstrate the ETMS Regulations (CFR) Part 235 and 49 technology with denser traffic patterns Interested parties are invited to U.S.C. 20502(a), the following railroad and give BNSF the potential to test participate in these proceedings by has petitioned the Federal Railroad interoperability with other railroads. submitting written views, data or Administration (FRA) seeking approval The ETMS pilot project on the comments. FRA does not anticipate for the discontinuance or modification Beardstown subdivision is currently in scheduling a public hearing in of the signal system or relief from the the third phase of the FRA waiver that connection with these proceedings since requirements of 49 CFR part 236 as was granted on June 23, 2004. To date, the facts do not appear to warrant a detailed below. BNSF has operated nearly 1700 ETMS- hearing. If any interested party desires Applicant: Burlington Northern and activated trains over this pilot test area. an opportunity for oral comment, they Santa Fe Railway, Mr. Ralph E. Young, BNSF has conducted over five hundred should notify FRA, in writing, before Director Signal Engineering, 4515 tests in cooperation with the FRA Office the end of the comment period and Kansas Avenue, Kansas City, Kansas of Safety that have successfully specify the basis for their request. 66106–1199. demonstrated the objectives that are All communications concerning these The Burlington Northern and Santa Fe feasible in the first pilot test area. BNSF proceedings should identify the Railway (BNSF) seeks relief from the is prepared to continue the testing and appropriate docket number (e.g., Waiver requirements of the Rules, Standard and demonstration of the ETMS technology Petition Docket Number FRA–2003– Instructions, Title 49 CFR, Part 236, in other areas of their rail network that 15432) and must be submitted to the Section 236.312, on the Hannibal will allow them to further demonstrate Docket Clerk, DOT Central Docket Bridge, milepost 0.95, in Kansas City, the safety and operational benefits that Management Facility, Room PL–401, Missouri, on the Nebraska Division, St. the rail industry can derive from this Washington, DC, 20590–0001. Joseph Subdivision, as follows: technology. Communications received within 30 1. BNSF requests relief to the extent The ETMS expansion will be tested days of the date of this notice will be that they be allowed to use a modified and demonstrated on the BNSF’s Fort considered by FRA before final action is easer bar inspection and test procedure Worth subdivision between Fort Worth, taken. Comments received after that to determine compliance with the rail Texas, milepost 346.67 and Gainesville, date will be considered as far as surface and alignment requirements. Texas, milepost 411.3. In addition, the practicable. All written communications The modified procedure uses 5/8 inch system will be tested and demonstrated concerning these proceedings are as the acceptable tolerance for the on the Red Rock subdivision between available for examination during regular amount of easer bar/casting play. Gainesville, Texas, milepost 411.3X and business hours (9 a.m.–5 p.m.). At the 2. BNSF requests relief from the Arkansas City, Kansas, milepost 264.11. above facility. All documents in the requirement that bridge locking The combined distance of the test public docket are also available for members must be detected within one territory is 329 miles. The present inspection and copying on the Internet inch of their proper positions, to the method of operation on the BNSF is at the docket facility’s Web site at http:// extent that they be permitted to Centralized Traffic Control. The total dms.dot.gov. continue using an alternate method of
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detecting proper swing span seating comments received into any of our shall set forth specifically the grounds than that described in the FRA’s dockets by the name of the individual upon which the protest is made, and Technical Manual. submitting the comment (or signing the include a concise statement of the Applicant’s justification for relief: comment, if submitted on behalf of an interest of the party in the proceeding. BNSF fully expects the actual rail association, business, labor union, etc.). Additionally, one copy of the protest surface and alignment to be maintained You may review DOT’s complete shall be furnished to the applicant at the within the 3/8 inch required by 236.312; Privacy Act Statement in the Federal address listed above. however, BNSF’s Bridge Engineers feel Register published on April 11, 2000 All communications concerning this that additional easer bar clearance is (Volume 65, Number 70; Pages 19477– proceeding should be identified by the needed to reliably operate this bridge 78) or you may visit http://dms.dot.gov. docket number and must be submitted because of its particular design. The FRA expects to be able to determine to the Docket Clerk, DOT Central Docket Hannibal Bridge does not have wedges these matters without an oral hearing. Management Facility, Room PL–401 or rollers, and instead has end lifts on However, if a specific request for an oral (Plaza Level), 400 7th Street, SW., each corner of the swing span. BNSF hearing is accompanied by a showing Washington, DC 20590–0001. has installed, at great expense, a rather that the party is unable to adequately Communications received within 45 elaborate mechanical proximity sensor present his or her position by written days of the date of this notice will be device, near the deck level at each of the statements, an application may be set considered by the FRA before final four corners of the bridge, to detect that for public hearing. action is taken. Comments received after the bridge is properly seated. While this Issued in Washington, DC on December 15, that date will be considered as far as approach to detecting locking is not the 2005. practicable. All written communications same as described in the FRA’s Grady C. Cothen, Jr., concerning these proceedings are Technical Manual, BNSF’s Bridge Deputy Associate Administrator for Safety available for examination during regular Engineers believe it accurately detects Standards and Program Development. business hours (9 a.m.–5 p.m.) at the when the swing span is properly seated, [FR Doc. E5–7570 Filed 12–19–05; 8:45 am] above facility. All documents in the clearly the intent of the rule. These public docket are also available for BILLING CODE 4910–06–P devices are designed to detect that all inspection and copying on the internet four corners are within 3/8 inch of the at the docket facility’s Web site at http:// proper seated position vertically and, on DEPARTMENT OF TRANSPORTATION dms.dot.gov. two of the corners, within 3/8 inch of FRA wishes to inform all potential proper horizontal alignment. BNSF Federal Railroad Administration commenters that anyone is able to respectfully submits that while the search the electronic form of all method of detecting bridge locking and Notice of Application for Approval of comments received into any of our rail surface/alignment on their Hannibal Discontinuance or Modification of a dockets by the name of the individual Bridge might not be conventional or Railroad Signal System or Relief From submitting the comment (or signing the familiar, it is completely safe and the Requirements of Title 49 Code of comment, if submitted on behalf of an complies with the intent of 49 CFR Federal Regulations Part 236 association, business, labor union, etc.). You may review DOT’s complete 236.312. Pursuant to Title 49 Code of Federal Any interested party desiring to Regulations (CFR) part 235 and 49 Privacy Act Statement in the Federal protest the granting of an application U.S.C. 20502(a), the following railroad Register published on April 11, 2000 shall set forth specifically the grounds has petitioned the Federal Railroad (Volume 65, Number 70; Pages 19477– upon which the protest is made, and Administration (FRA) seeking approval 78) or you may visit http://dms.dot.gov. include a concise statement of the FRA expects to be able to determine for the discontinuance or modification interest of the party in the proceeding. these matters without an oral hearing. of the signal system or relief from the Additionally, one copy of the protest However, if a specific request for an oral requirements of 49 CFR Part 236 as shall be furnished to the applicant at the hearing is accompanied by a showing detailed below. address listed above. that the party is unable to adequately All communications concerning this [Docket Number FRA–2005–23065] present his or her position by written proceeding should be identified by the Applicant: Canadian Pacific Railway, statements, an application may be set docket number and must be submitted Mr. Robert R. Otis, Manager Signal for public hearing. to the Docket Clerk, DOT Central Docket and Communication, Metro 94 Issued in Washington, DC on December 15, Management Facility, Room PI–401, Business Center, 425 Etna Street— 2005. Washington, DC 20590–0001. Suite 38, St. Paul, Minnesota 55106. Grady C. Cothen, Jr., Communications received within 45 The Canadian Pacific Railway seeks Deputy Associate Administrator for Safety days of the date of this notice will be approval of the proposed modification Standards and Program Development. considered by the FRA before final of the traffic control system, at milepost [FR Doc. E5–7566 Filed 12–19–05; 8:45 am] action is taken. Comments received after 3.22, just west of Lyndale Avenue, on that date will be considered as far as the Paynesville Subdivision, near BILLING CODE 4910–06–P practicable. All written communications Minneapolis, Minnesota, consisting of concerning these proceedings are the discontinuance and removal of the DEPARTMENT OF TRANSPORTATION available for examination during regular power-operated derail. The proposed business hours (9 a.m.–5 p.m.) at the change is associated with a plan to National Highway Traffic Safety above facility. All documents in the install a new stand-a-lone remote- Administration public docket are also available for controlled derail, just outside the actual [Docket No. NHTSA–04–18765] inspection and copying on the internet yard tracks, at milepost 3.65. at the docket facility’s Web site at http:// The reason given for the proposed Frontal New Car Assessment Program dms.dot.gov. changes is due to safety concerns about FRA wishes to inform all potential the derail’s location and operation. AGENCY: National Highway Traffic commenters that anyone is able to Any interested party desiring to Safety Administration (NHTSA), search the electronic form of all protest the granting of an application Department of Transportation (DOT).
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ACTION: Response to comments, notice better-educated decisions about their testing compliance with the FMVSS No. of decision. purchases, thereby providing market 208 and vice-versa, thereby maintaining forces that encourage automakers to or perhaps increasing the amount of SUMMARY: On October 14, 2004, NHTSA further improve the safety of their consumer information provided by the published a notice requesting comments vehicles. agency. on possible alternatives to revise the Since 1978, the test procedure for The second option offered for agency’s test procedures for frontal NCAP’s frontal crash test program has consideration was to modify the current impact New Car Assessment Program been similar to the frontal barrier test test procedure. Three modifications (NCAP) testing. This notice summarizes procedure used in Federal Motor were described. The first was to increase the comments received and provides the Vehicle Safety Standard (FMVSS) No. the current test speed; that is, to test the agency’s decision on how we will 208, ‘‘Occupant Crash Protection,’’ vehicles as outlined in FMVSS No. 208, proceed. The agency has decided to except that the NCAP test has been but at a faster speed. As the test speed maintain the full-frontal barrier test conducted at a speed of 5 mph (8 km/ of the FMVSS No. 208 test will be raised procedure, the test speed of 35 mph (56 h) above that specified in FMVSS No. from 30 mph (48 km/h) to 35 mph (56 km/h), the current test dummies, and 208. Recent amendments to FMVSS No. km/h), the NCAP test speed could also the current rating system until the 208 will require vehicles to be tested at be increased by 5 mph (8km/h) from 35 further research and analysis are an increased speed of 35 mph (56 km/ mph (56 km/h) to 40 mph (64 km/h). completed. h) for the belted Hybrid III 50th This test could also serve as a Privacy Act: Anyone is able to search percentile male dummy, the same test compliance indicant. The second the electronic form of all submissions procedure as the current frontal NCAP.1 variation was to add a variety of received into any of our dockets by the Consequently, on October 14, 2004, dummies. The Hybrid III 5th percentile name of the individual submitting the NHTSA published a notice requesting female dummy could be placed in the petition (or signing the petition, if comments on what revisions should driver position with the Hybrid III 50th submitted on behalf of an association, occur, if any, to the test procedures and percentile male dummy in the passenger business, labor union, etc.). You may or rating system used in frontal NCAP.2 position, or vice-versa. Additionally, review DOT’s complete Privacy Act Seventeen comments were received in rear seat occupants could include one or Statement in the Federal Register response to the notice. While most of more of the Hybrid III family of child published on April 11, 2000 (Volume the commenters did not object to dummies with their appropriate child 65, Number 70; Pages 19477–78) or you keeping the current frontal NCAP, they restraints. The third modification was to may visit http://dms.dot.gov. did offer mixed responses on the add another test procedure, such as an FOR FURTHER INFORMATION CONTACT: For different options for modifying the offset frontal test, either as a technical issues concerning the upgrade current test procedure. Additionally, replacement or in addition to the full- to frontal NCAP, contact Mr. Brian Park most commenters supported the idea of frontal barrier test. of the New Car Assessment Program. changing the current rating system in The third option offered for Telephone: (202) 366–6012. Facsimile: some way, and generally recommended consideration was to make changes to (202) 493–2739. Electronic Mail: that any changes made to the program the rating system. Two changes were [email protected]. For legal should reflect real world crash data. offered for consideration under this issues, contact Stephen Wood of the Though they did not submit comments approach. One possible change was to Office of Chief Counsel. Telephone: directly to the notice, a Government modify the star rating bands so that the (202) 366–2992. Facsimile: (202) 366– Accountability Office (GAO) study combined chance of a serious injury to 3820. Electronic Mail: suggested that the agency should the head or chest would be 5 percent or [email protected]. You may include different injury measurements lower (as opposed to the current 10 send mail to these officials at: National and additional occupant sizes in both percent limit) for a vehicle to receive Highway Traffic Safety Administration, the frontal and side crash test-rating five stars. The injury probability ranges 400 Seventh St., SW., Washington, DC, systems.3 This notice summarizes required for the other star ratings would 20590. comments to the 2004 notice, and also be adjusted accordingly. A second SUPPLEMENTARY INFORMATION: provides the agency’s decision on how modification was to add new injury I. Introduction we will proceed. metrics to the star rating like neck (Nij), II. Summary of Request for Comments II. Summary of Request for Comments chest deflection, femur loads and tibia III. Summary of Comments index. These injury metrics are IV. Discussion and Agency Decision In our notice requesting comments on currently measured in the NCAP test, V. Conclusion possible alternatives to current NCAP but are not used to compute the star Appendix A–NASS Analysis of Full-Frontal test procedures and/or rating system, rating. Crashes the alternatives offered were as follows: III. Summary of Comments I. Introduction (1) Maintaining the current program, (2) modifying the test procedure, and (3) This section provides a brief The National Highway Traffic Safety changing the rating system. summarization of the seventeen Administration (NHTSA) is responsible The first option offered for comments submitted to the docket by for reducing deaths, injuries, and consideration was to maintain the vehicle manufacturers, safety advocates, economic losses resulting from motor current program. Under this option, and the general public.4 vehicle crashes. One way in which NCAP test results could be used for NHTSA accomplishes this mission is by Maintaining the Current Program providing consumer information to the 1 This requirement is phased in during a period General Motors Corporation (GM) and public. Currently, NHTSA conducts beginning on September 1, 2007, and ending on Daimler Chrysler Corporation tests and provides frontal, side, and September 1, 2011. (DaimlerChrysler) did not object to rollover stability vehicle safety ratings 2 70FR 23078, Docket No. NHTSA–2004–18765. 3 GAO–05–370, Report to Congressional maintaining the current frontal NCAP to consumers through the New Car Committees, Vehicle Safety, ‘‘Opportunities Exist to Assessment Program (NCAP). With this Enhance NHTSA’s New Car Assessment Program,’’ 4 These submissions are available at http:// information, consumers can make April 2005. dms.dot.gov in docket number 2004–18765.
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test for the immediate future. GM increase of test speed. They all available, and consumer confusion as suggested maintaining the current suggested that the higher test speed reasons not to pursue this option. The program until the Advanced Air bag could lead to increased vehicle stiffness commenters suggested that consumers requirements of FMVSS No. 208 have and more aggressive air bags, which in could become confused when trying to been phased in completely. turn would diminish any increased interpret safety ratings using only one DaimlerChrysler also agreed with benefits. Nissan and IIHS also child restraint model out of the large maintaining the current program, citing specifically questioned the real-world number that are currently available. the need for an analysis of consumer benefits of a higher test speed. Additionally, Nissan stated that it was unclear whether the dummy’s response perception of NCAP ratings and how the Testing With Different Dummies ratings are used in their purchasing and would be attributable to the design of leasing decisions. Additionally, With regard to adopting the Hybrid III the CRS or to the vehicle itself. GM, DaimlerChrysler suggested that changes 5th percentile adult female test dummy however, did think adding child to the program could lead to consumer into the frontal test procedure, GM, dummies to the rear seat has merit, but confusion regarding comparisons Public Citizen, and Bidez & Associates indicated that additional research was between vehicles tested with the current supported this option. However, they required to fully comprehend how to procedure to those tested under a disagreed on how the dummy should be effectively evaluate vehicles for rear revised rating system. adopted. GM recommended replacing occupant protection. The Advocates for Highway and Auto the Hybrid III 50th percentile dummy Ford, Evenflo, Advocates, Public Safety (Advocates), the Insurance with the Hybrid III 5th percentile Citizen, and Bidez & Associates all Institute for Highway Safety (IIHS), and dummy and maintaining one single test. supported the inclusion of restrained Public Citizen expressed concerns with Public Citizen, on the other hand, child dummies in frontal NCAP. maintaining the current frontal program. supported running one test with the Advocates and Public Citizen did not The Advocates believe that the changes Hybrid III 50th and 5th dummies in the offer further comment. Ford suggested to FMVSS No. 208 will make the NCAP driver and passenger seats followed by that if the agency decides to test with crash tests irrelevant. IIHS stated that, a second test with the dummies in child dummies, only the three-year-old ‘‘* * * the remaining performance switched positions. Bidez & Associates Hybrid III dummy in a uniform (or differences among new vehicles are felt that the 5th percentile dummy standard) production CRS with Lower unlikely to translate into important should be added to an offset frontal test Anchors and Top Tethers for Children differences in occupant protection in rather than the current full-frontal (LATCH) should be used since that test real-world crashes.’’ Public Citizen barrier test. mode has been most thoroughly Nissan, Ford, DaimlerChrysler, Magna reiterated the fact that most new evaluated by the agency. Evenflo also Steyr, AIAM, and IIHS all objected to vehicles receive four-or five-star ratings, favored this approach, but they either replacing the Hybrid III 50th stated that ‘‘the frontal NCAP program recommended using a CRS surrogate in percentile dummy with the Hybrid III should be made more comprehensive,’’ lieu of a production CRS in order to 5th percentile dummy or including the and suggested achieving this by ensure year-to-year consistency. Bidez & 5th percentile into frontal NCAP testing. including structural integrity and more Associates added that they would like to Nissan suggested that the 50th body regions to the rating. see three child dummies in the rear seat percentile occupant represents the of every vehicle: A Hybrid-III three-year- Modifying the Test Procedure largest percentage of injured occupants old, six-year-old, and ten-year-old. The and thus there is no reason to include Increase Test Speed three-year old would be restrained in a the 5th percentile. Ford cited that the CRS recommended by the vehicle Both Advocates and Public Citizen addition of the 5th percentile into NCAP manufacturer and the six- and ten-year- favored an increase of the frontal test testing could have adverse effects old dummies would be restrained in the speed from 35 mph (56 km/h) to 40 mph (though no specifics were given) and two outboard rear-seating positions by (64 km/h). Public Citizen suggested that that the agency should do additional vehicle belts. deadly frontal crashes occur research. DaimlerChrysler referenced disproportionately at speeds above the the agency’s Notice of Proposed Offset Frontal Test current NCAP speed, based on 2003 Rulemaking for adding the Hybrid III Subaru, Nissan, BMW, Porsche, IIHS, data on fatal head-on crashes from 5th percentile dummy to FMVSS No. Magna Steyr, the Advocates, and Public NHTSA’s Fatality Analysis Reporting 208 and stated that potential benefits for Citizen encouraged the adoption of a System (FARS). The Advocates including this dummy were frontal offset test procedure to replace acknowledged that the full-barrier crash ‘‘statistically minor, an overestimate, the full-frontal barrier test. Most test is primarily a test of restraint system and can’t be absolutely quantified.’’ emphasized that a large percentage of effectiveness. They suggested a higher AIAM likewise suggested that the frontal offset crashes occurs in the real test speed could lead to further agency consider real world conditions world, and that these crashes may be improvements for both air bags and seat before adding the Hybrid III 5th more frequent than full-frontal crashes. belts, but that it might increase vehicle percentile dummy to the NCAP. IIHS Some also provided recommendations stiffness and air bag aggressiveness. suggested that assessing different sizes regarding the overlap percentage, They further suggested that this could of dummies in FMVSS No. 208 is fine, deformable barrier, and other test be countered by implementing a new but there is no evidence that it will procedure specifics. Honda favored the rating system that modified the score provide any benefit in NCAP testing. addition of a frontal offset test, and based on a compatibility ‘‘modifier.’’ NHTSA had also offered for suggested that a full-width deformable GM, Nissan North America, Inc. consideration testing with child barrier (FDB) test to enhance vehicle (Nissan), Honda Motor Company Ltd. dummies in the rear seats. GM, Nissan, crash compatibility be simultaneously and American Honda Motor Company and BMW objected to testing with child introduced. (Honda), Ford Motor Company (Ford), dummies that utilize child restraint GM, Ford, and AIAM did not support the Association of International systems (CRS). These commenters cited the adoption of an offset test. GM Automobile Manufacturers, Inc. test burden due to the large number of pointed out that IIHS conducts 40 (AIAM), and IIHS were opposed to an different child restraint models percent frontal offset crash tests and that
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if NHTSA adopted the same test, the their safety rating revised according to increase the stringency of the star additional test would be redundant. the new rating system. ratings. There were also widely Ford stated concerns that a safety rating divergent views regarding incorporation Add New Injury Metrics to Star Rating based on an offset test would cause a of different dummies into the frontal break in the safety ratings, such as a 3- Most respondents either supported NCAP test program. One area in which star performer in the offset test receiving adding injury measures to the rating there seemed to be some agreement was a 5-star rating in the full-frontal test, system or did not comment on the issue. in support of adding more injury leading to consumer confusion. AIAM The Advocates supported the addition measures to the rating system. commented that an offset test would be of new injury metrics, but NHTSA has maintained several premature without research of the recommended separate ratings for the guiding principles when considering benefits and disadvantages, particularly different injury criteria so that additions and/or revisions to NCAP. with regards to vehicle compatibility consumers can differentiate between These include ensuring that NCAP and aggressivity. life-threatening injuries and serious complements FMVSS performance non-life-threatening injuries. Nissan did requirements and other agency Changing the Rating System not object to additional injury metrics programs in promoting automotive Change Star Rating Limits provided that the new inclusions would safety, providing meaningful be supported by real world data, and IIHS, GM, Ford, DaimlerChrysler, and information to the consumers, that previously tested vehicles have encouraging safety improvement Honda were opposed to changing the their safety ratings revised. star rating limits. IIHS and GM through market forces, and assuring the Ford proposed that HIC calculated integrity of the rating program for questioned the real world benefits of over a 15 millisecond duration (HIC 15) changing the star rating bands. Ford, consumers. This requires that the NCAP and chest deflection be used to replace information be provided in a timely DaimlerChrysler, and Honda cautioned the role of HIC36 and chest acceleration against the undesired consequences of manner that is readily understood by in the frontal NCAP tests. GM, Porsche, the consumers, that considers changing changing the star bands, particularly in and DaimlerChrysler also recommended changing the five-star criteria. Daimler vehicle trends, and perhaps most the use of chest deflection instead of importantly, is supported by sound data Chrysler expressed that in order to chest acceleration, as it might be a better differentiate current vehicles, they and research. Although the comments predictor of chest injury. provided to the 2004 notice have been would support half-star ratings. Daimler As neck load data is currently helpful in offering approaches that Chrysler said that ‘‘creating a 5-star collected in NCAP tests, both Porsche warrant consideration in revising the rating based on a 5 percent risk of and Subaru supported the use of Nij. frontal NCAP, there was little serious injury would likely lead to more DaimlerChrysler objected to the substantive data or research provided aggressive vehicle and restraint counter inclusion of Nij due to what they that is necessary to establish a revised measures with possible adverse real- believe is inappropriate interaction program with such far reaching public world occupant safety and crash between air bags and the neck of the policy automotive safety implications. compatibility consequences.’’ Honda, on Hybrid III 5th percentile dummy. the other hand, said that a tougher five- None of the responders objected to the The safety advances for frontal star rating with the current head and inclusion of femur criteria into the occupant protection envisioned a chest injury curves could make vehicles rating, as most stated that femur criteria generation ago have now been and/or restraints softer, which could have already been established and are incorporated into FMVSS No. 208. For provide disbenefits for higher speed addressed in current vehicle designs. emerging technologies, it is not apparent crashes and compromise protection for For lower leg (tibia) criteria, only which will most effectively advance larger occupants. Subaru and GM considered the use of frontal occupant protection safety. AIAM also questioned the influence the lower leg to be beneficial. GM stated NASS data (Appendix A) show that the that new star bands would have on the this could reduce the number of current NCAP crash severity, with an repeatability (consistency from one test debilitating injuries. However, Porsche impact velocity of 35 mph and delta-V to the next) of star ratings. IIHS and GM commented that lower leg of about 41–45 mph, represents all suggested that changing the star rating injury mechanics are not simple and a except about 0.2% of all frontal limits would only result in vehicle better understanding of the relationship occupant injury crashes. As noted by manufacturers making tweaks and small between full-frontal crashes and lower Public Citizen, about 7% of the AIS 3+ adjustments and would not have a leg injuries is needed. injuries occur above this crash severity. meaningful impact on vehicle However, the agency also notes that crashworthiness in the real world. The IV. Discussion and Agency Decision over 84% of the AIS 2+ and one-half of Advocates did not disagree with In reviewing the comments to the the AIS 3+ injuries occur at a delta-V of changing the star rating limits, but 2004 Notice, it is apparent that there is less than 25 mph. Included in these are suggested that other proposed changes no single prevailing opinion as to the many of the lower extremity injuries would yield much more meaningful future direction that should be pursued that are encompassed in the offset results. in revising the frontal NCAP. While frontal efforts currently being Public Citizen favored changing the Public Citizen and the Advocates considered and researched by NHTSA.5 star rating limits, suggesting that the favored an increase in the test speed, the Further, safety implications for the older new star ratings should increase auto companies and IIHS were all population is also a consideration that stringency. Public Citizen recommended opposed. Incorporation of an offset needs to be assessed in determining using 5 percent or less for head and frontal test was favored by a number of effective ways to revise the frontal chest injury to attain a five star rating. the commenters, including the IIHS, but NCAP to be most meaningful for Nissan also considered this approach several auto manufacturers raised reasonable, provided that NHTSA could various concerns. Likewise, most 5 70 FR 49248, Docket No. NHTSA–2005–21698, Occupant Crash Protection; Anthoropomorphic Test explain the relationship between the comments did not favor changing the Devices; Instrumented Lower Legs for 50th new and current calculation method, star rating limits, although Public Percentile Male and 5th Percentile Female Hybrid and that previously tested vehicles have Citizen did recommend revisions to III Dummies.
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consumers and relevant to the real including rating vehicles for child without unintended consequences. world crashes. occupant protection; the research, Accordingly, we will conduct the Based on the foregoing and testing, and analysis needed; and the additional analyses necessary for the considering the comments received to real world implications. We expect to development of a new frontal rating the 2004 notice, we have decided that have a course of action determined in program that will continue to provide the most prudent approach for the 2006. meaningful information to the frontal NCAP is to maintain the current consumers and thereby encourage safety V. Conclusion test and rating procedures until we have improvement through market forces. established the sound science necessary The agency believes that there is Authority: 49 U.S.C. 32302, 30111, 30115, to provide a basis for revising the insufficient scientific basis to propose 30117, 30166, and 30168, and Pub.L. 106– program in a manner that it would be any revisions to the frontal NCAP at this 414, 114 Stat. 1800; delegation of authority most meaningful for the consumers time. We are therefore maintaining the at 49 CFR 1.50. while ensuring that safety is advanced full-frontal barrier test procedure, the Appendix A—NASS Analysis of Full- without unintended consequences. We test speed of 35 mph (56 km/h), the Frontal Crashes have initiated a comprehensive review current test dummies, and the current of our entire NCAP program to assure rating system. We have come to this The National Automotive Sampling that it continues to most effectively conclusion based on our evaluation of System (NASS) Crashworthiness Data complement FMVSS performance the comments received, real world data, System (CDS) and the Fatality Analysis requirements and other agency available test data, and recent Reporting System (FARS) are two of the programs in promoting automotive congressional mandates. We believe that data systems that NHTSA uses to gain safety, particularly with the rapid further research and analysis is needed insight into real world crash data. emergence of new technologies. The to establish a new frontal NCAP that Generally, the NASS provides detailed review will include a further complements existing FMVSS and specifics on sampled towaway crashes examination of the various options drives the market towards improved while FARS provides a broad overview presented for upgrade to frontal NCAP, safety for frontal occupant protection of the fatal crash data.
TABLE A1.—AIS 1+ INJURED OCCUPANTS IN TOWED LIGHT VEHICLES (<=8,500 POUNDS GVWR) 13 YEARS AND OLDER IN THE FRONT-OUTBOARD SEATS, WITH BELTS AND AIR BAGS IN FULL-FRONTAL CRASHES WITHOUT MISSING INJURY OR DAMAGE DATA 1995–2003 ADJUSTED ANNUAL ESTIMATES
Cumulative Cumulative DV (mph) Frequency Percent frequency percent
00–05 ...... 1593.53 0.76 1593.53 0.76 06–10 ...... 67774.50 32.42 69368.03 33.18 11–15 ...... 78315.78 37.46 147683.80 70.64 16–20 ...... 39186.10 18.74 186869.90 89.39 21–25 ...... 13017.71 6.23 199887.60 95.62 26–30 ...... 5730.69 2.74 205618.30 98.36 31–35 ...... 1498.65 0.72 207117.00 99.07 36–40 ...... 1139.64 0.55 208256.60 99.62 41–45 ...... 355.58 0.17 208612.20 99.79 46–50 ...... 311.57 0.15 208923.80 99.94 51–55 ...... 84.16 0.04 209007.90 99.98 56–60 ...... 30.61 0.01 209038.50 99.99 61–65 ...... 12.67 0.01 209051.20 100.00
TABLE A2.—MODERATELY INJURED (AIS 2+) OCCUPANTS IN TOWED LIGHT VEHICLES (<=8,500 POUNDS GVWR) 13 YEARS AND OLDER IN THE FRONT-OUTBOARD SEATS, WITH BELTS AND AIR BAGS IN FULL-FRONTAL CRASHES WITH- OUT MISSING INJURY OR DAMAGE DATA 1995–2003 ADJUSTED ANNUAL ESTIMATES
Cumulative Cumulative DV (mph) Frequency Percent frequency percent
06–10 ...... 6152.10 20.42 6152.10 20.42 11–15 ...... 8308.73 27.58 14460.83 48.00 16–20 ...... 8306.68 27.57 22767.51 75.57 21–25 ...... 2831.48 9.40 25598.99 84.97 26–30 ...... 2057.39 6.83 27656.39 91.80 31–35 ...... 994.54 3.30 28650.93 95.10 36–40 ...... 775.82 2.58 29426.75 97.67 41–45 ...... 269.86 0.90 29696.60 98.57 46–50 ...... 303.22 1.01 29999.82 99.58 51–55 ...... 84.16 0.28 30083.99 99.86 56–60 ...... 30.61 0.10 30114.59 99.96 61–65 ...... 12.67 0.04 30127.26 100.00
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TABLE A3.—SERIOUSLY INJURED (AIS 3+) OCCUPANTS IN TOWED LIGHT VEHICLES (<=8,500 POUNDS GVWR) 13 YEARS AND OLDER IN THE FRONT-OUTBOARD SEATS, WITH BELTS AND AIR BAGS IN FULL-FRONTAL CRASHES WITHOUT MISSING INJURY OR DAMAGE DATA 1995–2003 ADJUSTED ANNUAL ESTIMATES
Cumulative Cumulative DV (mph) Frequency Percent frequency percent
06–10 ...... 355.40 6.71 355.40 6.71 11–15 ...... 380.33 7.18 735.73 13.90 16–20 ...... 1005.39 18.99 1741.12 32.89 21–25 ...... 1294.51 24.45 3035.63 57.35 26–30 ...... 741.61 14.01 3777.24 71.36 31–35 ...... 661.87 12.50 4439.11 83.86 36–40 ...... 276.35 5.22 4715.47 89.08 41–45 ...... 216.40 4.09 4931.86 93.17 46–50 ...... 234.22 4.42 5166.08 97.59 51–55 ...... 84.16 1.59 5250.24 99.18 56–60 ...... 30.61 0.58 5280.85 99.76 61–65 ...... 12.67 0.24 5293.52 100.00
Issued on: December 15, 2005. production and amount of spirits to be SUMMARY: The Veterans Health Stephen R. Kratzke, produced. Administration (VHA), Department of Associate Administrator for Rulemaking. Respondents: Business or other for- Veterans Affairs (VA), is announcing an [FR Doc. 05–24268 Filed 12–15–05; 2:57 pm] profit. opportunity for public comment on the Estimated Total Burden Hours: 394 BILLING CODE 4910–59–P proposed collection of certain hour. information by the agency. Under the OMB Number: 1513–0111. Paperwork Reduction Act (PRA) of Type of Review: Extension. DEPARTMENT OF THE TREASURY 1995, Federal agencies are required to Title COLAs Online Access Request. publish notice in the Federal Register Form: TTB form F 5013.2. concerning each proposed collection of Submission for OMB Review; Description: The information on this information, including each proposal Comment Request form will be used by TTB to revision of a currently approved authenticate end users on the system to December 13, 2005. collection, and allow 60 days for public electronically file Certificates of Label The Department of Treasury has comment in response to the notice. This submitted the following public Approval (COLAs). The system will notice solicits comments for information information collection requirement(s) to authenticate end users by comparing needed to evaluate a candidate’s OMB for review and clearance under the information submitted to records in credentials for employment with VA. Paperwork Reduction Act of 1995, multiple databases. Respondents: Business or other for- DATES: Written comments and Public Law 104–13. Copies of the recommendations on the proposed submission(s) may be obtained by profit. Estimated Total Burden Hours: 344 collection of information should be calling the Treasury Bureau Clearance received on or before February 21, 2006. Officer listed. Comments regarding this hour. Clearance Officer: Frank Foote (202) ADDRESSES: Submit written comments information collection should be 927–9347, Alcohol and Tobacco Tax on the collection of information to Ann addressed to the OMB reviewer listed and Trade Bureau, Room 200 East, 1310 W. Bickoff (193E1), Department of and to the Department of the Treasury G. Street, NW., Washington, DC 20005. Veterans Affairs, 810 Vermont Avenue, Clearance Officer, Department of the OMB Reviewer: Alexander T. Hunt NW., Washington, DC 20420 or e-mail: Treasury, Room 11000, 1750 (202) 395–7316, Office of Management [email protected]. Please refer to Pennsylvania Avenue, NW., and Budget Room 10235, New Executive ‘‘OMB Control No. 2900–0205’’ in any Washington, DC 20220. Office Building, Washington, DC 20503. correspondence. DATES: Written comments should be FOR FURTHER INFORMATION CONTACT: Ann received on or before January 19, 2006 Michael A. Robinson, W. Bickoff at (202) 273–8310 or FAX to be assured of consideration. Treasury PRA Clearance Officer. (202) 273–9381. [FR Doc. E5–7513 Filed 12–19–05; 8:45 am] Alcohol and Tobacco Tax and Trade SUPPLEMENTARY INFORMATION: Under the BILLING CODE 4810–31–P Bureau (TTB) PRA of 1995 (Public Law 104–13; 44 OMB Number: 1513–0051. U.S.C. 3501—3521), Federal agencies must obtain approval from the Office of Type of Review: Extension. DEPARTMENT OF VETERANS Management and Budget (OMB) for each Title Application for an Alcohol Fuel AFFAIRS Producer under 26 U.S.C. 5181. collection of information they conduct Form: TTB form F 5110.74. [OMB Control No. 2900–0205] or sponsor. This request for comment is Description: This form is used by being made pursuant to Section persons who wish to produce and Proposed Information Collection 3506(c)(2)(A) of the PRA. receive spirits for the production of Activity: Proposed Collection; With respect to the following alcohol fuels as a business or for their Comment Request collection of information, VHA invites own use and for State and local AGENCY: Veterans Health comments on: (1) Whether the proposed registration where required. The form Administration, Department of Veterans collection of information is necessary describes the person(s) applying for the Affairs. for the proper performance of VHA’s permit, location of the proposed functions, including whether the ACTION: Notice. operation, type of material used for information will have practical utility;
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(2) the accuracy of VHA’s estimate of a. Application for Physicians, concerning each proposed collection of the burden of the proposed collection of Dentists, Podiatrists and Optometrists, information, including each proposed information; (3) ways to enhance the Chiropractors VA Form 10–2850—30 extension of a currently approved quality, utility, and clarity of the minutes. collection, and allow 60 days for public information to be collected; and (4) b. Application for Nurses and Nurse comment in response to the notice. This ways to minimize the burden of the Anesthetists VA Form 10–2850a—30 notice solicits comments on information collection of information on minutes. needed to determine a veteran’s who respondents, including through the use c. Application for Residents VA Form uses prosthetic or orthopedic device of automated collection techniques or 10–2850b—30 minutes. (including a wheelchair) or is prescribe the use of other forms of information d. Application for Associated Health medication due to a skin condition technology. Occupations VA Form 10–2850c—30 because of a service connected disability Title: Applications & Appraisals for minutes. may be eligibility for clothing Employment for Title 38 Positions and e. Application for Medical, Dental and allowance. Trainees. Associated Health Students, Trainees DATES: Written comments and OMB Control Number: 2900–0205. and Intern VA Form 10–2850d—30 Type of Review: Revision of a recommendations on the proposed minutes. collection of information should be currently approved collection. f. Appraisal of Applicant VA Form FL received on or before February 21, 2006. Abstract: VA Forms 10–2850–2850a 10–341a—30 minutes. through c are applications used to elicit Frequency of Response: On occasion. ADDRESSES: Submit written comments information from candidate’s Estimated Number of Respondents: on the collection of information to Ann qualifications for employment with VA. 320,466. Bickoff, Veterans Health Administration VA uses the data collected to conduct a. Application for Physicians, (193E1), Department of Veterans Affairs, background, training and education as Dentists, Podiatrists and Optometrists, 810 Vermont Avenue, NW., well as previously held licenses/ Chiropractors VA Form 10–2850– Washington, DC 20420 or e-mail registrations to meet security and 14,900. [email protected]. Please refer to screening requirements. VA Forms 10– b. Application for Nurses and Nurse ‘‘OMB Control No. 2900–0198’’ in any 2850b and 10–285d are used to collect Anesthetists VA Form 10–2850a— correspondence. information on medical residents, 59,598. FOR FURTHER INFORMATION CONTACT: Ann health professions trainees and students c. Application for Residents VA Form Bickoff at (202) 273–8310. training appointment. Program directors 10–2850b—31,786. SUPPLEMENTARY INFORMATION: Under the of affiliated programs complete VA d. Application for Associated Health PRA of 1995 (Pub. L. 104–13; 44 U.S.C. Form Letter 10–341b to confirm that the Occupations VA Form 10–2850c—19– 3501–3521), Federal agencies must information listed has been verified by 866. obtain approval from the Office of the sponsoring entity for the trainee e. Application for Medical, Dental and Management and Budget (OMB) for each listed and that the trainee is enrolled in Associated Health Students, Trainees collection of information they conduct the designated training program. VA and Intern VA Form 10–2850d—56,286. or sponsor. This request for comment is uses the information collected to f. Appraisal of Applicant—VA Form being made pursuant to Section evaluate qualification for employment FL 10–341a—50,820. 3506(c)(2)(A) of the PRA. and training as well as education and Dated: December 8, 2005. With respect to the following professional experience in determining collection of information, VHA invites suitability, grade level and clinical By direction of the Secretary. comments on: (1) Whether the proposed privileges. Denise McLamb, collection of information is necessary Affected Public: Individuals or Program Analyst, Records Management for the proper performance of VHA’s Households, Business or Other For- Service. functions, including whether the Profit, Not-For-Profit Institutions, [FR Doc. E5–7571 Filed 12–19–05; 8:45 am] information will have practical utility; Federal Government, and State, Local or BILLING CODE 8320–01–P (2) the accuracy of VHA’s estimate of Tribal Government. Estimated Annual Burden: 123,894 the burden of the proposed collection of hours. DEPARTMENT OF VETERANS information; (3) ways to enhance the a. Application for Physicians, AFFAIRS quality, utility, and clarity of the information to be collected; and (4) Dentists, Podiatrists and Optometrists, [OMB Control No. 2900–0198] Chiropractors, VA Form 10–2850— ways to minimize the burden of the 7,450 hours. Proposed Information Collection collection of information on b. Application for Nurses and Nurse Activity: Proposed Collection; respondents, including through the use Anesthetists, VA Form 10–2850a— Comment Request of automated collection techniques or 29,799 hours. the use of other forms of information c. Application for Residents, VA Form AGENCY: Veterans Health technology. 10–2850b—15,893 hours. Administration, Department of Veterans Title and Form Number: Application d. Application for Associated Health Affairs. for Annual Clothing Allowance (Under Occupations, VA Form 10–2850c— ACTION: Notice. 38 U.S.C. 1162). 9,933 hours. OMB Control Number: 2900–0198. e. Application for Medical, Dental and SUMMARY: The Veterans Health Type of Review: Extension of a Associated Health Students, Trainees Administration (VHA) is announcing an currently approved collection. and Intern VA Form 10–2850d—28,143 opportunity for public comment on the Abstract: VA Form 10–8678 is used to hours. proposed collection of certain gather the necessary information to f. Appraisal of Applicant VA Form FL information by the agency. Under the determine if a veteran is eligible for 10–341a—25,410 hours. Paperwork Reduction Act (PRA) of clothing allowance benefits. Clothing Estimated Average Burden Per 1995, Federal agencies are required to allowance is payable if the veteran uses Respondent: 30 minutes. publish notice in the Federal Register a prosthetic or orthopedic device
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(including a wheelchair) that tends to Washington, DC 20503 (202) 395–7316. announces that the United States wear out or tear clothing or is prescribe Please refer to ‘‘OMB Control No. 2900– Department of Veterans Affairs (VA), medication for skin condition that New (VERS)’’ in any correspondence. has submitted to the Office of causes irreparable damage to outer SUPPLEMENTARY INFORMATION: Management and Budget (OMB) the garments. Title: Veterans Employability Survey following emergency proposal for the Affected Public: Individuals or (VERS). collection of information under the households. OMB Control Number: None assigned. provisions of the Paperwork Reduction Estimated Total Annual Burden: Type of Review: New collection. Act (44 U.S.C. 3507(j)(1)). VA is 1,120 hours. Abstract: The purpose of the study is requesting an emergency clearance for Estimated Average Burden per to obtain information on veterans who Request for One-VA Identification Card. Respondent: 10 minutes. discontinued or interrupted their Frequency of Response: Annually. DATES: Comments must be submitted on Vocational Rehabilitation and or before January 3, 2006. Estimated Number of Respondents: Employment (VR&E) Program. VA will 6,720. use the data to determine the factors FOR FURTHER INFORMATION OR A COPY OF Dated: December 12, 2005. impacting the veteran’s discontinuation THE SUBMISSION CONTACT: Denise By direction of the Secretary. of the program, effect on employability McLamb, Records Management Service Denise McLamb, and types of interventions that might (005E3), Department of Veterans Affairs, 810 Vermont Avenue, NW., Program Analyst, Records Management enable veterans to stay in the program Service. and to compare this VR&E Program Washington, DC 20420, (202) 565–8374, FAX (202) 565–6950 or e-mail: [FR Doc. E5–7572 Filed 12–19–05; 8:45 am] population with veterans who [email protected]. Please BILLING CODE 8320–01–P successfully complete the program and with the general veteran population. refer to ‘‘OMB Control No. 2900–New An agency may not conduct or (0711). Send comments and DEPARTMENT OF VETERANS sponsor, and a person is not required to recommendations concerning any AFFAIRS respond to a collection of information aspect of the information collection to unless it displays a currently valid OMB VA’s OMB Desk Officer, OMB Human [OMB Control No. 2900–New (VERS)] control number. The Federal Register Resources and Housing Branch, New Notice with a 60-day comment period Executive Office Building, Room 10235, Agency Information Collection Washington, DC 20503 (202) 395–7316 Activities Under OMB Review soliciting comments on this collection of information was published on or FAX (202) 395–6974. Please refer to AGENCY: Office of Policy, Planning and September 27, 2005, at page 56527. ‘‘2900—New (0711). Preparedness, Department of Veterans Affected Public: Individuals or SUPPLEMENTARY INFORMATION: Affairs. households. Title: Request for One-VA ACTION: Notice. Estimated Time Per Respondent and Identification Card, VA form 0711. Annual Burden: 1,667 hours. OMB Control Number: 2900–New SUMMARY: In compliance with the Estimated Average Burden Per (0711). Paperwork Reduction Act (PRA) of 1995 Respondent: 20 minutes. (44 U.S.C. 3501–3521), this notice Frequency of Response: One-time. Type of Review: New Collection. announces that the Office of Policy, Estimated Number of Respondents: Abstract: VA Form 0711 will collect Planning and Preparedness (OPP&P), 5,000. pertinent information from employees, VA applicants seeking employment Department of Veterans Affairs, has Dated: December 12, 2005. submitted the collection of information with VA, contractors, affiliates (such as By direction of the Secretary. abstracted below to the Office of students, WOC employees and others) Management and Budget (OMB) for Denise McLamb, prior to issuing a Department review and comment. The PRA Program Analyst, Records Management identification credential. The data submission describes the nature of the Service. collected will be used to personalize, information collection and its expected [FR Doc. E5–7573 Filed 12–19–05; 8:45 am] print, and issue a personal identify cost and burden; it includes the actual BILLING CODE 8320–01–P verification card. data collection instrument. Affected Public: Individuals or DATES: households. Comments must be submitted on DEPARTMENT OF VETERANS or before January 19, 2006. AFFAIRS Estimated Total Annual Burden: FOR FURTHER INFORMATION OR A COPY OF 8,333 hours. THE SUBMISSION CONTACT: Denise [OMB Control No. 2900–New (0711)] Estimated Average Burden Per McLamb, Records Management Service Respondent: 5 minutes. Agency Information Collection: (005E3), Department of Veterans Affairs, Emergency Submission for OMB Frequency of Response: On occasion. 810 Vermont Avenue, NW., Review; Comment Request Estimated Number of Respondents: Washington, DC 20420, (202) 565–8374 950. or FAX (202) 565–6950. Please refer to AGENCY: Human Resources Dated: December 12, 2005. ‘‘OMB Control No. 2900–New (VERS)’’. Administration, Department of Veterans Send comments and recommendations Affairs. By direction of the Secretary. Denise McLamb, concerning any aspect of the ACTION: Notice. information collection to VA’s OMB Program Analyst, Records Management Desk Officer, OMB Human Resources SUMMARY: In compliance with the Service. and Housing Branch, New Executive Paperwork Reduction Act (PRA) of 1995 [FR Doc. E5–7574 Filed 12–19–05; 8:45 am] Office Building, Room 10235, (44 U.S.C. 3501–3521), this notice BILLING CODE 8320–01–P
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Corrections Federal Register Vol. 70, No. 243
Tuesday, December 20, 2005
This section of the FEDERAL REGISTER DEPARTMENT OF DEFENSE DEPARTMENT OF THE INTERIOR contains editorial corrections of previously published Presidential, Rule, Proposed Rule, Office of the Secretary Fish and Wildlife Service and Notice documents. These corrections are prepared by the Office of the Federal TRICARE Formerly Known as the Draft Comprehensive Conservation Register. Agency prepared corrections are Civilian Health and Medical Program of Plan and Environmental Assessment issued as signed documents and appear in the Uniformed Services (CHAMPUS); for Shawangunk Grasslands National the appropriate document categories Fiscal Year 2006 Mental Health Rate elsewhere in the issue. Wildlife Refuge Updates Correction Correction In notice document 05–23642 In notice document 05–23766 beginning on page 72463 in the issue of beginning on page 72994 in the issue of Monday, December 5, 2005 make the Thursday, December 8, 2005, make the following correction: following correction: On page 72463, in the third On page 72995, in the table ‘‘Partial column,under the heading Hospitalization Rates for Full-Day and ADDRESSES, in the seventh line, Half-Day Programs FY 2006’’, in the ‘‘northeastplaning@amp;fws.gov,’’ third column, in the seventh entry, should read ‘‘211’’ should read ‘‘221’’. ‘‘northeastplanning@amp;fws.gov.’’ [FR Doc. C5–23766 Filed 12–19–05; 8:45 am] [FR Doc. C5–23642 Filed 12–19–05; 8:45 am] BILLING CODE 1505–01–D BILLING CODE 1505–01–D
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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 Rule to Designate Critical Habitat for the Spikedace (Meda fulgida) and the Loach Minnow (Tiaroga cobitis); Proposed Rule
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DEPARTMENT OF THE INTERIOR FOR FURTHER INFORMATION CONTACT: the basis for excluding these areas from Steve Spangle, Field Supervisor, critical habitat pursuant to section Fish and Wildlife Service Arizona Ecological Services Office 4(b)(2) of the Act. (telephone 602/242–0210; facsimile (7) We are not proposing the upper 50 CFR Part 17 602/242–2513). portion of the San Pedro River as critical RIN 1018–AU33 SUPPLEMENTARY INFORMATION: habitat because of the presence of nonnative fish species and the absence Public Comments Solicited Endangered and Threatened Wildlife of both spikedace and loach minnow. and Plants; Proposed Rule to It is our intent that any final action We seek comment on whether this area Designate Critical Habitat for the resulting from this proposal will be as is essential to the conservation of the Spikedace (Meda fulgida) and the accurate and effective as possible. species and whether it should be Loach Minnow (Tiaroga cobitis) Therefore, we solicit comments or included as critical habitat. suggestions from the public, other (8) Some of the lands we have AGENCY: Fish and Wildlife Service, concerned governmental agencies, the identified as containing features Interior. scientific community, industry, or any essential to the conservation of the ACTION: Proposed rule. other interested party concerning this spikedace and loach minnow are being proposed rule. On the basis of public considered for exclusion from the final SUMMARY: We, the U.S. Fish and comment, during the development of designation of critical habitat. We Wildlife Service (Service), propose to the final rule we may find that areas specifically solicit comment on the designate a total of approximately 633 proposed do not contain features possible inclusion or exclusion of such river miles (mi) (1018.7 kilometers (km)) essential to the conservation of the areas; of critical habitat for spikedace and species, are appropriate for exclusion (a) Whether these areas are occupied loach minnow. Proposed critical habitat under section 4(b)(2), or not appropriate and contain the features essential to the is located in New Mexico and Arizona. for exclusion, and in all of these cases, conservation of the species and; We hereby solicit data and comments this information would be incorporated (b) Whether these, or other areas from the public on all aspects of this into the final designation. We proposed but not specifically addressed proposal, including data on economic particularly seek comments concerning: in this proposal, warrant exclusion and; and other impacts of the designation. (1) The reasons why any areas should (9) We are not proposing Fossil Creek We may revise this proposal prior to or should not be determined to be as critical habitat because it is currently final designation to incorporate or critical habitat as provided by section 4 unoccupied. However, we seek address new information received of the Act, including whether the comment on whether this area is during public comment periods. benefits of designation will outweigh essential to the conservation of the DATES: We will accept comments from the benefits of excluding areas from the species and whether it should be all interested parties until February 21, designation. included as critical habitat. 2006. We must receive requests for (2) Specific information on the If you wish to comment, you may public hearings in writing at the address distribution and abundance of submit your comments and materials shown in the ADDRESSES section by spikedace and loach minnow and their concerning this proposal by any one of February 3, 2006. habitats, and which habitat contains the several methods (see ADDRESSES section ADDRESSES: If you wish to comment, primary constituent elements essential above). Please submit electronic you may submit your comments and to the conservation of these species and comments in ASCII file format and materials concerning this proposal, why. avoid the use of special characters or identified by RIN number 1018–AU33, (3) Land-use designations and current any form of encryption. Please also by any one of several methods: or planned activities in or adjacent to include ‘‘Attn: spikedace/loach 1. You may submit written comments the areas proposed and their possible minnow’’ in your e-mail subject header and information to Steve Spangle, Field impacts on proposed critical habitat. and your name and return address in Supervisor, U.S. Fish and Wildlife (4) Any foreseeable economic, the body of your message. If you do not Service, Arizona Ecological Services national security, or other potential receive a confirmation from the system Office, 2321 West Royal Palm Road, impacts resulting from the proposed that we have received your Internet Suite 103, Phoenix, Arizona, 85021. designation, in particular, any impacts message, contact us directly by calling 2. You may hand-deliver written on small entities. our Arizona Ecological Services Office comments and information to our (5) Whether our approach to at 602/242–0210. Please note that the e- Arizona Ecological Services Office, or designating critical habitat could be mail address, fax your comments to 602/242–2513. improved or modified in any way to [email protected], will be 3. You may send your comments by provide for greater public participation closed at the termination of the public electronic mail (e-mail) to and understanding, or to assist us in comment period. [email protected]. For accommodating public concerns and Our practice is to make comments, directions on how to submit electronic comments. including names and addresses of filing of comments, see the ‘‘Public (6) In addition, please consider the respondents, available for public review Comments Solicited’’ section. following: We specifically solicit the during regular business hours. (4) Federal eRulemaking Portal: delivery of spikedace- and loach Individual respondents may request that http://www.regulations.gov. Follow the minnow-specific management plans we withhold their home addresses from instructions for submitting comments. including implementation schedules for the administrative record, which we All comments and materials received, areas included in this proposed will honor to the extent allowable by as well as supporting documentation designation, and comment on: (a) law. There also may be circumstances in used in preparation of this proposed Whether these areas are occupied and which we would withhold from the rule, will be available for public contain the primary constituent rulemaking record a respondent’s inspection, by appointment, during elements that are essential to the identity, as allowable by law. If you normal business hours at the above conservation of the species; (b) whether wish us to withhold your name and/or address. these areas warrant exclusion; and (c) address, you must state this
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prominently at the beginning of your We note, however, that the August 6, requesting and responding to public comments. However, we will not 2004 Ninth Circuit judicial opinion, comment, and in some cases the costs consider anonymous comments. We (Gifford Pinchot Task Force v. United of compliance with the National will make all submissions from States Fish and Wildlife Service) found Environmental Policy Act (NEPA). None organizations or businesses, and from our definition of adverse modification of these costs result in any benefit to the individuals identifying themselves as was invalid. In response to the decision, species that is not already afforded by representatives or officials of the Director has provided guidance to the protections of the Act enumerated organizations or businesses, available the Service based on the statutory earlier, and they directly reduce the for public inspection in their entirety. language. In this rule, our analysis of the funds available for direct and tangible Comments and materials received will consequences and relative costs and conservation actions. be available for public inspection, by benefits of the critical habitat appointment, during normal business designation is based on application of Background hours at the above address. the statute consistent with the 9th It is our intent to discuss only those Circuit’s ruling and the Director’s Designation of Critical Habitat Provides topics directly relevant to the guidance. Little Additional Protection to Species designation of critical habitat in this proposed rule. For more information on In 30 years of implementing the Act, Procedural and Resource Difficulties in Designating Critical Habitat the spikedace and loach minnow, refer the Service has found that the to the final designation of critical designation of statutory critical habitat We have been inundated with habitat for the spikedace and loach provides little additional protection to lawsuits for our failure to designate minnow published in the Federal most listed species, while consuming critical habitat, and we face a growing Register on April 25, 2000 (65 FR significant amounts of conservation number of lawsuits challenging critical 24328). resources. The Service’s present system habitat determinations once they are for designating critical habitat is driven made. These lawsuits have subjected the Previous Federal Actions by litigation rather than biology, limits Service to an ever-increasing series of On September 20, 1999, the United our ability to fully evaluate the science court orders and court-approved States District Court for the District of involved, consumes enormous agency settlement agreements, compliance with New Mexico, Southwest Center for resources, and imposes huge social and which now consumes nearly the entire Biological Diversity v. Clark, CIV 98– economic costs. The Service believes listing program budget. This leaves the 0769 M/JHG, ordered us to finalize a that additional agency discretion would Service with little ability to prioritize its designation of critical habitat for the allow our focus to return to those activities to direct scarce listing spikedace and loach minnow by actions that provide the greatest benefit resources to the listing program actions to the species most in need of with the most biologically urgent February 17, 2000. On October 6, 1999, protection. species conservation needs. the court amended the order to require The consequence of the critical us to propose a critical habitat Role of Critical Habitat in Actual habitat litigation activity is that limited determination rather than requiring a Practice of Administering and listing funds are used to defend active final designation. We published our Implementing the Act lawsuits, to respond to Notices of Intent proposed rule to designate critical While attention to and protection of (NOIs) to sue relative to critical habitat, habitat in the Federal Register on habitat is paramount to successful and to comply with the growing number December 10, 1999 (64 FR 69324). On conservation actions, we have of adverse court orders. As a result, December 22, 1999, the court extended consistently found that, in most listing petition responses, the Service’s the deadline to complete our circumstances, the designation of own proposals to list critically determination until April 21, 2000. We critical habitat is of little additional imperiled species, and final listing published a final critical habitat value for most listed species, yet it determinations on existing proposals are designation on April 25, 2000 (65 FR consumes large amounts of conservation all significantly delayed. 24329). resources. Sidle (1987) stated, ‘‘Because The accelerated schedules of court- In New Mexico Cattle Growers’ the ESA can protect species with and ordered designations have left the Association and Coalition of Arizona/ without critical habitat designation, Service with almost no ability to New Mexico Counties for Stable critical habitat designation may be provide for adequate public Economic Growth v. United States Fish redundant to the other consultation participation or to ensure a defect-free and Wildlife Service, CIV 02–0199 JB/ requirements of section 7.’’ Currently, rulemaking process before making LCS (D.N.M), the Plaintiffs challenged only 470 species, or 38 percent, of the decisions on listing and critical habitat the April 25, 2000, critical habitat 1,253 listed species in the United States proposals due to the risks associated designation for the spikedace and loach under the jurisdiction of the Service with noncompliance with judicially minnow because the economic analysis have designated critical habitat. imposed deadlines. This in turn fosters had been prepared using the same We address the habitat needs of all a second round of litigation in which methods which the Tenth Circuit had 1,253 listed species through those who fear adverse impacts from held to be invalid. The Center for conservation mechanisms such as critical habitat designations challenge Biological Diversity joined the lawsuit listing, section 7 consultations, the those designations. The cycle of as a Defendant-Intervenor. The Service section 4 recovery planning process, the litigation appears endless, is very agreed to a voluntary vacatur of the section 9 protective prohibitions of expensive, and in the final analysis critical habitat designation, except for unauthorized take, section 6 funding to provides little additional protection to the Tonto Creek Complex. On August the states, and the section 10 incidental listed species. 31, 2004, the United States District take permit process. The Service The costs resulting from the Court for the District of New Mexico set believes that it is these measures that designation include legal costs, the cost aside the April 25, 2000, critical habitat may make the difference between of preparation and publication of the designation in its entirety and remanded extinction and survival for many designation, the analysis of the it to the Service for preparation of a new species. economic effects and the cost of proposed and final designation.
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Critical Habitat Register on July 1, 1994 (59 FR 34271), recovery plans, habitat conservation Critical habitat is defined in section 3 and Section 515 of the Treasury and plans, or other species conservation of the Act as—(i) the specific areas General Government Appropriations planning efforts if new information within the geographical area occupied Act for Fiscal Year 2001 (Pub. L. 106– available to these planning efforts calls by a species, at the time it is listed in 554; H.R. 5658) and the associated for a different outcome. Information Quality Guidelines issued accordance with the Act, on which are Methods found those physical or biological by the Service provide criteria, establish procedures, and provide guidance to In determining areas that contain features (I) essential to the conservation features essential to the conservation of of the species and (II) that may require ensure that decisions made by the Service represent the best scientific data spikedace and the loach minnow, we special management considerations or available. They require Service used the best scientific data available. protection; and (ii) specific areas biologists to the extent consistent with We have reviewed the overall approach outside the geographical area occupied the Act and with the use of the best to the conservation of these species by a species at the time it is listed, upon scientific data available, to use primary compiled in their respective recovery a determination that such areas are and original sources of information as plans (USFWS 1991a, 1991b) and essential for the conservation of the the basis for recommendations to undertaken by local, State, Federal, and species. ‘‘Conservation’’ means the use designate critical habitat. When Tribal agencies, and private and non- of all methods and procedures that are determining which areas are critical governmental organizations operating necessary to bring an endangered or a habitat, a primary source of information within the species’ range since their threatened species to the point at which is generally the listing package for the listing in 1986. listing under the Act is no longer species. Additional information sources We have also reviewed available necessary. include the recovery plan for the information that pertains to the habitat Critical habitat receives protection species, articles in peer-reviewed requirements of these species. The under section 7 of the Act through the journals, conservation plans developed material included data in reports prohibition against destruction or by States and counties, scientific status submitted during section 7 adverse modification of critical habitat surveys and studies, biological consultations and by biologists holding with regard to actions carried out, assessments, or other unpublished section 10(a)(1)(A) recovery permits; funded, or authorized by a Federal materials and expert opinion or research published in peer-reviewed agency. Section 7 requires consultation personal knowledge. All information is articles, agency reports, and databases; on Federal actions that are likely to used in accordance with the provisions and regional Geographic Information result in the destruction or adverse of Section 515 of the Treasury and System (GIS) coverages and habitat modification of critical habitat. The General Government Appropriations models. designation of critical habitat does not Act for Fiscal Year 2001 (Pub. L. 106– Primary Constituent Elements affect land ownership or establish a 554; H.R. 5658) and the associated refuge, wilderness, reserve, preserve, or Information Quality Guidelines issued In accordance with section 3(5)(A)(i) other conservation area. Such by the Service. of the Act and regulations at 50 CFR designation does not allow government Section 4 of the Act requires that we 424.12, in determining which areas to or public access to private lands. designate critical habitat on the basis of propose as critical habitat, we are To be included in a critical habitat the best scientific data available. Habitat required to base critical habitat designation, the habitat within the area is often dynamic, and species may move determinations on the best scientific occupied by the species must first have from one area to another over time. data available and to consider those features that are essential to the Furthermore, we recognize that physical and biological features (i.e., conservation of the species. Critical designation of critical habitat may not primary constituent elements (PCEs)) habitat designations identify, to the include all of the habitat areas that may that are essential to the conservation of extent known, using the best scientific eventually be determined to be the species and that may require special data available, habitat areas that provide necessary for the recovery of the management considerations or essential life cycle needs of the species species. For these reasons, critical protection. These features include but (i.e., areas on which are found the habitat designations do not signal that are not limited to: Space for individual primary constituent elements, as habitat outside the designation is and population growth and for normal defined at 50 CFR 424.12(b)). unimportant or may not be required for behavior; food, water, air, light, Habitat occupied at the time of listing recovery. minerals or other nutritional or may be included in critical habitat only Areas that support populations, but physiological requirements; cover or if the essential features therein may are outside the critical habitat shelter; sites for breeding, reproduction, require special management or designation, will continue to be subject or rearing of offspring; and habitats that protection. When the best available to conservation actions implemented are protected from disturbance or are scientific data do not demonstrate that under section 7(a)(1) of the Act and to representative of the historical, the conservation needs of the species so the regulatory protections afforded by geographical, and ecological require, we will not designate critical the section 7(a)(2) jeopardy standard, as distributions of a species. habitat in areas outside the geographical determined on the basis of the best Each of the areas designated in this area occupied by the species at the time available information at the time of the rule have been determined to contain of listing. An area currently occupied by action. Federally funded or permitted sufficient PCEs to provide for one or the species but that was not known to projects affecting listed species outside more of the life history functions of be occupied at the time of listing will their designated critical habitat areas spikedace or loach minnow. In some likely be essential to the conservation of may still result in jeopardy findings in cases, the PCEs exist as a result of the species and, therefore, included in some cases. Similarly, critical habitat ongoing Federal actions. As a result, the critical habitat designation. designations made on the basis of the ongoing Federal actions at the time of The Service’s Policy on Information best available information at the time of designation will be included in the Standards Under the Endangered designation will not control the baseline in any consultation conducted Species Act, published in the Federal direction and substance of future subsequent to this designation.
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We determined the primary natural pattern, is important in Habitat Preferences constituent elements for spikedace and maintaining the stream conditions Spikedace have differing habitat loach minnow from studies on their necessary for long-term conservation of requirements through their various life habitat requirements and population the spikedace and loach minnow. stages. Generally, adult spikedace prefer biology including, but not limited to, The lateral extent of streams was set intermediate-sized streams with Barber et al. 1970, Minckley 1973, at 300 ft (91.4 m) to either side of moderate to swift currents over sand, Anderson 1978, Barber and Minckley bankfull stage to accommodate stream gravel, and cobble substrates (i.e. stream 1983, Turner and Taffanelli 1983, meandering and high flows, and in bottoms). Preferred water depths are less Barrett et al. 1985, Propst et al. 1986, order to ensure adequate protection of than 11.8 in (30 cm) (Barber and Service 1989, Hardy et al. 1990, Douglas riparian zones adjacent to stream Minckley 1966, Minckley 1973, et al. 1994, Stefferud and Rinne 1996, Anderson 1978, Rinne and Kroeger and Velasco 1997. channels. Bankfull stage is defined as the discharge at which channel 1988, Hardy 1990, Sublette et al. 1990, Lateral Extent maintenance is the most effective, or the Rinne 1991, Rinne 1999a). As discussed The areas proposed for designation as upper level of the range of channel- below, larval and juvenile spikedace critical habitat are designed to provide forming flows which transport the bulk occupy different habitats than adults. sufficient riverine and associated of the available sediment over time. Flow Velocities. Studies have been floodplain area for breeding, non- Bankfull stage is generally considered to completed on the Gila River, Aravaipa breeding, and dispersing adult be that level of stream discharge reached Creek, and the Verde River. Measured spikedace and loach minnow, as well as just before flows spill out onto the flows in habitat occupied by adult for the habitat needs of juvenile and adjacent floodplain. The discharge that spikedace ranged from 23.3 to 59.5 cm/ larval stages of these fishes. In general, occurs at bankfull stage, in combination second (9.2–23.4 in/second) (Barber and the constituent elements of critical with the range of flows that occur over Minckley 1966, Hardy 1990, Propst et habitat for spikedace and loach minnow a length of time, govern the shape and al. 1986, Rinne 1991, Rinne 1991a, Rinne and Kroeger 1988, Schreiber include the riverine ecosystem formed size of the river channel (Rosgen 1996, 1978). Studies on the Gila River by the wetted channel and the adjacent Leopold 1997). floodplains within 300 lateral feet on indicated that juvenile spikedace The use of bankfull stage and 300 ft either side of bankfull stage. Spikedace occupy areas with velocities of and loach minnow use the riverine (91.4 m) on either side recognizes the approximately 16.8 cm/second (6.6 in/ ecosystem for feeding, sheltering, and naturally dynamic nature of riverine second) while larval spikedace were cover while breeding and migrating. systems and recognizes that floodplains found in velocities of 8.4 cm/second This proposal takes into account the are an integral part of the stream (3.3 in/second) (Propst et al. 1986). naturally dynamic nature of riverine ecosystem. The use of bankfull stage Flow velocities in occupied habitats systems and floodplains (including and 300 ft (91.4 m) on either side of a vary by season as well. During the warm riparian and adjacent upland areas) that tributary also is an area that contains the season (June–November), spikedace on are an integral part of the stream features essential to the conservation of the Gila River occupied areas with mean ecosystem. For example, riparian areas the species. A relatively intact flow velocities of 19.3 in/second (49.1 are seasonally flooded habitats (i.e., floodplain, along with the periodic cm/second) at one site, and 7.4 in/ wetlands) that are major contributors to flooding in a relatively natural pattern, second (18.8 cm/second) at the second a variety of vital functions within the is an important element in the long-term site. During the cold season (December– associated stream channel (Federal survival and recovery of spikedace and May), mean flow velocities at these Interagency Stream Restoration Working loach minnow. The riparian areas same sites were 15.5 in/second (39.4 Group 1998, Brinson et al. 1981). They encompassed in the 300 lateral feet cm/second) and 8.4 in/second (21.4 cm/ are responsible for energy and nutrient (91.4 m) to either side of bankfull stage second). It is believed that spikedace cycling, filtering runoff, absorbing and play an important role in overall stream seek areas in the stream that offer gradually releasing floodwaters, health, in that they function as the protection during periods of cooler recharging groundwater, maintaining floodplain and dissipate stream energies temperatures to offset their decreased streamflows, protecting stream banks associated with high flows (BLM 1990). metabolic rates. Where water depth from erosion, and providing shade and This is further discussed below in the remains fairly constant throughout the cover for fish and other aquatic species. ‘‘Proposed Critical Habitat’’ section of year as at the first site, slower velocities Healthy riparian and adjacent upland the rule. provided habitats in portions of the areas help ensure water courses stream with warmer temperatures. maintain the habitat components Spikedace Where flow velocity remains fairly essential to aquatic species (e.g., see FS constant throughout the year, such as at The specific primary constituent 1979; Middle Rio Grande Biological the second site, shallower water elements required of spikedace habitat Interagency Team 1993; Briggs 1996), provided habitats in portions of the are derived from the biological needs of including the spikedace and loach stream with warmer temperatures minnow. Habitat quality within the the spikedace as described below. (Propst et al. 1986). mainstem river channels in the Space for Individual and Population Larval and juvenile spikedace occupy historical range of the spikedace and Growth and Normal Behavior different habitats than adults, tending to loach minnow is intrinsically related to occupy shallow, peripheral portions of the character of the floodplain and the Streams in the Southwestern United streams in areas with slower currents associated tributaries, side channels, States have a wide fluctuation in flows (Anderson 1978, Propst et al. 1986). and backwater habitats that contribute and resulting habitat conditions at Once they emerge from the gravel of the to the key habitat features (e.g., different times of the year. Spikedace spawning riffles, spikedace larvae substrate, water quality, and water persist in these varying conditions and, disperse to stream margins where water quantity) in these reaches. We believe a as discussed below, several studies have velocity is very slow or still. Slightly relatively intact riparian area, along documented habitat conditions at larger larvae were most commonly with periodic flooding in a relatively occupied sites. associated with slow-velocity water near
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stream margins in areas where water healthy development of eggs. Spawning by such deposition can temporarily depth was less than 12.6 inches (32.0 has been observed in areas with sand cause water to back up and break into cm) (Propst et al. 1986). Juvenile and gravel beds and not in areas with braids downstream of the dam. The spikedace (those fish 1.0 to 1.4 in (25.4– fine sediment or substrate braided areas provide excellent 35.6 mm) in length) occurred over a embeddedness, as described above. nurseries for larval and juvenile fishes greater range of water velocities than Additionally, low to moderate fine (Velasco 1997). larvae, but still in water depths of less sediments ensure that eggs remain well- On the Gila River in New Mexico, than 12.6 in (32.0 cm). Juveniles and oxygenated and will not suffocate due to flows fluctuate seasonally with larvae are also occasionally found in sediment deposition (Propst et al. 1986). snowmelt causing spring pulses and quiet pools or backwaters lacking In the Verde River study, spikedace occasional floods, and late-summer or streamflow (Sublette et al. 1990). glide-run habitats were characterized by monsoonal rains producing floods of Outside of the breeding season, adult approximately 29 percent sand or fines varying intensity and duration. These spikedace primarily use riffle habitat (a (silty sand) (Rinne 2001). Spikedace high flows benefit essential spikedace shallow area in a streambed causing numbers in the Verde River increased spawning and foraging habitat (Propst et ripples) or quiet eddies (where the water almost three times (from 18 to 52 al. 1986) as described above. Peak moves in the opposite direction of water individuals) when the fine component floods can modify channel morphology in the main channel or in circular of the substrate decreased from about 27 and sort and rearrange stream bed patterns) downstream of those riffles. percent down to 7 percent (Neary et al. materials (Stefferud and Rinne 1996). Eighty percent of the spikedace 1996), indicating that spikedace prefer Floods likely also benefit native fish collected in a Verde River study used habitats with lower amounts of fines. by breaking up embedded bottom run and glide habitat. For this study, a Sand content in all glide-run spikedace materials (Mueller 1984). A study of the glide was defined as a portion of the habitats in the Verde and Gila Rivers in Verde River analyzed the effects of stream with a lower gradient (0.3 2000 was 18 and 20 percent (Rinne flooding in 1993 and 1995, finding that percent), versus a run which had a 2001). these floods had notable effects on both Larval spikedace substrate preferences slightly steeper gradient (0.3–0.5 native and nonnative fish species. are similar to those of adults. Sixty percent) (Rinne and Stefferud 1996). Among other effects, the floods either percent of spikedace larvae in the Gila Spikedace on the Gila River were most stimulated spawning or enhanced River were found over sand-dominated commonly found in riffle areas of the recruitment of three of the native substrates, while 18 percent were found stream with moderate to swift currents species, and may have eliminated one of (Anderson 1978) and some run habitats over gravel and an additional 18 percent the nonnative fish species (Rinne and (J.M. Montgomery 1985), as were found over cobble-dominated substrates Stefferud 1997). spikedace in Aravaipa Creek (Barber (Propst et al. 1986). While 45 percent of Flooding, as part of a natural and Minckley 1966). juvenile spikedace were found over Seasonal differences in habitats sand substrates, an additional 45 hydrograph, temporarily removes utilized have been noted in the upper percent of the juveniles were found over nonnative fish species, which are not Gila drainage, for both the winter and gravel substrates, with the remaining 9 adapted to flooding. Thus flooding breeding seasons. For example, the percent associated with cobble- consequently removes the competitive spikedace was found to use shallower dominated substrates (Propst et al. pressures of nonnative fish species on habitats at 6.6 in (<16.8 cm) in the 1986). native fish species which persist winter, and deeper water at 6.6 to 12.6 The degree of substrate embeddedness following the flood. A study on the in (16.8–32.0 cm) during warmer may also affect the prey base for differential responses of native and months (Propst et al. 1986, Sublette et spikedace. As discussed below, mayflies nonnative fishes in seven unregulated al. 1990). During the breeding season, constitute a significant portion of the and three regulated streams or stream female and male spikedace become spikedace diet. Suitable habitat for the reaches that were sampled before and segregated, with females occupying type of mayflies found in Aravaipa after major flooding noted that fish deeper pools and eddies and males Creek includes pebbles or gravel for faunas of canyon-bound reaches of occupying riffles flowing over sand and clinging. Excess sedimentation would unregulated streams invariably shifted gravel beds in water approximately 3.1 cover or blanket smaller pebbles and from a mixture of native and nonnative to 5.9 inches (7.9–15.0 cm) deep. gravel, resulting in a lack of suitable fish species to predominantly, and in Females then enter the riffles occupied habitat for mayflies, and a subsequent some cases exclusively, native forms by the males before ova are released into decrease in available prey items for after large floods. Samples from the water column (Barber et al. 1970). spikedace. regulated systems indicated relatively As noted above, streams in the Flooding. Rainfall in the southwest is few or no changes in species Southwestern United States have a wide generally characterized as bimodal, with composition due to releases from fluctuation in flows and are periodically winter rains of longer duration and less upstream dams at low, controlled dewatered. While portions of stream intensity and summer rains of shorter volumes. However, during emergency segments included in this designation duration and higher intensity. Periodic releases, effects to nonnative fish may experience dry periods, they are flooding appear to benefit spikedace in species were similar to those seen with still considered essential because the three ways: (1) Removing excess flooding on unregulated systems spikedace is adapted to this sediment from some portions of the (Minckley and Meffe 1987). environment and will use these areas as stream; (2) removing nonnative fish The onset of flooding also connective corridors between occupied species from a given area; and (3) corresponds with an increased diversity or seasonally occupied habitat when increasing prey species diversity. of food items for spikedace. Reductions they are wetted. Flooding in Aravaipa Creek has in the mainstream invertebrates, such as Substrates. Spikedace are known to resulted in the transport of heavier loads mayflies, cause the fish to expand its occur in areas with low to moderate of sediments such as cobble, gravel, and food base in an opportunistic manner. amounts of fine sediment and substrate sand that deposited where the stream In addition, inflowing flood waters carry embeddedness (filling in of spaces by widens, gradient flattens, and velocity terrestrial invertebrates, such as ants, fine sediments), which is essential for and turbulence decrease. Dams formed bees, and wasps (Hymenopterans), into
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aquatic areas (Barber and Minckley of these predatory species (Propst et al. occurring with red shiner, move into 1983). 1986). Smallmouth bass, rainbow trout, currents swifter than those selected Stream Gradient. Spikedace occupy brown trout, and channel catfish when in isolation, while red shiner streams with low to moderate gradients became common in the Gila River above occupy the slower habitat, whether they (Propst et al. 1986, Stefferud and Rinne Turkey Creek and the three forks of the are alone or with spikedace (Douglas et 1996, Sublette et al. 1999). Specific Gila River. In 1949, 52 spikedace were al. 1994). gradient data are generally lacking, but collected at Red Rock while channel Food the gradient of occupied portions of catfish composed only 1.65 percent of Aravaipa Creek varied between the 607 fish collected. However, in Food Items. Spikedace are active, approximately 0.3 to < 1.0 percent 1977, only six spikedace were located at highly mobile fish that visually inspect (Barber et al. 1970, Rinne and Kroeger the same site, and the percentage of drifting materials both at the surface and 1988, Rinne and Stefferud 1996). channel catfish had risen to 14.5 percent within the water column. Gustatory Smaller, younger spikedace are of 169 fish collected. The decline of inspection, or taking potential prey generally found in quiet water along spikedace and the increase of channel items into the mouth before either pool margins over soft, fine-grained catfish is likely related (Anderson 1978). swallowing or rejecting it, is also bottoms (USFWS 1991a). Juveniles and Similar interactions between native common (Barber and Minckley 1983). larvae tend to occupy the margins of the and nonnative fishes were observed for Prey body size is small, typically stream adjacent to riffle habitats (Propst the upper reaches of the East Fork of the ranging from 0.08 to 0.20 inches (2 to 5 et al. 1986), and are also known to use Gila River. In this system, native fish mm) long (Anderson 1978). backwater areas (Sublette et al. 1990). were limited, with spikedace being rare Stomach content analysis of or absent, while nonnative channel spikedace determined that mayflies, Habitat Protected From Disturbance or catfish and smallmouth bass were caddisflies, true flies, stoneflies, and Representative of the Historic moderately common prior to 1983 and dragonflies are all prey items for Geographical and Ecological 1984 floods. Post-1983 flooding, adult spikedace. In one Gila River study, the Distribution of a Species nonnative predators were generally frequency of occurrence was 71 percent Nonnative fish species. One of the absent and spikedace were collected in for mayflies, 34 percent for true flies, primary reasons for the decline of native moderate numbers in 1985 (Propst et al. and 25 percent for caddisflies (Propst et species is the presence of nonnative 1986). al. 1986). A second Gila River study of fishes introduced accidentally or for Interference competition occurs with five samples determined that the sport, forage, or bait. Fish evolution in species such as red shiner. Red shiner frequency of occurrence was 80 to 100 the arid American west is linked to appear to be particularly detrimental to percent for mayflies, 23.1 and 56.8 disruptive geologic and climatic events spikedace because although spikedace percent for true flies, and 48 to 69.2 which acted in concert over and shiners are separated geographically percent for caddisflies (Anderson 1978). evolutionary time to decrease the (i.e., allopatric), they occupy essentially At Aravaipa Creek, mayflies, caddisflies, availability and reliability of aquatic the same habitat types. Where the two true flies, stoneflies, and dragonflies ecosystems. The fragmentation and species are overlapping (i.e., sympatric), were all prey items for spikedace, as reduction of aquatic ecosystems resulted there is evidence of displacement of were some winged insects and plant in a fish fauna that was both diminished spikedace to less suitable habitats materials (Schreiber 1978). and restricted to the arid west. Lacking (USFWS 1991a). This means that if red At Aravaipa Creek, spikedace exposure to a wider range of species, shiners are present, suitable habitat for consumed a total of 36 different prey western species seem to lack the spikedace is reduced. Range expansion items (Barber and Minckley 1983). competitive abilities and predator and species recovery may then be Mayflies constituted the majority of defenses developed by fishes from curtailed. prey items, followed by true flies. Of the regions where more species are present One study focused on three stream mayflies consumed, 36.5 percent were (Douglas et al. 1994). reaches on the Gila River and Aravaipa adults, while 33.3 percent were The effects of nonnative fish Creek having only spikedace; one reach nymphs. Terrestrial invertebrates, competition on spikedace can be on the Verde River where spikedace and including ants, wasps, and spiders, were classified as either interference or red shiner have co-occurred for three also consumed, as were beetles, true exploitive. Interference competition decades; and one reach on the Gila bugs, caddisflies, and water fleas. occurs when individuals directly affect River where red shiner recently invaded Spikedace diet varies seasonally others, such as by fighting or preying areas and where spikedace had never (Barber and Minckley 1983). Mayflies upon them. Exploitive competition been recorded. The study indicated that, dominated stomach contents in July, but occurs when individuals affect others for reaches where only spikedace were declined in August and September, indirectly, such as through use of present, spikedace showed a preference increasing in importance again between common resources (Douglas et al. 1994). for slower currents and smaller particles October and June. When mayflies were Competition with regards to actual in the substrate than were generally available in lower numbers, spikedace space is generally considered available throughout the Gila River and consumed a greater variety of foods, interference competition (Schoener Aravaipa Creek systems. For red shiner including true bugs, true flies, beetles, 1983). in the Verde River, the study showed and spiders. The effects of nonnative fish preying that red shiner occupied waters that Spikedace diet varies with age class as on natives such as spikedace would be were generally slower and with smaller well. Young spikedace, classified as classified as interference competition. particle size in the substrate than were, < 0.9 in (22.9 mm) fed on a diversity of There is circumstantial evidence of the on average, available in the system. The small-bodied invertebrates occurring in negative impacts of nonnative predators study concluded that, where the two and on sediments along the margins of on native fishes for several stream species were caught together, habitats of the creek. True flies were found most reaches. Channel catfish, flathead spikedace were statistically frequently, but water fleas and aerial catfish, and smallmouth bass all prey on indistinguishable from those occupied adults of aquatic and terrestrial insects native fishes, as evidenced by prey by red shiner. The study further also provide significant parts of the diet. remains of native fishes in the stomachs concludes that spikedace, where co- As juveniles grow and migrate into the
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swifter currents of the channel, mayfly oxygen should be greater than 3 parts and cobble of the riffles following nymphs and adults increase in per million (ppm). If levels of dissolved spawning. Spawning in riffle habitat importance (Barber and Minckley 1983). oxygen are below 3 ppm, some stress ensures that the eggs are well Spikedace are very dependent on may occur. oxygenated and are not normally subject aquatic insects for sustenance, and Fish kills have been documented in to suffocation by sediment deposition production of the aquatic insects the San Francisco River (Rathbun 1969) due to the swifter flows found in riffle consumed by spikedace occurs mainly and the San Pedro River (Eberhardt habitats. However, after the eggs have in riffle habitats (Propst et al. 1986). As 1981), both of which are within the adhered to the gravel and cobble a result, habitat selection influences species’ historical range. In both substrate, excessive sedimentation food items found in stomach content instances, leaching ponds associated could cause suffocation of the eggs analyses. Spikedace in pools had eaten with copper mines released waters into (Propst et al. 1986 and Marsh 1991). the least diverse foods while those from the streams, resulting in elevated levels riffles contained a greater variety of of toxic chemicals. For the San Pedro Primary Constituent Elements for the taxa, indicating that the presence of River, this included elevated levels of Spikedace riffles is essential to the survival of iron, copper, manganese, and zinc. Both Based on our current knowledge of spikedace as riffles in good condition incidents resulted in die-offs of species the life history, biology, and ecology of and abundance help to ensure that a inhabiting the streams. Eberhardt (1981) the species and the requirements of the sufficient number and variety of prey notes that no bottom-dwelling aquatic habitat to sustain the essential life items will continue to be available insects, live fish, or aquatic vegetation history functions of the species, we have (Barber and Minckley 1983). of any kind were found for a 60 mi (97 determined that the primary constituent Aquatic invertebrates that constitute km) stretch of river in the area affected elements essential to the conservation of the bulk of the spikedace diet have by the spill. Rathbun (1969) reported the spikedace are: specific habitat parameters of their own. similar results for the San Francisco 1. Permanent, flowing, water with low Mayflies, which constituted the largest River. The possibility for similar levels of pollutants, including: percentage of prey items, spend their accidents, or pollution from other a. Living areas for adult spikedace immature stages in fresh water. Mayfly sources, exists throughout these species with slow to swift flow velocities nymphs occur in all types of fresh ranges due to their proximity to mines, between 20 and 60 cm/second (8–24 waters, wherever there is an abundance communities, agricultural areas, and inches/second) in shallow water of oxygen, but they are most major transportation routes. between approximately 10 cm (4 inches) characteristic of shallow water. Mayflies Temperature. Temperatures of to one meter (40 inches) with shear found in spikedace stomach content occupied spikedace habitat vary with zones where rapid flow borders slower analyses consisted of individuals from time of year. In May, temperatures at flow, areas of sheet flow (or smoother, several genera, with individuals from Aravaipa Creek were uniformly 66.2 °F less turbulent flow) at the upper ends of the genus Baetidae constituting the (19 ° C) (Barber et al. 1970). Summer mid-channel sand/gravel bars, and highest percentage of prey from the temperatures remained at no more than eddies at downstream riffle edges; mayfly order in the study by Schreiber 80.6 °F (27 °C) at Aravaipa Creek (Barber b. Living areas for juvenile spikedace (1978). Baetidae are free-ranging species et al. 1970), and at a mean of 66.7 °F of rapid waters that maintain (19.3 °C) between June and November with slow to moderate water velocities themselves in currents by clinging to on the Gila River in the Forks area (at of approximately 18 cm/second (8 pebbles. Spikedace also consumed the Middle, West, and East Forks) and inches/second) or higher in shallow individuals from two other mayfly were at 69.4 °F (20.8 °C) in the Cliff-Gila water between approximately 3 cm (1.2 genera (Heptageniidae and Valley (Propst et al. 1986). Winter inches) to one meter (40 inches); Ephemerellidae), which are considered temperatures ranged between 69.1 °F c. Living areas for larval spikedace ‘‘clinging species’’ as they cling tightly (20.6 °C) in November down to 48.0 °F with slow to moderate flow velocities of to stones and other objects and may be (8.9 °C) in December at Aravaipa Creek approximately 10 cm/second (4 inches/ found in greatest abundance in crevices (Barber and Minckley 1966). The overall second) or higher in shallow water and on the undersides of stones (Pennak range represented by these measures is approximately 3 cm (1.2 inches) to one 1978). The importance of gravel and between 35–85 °F (1.7–29.4 °C). meter (40 inches). cobble substrates is illustrated by the d. Water with low levels of pollutants Reproduction and Rearing of Offspring fact that these prey species, which make such as copper, arsenic, mercury and up the bulk of the spikedace diet, As discussed above under flow cadmium; human and animal waste require these surfaces to persist. velocities, spikedace use a variety of products; pesticides; suspended habitat types within the channel during sediments; and gasoline or diesel fuels Water Quality their reproductive cycle and at various and with dissolved oxygen levels greater Pollutants. Water with low levels of life stages. Although not typically than 3 parts per million (ppm). pollutants is essential for the associated with pools (Anderson 1978), 2. Sand, gravel, and cobble substrates maintenance of spikedace. Spikedace pools are used by female spikedace with low or moderate amounts of fine occur in areas where mining, during the breeding season while males sediment and substrate embeddedness. agriculture, livestock operations, and remained in riffle habitats. Females Suitable levels of embeddedness are road construction and use are prevalent. leave the pools, generally on the generally maintained by a natural, Various pollutants are associated with downstream end of the riffle, and swim unregulated hydrograph that allows for these types of activities. For spikedace, upstream to males in riffle habitat periodic flooding or, if flows are waters should have low levels of (Barber et al. 1970). Unlike loach modified or regulated, a hydrograph that pollutants such as copper, arsenic, minnow that deposit their eggs in a hole allows for adequate river functions, mercury and cadmium; human and or depression, spikedace spawn in such as flows capable of transporting animal waste products; pesticides; shallow riffles and broadcast their sediments. suspended sediments; and gasoline or gametes (reproductive cells) into the 3. Streams that have: diesel fuels (D. Baker, USFWS, pers. water column. Spikedace eggs are a. Low gradients of less than comm. 2005). In addition, dissolved adhesive and develop among the gravel approximately 1.0 percent;
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b. Water temperatures in the below, researchers have documented a The availability of pool and run approximate range of 35–85° Fahrenheit range of flows in occupied areas. habitats affects availability of prey (F) (1.7–29.4 °C) (with natural diurnal Flow rate studies have been species. While most of the food items of and seasonal variation); completed on the Gila River, Tularosa loach minnow are riffle species, two are c. Pool, riffle, run, and backwater River, San Francisco River, Aravaipa not, including mayfly nymphs which, at components, and; Creek, Deer Creek. Measured flows in times, made up 17% of the total food d. An abundant aquatic insect food habitat occupied by adult loach minnow volume of loach minnow in a study at base consisting of mayflies, true flies, ranged from 9.6 to 31.2 in/second (24.4 Aravaipa Creek (Schreiber 1978). The and caddisflies, stoneflies, and to 79.2 cm/second) (Barber and presence of a variety of habitat types is dragonflies. Minckley 1966, Propst et al. 1988, therefore important to the persistence of 4. Habitat devoid of nonnative fish Propst and Bestgen 1991, Rinne 1989). loach minnow in a stream, even while species detrimental to spikedace, or There is geographic variation in flow they are typically associated with riffles. habitat in which detrimental nonnative velocities used by adult loach minnow. Substrates. Loach minnow in fish are at levels which allow Adult loach minnow in the Gila River Aravaipa Creek occurred over a gravel- persistence of spikedace. preferred velocities of 1.2 to 14.4 in/ pebble substrate with materials between 5. Areas within perennial, interrupted second (3.0 to 36.6 cm/second), while 3 to 16 mm (0.12 to 0.63 in) and, except stream courses which are periodically those in Aravaipa Creek preferred in the summer, were associated with the dewatered but that serve as connective velocities of 15.6 to 20.4 in/second (39.6 larger sizes of available substrate. The corridors between occupied or to 51.8 cm/second). This may be due to use of larger substrates was seasonally occupied habitat and through the fact that there was considerably disproportionately greater than expected which the species may move when the more water at slower velocities available based on overall availability of substrate habitat is wetted. to loach minnow in the Gila River, and size in the stream, indicating that loach Each of the areas designated in this that there was more and larger cobble minnow have a preference for the larger rule have been determined to contain substrate in the Gila River, which substrate and tend to use areas with that sufficient PCEs to provide for one or creates more habitat of slower velocities substrate over areas with smaller more of the life history functions of the for loach minnow use (Turner and substrate (Rinne 1989). For portions of spikedace. In some cases, the PCEs exist Tafanelli 1983). the upper Gila River occupied by loach as a result of ongoing Federal actions. Juvenile loach minnow generally minnow in 1999 and 2000, substrates As a result, ongoing Federal actions at occurred in areas where velocities were were characterized by gravel-pebble and the time of designation will be included similar to those used by adults, but cobble substrates, with 70 percent of the in the baseline in any consultation faster than those used by larvae. In the sites having a gravel-pebble substrate, conducted subsequent to this Gila, San Francisco, and Tularosa rivers, and 14 percent of the sites having designation. juveniles occupied areas with mean cobble substrate (Rinne 2001). velocities ranging between 1.2–33.6 in/ Loach minnow in Aravaipa Creek and Loach Minnow second (3.0 to 85.3 cm/second) (Propst the Gila River appeared to prefer cobble The specific primary constituent et al. 1988, Propst and Bestgen 1991, and gravel, avoiding areas dominated by elements essential to the conservation of Rinne 1989, Turner and Tafanelli 1983). sand or finer gravel. This may be due to the loach minnow are derived from the Larval loach minnow move from the fact that loach minnow maintain a biological requirements of the loach spawning rocks to slower-velocity relatively stationary position on the minnow, as described below. nursery areas after emergence, typically bottom of a stream in flowing water. An occupying areas with significantly irregular bottom, such as that created by Space for Individual and Population slower velocities than juveniles and cobble or larger gravels, creates pockets Growth and Normal Behavior adults. Larval loach minnow in the Gila, of lower water velocities around larger As noted for the spikedace above, San Francisco, and Tularosa rivers rocks where loach minnow can remain streams in the Southwestern United occupied areas that were shallower and stationary with less energy expenditure States have a wide fluctuation in flows significantly slower than areas where (Turner and Tafanelli 1983). In the Gila and resulting habitat conditions at eggs were found (Propst et al. 1988, and San Francisco rivers, the majority of different times of the year. Loach Propst and Bestgen 1991). In the Gila, loach minnow captured occurred in the minnow persist in these varying San Francisco, and Tularosa rivers, and upstream portion of a riffle rather than conditions and, as discussed below, Aravaipa Creek, larval loach minnow in the central and lower depositional several studies have documented habitat occupied areas with flow velocities sections of the riffle. This is likely due conditions at occupied sites. ranging from 3.6 to 19.2 in/second (9.1 to the availability of interstitial spaces to 48.8 cm/second). in the cobble-rubble substrate, which Habitat Preferences Loach minnow prefer shallow, swift, became filled with sediment more Flow Velocities. Loach minnow live and turbulent riffles. The use of riffle quickly in the central and lower on the bottom of small to large rivers, habitat has been documented in sections of a riffle section as suspended preferring shallow, swift, and turbulent Aravaipa Creek (Barber and Minckley sediment begins to drop out (Propst et riffles, living and feeding among clean, 1966, Rinne 1989, Velasco 1997, Vives al. 1984). loose, gravel-to-cobble substrates and Minckley 1990), Eagle Creek (Marsh Loach minnow use different (Anderson and Turner 1977, Barber and et al. 2003), Tularosa River (Propst et al. substrates during different life stages. Minckley 1966, Britt 1982, Lee et al. 1984), and the Gila and San Francisco Embryos occurred primarily on large 1980, Marsh et al. 2003, Minckley 1981, rivers (Britt 1982, Propst and Bestgen gravel to rubble, while larvae were USFWS 1991b, Velasco 1997). Loach 1991, Propst et al. 1984, Propst et al. found where substrate particles were minnow are sometimes associated with 1988). Loach minnow also occur in smaller than that used by embryos. filamentous (threadlike) algae stream segments that contain pool, Juvenile fish occupy areas with (Anderson and Turner 1977, Lee et al. riffle, and run habitats on the Blue, substrates of larger particle size than 1980, Minckley 1981). Specific habitat upper Gila, and San Francisco rivers larvae. Adults exhibited a narrower usage varies with the life stage of the (AGFD 1994, Bagley et al. 1995, preference for substrates than did fish, as well as geographically. As noted Montgomery 1985). juveniles, and were most commonly
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associated with gravel to cobble and loach minnow relative abundance implicated in the decline of loach substrates (Propst and Bestgen 1991). remained high through the next spring. minnow, as well as other native fishes. As noted above, streams in the Flooding has enhanced and enlarged Loach minnow habitat is markedly Southwestern United States have a wide loach minnow habitat, resulting in a different from that of the red shiner, so fluctuation in flows and are periodically greater survivorship of individuals that interaction between the two species dewatered. While portions of stream through winter and spring (Propst et al. was unlikely to cause shifts in habitat segments included in this designation 1988). Similar results were observed on use by loach minnow (Marsh et al. may experience dry periods, they are the Gila and San Francisco rivers 1989). Studies indicate that, instead, red still considered essential because the following flooding in 1978 (Britt 1982). shiner move into voids left when native loach minnow is adapted to this Natural flooding may also reduce the fishes such as loach minnow are changing environment and will use negative impacts of nonnative fish extirpated due to habitat degradation in these areas as connective corridors species on loach minnow. During the area (Bestgen and Propst 1986). between occupied or seasonally significant floods, nonnative species Prior to 1960, the Glenwood- occupied habitat when they are wetted. were either displaced or destroyed, Pleasanton reach of the Gila River Flooding. Natural flows, including while native species were able to supported a native fish community of flooding, are part of an unregulated maintain their position in or adjacent to eight different species. Post-1960, four hydrograph and are important in channel habitats, persist in micro of these species became uncommon, and maintaining loach minnow habitat. In refuges or recolonize should they be ultimately three of them were areas where substantial diversions or displaced (Britt 1982, Minckley and extirpated. In studies completed impoundments have been constructed, Meffe 1987). between 1961 and 1980, it was loach minnow are less likely to occur. Stream Gradient. In addition to the determined that loach minnow was less This is in part due to habitat changes availability of riffle habitat, gradient common than it had been, while caused by the construction, and in part may influence the distribution and diversity of the nonnative fish due to the reduction of beneficial effects abundance of loach minnow. In studies community had increased in of flooding on loach minnow habitat. of the San Francisco River, Gila River, comparison to the pre-1960 period. Flooding appears to positively affect Aravaipa Creek, and the Blue River Following 1980, red shiner, fathead loach minnow population dynamics by found loach minnow occurred in stream minnow, and channel catfish were all resulting in higher recruitment reaches where the gradient was regularly collected. Drought and (reproduction and survival of young) generally shallow, ranging from 0.3 to diversions for irrigation resulted in a and by decreasing the abundance of 2.2 percent (Bagley et al. 1995, Rinne decline in habitat quality, with canyon nonnative fishes. 1989, Rinne 2001). reaches retaining habitat components The construction of water diversions, for native species. However, by increasing water depth, has reduced Habitat Protected From Disturbance or Representative of the Historic establishment of nonnative fishes in the or eliminated riffle habitat in many canyon reaches then reduced the utility stream reaches. In addition, loach Geographical and Ecological Distribution of a Species of these areas for native species (Propst minnow are generally absent in stream et al. 1988). reaches affected by impoundments. Nonnative fish species. As noted While the specific factor responsible for under the discussion of nonnative fish Food this is not known, it is likely related to species in the spikedace primary Food Items. Loach minnow are modification of thermal regimes, constituent elements section above, opportunistic, benthic insectivores that habitat, food base, or discharge patterns. nonnative fishes have been introduced obtain their food from riffle-dwelling Flooding also cleans, rearranges, and for a variety of reasons, resulting in larval mayflies, black flies, and true rehabilitates important riffle habitat interference or exploitive competition. flies, as well as from larvae of other (Propst et al. 1988). Interference competition, such as aquatic insect groups such as caddisflies Flooding allows for the scouring of predation, may result from interactions and stoneflies (USFWS 1991b). Loach sand and gravel in riffle areas, which between loach minnow and nonnative minnow in the Gila, Tularosa, and San reduces the degree of embeddedness of channel and flathead catfish. Francisco rivers consumed primarily cobble and boulder substrates (Britt Omnivorous channel catfish of all sizes true flies and mayflies, with mayfly 1982). Prior to flooding, excessive move into riffles to feed, preying on the nymphs being an important food item sediment in the bedload is typically same animals most important to loach throughout the year. Mayfly naiads deposited at the downstream minnows. Juvenile flathead catfish also constituted the most important food undersurfaces of cobble and boulder feed in riffles in darkness. Flathead item throughout the year for adults substrate components where flow catfish are piscivorous, even when studied on the Gila and San Francisco velocities are lowest, and can result in small. Loach minnow remains were Rivers, while true fly larvae were most a higher degree of embeddedness (Rinne found in the digestive tracts of channel common in the winter months (Propst et 2001). Following flooding, cavities catfish (Propst and Bestgen 1991, al. 1988, Propst and Bestgen 1991). In created under cobbles by scouring USFWS 1991b). Aravaipa Creek, loach minnow action of the flood waters provides Interference competition, such as consumed 11 different prey items, enhanced spawning habitat for loach competition for actual resources including mayflies, stoneflies, minnow. (Schoener 1983), may occur between caddisflies, and true flies. Mayflies Studies on the Gila, Tularosa, and San loach minnow and red shiner, as red constituted the largest percentage of Francisco rivers, found that flooding is shiner is the nonnative fish species most their diet during this study except in primarily a positive influence on native likely to occur along stream margins in January, when true flies made up 54.3 fish, and apparently had a positive places occupied by small loach percent of the total food volume influence on the relative abundance of minnow. Red shiners occur in all places (Schreiber 1978). loach minnow. Rather than following a known to be formerly occupied by loach Loach minnow consume different typical pattern of winter mortality and minnow, and are absent or rare in places prey items during their various life population decline, high levels of where loach minnow persists. Because stages. Both larvae and juveniles recruitment occurred after the flood, of this, red shiner has often been primarily consumed true flies, which
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constituted approximately 7 percent of hatched, areas of slower flows appear between them are not filled in by fine their food items in one year, and 49 important to larval loach minnow as dirt or sand. percent the following year. Mayfly they have been found in slower-velocity e. Water with low levels of pollutants nymphs were also an important dietary stream margins (Propst et al. 1988). such as copper, arsenic, mercury and element at 14 percent and 31 percent in Substrate type is important to cadmium; human and animal waste two different years. Few other aquatic spawning as well. While loach minnow products; pesticides; suspended macroinvertebrates (i.e. an invertebrate spawning occurs in the same riffle sediments; and gasoline or diesel fuels large enough to be seen) were consumed habitat that adults occupy, it is the and with dissolved oxygen levels greater (Propst et al. 1988). In a second study, substrate that determines its suitability than 3 parts per million (ppm). true fly larvae and mayfly naiads for spawning. Eggs are deposited on the 2. Sand, gravel, and cobble substrates constituted the primary food of larval undersurface of rocks or cobbles. Rocks with low or moderate amounts of fine and juvenile loach minnow (Propst and are generally flattened, have smooth sediment and substrate embeddedness. Bestgen 1991). surfaces, and are angular. Rocks which Suitable levels of embeddedness are generally maintained by a natural, Water Quality have eggs attached are generally embedded on their upstream side in the unregulated hydrograph that allows for Pollutants. Water with low levels of substrate. Eggs placed under rocks in periodic flooding or, if flows are pollutants is essential for the the Gila River, San Francisco River, and modified or regulated, a hydrograph that maintenance of loach minnow. As with Aravaipa Creek were placed on the allows for adequate river functions, spikedace, loach minnow occur in areas underside of rocks in nest cavities such as flows capable of transporting where mining, agriculture, livestock formed by rocks of varying sizes (Britt sediments. operations, and road construction and 1982, Propst et al. 1988, Vives and 3. Streams that have: use are prevalent. Various pollutants are Minckley 1990). a. Low gradients of less than associated with these types of activities. Loach minnow spawning is the life approximately 2.5 percent; For loach minnow, waters should have history stage most affected by sediment b. Water temperatures in the low levels of pollutants such as copper, ° or fines (Vives and Minckley 1990). approximate range of 35–85 Fahrenheit arsenic, mercury, and cadmium; human ° Because deposition of eggs occurs on (F) (1.7–29.4 C) (with natural diurnal and animal waste products; pesticides; the downstream undersurfaces of cobble and seasonal variation); suspended sediments; and gasoline or c. Pool, riffle, run, and backwater and boulder substrate components, diesel fuels (D. Baker, USFWS, pers. components, and; excessive fines in the bedload of a comm. 2005). In addition, dissolved d. An abundant aquatic insect food system can fill in the areas where eggs oxygen should be greater than 3 ppm. base consisting of mayflies, true flies, would otherwise be deposited, Fish kills associated with previous black flies, caddisflies, stoneflies, and especially in areas of slower velocities. mining accidents are detailed under the dragonflies. spikedace PCEs above. These incidents Primary Constituent Elements for the 4. Habitat devoid of nonnative fish occurred within the historical range of Loach Minnow species detrimental to loach minnow or the loach minnow. habitat in which detrimental nonnative Based on our current knowledge of Temperatures. Loach minnow have a fish species are at levels which allow the life history, biology, and ecology of fairly narrow temperature tolerance, and persistence of loach minnow. their upstream distributional limits in the species and the requirements of the 5. Areas within perennial, interrupted some areas may be linked to low winter habitat to sustain the essential life stream courses which are periodically temperature (Propst et al. 1988). history functions of the species, we have dewatered but that serve as connective Suitable temperature regimes appear to determined that the primary constituent corridors between occupied or be fairly consistent across geographic elements essential to the conservation of seasonally occupied habitat and through areas. Studies of Aravaipa Creek, East the loach minnow are: which the species may move when the Fork White River, the San Francisco 1. Permanent, flowing, water with low habitat is wetted. River and the Gila River determined that levels of pollutants, including: Each of the areas designated in this loach minnow were present in areas a. Living areas for adult loach rule have been determined to contain with water temperatures in the range of minnow with moderate to swift flow sufficient PCEs to provide for one or 48.2 to 71.6 °F (9 to 22 °C) (Britt 1982, velocities between 9.0 to 32.0 in/second more of the life history functions of the Leon 1989, Propst et al. 1988, Propst (24 to 80 cm/second) in shallow water loach minnow. In some cases, the PCEs and Bestgen 1991, Vives and Minckley between approximately 1.0 to 30 in (3 exist as a result of ongoing Federal 1990). cm to 75 cm) with gravel, cobble, and actions. As a result, ongoing Federal rubble substrates; actions at the time of designation will be Reproduction and Rearing of Offspring b. Living areas for juvenile loach included in the baseline in any Habitat conditions needed for minnow with moderate to swift flow consultation conducted subsequent to reproduction and rearing of offspring velocities between 1.0 to 34 in/second this designation. include appropriate flow velocities, (3.0 to 85.0 cm/second ) in shallow substrates, sediment levels, and riffle water between approximately 1.0 to 30 Criteria for Defining Critical Habitat availability. Loach minnow place eggs in (3 cm to 75 cm) with sand, gravel, In proposing critical habitat for the in areas with mean velocities ranging cobble, and rubble substrates; spikedace and loach minnow, we between 2.4 to 15.6 in/second (3.0 to c. Living areas for larval loach reviewed historical and current 39.6 cm/second) in the Gila, San minnow with slow to moderate occurrence data, information pertaining Francisco, and East Fork Gila rivers velocities between 3.0 and 20.0 in/ to habitat features for these species, (Britt 1982, Propst et al. 1988, Propst second (9.0 to 50.0 cm/second) in rangewide recovery considerations such and Bestgen 1991). Fungal infections shallow water with sand, gravel, and as genetic diversity and representation developed on egg masses placed in cobble substrates and; of all major portions of the species’ slow-velocity waters of less than 2.4 in/ d. Spawning areas with slow to swift historical ranges, scientific information second (6.2 cm/second) (Propst et al. flow velocities in shallow water where on the biology and ecology of the two 1988, Propst and Bestgen 1991). Once cobble and rubble and the spaces species, general conservation biology
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principles, and information cited in the conservation of spikedace and loach appropriate seasons of use, and other Recovery Plans for these two species. Of minnow and that require special improvements to allotments such as particular importance, we reviewed management or protection. new water tanks. With regard to water databases, published literature, and Segments were designated based on use, maintaining high quality and field notes to determine the historical sufficient PCEs being present to support adequate quantities of water for all life and current occurrence data for the two spikedace or loach minnow life stages of spikedace and loach minnow species. The SONFishes Database processes. Some segments contain all may involve special management (Arizona State University 2002) details PCEs and support multiple life actions such as retaining an adequate occurrence records from the 1800s processes, while other segments contain buffer of riparian vegetation to help through 1999. The Heritage Database only a portion of the PCEs necessary to filter out sediment and contaminants, Management System (HDMS) (AGFD support the particular use of that habitat and maintaining streamflow via 2004) contains information for Arizona by spikedace or loach minnow. Where sustainable levels of ground and surface with some overlap of SONFishes a subset of the PCEs are present (e.g., water use. The construction of water records, as well as records from 1999 water temperature during spawning), diversions, by increasing water depth, through 2004. Agency and researcher only those PCEs present at designation has reduced or eliminated riffle habitat field notes and published literature will be protected. in many stream reaches. In addition, contain additional information on A brief discussion of each area loach minnow are generally absent in completed surveys and species designated as critical habitat is provided stream reaches affected by detections. in the unit descriptions below. impoundments. While the specific We are designating critical habitat on Additional detailed documentation factor responsible for this is not known, lands that we have determined are concerning these areas is contained in it is likely related to modification of within the geographical range occupied our supporting record for this thermal regimes, habitat, food base, or by either, or in some cases both, the rulemaking. discharge patterns. We have included spikedace and loach minnow. We Special Management Considerations or below in our description of each of the consider an area to be occupied by the Protections critical habitat areas for the spikedace spikedace or loach minnow if we have and loach minnow a description of the records to support occupancy within the When designating critical habitat, we threats occurring in that area requiring last 10 years, or where the stream assess whether the areas determined to special management or protections. segment is directly connected to a be occupied at the time of listing and segment with occupancy records from occupied after listing, contain the Proposed Critical Habitat Designation within the last 10 years (this is primary constituent elements essential We are proposing five complexes as described within each unit description to the conservation of the species that critical habitat for the spikedace and below). We chose 10 years because this may require special management loach minnow. Historically, the range of would encompass three to four considerations or protection. We believe the spikedace included most of the Gila generations for both of these species. We each area included in this final River Basin. The spikedace now believe this is a reasonable number designation requires special occupies approximately 10 percent of its based on the fact that both species are management and protections as historical range. Current populations of difficult to detect in surveys and many described in our unit descriptions and spikedace are found in Graham, Pinal, of the areas where they occur are remote Table 1. and Yavapai counties in Arizona, and and as a result there is not a high level Special management considerations Grant, Catron, and Hidalgo counties, in of survey effort. All areas proposed have for each area will depend on the threats New Mexico. Critical habitat vital to the the features that are essential to the to the spikedace and/or loach minnow conservation of loach minnow includes conservation of spikedace or loach in that critical habitat area. For example, small to large perennial streams with minnow and are within the area special management that addresses the shallow, turbulent riffles, primarily historically occupied by these species threat of nonnative fish species could cobble substrate, and swift currents and require special management include efforts to remove nonnative fish (Minckley 1973, Propst and Bestgen consideration and protection. species from a creek, via chemical 1991, Rinne 1989, Propst et al. 1988). As We divided the overall historical compounds that kill fish (e.g. with spikedace, the historical range of range into five river complexes, and rhotenone) but otherwise do not harm loach minnow encompassed most of the each critical habitat stream segment was the environment, and construction of Gila River Basin. The loach minnow derived from within these larger fish barriers that prevent the upstream now occupies approximately 15 percent complexes. In this way, populations in movement of nonnative fishes into of its historical range, and is found in mainstem tributaries may access a wider spikedace or loach minnow habitat. Graham, Greenlee, and Pinal counties in geographic area by moving into smaller Special management that addresses the Arizona and Catron, Grant, and Hidalgo tributaries, while populations in threat of fire could include using counties in New Mexico. tributaries are afforded the ability to prescribed fire to reduce fuel loads and For each stream reach, the upstream disperse to other tributaries via the prevent catastrophic wildfires, and downstream boundaries are mainstem river within that complex. protecting the area from retardant described below. Additionally, critical Overall, the complexes proposed herein application during the fire, salvaging habitat includes the stream channels provide coverage throughout the individuals from populations that are within the identified stream reaches and historical range of the species, with threatened by wildfire, and protecting areas within these reaches potentially exceptions for areas that were excluded the stream from excessive ash and inundated during high flow events. As for specific reasons, as detailed below sediment through re-seeding or other described in the ‘‘Primary Constituent (see ‘‘Proposed Exclusions under means following the fire. On-going Elements’’ section above, critical habitat Section 4(b)(2) of the Act’’ section livestock grazing is only a threat to includes the area of bankfull width plus below). The proposed critical habitat spikedace and loach minnow if not 300 feet on either side of the banks. This designation constitutes our best properly managed. Proper management 300-foot width defines the lateral extent assessment of areas that contain the may include the use of fencing, of each area of critical habitat that features (PCEs) essential to the appropriate grazing systems, contains sufficient PCEs to provide for
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one or more of the life history functions essential nutrient recharge and minnow includes five complexes of the spikedace and loach minnow. protection from sediment and totaling approximately 803 miles We determined the 300-foot lateral pollutants; and (3) vegetated lateral (1024.7 km) of stream reaches (see extent for several reasons. First, the zones are widely recognized as Tables 1 and 2 below). The proposed implementing regulations of the Act providing a variety of aquatic habitat critical habitat areas described below require that critical habitat be defined functions and values (e.g., aquatic constitute our best assessment at this by reference points and lines as found habitat for fish and other aquatic time of areas determined to be occupied on standard topographic maps of the organisms, moderation of water at the time of listing, are considered to area (50 CFR 424.12). Although we temperature changes, and detritus for be within the geographical range considered using the 100-year aquatic food webs) and help improve or occupied by either the spikedace or floodplain, as defined by the Federal maintain local water quality (see U.S. loach minnow, or have been determined Emergency Management Agency Army Corps of Engineers’ final notice (FEMA), we found that it was not concerning Issuance and Modification to be occupied following the listing and included on standard topographic maps, of Nationwide Permits, March 9, 2000, are considered to contain features and the information was not readily 65 FR 12818–12899). essential to the conservation of the available from FEMA or from the Army Among other things, the floodplain spikedace or loach minnow. All areas Corps of Engineers for the areas we are provides space for natural flooding proposed as critical habitat and areas proposing to designate. We suspect this patterns and latitude for necessary proposed for exclusion contain is related to the remoteness of many of natural channel adjustments to maintain sufficient PCEs to support one or more the stream reaches where these species channel morphology and geometry. We of the life history functions of the occur. Therefore, we selected the 300- believe a relatively intact riparian area, spikedace or loach minnow and are foot lateral extent, rather than some along with periodic flooding in a areas that may require special other delineation, for three biological relatively natural pattern, are important management and protection. Unless reasons: (1) The biological integrity and in maintaining the stream conditions otherwise indicated, the following areas natural dynamics of the river system are necessary for long-term survival and identified in Table 1 and in the unit maintained within this area (i.e., the recovery of the spikedace and loach descriptions below, are proposed for floodplain and its riparian vegetation minnow. designation as critical habitat for both provide space for natural flooding Conservation of the river channel spikedace and loach minnow (see the patterns and latitude for necessary alone is not sufficient to ensure the ‘‘Proposed Regulation Promulgation’’ natural channel adjustments to maintain survival and recovery of the spikedace section of this rule below for exact appropriate channel morphology and and loach minnow. For the reasons descriptions and distances of geometry, store water for slow release to discussed above, we believe the riparian maintain base flows, provide protected corridors adjacent to the river channel boundaries). The proposal includes side channels and other protected areas, provide an important function within portions of 10 streams for spikedace and and allow the river to meander within the areas proposed for designation of 23 streams for loach minnow; however, its main channel in response to large critical habitat. individual streams are not isolated, but flow events); (2) conservation of the The proposed designation of critical are connected with others to form areas adjacent riparian area also helps provide habitat for both spikedace and loach or ‘‘complexes.’’
TABLE 1.—LOCATIONS OF SPIKEDACE AND LOACH MINNOW STREAM SEGMENTS PROPOSED FOR CRITICAL HABITAT, THREATS TO THE SPECIES, STREAM SEGMENTS PROPOSED FOR EXCLUSION FROM CRITICAL HABITAT (I.E., EAGLE CREEK AND EAST FORK WHITE RIVER), LAST YEAR OF DOCUMENTED OCCUPANCY, AND SOURCE OF OCCUPANCY INFORMATION
Spikedace and/or loach minnow critical habitat Threats Last year occupancy Critical habitat distance in Source areas confirmed miles (km)
Complex 1—Verde River
Verde River: Spikedace ...... Nonnative fish species, 1999 ...... 106.5 mi (171.4 km) ...... HDMS, Rinne 2002, grazing, water diversions. SONFishes.
Complex 2—Black River Complex
Boneyard Creek: Loach minnow ...... Recreational pressures, 1996 ...... 1.4 mi (2.3 km) ...... Service files, HDMS, nonnative fish species, SONFishes. recent fire and related retardant application, ash, and sediment. East Fork Black: Loach minnow ...... Recreational pressures, 1996 ...... 5.5 mi (8.8 km) ...... Service files, HDMS, nonnative fish species, SONFishes. recent fire and related retardant application, ash, and sediment. North Fork East Fork Black:
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TABLE 1.—LOCATIONS OF SPIKEDACE AND LOACH MINNOW STREAM SEGMENTS PROPOSED FOR CRITICAL HABITAT, THREATS TO THE SPECIES, STREAM SEGMENTS PROPOSED FOR EXCLUSION FROM CRITICAL HABITAT (I.E., EAGLE CREEK AND EAST FORK WHITE RIVER), LAST YEAR OF DOCUMENTED OCCUPANCY, AND SOURCE OF OCCUPANCY INFORMATION—Continued
Spikedace and/or loach minnow critical habitat Threats Last year occupancy Critical habitat distance in Source areas confirmed miles (km)
Loach minnow ...... Recreational pressures, 2004 ...... 11.2 mi (18.0 km) ...... Bagley et al. 1996, HDMS, nonnative fish species, SONFishes, M. Richard- recent fire and related son, USFWS pers. retardant application, comm. 2004. ash, and sediment. East Fork White River: Loach minnow ...... Water diversions, recre- Currently occupied (pro- 12.5 mi (20.1 km) ...... HDMS, SONFishes. ation. posed for exclusion).
Complex 3—Middle Gila/Lower San Pedro/Aravaipa Creek
Aravaipa Creek: Spikedace ...... Fire, some recreational 2005 ...... 28.1 mi (45.3 km) ...... Rienthal 2005; HDMS, Loach minnow pressure, low nonnative 2005 SONFishes, Service pressures, water diver- Files. sion. Deer Creek: Loach minnow ...... Fire, some recreational 2005 ...... 2.3 mi (3.6 km) ...... Rienthal 2005; HDMS, pressure, low nonnative SONFishes, Service pressures. Files. Turkey Creek: Loach minnow ...... Fire, some recreational 2005 ...... 2.7 mi (4.3 km) ...... Rienthal 2005; HDMS, pressure, low nonnative SONFishes, Service pressures. Files. Gila River—Ashurst-Hay- den Dam to San Pedro: Spikedace ...... Water diversions, grazing, 1991 ...... 39.0 mi (62.8 km) ...... HDMS, Jakle 1992, nonnative fish species. SONFishes. San Pedro River: (lower): Spikedace ...... Water diversions, grazing, 1996 ...... 13.4 mi (21.5 km) ...... Service files, HDMS, nonnative fish species, SONFishes. mining.
Complex 4—San Francisco and Blue Rivers
Eagle Creek: Spikedace ...... Grazing, nonnative fish 1989 ...... 45.3 mi (72.9 km) ...... Bagley and Marsh 1997, Loach minnow species, water diver- 1997 (a portion of Eagle HDMS, Knowles 1994, sions, mining. Creek is proposed for Marsh et al. 2003, exclusion) SONFishes, Service Files. San Francisco River: Loach minnow ...... Grazing, water diversions, 2001 ...... 126.5 mi (203.5 km) ...... HDMS, SONFishes, Propst nonnative fish species, 2002. road construction. Tularosas River: Loach minnow ...... Grazing, watershed dis- 2001 ...... 18.6 mi (30.0 km) ...... SONFishes, Propst 2002, turbances. USFWS 1983. Frieborn Creek: Loach minnow ...... Unknown ...... 1998 ...... 1.1 mi (1.8 km) ...... SONFishes. Negrito Creek: Loach minnow ...... Grazing; watershed dis- 1998 ...... 4.2 miles (6.8 km) ...... D. Propst pers. com. 2005. turbances. Whitewater Creek: Loach minnow ...... Grazing, watershed dis- 1984 ...... 1.1 mi (1.8 km) ...... Propst et al. 1988, turbances. SONFishes. Blue River: Loach minnow ...... Water diversions; non- 2004 ...... 51.1 miles (82.2 km) ...... Carter 2004, HDMS, native fish species, live- SONFishes, Propst stock grazing, road con- 2002, USFWS 1983. struction. Campbell Blue Creek: Loach minnow ...... Grazing, nonnative fish 2004 ...... 8.1 mi (13.1 km) ...... Carter 2004, HDMS, species. SONFishes. Little Blue Creek: Loach minnow ...... Grazing, nonnative fish 1981 ...... 2.8 mi (4.5 km) ...... HDMS, SONFishes. species.
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TABLE 1.—LOCATIONS OF SPIKEDACE AND LOACH MINNOW STREAM SEGMENTS PROPOSED FOR CRITICAL HABITAT, THREATS TO THE SPECIES, STREAM SEGMENTS PROPOSED FOR EXCLUSION FROM CRITICAL HABITAT (I.E., EAGLE CREEK AND EAST FORK WHITE RIVER), LAST YEAR OF DOCUMENTED OCCUPANCY, AND SOURCE OF OCCUPANCY INFORMATION—Continued
Spikedace and/or loach minnow critical habitat Threats Last year occupancy Critical habitat distance in Source areas confirmed miles (km)
Dry Blue Creek: Loach minnow ...... Grazing ...... 1948 ...... 3.0 mi (4.8 km) ...... SONFishes. Pace Creek: Loach minnow ...... Grazing, nonnative fish 1998 ...... 0.8 mi (1.2 km) ...... SONFishes. species.
Complex 5—Upper Gila River
East Fork Gila River: Spikedace ...... Grazing, nonnative fish 2001 ...... 26.1 mi (42.0 km) ...... Propst 2002, Propst et al. Loach minnow species. 2001 1998, SONFishes. Upper Gila River: Spikedace ...... Recreation, roads, grazing, 2005 ...... 102.1 mi (164.3 km) ...... Propst 2002, Service Loach minnow nonnative fish species, 2005 1983, SONFishes, water diversion. Unpubl. data 2005. Middle Fork Gila River: Spikedace ...... Nonnative fish species, 1995 ...... 7.7 mi (12.3 km) ...... Propst 2002, SONFishes. Loach minnow Grazing. 1998 11.9 mi (19.1 km) West Fork Gila River: Spikedace ...... Nonnative fish species, 2005 ...... 7.7 miles (12.4 km) ...... Propst 2002, SONFishes, Loach minnow grazing, roads. 2002 Unpubl. data 2005.
Table 2 below provides approximate spikedace and loach minnow and the final critical habitat designation by area (mi/km) determined to meet the areas proposed for exclusion from the State. definition of critical habitat for the
TABLE 2.—APPROXIMATE PROPOSED CRITICAL HABITAT IN STREAM KILOMETERS (KM) AND MILES (MI) BY STATE AND LANDOWNER
New Mexico Arizona Total Land owner mi (km) mi (km) mi (km)
Federal ...... 198.50 (319.45) 167.71 (269.90) 366.21 (589.35) Tribal ...... 33.00 (53.11) 0 (0) 33.00 (53.11) State ...... 8.32 (13.39) 1.32 (2.12) 9.64 (15.51) County ...... 0.0 (0.0) 0.0 (0.0) 0.0 (0.0) Private ...... 134.44 (216.36) 89.73 (144.40) 224.17 (360.76)
Total ...... 374.26 (602.32) 258.75 (416.42) 633.01 (1018.74)
TABLE 3.—AREAS DETERMINED TO MEET THE DEFINITION OF CRITICAL HABITAT FOR THE SPIKEDACE AND LOACH MINNOW AND THE AREAS PROPOSED FOR EXCLUSION FROM THE FINAL CRITICAL HABITAT DESIGNATION [AC (HA)/MI (KM)]
Area proposed Meeting the definition for exclusion from the State or geographic area of critical habitat area final critical habitat (miles/kilometers) designation (acres/hectares)
Arizona ...... 374.26 (602.32) 29.67 (47.76) New Mexico ...... 258.75 (416.42) 0 (0)
Total ...... 633.01 (1018.74) 29.67 (47.76)
The approximate area encompassed within each proposed critical habitat unit is shown in Table 4.
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TABLE 4.—CRITICAL HABITAT UNITS PROPOSED FOR THE SPIKEDACE AND LOACH MINNOW [Area estimates reflect all land within critical habitat unit boundaries]
Critical habitat unit Mi Km
1. Verde River ...... 106.53 171.44 2. Black River ...... 30.58 49.21 3. Lower San Pedro/Gila River/Aravaipa Creek ...... 85.46 137.53 4. Gila Box/San Francisco River ...... 262.58 422.58 5. Upper Gila River ...... 147.87 237.97
Total ...... 633.01 1018.74
Complex 1—Verde River Complex— the Yavapai Apache Tribe. Sullivan We propose streams within this Yavapai County, Arizona Dam is at the upstream limit of complex as critical habitat for loach perennial flow in the mainstem of the minnow only. At this time, spikedace The Verde River Complex was Verde River. Perennial flow results from are not known to historically occupy occupied by spikedace at the time of a series of river-channel springs and areas at this elevation; however, the data listing, and is still considered to be from Granite Creek. The Verde River on maximum elevation for spikedace are occupied based on surveys documenting contains features essential to the not definitive and if information spikedace presence as recently as 1999. conservation of the spikedace between becomes available that differs from that This complex was also historically its headwaters and Fossil Creek. These currently available, the Black River occupied by loach minnow. At this portions of the Verde River provide a complex may be reevaluated for time, the tributary streams of the Verde relatively stable thermal and hydrologic spikedace critical habitat designation in River are believed to be unoccupied by regime suitable for spikedace. Below a future revision. Portions of the sub- both species and are not being proposed Fossil Creek, the Verde River has a basin are unsuitable, either because of as critical habitat. The Verde River larger flow and is thought to offer little topography or because of the presence Complex is unusual in that a relatively suitable habitat for spikedace or loach of reservoirs, stream channel alteration stable thermal and hydrologic regime is minnow. However, this is historical by humans, or overwhelming nonnative found in the upper river and in Fossil range for both species, and comments fish populations. However other areas Creek, one of the tributaries to the Verde on previous critical habitat designations within the sub-basin remain suitable. River. Also, spikedace in the Verde from the U.S. Forest Service (USFS) Threats in this complex requiring River are genetically (Tibbets 1993) and indicated this stretch of the river may special management include grazing, morphologically (Anderson and offer substantial value for spikedace and nonnative fish, recreation, and Hendrickson 1994) distinct from all loach minnow recovery. We will sedimentation resulting from a recent other spikedace populations. The Verde continue to seek further information fire that destroyed vegetation (see Table River contains one or more of the regarding the Verde River and its role in 1). The ownership of this complex is primary constituent elements, including conservation for these two species and predominantly USFS, with a few small shear zones, sheet flow, and eddies, and may consider designation of the Verde areas of private land. All streams within an appropriate prey base. The River below Fossil Creek in future the complex are within the boundaries continuing presence of spikedace and potential revisions of critical habitat. of the Apache-Sitgreaves National the existence of features that are We are working with the Yavapai Forest and include lands of the White essential to the conservation of the Apache Tribe on the development of a Mountain Apache Tribe. species create a high potential for management plan for their lands. On the (1) East Fork Black River—Loach restoration of loach minnow to the basis of our partnership with the Tribe, Minnow Only—5.5 miles (8.8 km) of Verde River system. Threats to this and in anticipation of completion of a river extending from the confluence critical habitat area requiring special native fishes management plan, the with the West Fork Black River management and protections include portion of the Verde River belonging to upstream to the confluence with Deer water diversions, grazing, and nonnative the Yavapai Apache Tribe may be Creek. This area is considered occupied fish species (see Table 1 above). excluded from final critical habitat based on records from 1996, it is The landownership of this complex pursuant to section 4(b)(2) of the Act connected to the North Fork East Fork consists of large blocks of USFS lands (see ‘‘Relationship of Critical Habitat to Black River with documented loach in the upper and lower reaches, with Tribal Lands’’ section below for minnow records from 2004, and significant areas of private ownership in additional information). contains one or more of the primary the Verde Valley. There are also lands constituent elements including belonging to Arizona State Parks, Complex 2—Black River Complex— sufficient flow velocities and Yavapai Apache Tribe, and the AGFD. Apache and Greenlee Counties, appropriate gradients, substrates, The Verde River divides the west and Arizona depths, and habitat types (i.e., pools, east halves of the Prescott National The Salt River Sub-basin represents a riffles). Forest, and passes by or through the significant portion of loach minnow (2) North Fork East Fork Black River— towns of Camp Verde, Middle Verde, historical range; however, loach Loach Minnow Only—11.2 miles (18.0 Bridgeport, Cottonwood, and Clarkdale. minnow have been extirpated from all km) of river extending from the Verde River Complex—Spikedace but a small portion of the Black and confluence with Deer Creek upstream to Only—106.5 miles (171.4 km) of river White Rivers. As the only remaining the confluence with an unnamed extending from the confluence with population of loach minnow on public tributary. This area is occupied by loach Fossil Creek upstream to Sullivan Dam lands in the Salt River Sub-basin, the minnow based on surveys documenting at Township 17 North, Range 2 West, Black River Complex is considered vital presence of loach minnow as recently as section 15, including lands belonging to to the species. 2004. Above the unnamed tributary, the
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river has finer substrate and lacks riffle private land, some State of Arizona limit of sufficient perennial flow ends habitat, making it unsuitable for loach lands, and a small area of allotted land, for either species. Aravaipa Creek was minnow. used by the San Carlos Apache Tribe. occupied by both spikedace and loach (3) Boneyard Creek—Loach Minnow The lower portions of the Gila River are minnow at the time of listing, and Only—1.4 miles (2.3 km) of creek BOR lands. continues to support a substantial extending from the confluence with the (1) Gila River—Spikedace Only—39.0 population of both species (Service files East Fork Black River upstream to the miles (62.8 km) of river extending from 2005). Aravaipa Creek contains one or confluence with an unnamed tributary. the Ashurst-Hayden Dam upstream to more of the primary constituent Boneyard Creek contains one or more of the confluence with the San Pedro elements, including sufficient flow the primary constituent elements, River. Spikedace were located in the velocities and appropriate gradients, including sufficient flow velocities and Gila River in 1991 (Jakle 1992), and the appropriate gradients, substrates, Gila River is connected with Araviapa substrates, depths, and habitat types depths, and habitat types (i.e., pools, Creek, which supports the largest (i.e., pools, riffles). Threats in this area riffles). This area is considered to be remaining spikedace population. Those requiring special management include occupied based on records from 1996; it portions of the Gila River proposed for water diversions, nonnative fish, and is also connected to the North Fork East designation contain one or more of the recreational pressures (see Table 1). Fork Black River which has documented primary constituent elements, including (4) Turkey Creek—Loach Minnow loach minnow records from 2004. This sufficient flow velocities and Only—2.7 miles (4.3 km) of creek area represents part of the only appropriate gradients, substrates, extending from the confluence with occupied complex in the Salt River depths, and habitat types (i.e., pools, Aravaipa Creek upstream to the basin. riffles). Above the confluence with the confluence with Oak Grove Canyon. (4) East Fork White River—Loach San Pedro River, flow in the Gila River This creek was occupied at the time of Minnow Only—12.5 miles (20.1 km) of is highly regulated by the San Carlos listing and is currently occupied by the East Fork White River extending Dam and does not contain the features loach minnow (Rienthal, University of from the confluence with the North Fork essential to the conservation of either Arizona, pers. comm. 2004). Turkey White River and the East Fork White species. Below the confluence, the input River at Township 5 North, Range 22 of the San Pedro provides a sufficiently Creek contains one or more of the East, section 35 upstream to Township unregulated hydrograph, which is a primary constituent elements, including 5 North, Range 23 East, southeast feature essential to the conservation of sufficient flow velocities and quarter of section 13. This area was the spikedace. Threats in this area appropriate gradients, substrates, occupied by loach minnow at the time requiring special management include depths, and habitat types (i.e., pools, of listing and is still considered water diversions, grazing, and nonnative riffles). Threats to this area requiring occupied. This segment of the East Fork fish species. This river is part of the special management are generally the White River contains sufficient features complex that contains the largest same for Aravaipa Creek, and include to support one or more of the life history remaining population of spikedace and water diversions, nonnative fish, and functions of the loach minnow. Threats loach minnow and contains the features recreational pressure (see Table 1). This in this segment requiring special essential to the conservation of the creek is part of the complex that management include water diversions species. contains the largest remaining and recreation. The entirety of this (2) Lower San Pedro River— population of spikedace and loach reach is located on lands belonging to Spikedace Only—13.4 miles (21.5 km) minnow and contains the features the White Mountain Apache Tribe. A of river extending from the confluence essential to the conservation of the management plan for loach minnow has with the Gila River upstream to the species. been in place on these lands since 2000. confluence with Aravaipa Creek. This On the basis of this plan and our area was occupied at the time of listing (5) Deer Creek—Loach Minnow partnership with the White Mountain and is connected with Araviapa Creek, Only—2.3 miles (3.6 km) of creek Apache Tribe, we are proposing to which supports the largest remaining extending from the confluence with exclude this area from final critical spikedace population. This portion of Aravaipa Creek upstream to the habitat pursuant to section 4(b)(2) of the the San Pedro River contains one or boundary of the Aravaipa Wilderness. Act (see ‘‘Relationship of Critical more of the primary constituent This stream was occupied at the time of Habitat to Tribal Lands’’ section below elements, including sufficient flow listing and is currently occupied by for additional information). velocities and appropriate gradients, loach minnow (Rienthal, University of substrates, depths, and habitat types Complex 3—Middle Gila/Lower San Arizona, pers. comm. 2004). Deer Creek (i.e., pools, riffles). Existing flow in the contains one or more of the primary Pedro/Aravaipa Creek Complex—Pinal river comes from surface and subsurface and Graham Counties, Arizona constituent elements important to loach contributions from Aravaipa Creek. minnow, including sufficient flow The portions of this complex being Threats in this area requiring special velocities and appropriate gradients, proposed for critical habitat are within management include water diversions, substrates, depths, and habitat types the geographical range occupied by both nonnative fish, grazing, and mining. (i.e., pools, riffles). The threats to loach spikedace and loach minnow and This river is part of the complex that minnow in this area are similar to those contain the features essential to the contains the largest remaining for Aravaipa Creek, including water conservation of these species. Aravaipa population of spikedace and loach Creek supports the largest remaining minnow and contains the features diversions, nonnative fish, and spikedace and loach minnow essential to the conservation of the recreation. This creek is part of the populations in Arizona. Threats in this species. complex that contains the largest complex requiring special management (3) Aravaipa Creek—28.1 miles (45.3 remaining population of spikedace and include water diversions, grazing, km) of creek extending from the loach minnow and contains the features nonnative fish, recreation, and mining confluence with the San Pedro River essential to the conservation of the (see Table 1). This area includes upstream to the confluence with Stowe species. extensive BLM land as well as extensive Gulch, which is where the upstream
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Complex 4—San Francisco and Blue depths, and habitat types (i.e., pools, area connected with the San Francisco Rivers Complex—Graham and riffles). Threats to this area requiring River where loach minnow records exist Greenlee Counties, Arizona and Catron special management include water from 2001. This area does support one County, New Mexico diversions, grazing, and nonnative fish or more primary constituent elements The streams in this complex are species (see Table 1). for loach minnow, including sufficient (3) Tularosa River—Loach Minnow within the geographical range occupied flow velocities and appropriate Only—18.6 miles (30.0 km) of river by the loach minnow and/or the gradients, substrates, depths, and extending from the confluence with the spikedace. The Blue River system and habitat types (i.e., pools, riffles). Threats San Francisco River upstream to the adjacent portions of the San Francisco to this area include grazing and town of Cruzville. Above Cruzville, the River constitute the longest stretch of nonnative fish (see Table 1). river does not contain the features (6) Blue River—Loach Minnow occupied loach minnow habitat essential to the conservation of the Only—51.1 miles (82.2 km) of river unbroken by large areas of unsuitable species because of the small size of the extending from the confluence with the habitat. Threats in this complex are stream and a predominance of fine San Francisco River upstream to the described in the individual stream substrates. This area includes one or confluence of Campbell Blue and Dry reaches below. This complex contains more of the primary constituent Blue Creeks. The Blue River was extensive USFS land, some BLM land, elements important to loach minnow, occupied at the time of listing and and scattered private, State of Arizona, including sufficient flow velocities and continues to be occupied by loach and New Mexico Department of Game appropriate gradients, substrates, minnow (Carter 2004). The Blue River and Fish (NMDGF) lands. depths, and habitat types (i.e., pools, contains one or more of the primary (1) Eagle Creek—45.3 miles (72.9 km) riffles). The Tularosa River was constituent elements required by loach of creek extending from the Phelps- occupied at the time of listing and is minnow, including sufficient flow Dodge Diversion Dam upstream to the known to be currently occupied based velocities and appropriate gradients, confluence of Dry Prong and East Eagle on records as recent as 2001. Threats to substrates, depths, and habitat types Creeks, including lands of the San the species and its habitat in this area (i.e., pools, riffles). Planning is Carlos Apache Reservation. Eagle Creek that require special management underway among several State and was occupied by spikedace and loach include grazing and nonnative fish (see Federal agencies for reintroduction of minnow at the time of listing. The most Table 1). native fishes, including spikedace, in current records of occupancy in Eagle (4) Negrito Creek—Loach Minnow the Blue River, and thus the Blue River Creek are 1987 for spikedace and 1997 Only—4.2 miles (6.8 km) of creek may be considered for spikedace critical for loach minnow. Eagle Creek contains extending from the confluence with the habitat in future revisions of the one or more of the primary constituent San Francisco River upstream to the designation. Threats in this area include elements important to spikedace and confluence with Cerco Canyon. Above water diversions, grazing, nonnative loach minnow, including sufficient flow this area, the creek does not contain the fish, and roads (see Table 1). velocities and appropriate gradients, features essential to the conservation of (7) Campbell Blue Creek—Loach substrates, depths, and habitat types the species because of gradient and Minnow Only—8.1 miles (13.1 km) of (i.e., pools, riffles). Threats within this channel morphology. Negrito Creek has creek extending from the confluence of area that require special management been occupied since listing, with the Dry Blue and Campbell Blue Creeks include water diversions, grazing, most recent record from 1998 (Service upstream to the confluence with nonnative fish, and mining (see Table Files 2005). This area contains one or Coleman Canyon. Areas above Coleman 1). more of the primary constituent Canyon do not contain the features A section of Eagle Creek elements important to loach minnow, essential to the conservation of the approximately 17.2 miles (27.7 km) long including sufficient flow velocities and species because the creek changes and occurs on the San Carlos Apache appropriate gradients, substrates, becomes steeper and rockier, making it Reservation. We have received a depths, and habitat types (i.e., pools, unsuitable for spikedace or loach management plan from the San Carlos riffles). Threats to this area requiring minnow. Campbell Blue Creek is Apache Tribe addressing native fishes. special management include grazing currently occupied (Carter 2004) and On the basis of this plan and our and nonnative fish (see Table 1). This supports one or more of the velocities partnership with the San Carlos Apache stream contains the features essential to and appropriate gradients, substrates, Tribe, we are proposing to exclude this the conservation of the species and one depths, and habitat types (i.e., pools, area from final critical habitat pursuant of the few remaining populations of the riffles). Threats to this area include to section 4(b)(2) of the Act (see species. The area is currently occupied, grazing and nonnative fish species (see ‘‘Relationship of Critical Habitat to and it is directly connected to the Table 1). Tribal Lands’’ section below for Tularosa River, which is also occupied (8) Dry Blue Creek—Loach Minnow additional information). with records dating from 2001. Only—3.0 miles (4.8 km) of creek (2) San Francisco River—Loach (5) Whitewater Creek—Loach Minnow extending from the confluence with Minnow Only—126.5 miles (203.5 km) Only—1.1 miles (1.8 km) of creek Campbell Blue Creek upstream to the of river extending from the confluence extending from the confluence with the confluence with Pace Creek. Dry Blue with the Gila River upstream to the San Francisco River upstream to the Creek has been occupied by loach mouth of The Box, a canyon above the confluence with the Little Whitewater minnow since listing and is connected town of Reserve. Loach minnow Creek. Upstream of this area the river with Campbell Blue Creek, which has occupied the San Francisco River at the does not contain the features essential to documented loach minnow records as time of listing and still occupy it the conservation of the species because recent as 2004. This area also contains presently (Propst 2002). The San of gradient and channel changes that one or more of the primary constituent Francisco River contains one or more of make the portion above Little elements required by loach minnow, the primary constituent elements Whitewater Creek unsuitable for loach including sufficient flow velocities and important to loach minnow, including minnow. Whitewater Creek was appropriate gradients, substrates, sufficient flow velocities and occupied at the time of listing, and is depths, and habitat types (i.e., pools, appropriate gradients, substrates, currently occupied as it is within an riffles). Threats to this area requiring
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special management include grazing NMDGF, National Park Service, and to the confluence with Brothers West and nonnative fish species (see Table 1). State of New Mexico lands. Canyon. This area is currently occupied (9) Pace Creek—Loach Minnow (1) Upper Gila River—102.1 miles and is connected to currently occupied Only—0.8 miles (1.2 km) of creek (164.3 km) of river extending from the habitat on the West Fork of the Gila extending from the confluence with Dry confluence with Moore Canyon (near River. Portions of the Middle Fork Gila Blue Creek upstream to a barrier falls. the Arizona/New Mexico border) River contain one or more primary Pace Creek has been occupied by loach upstream to the confluence of the East constituent elements required by loach minnow since listing with the most and West Forks of the Gila River. The minnow, including sufficient flow recent record from 1998. This area also Gila River was occupied by spikedace velocities and appropriate gradients, contains one or more of the primary and loach minnow at the time of listing substrates, depths, and habitat types constituent elements required by loach and continues to be occupied by both (i.e., pools, riffles). Threats to this area minnow, including sufficient flow species (Propst 2002, Propst et al. 1988, requiring special management include velocities and appropriate gradients, Rinne 1999b). The Gila River from its grazing and nonnative fish species (See substrates, depths, and habitat types confluence with the West Fork Gila and Table 1). (i.e., pools, riffles). Threats to this area East Fork Gila contains one or more (5) West Fork Gila River—7.7 miles requiring special management include primary constituent elements for (12.4 km) of river extending from the grazing and nonnative fish species (see spikedace and loach minnow, including confluence with the East Fork Gila River Table 1). sufficient flow velocities and upstream to the confluence with EE (10) Frieborn Creek—Loach Minnow appropriate gradients, substrates, Canyon. This lower portion of the West Only—1.1 miles (1.8 km) of creek depths, and habitat types (i.e., pools, Fork was occupied by both spikedace extending from the confluence with Dry riffles). Threats to this area requiring and loach minnow at the time of listing Blue Creek upstream to an unnamed special management include water and continues to be occupied by both tributary. Frieborn Creek has been diversions, grazing, recreation, road species. This area contains one or more occupied by loach minnow since listing construction, and nonnative fish species primary constituent elements required with the most recent record from 1998. (see Table 1). by spikedace and loach minnow, This area also contains one or more of (2) East Fork Gila River—26.1 miles including sufficient flow velocities and the primary constituent elements (42.0 km) of river extending from the appropriate gradients, substrates, required by loach minnow, including confluence with the West Fork Gila depths, and habitat types (i.e., pools, sufficient flow velocities and River upstream to the confluence of riffles). Above EE Canyon, the river does appropriate gradients, substrates, Beaver and Taylor creeks. This area was not contain the features essential to the depths, and habitat types (i.e., pools, occupied by both species at the time of conservation of the species due to riffles). Threats to this area requiring listing and both species have been gradient and channel morphology. special management include grazing found there as recently as 2001 (Propst Threats to this area requiring special and nonnative fish species (see Table 1). 2002). In addition, this area is management include grazing and (11) Little Blue Creek—Loach connected to habitat currently occupied nonnative fish species (See Table 1). Minnow Only—2.8 miles (4.5 km) of by spikedace and loach minnow on the creek extending from the confluence West Fork of the Gila River. Portions of Proposed Exclusions Under Section with the Blue River upstream to the the East Fork Gila River contain one or 4(b)(2) of the Act mouth of a canyon. Little Blue Creek more of the primary constituent Section 4(b)(2) of the Act states that was occupied at the time of listing and elements required by spikedace and critical habitat shall be designated, and is connected with the Blue River, which loach minnow including sufficient flow revised, on the basis of the best has documented loach minnow records velocities and appropriate gradients, available scientific data after taking into as recent as 2004. This area also substrates, depths, and habitat types consideration the economic impact, contains one or more of the primary (i.e., pools, riffles). Threats to this area national security impact, and any other constituent elements required by loach requiring special management include relevant impact of specifying any minnow and is connected to the Blue grazing and nonnative fish species (See particular area as critical habitat. An River. Threats requiring special Table 1). area may be excluded from critical management in this area include grazing (3) Middle Fork Gila River— habitat if it is determined that the and nonnative fish (see Table 1). Spikedace Only—7.7 miles (12.3 km) of benefits of exclusion outweigh the river extending from the confluence benefits of specifying a particular area Complex 5—Upper Gila River with the West Fork Gila River upstream as critical habitat, unless the failure to Complex—Grant, Catron, and Hidalgo to the confluence with Big Bear Canyon. designate such area as critical habitat counties, New Mexico This area is currently occupied, and is will result in the extinction of the This complex is occupied by connected to currently occupied habitat species. spikedace and loach minnow and on the West Fork of the Gila River In our critical habitat designations, we contains the largest remaining (Propst 2002). The Middle Fork Gila use the provision outlined in section populations of both species in New River contains one or more of the 4(b)(2) of the Act to evaluate those Mexico. It is considered to represent the primary constituent elements required specific areas that contain the features ‘‘core’’ of what remains of these species. by spikedace, including sufficient flow essential to the conservation of the Threats requiring special management velocities and appropriate gradients, species to determine which areas to in this area are addressed in each of the substrates, depths, and habitat types propose and subsequently finalize (i.e., individual stream segment descriptions (i.e., pools, riffles). Threats to this area designate) as critical habitat. On the below. The largest areas are on USFS requiring special management include basis of our preliminary evaluation, land, with small private inholdings. grazing and nonnative fish species (See discussed in detail below, we are There are large areas of private lands in Table 1). proposing to exclude certain lands from the Cliff-Gila Valley, and the BLM (4) Middle Fork Gila River—Loach the designation of critical habitat for the administers significant stretches Minnow Only—11.9 miles (19.1 km) of spikedace and loach minnow. In the upstream of the Arizona/New Mexico river extending from the confluence development of our final designation, border. There are also small areas of with the West Fork Gila River upstream we will incorporate or address any new
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information received during the public development of a management plan for results in a jeopardy or adverse comment periods, or from our their lands. We note that lands of the modification conclusion. evaluation of the potential economic Yavapai-Apache Nation may be We also note that for 30 years prior to and environmental impacts of this considered for exclusion in the final the Ninth Circuit Court’s decision in proposal. As such, we may revise this rule and that any exclusions made in Gifford Pinchot, the Service equated the proposal to address new information the final rule will be the result of a jeopardy standard with the standard for and/or to exclude additional areas that reanalysis of any new information destruction or adverse modification of may warrant exclusion pursuant to received. critical habitat. The Court ruled that the section 4(b)(2). Service could no longer equate the two Areas excluded pursuant to section General Principles of Section 7 standards and that adverse modification 4(b)(2) may include, but are not limited Consultations Used in the 4(b)(2) evaluations require consideration of to, those covered by: (1) Legally Balancing Process impacts on the recovery of species. operative Habitat Conservation Plans The most direct, and potentially Thus, under the Gifford Pinchot (HCPs) that cover the species and largest, regulatory benefit of critical decision, critical habitat designations provide assurances that the habitat is that federally authorized, may provide greater benefits to the conservation measures for the species funded, or carried out activities require recovery of a species. However, we will be implemented and effective; (2) consultation pursuant to section 7 of the believe the conservation achieved draft HCPs that cover the species, have Act to ensure that they are not likely to through implementing management undergone public review and comment, destroy or adversely modify critical plans is typically greater than would be and provide assurances that the habitat. There are two limitations to this achieved through multiple site-by-site, conservation measures for the species regulatory effect. First, it only applies project-by-project, section 7 will be implemented and effective (i.e., where there is a Federal nexus—if there consultations involving consideration of pending HCPs); (3) Tribal conservation is no Federal nexus, designation itself critical habitat. Management plans plans that cover the species and provide does not restrict actions that destroy or commit resources to implement long- assurances that the conservation adversely modify critical habitat. term management and protection to measures for the species will be Second, it only limits destruction or particular habitat for at least one and implemented and effective; (4) State adverse modification. By its nature, the possibly other listed or sensitive conservation plans that provide prohibition on adverse modification is species. Section 7 consultations only assurances that the conservation designed to ensure those areas that commit Federal agencies to prevent measures for the species will be contain the physical and biological adverse modification to critical habitat implemented and effective; and (5) features essential to the conservation of caused by the particular project, and National Wildlife Refuge System the species or unoccupied areas that are they are not committed to provide Comprehensive Conservation Plans essential to the conservation of the conservation or long-term benefits to areas not affected by the proposed (CCPs) that provide assurances that the species are not eroded. Critical habitat conservation measures for the species project. Thus, any management plan designation alone, however, does not will be implemented and effective. which considers enhancement or require specific steps toward recovery. Within the areas containing the recovery as the management standard features essential to the conservation of Once consultation under section 7 of will always provide as much or more the species for spikedace and loach the Act is triggered, the process may benefit than a consultation for critical minnow in Arizona and New Mexico, conclude informally when the Service habitat designation conducted under the there are Tribal lands; however, there concurs in writing that the proposed standards required by the Ninth Circuit are no lands owned by the Department Federal action is not likely to adversely in the Gifford Pinchot decision. of Defense, National Wildlife Refuges, or affect the listed species or its critical The information provided in this private lands with legally operative habitat. However, if the Service section applies to all the discussions HCPs or draft HCPs. We have determines through informal below that discuss the benefits of determined that the following tribes consultation that adverse impacts are inclusion and exclusion of critical have lands containing features essential likely to occur, then formal consultation habitat in that it provides the framework to the conservation of the spikedace and would be initiated. Formal consultation for the consultation process. loach minnow: Yavapai Apache, San concludes with a biological opinion Educational Benefits of Critical Habitat Carlos Apache, and White Mountain issued by the Service on whether the Apache. In making our final decision proposed Federal action is likely to A benefit of including lands in critical with regard to tribal lands, we will be jeopardize the continued existence of a habitat is that the designation of critical considering several factors including listed species or result in destruction or habitat serves to educate landowners, our relationship with the Tribe or adverse modification of critical habitat, State and local governments, and the Nation and whether a management plan with separate analyses being made public regarding the potential has been developed for the conservation under both the jeopardy and the adverse conservation value of an area. This of the spikedace and loach minnow on modification standards. For critical helps focus and promote conservation their lands. The White Mountain habitat, a biological opinion that efforts by other parties by clearly Apache completed a final management concludes in a determination of no delineating areas of high conservation plan in 2000 that we have in our records destruction or adverse modification may value for the spikedace and loach and we have also received a final contain discretionary conservation minnow. In general the educational management plan from the San Carlos recommendations to minimize adverse benefit of a critical habitat designation Apache Tribe. We are proposing to effects to primary constituent elements, always exists, although in some cases it exclude lands of the San Carlos Apache but it would not contain any mandatory may be redundant with other Tribe and lands of the White Mountain reasonable and prudent measures or educational effects. For example, habitat Apache Tribe, as discussed in further terms and conditions. Mandatory conservation plans have significant detail below. We will continue to work reasonable and prudent alternatives to public input and may largely duplicate with the Yavapai-Apache Nation during the proposed Federal action would only the educational benefit of a critical the comment period on the be issued when the biological opinion habitat designation. This benefit is
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closely related to a second, more features that are essential to the and restore spikedace and loach indirect benefit: that designation of conservation of the spikedace and loach minnow habitat, including efforts to critical habitat would inform State minnow. The Tribe has completed and eliminate nonnative fishes from agencies and local governments about is implementing a Fisheries spikedace and loach minnow habitat. areas that could be conserved under Management Plan (FMP) that includes All habitat restoration activities State laws or local ordinances. specific management actions for the (whether it is to rehabilitate or restore However, we believe that there would spikedace and loach minnow. In this native plants) will be conducted under be little additional informational benefit proposed exclusion, we considered reasonable coordination with the gained from the designation of critical several factors, including our Service. All reasonable measures will be habitat for the proposed exclusions relationship with San Carlos Apache taken to ensure that recreational discussed in this rule because these Tribe, and the degree to which the activities do not result in a net habitat areas are included in this proposed rule Tribe’s FMP provides specific loss or permanent modification of the as having essential spikedace and/or management for the spikedace and habitat. All reasonable measures will be loach minnow features. Consequently, loach minnow. Tribal governments taken to conduct livestock grazing we believe that the informational protect and manage their resources in activities in a manner that will ensure benefits are already provided even the manner that is most beneficial to the conservation of spikedace and loach though these areas are not designated as them. The San Carlos Apache Tribe minnow habitat. Within funding critical habitat. exercises legislative, administrative, and limitations and under confidentiality The information provided in this judicial control over activities within guidelines established by the Tribe, the section applies to all the discussions the boundaries of its lands. Tribe will cooperate with the Service to below that discuss the benefits of Additionally, the Tribe has natural monitor and survey spikedace and loach inclusion and exclusion of critical resource programs and staff and has minnow habitat, conduct research, habitat. enacted the FMP. In addition, as trustee perform habitat restoration, remove Relationship of Critical Habitat to for land held in trust by the United nonnative fish species, or conduct other American Indian Tribal Rights, Federal- States for Indian Tribes, the Bureau of beneficial spikedace and loach minnow Tribal Trust Responsibilities, and the Indian Affairs (BIA) provides technical management activities. assistance to the San Carlos Apache Endangered Species Act—Proposed White Mountain Apache Tribe Exclusions Under Section 4(b)(2) of the Tribe on management planning and The White Mountain Apache Tribe Act oversees a variety of programs on their lands. Spikedace and loach minnow has one stream within its tribal lands, In accordance with the Secretarial conservation activities have been East Fork White River, that is known to Order 3206, ‘‘American Indian Tribal ongoing on San Carlos Apache tribal be currently occupied by loach minnow Rights, Federal-Tribal Trust lands, and, prior to the completion of and its tribal lands contain features that Responsibilities, and the Endangered their FMP, their natural resource are essential to the conservation of the Species Act’’ (June 5, 1997); the management was consistent with loach minnow. The White Mountain President’s memorandum of April 29, management of habitat for this species. Apache Tribe currently has a 1994, ‘‘Government-to-Government The development and implementation management plan in place for loach Relations with Native American Tribal of the efforts formalized in the San minnow. The plan was completed in Governments’’ (59 FR 22951); Executive Carlos Apache Tribes FMP will 2000 and provides for, among other Order 13175; and the relevant provision continue with or without critical habitat conservation measures, inventory and of the Departmental Manual of the designation. monitoring, water quality protection Department of the Interior (512 DM 2), The San Carlos Apache Tribe highly ordinance, captive propagation, and we believe that fish, wildlife, and other values its wildlife and natural resources, relocation to minimize loss from natural resources on tribal lands are and is charged to preserve and protect catastrophic events such as fire and better managed under tribal authorities, these resources under the Tribal drought. Prior to and since the plan was policies, and programs than through Constitution. Consequently, the Tribe developed, the Tribe has actively Federal regulation wherever possible has long worked to manage the habitat managed for loach minnow. In this and practicable. Based on this of wildlife on its tribal lands, including proposed exclusion, we considered philosophy, we believe that, in many the habitat of endangered and several factors, including our cases, designation of tribal lands as threatened species. We understand that relationship with the White Mountain critical habitat provides very little it is the Tribe’s position that a Apache Tribe, and the degree to which additional benefit to threatened and designation of critical habitat on its the Tribe’s management plan provides endangered species. Conversely, such lands improperly infringes upon its specific management for the loach designation is often viewed by tribes as tribal sovereignty and the right to self- minnow. Tribal governments protect an unwanted intrusion into tribal self government. and manage their resources in the governance, thus compromising the The San Carlos Apache Tribes FMP manner that is most beneficial to them. government-to-government relationship provides assurances and a conservation The White Mountain Apache Tribe essential to achieving our mutual goals benefit to the spikedace and loach exercises legislative, administrative, and of managing for healthy ecosystems minnow. Implementation of the FMP judicial control over activities within upon which the viability of threatened will result in protecting all known the boundaries of its lands. and endangered species populations spikedace and loach minnow habitat on Additionally, the Tribe has natural depend. San Carlos Tribal Land and assures no resource programs and staff and has net habitat loss or permanent been managing for the conservation of San Carlos Apache Tribe modification will occur in the future. the loach minnow. In addition, as The San Carlos Apache Tribe has one The purpose of the FMP includes the trustee for land held in trust by the stream within its tribal lands, Eagle long-term conservation of native fishes, United States for Indian Tribes, the Creek, that is known to be currently including the spikedace and loach Bureau of Indian Affairs (BIA) provides occupied by the spikedace and loach minnow, on tribal lands. The FMP technical assistance to the White minnow and its tribal lands contain outlines actions to conserve, enhance, Mountain Apache Tribe on management
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planning and oversees a variety of management plans. As noted above, the evaluating funding proposals. Because programs on their lands. The primary regulatory benefit of any there are areas of occupied habitat on development and implementation of the designated critical habitat is that these Tribal lands this may also help efforts formalized in the management federally funded or authorized activities secure funding for management of these plan will continue with or without in such habitat require consultation areas. critical habitat designation. pursuant to section 7 of the Act. Such For these reasons, then, we believe The White Mountain Apache Tribe consultation would ensure that that designation of critical habitat highly values its wildlife and natural adequate protection is provided to avoid would provide some additional benefits. resources, and is charged to preserve destruction or adverse modification of (2) Benefits of the Proposed Exclusion and protect these resources under the critical habitat. The Tribes of the San Tribal Constitution. Consequently, the Carlos Apache and the White Mountain The benefits of excluding San Carlos Tribe has long worked to manage the have already agreed under the terms of Apache and White Mountain Apache habitat of wildlife on its tribal lands, their management plans to protect Tribal lands from critical habitat including the habitat of endangered and spikedace and loach minnow habitat include: (1) The advancement of our threatened species. We understand that (PCEs), to ensure no net loss, to Federal Indian Trust obligations and our it is the Tribe’s position that a coordinate with the Service in order to deference to Tribes to develop and designation of critical habitat on its prevent any habitat destruction, and to implement tribal conservation and lands improperly infringes upon its conduct activities consistent with the natural resource management plans for tribal sovereignty and the right to self- conservation of the spikedace and loach their lands and resources, which government. minnow and their PCEs. includes the spikedace and loach Below we provide our combined As discussed above, we expect that minnow and other Federal trust species; preliminary benefits analysis for the little additional educational benefit (2) the maintenance of effective working proposed exclusion of the tribal lands of would be derived from designating relationships to promote the the San Carlos Apache Nation and the lands of the Tribes of the San Carlos conservation of the spikedace and loach White Mountain Apache Nation. Apache and the White Mountain minnow and their habitats; (3) the allowance for continued meaningful (1) Benefits of Inclusion Apache as critical habitat. The additional educational benefits that collaboration and cooperation on Including lands of the San Carlos might arise from critical habitat spikedace and loach minnow Apache Tribe and the White Mountain designation are largely accomplished management and other resources of Apache Tribe in critical habitat would through the multiple notice and interest to the Federal government; and provide some additional benefit from comments which accompany the (4) the provision of conservation section 7 consultation, because we development of this proposed critical benefits to riparian ecosystems and a could consult via the BIA on actions habitat designation, as evidenced by the host of species, including the spikedace that could adversely affect critical Tribes working with the Service to and loach minnow and their habitat, habitat. Activities covered in previous address habitat and conservation needs that might not otherwise occur. consultations included livestock for the loach minnow. Additionally, we During the development of the grazing, recreation, fish stocking, fire anticipate that the Tribes will continue spikedace and loach minnow critical management, bank stabilization to actively participate in working habitat proposal (and coordination for projects, and conservation measures that groups, and provide for the timely other critical habitat proposals), and benefited spikedace and/or loach exchange of management information. other efforts such as conservation of minnow. These included monitoring, The educational benefits important for native fish species in general, we have fence repair (to exclude cattle from the long-term survival and conservation met and communicated with each of overusing and thereby damaging of the spikedace and loach minnow are these Tribes to discuss how they might habitat), and education programs to being realized without designating this be affected by the regulations associated inform the public of the need to avoid area as critical habitat. Educational with spikedace and loach minnow actions that damage habitat. However, benefits will continue on these lands conservation and the designation of we note that because the spikedace and whether or not critical habitat is critical habitat. As such, we established loach minnow are listed species and are designated because the Tribes already relationships with the San Carlos found on these Tribal lands, section 7 recognizes the importance of those Apache and White Mountain Apache consultation under the jeopardy habitat areas to the spikedace and loach Tribes specific to spikedace and loach standard will still be required if Tribal minnow. minnow conservation. As part of our or BIA activities would affect spikedace Another possible benefit is the relationship, we provided technical or loach minnow, regardless of whether additional funding that may be assistance to the Tribes to develop these lands are included in the final generated for habitat restoration or measures to conserve the spikedace and critical habitat designation. As a result, improvement by having an area loach minnow and their habitat on their we expect that inclusion of San Carlos designated as critical habitat. In some lands. These measures are contained Apache and White Mountain Apache instances, having an area designated as within their management plans that we tribal lands in the critical habitat critical habitat may improve the ranking have in our supporting record. This designation would provide only that a project receives during evaluation for proactive action was conducted in additional habitat protection accorded funding. The Tribes often require accordance with Secretarial Order 3206, by critical habitat as discussed by the additional sources of funding in order to ‘‘American Indian Tribal Rights, Ninth Circuit Court of Appeals in the conduct wildlife-related activities. Federal-Tribal Trust Responsibilities, Gifford Pinchot ruling discussed above. Therefore, having an area designated as and the Endangered Species Act’’ (June Nevertheless, few additional benefits critical habitat could improve the 5, 1997); the President’s memorandum would be derived from including these chances of the Tribes receiving funding of April 29, 1994, ‘‘Government-to- Tribal Lands in a spikedace and loach for spikedace or loach minnow related Government Relations with Native minnow critical habitat designation projects. Additionally, occupancy by American Tribal Governments’’ (59 FR beyond what will be achieved through spikedace or loach minnow also 22951); Executive Order 13175; and the the implementation of their provides benefits to be considered in relevant provision of the Departmental
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Manual of the Department of the Interior (3) Benefits of the Proposed Exclusion exclusion would result in extinction of (512 DM 2). We believe that the San Outweigh the Benefits of Inclusion the species. Carlos Apache and White Mountain We anticipate that our final decision Effect of Critical Habitat Designation Apache Tribes should be the will make the following determination, governmental entity to manage and unless information submitted in Section 7 Consultation promote the conservation of the response to the proposal causes us to The regulatory effects of a critical spikedace and loach minnow on their reach a different conclusion. habitat designation under the Act are lands. During our communication with We find that the benefits of triggered through the provisions of the Tribes, we recognized and endorsed designating critical habitat for the section 7, which applies only to their fundamental right to provide for spikedace and loach minnow on these activities conducted, authorized, or tribal resource management activities, Tribals lands are small in comparison to funded by a Federal agency (Federal including those relating to riparian the benefits of the proposed exclusion. actions). Regulations implementing this ecosystems. Exclusion would enhance the interagency cooperation provision of the The designation of critical habitat on partnership efforts focused on recovery Act are codified at 50 CFR part 402. these Tribal lands would be expected to of the spikedace and loach minnow Individuals, organizations, States, local adversely impact our working within these river reaches. Excluding governments, and other non-Federal relationship with them. In fact, during these areas also would reduce some of entities are affected by the designation our discussions with the Tribes, we the administrative costs during of critical habitat only if their actions were informed that critical habitat consultation pursuant to section 7 of the occur on Federal lands, require a would be viewed as an intrusion on Act. Federal permit, license, or other authorization, or involve Federal their sovereign abilities to manage (4) The Proposed Exclusion Will Not funding. natural resources in accordance with Result in Extinction of the Species their own policies, customs, and laws. Section 7(a)(2) of the Act requires To this end, we found that the Tribes We anticipate that our final decision Federal agencies, including the Service, would prefer to work with us on a will make the following determination, to insure that their actions are not likely government-to-government basis. We unless information submitted in to jeopardize the continued existence of view this as a substantial benefit. response to the proposal causes us to a listed species or result in the reach a different conclusion. destruction or adverse modification of In addition to management/ Because these river reaches on the designated critical habitat. This conservation actions described for the tribal lands are occupied by the requirement is met through section 7 conservation of the spikedace and loach spikedace and loach minnow, which is consultation under the Act. Our minnow, we anticipate future protected from take under section 9 of regulations define ‘‘jeopardize the management/conservation plans to the Act, any actions that might kill continued existence of’’ as to engage in include conservation efforts for other spikedace or loach minnow, including an action that reasonably would be listed species and their habitat. We habitat modification that would cause expected, directly or indirectly, to believe that many Tribes and Pueblos death of either species, must either reduce appreciably the likelihood of are willing to work cooperatively with undergo a consultation with the Service both the survival and recovery of a us to benefit other listed species, but under the requirements of section 7 of listed species in the wild by reducing only if they view the relationship as the Act or receive a permit from us the reproduction, numbers, or mutually beneficial. Consequently, the under section 10 of the Act. distribution of that species (50 CFR development of future voluntary Additionally, we believe that the 402.02). ‘‘Destruction or adverse management actions for other listed proposed exclusion of these lands from modification of designated critical species will likely be contingent upon critical habitat would not result in the habitat’’ for this species would include whether the San Carlos Apache and extinction of the spikedace or loach habitat alterations that appreciably White Mountain Apache Tribal lands minnow because their management diminish the value of critical habitat by are designated as critical habitat for the plans specifically addresses significantly affecting any of those spikedace and loach minnow. Thus, the conservation of these species. The tribal physical or biological features that were benefit of excluding these lands would management plans outline actions to the basis for determining the habitat to be future conservation efforts that conserve, enhance, and restore be critical. would benefit other listed species. spikedace and loach minnow habitat, Section 7(a)(4) of the Act requires Another benefit of excluding these including efforts to eliminate nonnative Federal agencies to confer with us on Tribal lands from the critical habitat fishes from their habitat. Such efforts any action that is likely to jeopardize designation includes relieving provide greater conservation benefit the continued existence of a proposed additional regulatory burden and costs than would result from a designation of species or result in destruction or associated with the preparation of critical habitat. This is because section adverse modification of proposed portions of section 7 documents related 7 consultations for critical habitat only critical habitat. Conference reports to critical habitat. While the cost of consider listed species in the project provide conservation recommendations adding these additional sections to area evaluated and Federal agencies are to assist Federal agencies in eliminating assessments and consultations is only committed to prevent adverse conflicts that may be caused by their relatively minor, there could be delays modification to critical habitat caused proposed actions. The conservation which can generate real costs to some by the particular project and are not measures in a conference report are project proponents. However, because committed to provide conservation or advisory. in this case critical habitat is being long-term benefits to areas not affected We may issue a formal conference proposed for exclusion in occupied by the proposed project. Such efforts report, if requested by the Federal action areas already subject to section 7 provide greater conservation benefit agency. Formal conference reports consultation and a jeopardy analysis, it than would result for designation as include an opinion that is prepared is anticipated this reduction would be critical habitat. As a result, there is no according to 50 CFR 402.14, as if the minimal. reason to believe that this proposed species was listed or critical habitat
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designated. We may adopt the formal Federal activities that may affect detrimentally alter the water chemistry conference report as the biological spikedace or loach minnow or their in any of the stream segments listed opinion when the species is listed or critical habitat will require consultation above could destroy or adversely modify critical habitat designated, if no under section 7. Activities on private, the critical habitat of either or both substantial new information or changes State, or county lands, or lands under species. Such activities include, but are in the action alter the content of the local jurisdictions requiring a permit not limited to, release of chemical or opinion (50 CFR 402.10(d)). from a Federal agency, such as Federal biological pollutants into the surface If a species is listed or critical habitat Highway Administration or Federal water or connected groundwater at a is designated, section 7(a)(2) of the Act Emergency Management Act funding, or point source or by dispersed release requires Federal agencies to ensure that a permit from the Corps under section (non-point source); (3) any Federal activities they authorize, fund, or carry 404 of the Clean Water Act, will activity that would introduce, spread, or out are not likely to jeopardize the continue to be subject to the section 7 augment nonnative fish species could continued existence of such a species or consultation process. Federal actions destroy or adversely modify the critical to destroy or adversely modify its not affecting listed species or critical habitat of either or both species. Such critical habitat. If a Federal action may habitat, and actions on non-Federal activities include, but are not limited to, affect a listed species or its critical lands that are not federally funded, stocking for sport, aesthetics, biological habitat, the responsible Federal agency authorized, or permitted, do not require (action agency) must enter into control, or other purposes; construction section 7 consultations. and operation of canals; and interbasin consultation with us. Through this Section 4(b)(8) of the Act requires us consultation, the Federal action agency water transfers. to evaluate briefly and describe, in any would ensure that the permitted actions The designation of critical habitat proposed or final regulation that do not destroy or adversely modify does not imply that lands outside of designates critical habitat, those critical habitat. critical habitat do not play an important activities involving a Federal action that If we issue a biological opinion role in the conservation of spikedace may adversely modify such habitat or concluding that a project is likely to and loach minnow. Federal activities result in the destruction or adverse that may be affected by such designation. Activities that may destroy outside of critical habitat are still modification of critical habitat, we also subject to review under section 7 if they provide ‘‘reasonable and prudent or adversely modify critical habitat include those that alter the primary may affect spikedace or loach minnow. alternatives’’ to the project, if any are Prohibitions of Section 9 also continue identifiable. Reasonable and prudent constituent elements to an extent that the value of critical habitat for both the to apply both inside and outside of alternatives are defined at 50 CFR designated critical habitat. 402.02 as alternative actions identified survival and recovery of spikedace or during consultation that can be loach minnow is appreciably reduced. All lands proposed as critical habitat implemented in a manner consistent We note that such activities may also are within the geographical area with the intended purpose of the action, jeopardize the continued existence of occupied by the species and are that are consistent with the scope of the the species. Each of the specific areas necessary for the conservation of Federal agency’s legal authority and designated in this rule as critical habitat spikedace and loach minnow. Federal jurisdiction, that are economically and for spikedace and loach minnow have agencies already consult with us on technologically feasible, and that the been determined to contain sufficient actions that may affect spikedace or Service’s Regional Director believes PCEs to provide for one or more of the loach minnow to ensure that their would avoid the likelihood of life history functions of spikedace and/ actions do not jeopardize the continued jeopardizing the continued existence of or loach minnow. In some cases, the existence of the species. Thus, we do listed species or resulting in the PCEs exist as a result of ongoing Federal not anticipate substantial additional destruction or adverse modification of actions. As a result, ongoing Federal regulatory protection will result from critical habitat. Reasonable and prudent actions at the time of designation will be critical habitat designation. alternatives can vary from slight project included in the baseline in any consultation pursuant to section 7 of the If you have questions regarding modifications to extensive redesign or whether specific activities will relocation of the project. Costs Act conducted subsequent to this designation. Activities that, when constitute destruction or adverse associated with implementing a modification of critical habitat, contact reasonable and prudent alternative are carried out, funded, or authorized by a the Supervisor of the appropriate Fish similarly variable. Federal agency and appreciably reduce Regulations at 50 CFR 402.16 require the value of critical habitat for the and Wildlife Service Ecological Services Federal agencies to reinitiate survival and recovery of the spikedace Office, as follows. For activities in consultation on previously reviewed or loach minnow may directly or Arizona, please contact the Arizona actions under certain circumstances, indirectly destroy or adversely modify Ecological Services Office (see including instances where critical critical habitat include, but are not ADDRESSES section above). For activities habitat is subsequently designated and limited to: (1) Channelization, in New Mexico, please contact the New the Federal agency has retained impoundment, road and bridge Mexico Ecological Services Field Office discretionary involvement or control construction, deprivation of substrate at 2105 Osuna Road, NE, Albuquerque, over the action or such discretionary source, destruction and alteration of New Mexico 87113 (telephone (505) involvement or control is authorized by riparian vegetation, reduction of 346–2525). Requests for copies of the law. Consequently, some Federal available floodplain, removal of gravel regulations on listed wildlife and plants agencies may request reinitiating of or floodplain terrace materials, and and inquiries about prohibitions and consultation or conference with us on excessive sedimentation from mining, permits may be addressed to the U.S. actions for which formal consultation livestock grazing, road construction, Fish and Wildlife Service, Branch of has been completed, if those actions timber harvest, off-road vehicle use, and Endangered Species, P.O. Box 1306, may affect designated critical habitat, or other watershed and floodplain Albuquerque, New Mexico 87103–1306 adversely modify or destroy proposed disturbances; (2) any Federal activity (telephone (505) 248–6920; facsimile critical habitat. that would significantly and (505) 248–6922).
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Economic Analysis technical jargon that interferes with the describes the effects of the rule on small An analysis of the economic impacts clarity? (3) Does the format of the entities (i.e., small businesses, small of proposing critical habitat for proposed rule (grouping and order of organizations, and small government spikedace and loach minnow is being the sections, use of headings, jurisdictions). However, no regulatory prepared. We will announce the paragraphing, etc.) aid or reduce its flexibility analysis is required if the availability of the draft economic clarity? (4) Is the description of the head of the agency certifies the rule will analysis as soon as it is completed, at notice in the SUPPLEMENTARY not have a significant economic impact which time we will seek public review INFORMATION section of the preamble on a substantial number of small and comment. At that time, copies of helpful in understanding the proposed entities. The SBREFA amended the the draft economic analysis will be rule? (5) What else could we do to make Regulatory Flexibility Act (RFA) to available online at http://www.fws.gov/ this proposed rule easier to understand? require Federal agencies to provide a arizonaes/ or by contacting the Arizona Send a copy of any comments on how statement of the factual basis for Ecological Services Fish and Wildlife we could make this proposed rule easier certifying that the rule will not have a Office directly (see ADDRESSES section to understand to: Office of Regulatory significant economic impact on a above). Affairs, Department of the Interior, substantial number of small entities. Room 7229, 1849 C Street, NW., At this time, the Service lacks the Peer Review Washington, DC 20240. You may e-mail available economic information In accordance with our policy your comments to this address: necessary to provide an adequate factual published on July 1, 1994 (59 FR [email protected]. basis for the required RFA finding. 34270), we will solicit the expert Therefore, the RFA finding is deferred Required Determinations opinions of at least three appropriate until completion of the draft economic and independent specialists regarding Regulatory Planning and Review analysis prepared pursuant to section this proposed rule. The purpose of such 4(b)(2) of the ESA and E.O. 12866. This In accordance with Executive Order draft economic analysis will provide the review is to ensure that our critical 12866, this document is a significant habitat designation is based on required factual basis for the RFA rule in that it may raise novel legal and finding. Upon completion of the draft scientifically sound data, assumptions, policy issues, but it is not anticipated to and analyses. We will send these peer economic analysis, the Service will have an annual effect on the economy publish a notice of availability of the reviewers copies of this proposed rule of $100 million or more or adversely immediately following publication in draft economic analysis of the proposed affect the economy in a material way. the Federal Register. We will invite designation and reopen the public Due to the timeline for publication in these peer reviewers to comment, comment period for the proposed the Federal Register, the Office of during the public comment period, on designation for an additional 60 days. Management and Budget (OMB) has not the specific assumptions and The Service will include with the notice formally reviewed this rule. We are conclusions regarding the proposed of availability, as appropriate, an initial preparing a draft economic analysis of designation of critical habitat. regulatory flexibility analysis or a We will consider all comments and this proposed action. We will use this certification that the rule will not have information received during the analysis to meet the requirement of a significant economic impact on a comment period on this proposed rule section 4(b)(2) of the Act to determine substantial number of small entities as we prepare our final rulemaking. the economic consequences of accompanied by the factual basis for Accordingly, the final designation may designating the specific areas as critical that determination. The Service has differ from this proposal. habitat. This economic analysis will concluded that deferring the RFA also be used to determine compliance finding until completion of the draft Public Hearings with Executive Order 12866, Regulatory economic analysis is necessary to meet The Act provides for one or more Flexibility Act, Small Business the purposes and requirements of the public hearings on this proposal, if Regulatory Enforcement Fairness Act, RFA. Deferring the RFA finding in this requested. Requests must be received and Executive Order 12630. manner will ensure that the Service within 45 days of the date of publication This draft economic analysis will be makes a sufficiently informed of the proposal in the Federal Register. made available for public review and determination based on adequate Such requests must be made in writing comment before we finalize this economic information and provides the and be addressed to the Field designation. At that time, copies of the necessary opportunity for public Supervisor (see ADDRESSES section analysis will be available for comment. above). We will schedule public downloading from the Arizona Executive Order 13211 hearings on this proposal, if any are Ecological Services Office’s Internet requested, and announce the dates, website at http://arizonaes.fws.gov or by On May 18, 2001, the President issued times, and places of those hearings in contacting the Arizona Ecological an Executive Order (E.O. 13211) on the Federal Register and local Services Office directly (see ADDRESSES regulations that significantly affect newspapers at least 15 days prior to the section). energy supply, distribution, and use. first hearing. Executive Order 13211 requires agencies Regulatory Flexibility Act (5 U.S.C. 601 to prepare Statements of Energy Effects Clarity of the Rule et seq.) when undertaking certain actions. This Executive Order 12866 requires each Under the Regulatory Flexibility Act proposed rule to designate critical agency to write regulations and notices (5 U.S.C. 601 et seq., as amended by the habitat for the spikedace and loach that are easy to understand. We invite Small Business Regulatory Enforcement minnow is considered a significant your comments on how to make this Fairness Act (SBREFA) of 1996), regulatory action under Executive Order proposed rule easier to understand, whenever an agency is required to 12866 as it may raise novel legal and including answers to questions such as publish a notice of rulemaking for any policy issues. However, this designation the following: (1) Are the requirements proposed or final rule, it must prepare is not expected to significantly affect in the proposed rule clearly stated? (2) and make available for public comment energy supplies, distribution, or use Does the proposed rule contain a regulatory flexibility analysis that because there are no pipelines,
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distribution facilities, power grid destroy or adversely modify critical State resource agencies in all affected stations, etc. within the boundaries of habitat under section 7. While non- states. proposed critical habitat. Therefore, this Federal entities who receive Federal The proposed designation of critical action is not a significant energy action funding, assistance, or permits or who habitat in areas currently occupied by and no Statement of Energy Effects is otherwise require approval or spikedace or loach minnow imposes no required. We will, however, further authorization from a Federal agency for additional significant restrictions evaluate this issue as we conduct our an action may be indirectly impacted by beyond those currently in place and, economic analysis and, as appropriate, the designation of critical habitat, the therefore, has little incremental impact review and revise this assessment as legally binding duty to avoid on State and local governments and warranted. destruction or adverse modification of critical habitat rests squarely on the their activities. The proposed Unfunded Mandates Reform Act (2 designation of critical habitat may have U.S.C. 1501 et seq.) Federal agency. Furthermore, to the extent that non-Federal entities are some benefit to the State and local In accordance with the Unfunded indirectly impacted because they resource agencies in that the areas Mandates Reform Act (2 U.S.C. 1501), receive Federal assistance or participate containing features essential to the the Service makes the following in a voluntary Federal aid program, the conservation of this species are more findings: Unfunded Mandates Reform Act would clearly defined, and the primary This rule will not produce a Federal not apply; additionally, critical habitat constituent elements of the habitat mandate. In general, a Federal mandate would not shift the costs of the large necessary to the conservation of this is a provision in legislation, statute or entitlement programs listed above on to species are specifically identified. While regulation that would impose an State governments. We will further this definition and identification does enforceable duty upon State, local, tribal evaluate this issue as we conduct our not alter where and what federally governments, or the private sector and economic analysis and, as appropriate, sponsored activities may occur, it may includes both ‘‘Federal review and revise this assessment as assist local governments in long-range intergovernmental mandates’’ and warranted. planning (rather than waiting for case- ‘‘Federal private sector mandates.’’ by-case section 7 consultations to These terms are defined in 2 U.S.C. Takings occur). 658(5)–(7). ‘‘Federal intergovernmental mandate’’ includes a regulation that In accordance with Executive Order Civil Justice Reform ‘‘would impose an enforceable duty 12630 (‘‘Government Actions and upon State, local, or tribal governments’’ Interference with Constitutionally In accordance with Executive Order with two exceptions. It excludes ‘‘a Protected Private Property Rights’’), this 12988, the Department of the Interior’s condition of federal assistance.’’ It also rule is not anticipated to have Office of the Solicitor has determined excludes ‘‘a duty arising from significant takings implications. A that this rule does not unduly burden participation in a voluntary Federal takings implication assessment is not the judicial system and does meet the program,’’ unless the regulation ‘‘relates required. As discussed above, the requirements of sections 3(a) and 3(b)(2) to a then-existing Federal program designation of critical habitat affects of the Order. We are proposing to under which $500,000,000 or more is only Federal actions. Although private designate critical habitat in accordance provided annually to State, local, and parties that receive Federal funding, with the provisions of the Endangered tribal governments under entitlement assistance, or require approval or Species Act. The rule uses standard authority,’’ if the provision would authorization from a Federal agency for property descriptions and identifies the ‘‘increase the stringency of conditions of an action may be indirectly impacted by primary constituent elements within the assistance’’ or ‘‘place caps upon, or the designation of critical habitat, the designated areas to assist the public in otherwise decrease, the Federal legally binding duty to avoid understanding the habitat needs of Government’s responsibility to provide destruction or adverse modification of spikedace and loach minnow. funding’’ and the State, local, or tribal critical habitat rests squarely on the governments ‘‘lack authority’’ to adjust Federal agency. Due to current public Paperwork Reduction Act of 1995 (44 accordingly. (At the time of enactment, knowledge of these species protections U.S.C. 3501 et seq.) these entitlement programs were: and the prohibition against take of these This proposed rule does not contain Medicaid; AFDC work programs; Child species both within and outside of the Nutrition; Food Stamps; Social Services proposed areas, we do not anticipate new or revised information collection Block Grants; Vocational Rehabilitation that property values will be affected by for which OMB approval is required State Grants; Foster Care, Adoption the critical habitat designation. under the Paperwork Reduction Act. Assistance, and Independent Living; However, we have not yet completed Information collections associated with Family Support Welfare Services; and the economic analysis for this proposed certain Act permits are covered by an Child Support Enforcement.) ‘‘Federal rule. Once the economic analysis is existing OMB approval and are assigned private sector mandate’’ includes a available, we will review and revise this clearance No. 1018–0094, Forms 3–200– regulation that ‘‘would impose an preliminary assessment as warranted. 55 and 3–200–56, with an expiration date of July 31, 2004. Detailed enforceable duty upon the private Federalism sector, except (i) a condition of Federal information for Act documentation assistance; or (ii) a duty arising from In accordance with Executive Order appears at 50 CFR 17. This rule will not participation in a voluntary Federal 13132, this rule does not have impose recordkeeping or reporting program.’’ significant Federalism effects. A requirements on State or local The designation of critical habitat Federalism assessment is not required. governments, individuals, businesses, or does not impose a legally binding duty In keeping with Department of the organizations. An agency may not on non-Federal government entities or Interior policies, we requested conduct or sponsor, and a person is not private parties. Under the Act, the only information from and coordinated required to respond to, a collection of regulatory effect is that Federal agencies development of this proposed critical information unless it displays a must ensure that their actions do not habitat designation with appropriate currently valid OMB control number.
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National Environmental Policy Act Proposed Regulation Promulgation (ii) Sand, gravel, and cobble substrates It is our position that, outside the Accordingly, we propose to amend with low or moderate amounts of fine Tenth Circuit, we do not need to part 17, subchapter B of chapter I, title sediment and substrate embeddedness. prepare environmental analyses as 50 of the Code of Federal Regulations as Suitable levels of embeddedness are defined by the NEPA in connection with set forth below: generally maintained by a natural, designating critical habitat under the unregulated hydrograph that allows for Endangered Species Act of 1973, as PART 17—[AMENDED] periodic flooding or, if flows are amended. We published a notice modified or regulated, a hydrograph that 1. The authority citation for part 17 allows for adequate river functions, outlining our reasons for this continues to read as follows: determination in the Federal Register on such as flows capable of transporting October 25, 1983 (48 FR 49244). This Authority: 16 U.S.C. 1361–1407; 16 U.S.C. sediments. assertion was upheld in the courts of the 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– (iii) Streams that have: 625, 100 Stat. 3500; unless otherwise noted. Ninth Circuit (Douglas County v. (A) Low gradients of approximately Babbitt, 48 F.3d 1495 (9th Cir. Ore. 2. Amend section § 17.95(e) by 2.5 percent or less; 1995), cert. denied 116 S. Ct. 698 revising critical habitat for the loach (B) Water temperatures in the (1996)). However, when the range of the minnow and the spikedace to read as approximate range of 35–85 °Fahrenheit species includes States within the Tenth follows: (F) (1.7–29.4 °C) (with natural diurnal and seasonal variation); Circuit, such as that of the spikedace § 17.95 Critical habitat—fish and wildlife. and loach minnow, pursuant to the (C) Pool, riffle, run, and backwater Tenth Circuit ruling in Catron County * * * * * components; and Board of Commissioners v. U.S. Fish (e) Fishes. (D) An abundant aquatic insect food and Wildlife Service, 75 F.3d 1429 (10th * * * * * base consisting of mayflies, true flies, Cir. 1996), we will undertake a NEPA Loach Minnow (Tiaroga cobitis) black flies, caddisflies, stoneflies, and analysis for critical habitat designation dragonflies. and notify the public of the availability (1) Critical habitat units are depicted (iv) Habitat devoid of nonnative fish of the draft environmental assessment for Apache, Graham, Greenlee, and species detrimental to loach minnow or for this proposal when it is finished. Pinal Counties, Arizona; and Catron, habitat in which detrimental nonnative Grant, and Hidalgo Counties, New Government-to-Government fish species are at levels that allow Mexico, on the maps and as described persistence of loach minnow. Relationship With Tribes below. (2) Within these areas, the primary (v) Areas within perennial, In accordance with the President’s interrupted stream courses that are memorandum of April 29, 1994, constituent elements of critical habitat for loach minnow are the following: periodically dewatered but that serve as ‘‘Government-to-Government Relations connective corridors between occupied with Native American Tribal (i) Permanent, flowing, water with low levels of pollutants, including: or seasonally occupied habitat and Governments’’ (59 FR 22951), Executive through which the species may move Order 13175, and the Department of the (A) Living areas for adult loach minnow with moderate to swift flow when the habitat is wetted. Interior’s manual at 512 DM 2, we (3) Each stream segment includes a readily acknowledge our responsibility velocities between 9.0 to 32.0 in/second (24 to 80 cm/second) in shallow water lateral component that consists of 300 to communicate meaningfully with feet on either side of the stream channel recognized Federal Tribes on a between approximately 1.0 to 30 in (3 cm to 75 cm) with gravel, cobble, and measured from the stream edge at bank government-to-government basis. We full discharge. This lateral component of have determined that there are Tribal rubble substrates; (B) Living areas for juvenile loach critical habitat is intended as a surrogate lands containing features essential for for the 100-year floodplain. the conservation of spikedace and loach minnow with moderate to swift flow (4) Critical Habitat Map Areas. Data minnow and have sought government- velocities between 1.0 to 34 in/second layers defining map areas, and mapping to-government consultation with these (3.0 to 85.0 cm/second) in shallow water of critical habitat areas, was done using Tribes. We will continue to seek between approximately 1.0 to 30 in (3 Arc GIS and verifying with USGS 7.5′ consultation during the proposal cm to 75 cm) with sand, gravel, cobble, quadrangles. Legal descriptions for New portion of developing the final critical and rubble substrates; Mexico and Arizona are based on the habitat designation. (C) Living areas for larval loach minnow with slow to moderate Public Lands Survey System (PLSS). References Cited velocities between 3.0 and 20.0 in/ Within this system, all coordinates A complete list of all references cited second (9.0 to 50.0 cm/second) in reported for New Mexico are in the New herein, as well as others, is available shallow water with sand, gravel, and Mexico Principal Meridian (NMPM), upon request from the Arizona cobble substrates; while those in Arizona are in the Gila Ecological Services Office (see (D) Spawning areas with slow to swift and Salt River Meridian (GSRM). ADDRESSES section above). flow velocities in shallow water where Township has been abbreviated as ‘‘T’’, cobble and rubble and the spaces Range as ‘‘R’’, and section as ‘‘sec.’’ Author between them are not filled in by fine Where possible, the ending or starting The primary authors of this notice are dirt or sand; and points have been described to the the Arizona Ecological Services Office (E) Water with low levels of nearest quarter-section, abbreviated as staff (see ADDRESSES section above). pollutants such as copper, arsenic, ‘‘1/4’’. Cardinal directions are also mercury, and cadmium; human and abbreviated (N = North, S = South, W = List of Subjects in 50 CFR Part 17 animal waste products; pesticides; West, and E = East). All mileage Endangered and threatened species, suspended sediments; and gasoline or calculations were performed using GIS. Exports, Imports, Reporting and diesel fuels and with dissolved oxygen (5) Note: Index map of critical habitat recordkeeping requirements, levels greater than 3 parts per million units for loach minnow (Map 1) follows: Transportation. (ppm). BILLING CODE 4310–55–P
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(6) Complex 2—Black River, Apache (i) East Fork Black River—5.5 miles confluence with the West Fork Black and Greenlee Counties, Arizona. (8.8 km) of river extending from the River at Township 4 North, Range 28
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East, section 11 upstream to the 29 East, section 30 upstream to the East, section 5 upstream to the confluence with Deer Creek at confluence with an unnamed tributary confluence with an unnamed tributary Township 5 North, Range 29 East, at Township 6 North, Range 29 East, at Township 6 North, Range 29 East, section 30. Land ownership: U.S. Forest section 30. Land ownership: U.S. Forest section 32. Land ownership: U.S. Forest Service (Apache-Sitgreaves National Service (Apache-Sitgreaves National Service (Apache-Sitgreaves National Forest). Forest). Forest). (ii) North Fork East Fork Black (iii) Boneyard Creek—1.4 miles (2.3 (iv) Note: Map of Complex 2 of loach River—11.2 miles (18.0 km) of river km) of creek extending from the minnow critical habitat, Black River, extending from the confluence with confluence with the East Fork Black (Map 2) follows: Deer Creek at Township 5 North, Range River at Township 5 North, Range 29 BILLING CODE 4310–53–P
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BILLING CODE 4310–53–C
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(7) Complex 3—Middle Gila/Lower (ii) Turkey Creek—2.7 miles (4.3 km) South, Range 18 East, section 14 San Pedro/Aravaipa Creek, Pinal and of creek extending from the confluence upstream to the boundary of the Graham counties, Arizona. with Aravaipa Creek at Township 6 Aravaipa Wilderness at Township 6 (i) Aravaipa Creek—28.1 miles (45.3 North, Range 19 East, section 19 South, Range 19 East, section 18. Land km) of creek extending from the upstream to the confluence with Oak ownership: Bureau of Land confluence with the San Pedro River at Grove Canyon at Township 6 South, Management. Township 7 South, Range 16 East, Range 19 East, section 32. Land section 9 upstream to the confluence ownership: Bureau of Land (iv) Note: Map of Complex 3 for loach with Stowe Gulch at Township 6 South, Management. minnow critical habitat, Aravaipa Creek, Range 19 East, section 35. Land (iii) Deer Creek—2.3 miles (3.6 km) of (Map 3) follows: ownership: Bureau of Land creek extending from the confluence BILLING CODE 4310–53–P Management, Tribal, and State lands. with Aravaipa Creek at Township 6
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BILLING CODE 4310–53–C (8) Complex 4—San Francisco and Arizona and Catron County, New Blue Rivers, Pinal and Graham counties, Mexico.
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(i) Eagle Creek—45.3 miles (72.9 km) with Cerco Canyon at Township 7 (viii) Dry Blue Creek—3.0 mile (4.8 of creek extending from the Phelps- South, Range 18 West, section 21. Land km) of creek extending from the Dodge Diversion Dam at Township 4 ownership: U.S. Forest Service (Gila confluence with Campbell Blue Creek at South, Range 28 East, section 23 National Forest), and private lands. Township 6 South, Range 20 West, upstream to the confluence of Dry Prong (v) Whitewater Creek—1.1 miles (1.8 section 6 upstream to the confluence and East Eagle Creeks at Township 1 km) of creek extending from the with Pace Creek at Township 6 South, North, Range 28 East, section 31. Land confluence with the San Francisco River Range 21 West, section 28. Land ownership: U.S. Forest Service (Apache- at Township 11 South, Range 20 West, ownership: U.S. Forest Service (Gila Sitgreaves National Forest), Tribal (San section 27 upstream to the confluence National Forest). Carlos) lands, and private. with the Little Whitewater Creek at (ix) Pace Creek—0.8 mile (1.2 km) of (ii) San Francisco River—126.5 miles Township 11 South, Range 20 West, creek extending from the confluence (203.5 km) of river extending from the section 23. Land ownership: private with Dry Blue Creek at Township 6 confluence with the Gila River at lands. South, Range 21 West, section 28 Township 5 South, Range 29 East, (vi) Blue River—51.1 miles (82.2 km) upstream to a barrier falls at Township section 28 upstream to the mouth of The of river extending from the confluence 6 South, Range 21 West, section 29. Box, a canyon above the town of with the San Francisco River at Land ownership: U.S. Forest Service Reserve, at Township 6 South, Range 19 Township 2 South, Range 31 East, (Gila National Forest). West, section 2. Land ownership: section 31upstream to the confluence of (x) Frieborn Creek—1.1 miles (1.8 km) Bureau of Land Management, U.S. Campbell Blue and Dry Blue Creeks at of creek extending from the confluence Forest Service (Apache-Sitgreaves Township 6 South, range 20 West, with Dry Blue Creek at Township 6 National Forest), State, and private in section 6. Land ownership: U.S. Forest South, Range 20 West, section 6 Arizona, and U.S. Forest Service (Gila Service (Apache-Sitgreaves National upstream to an unnamed tributary at National Forest) and private in New Forest) and private lands in Arizona; Township 6 South, range 20 West, Mexico. U.S. Forest Service (Gila National section 8. Land ownership: U.S. Forest (iii) Tularosa River—18.6 miles (30.0 Forest) in New Mexico. Service (Gila National Forest). km) of river extending from the (vii) Campbell Blue Creek—8.1 miles (xi) Little Blue Creek—2.8 miles (4.5 confluence with the San Francisco River (13.1 km) of creek extending from the km) of creek extending from the at Township 7 South, Range 19 West, confluence of Dry Blue and Campbell confluence with the Blue River at section 23 upstream to the town of Blue Creeks at Township 6 South, Range Township 1 South, range 31 East, Cruzville at Township 6 South, Range 20 West, section 6 in New Mexico section 5 upstream to the mouth of a 18 West, section 12. Land ownership: upstream to the confluence with canyon at Township 1 North, Range 31 U.S. Forest Service (Gila National Coleman Canyon at Township 4 North, East, section 29. Land ownership: U.S. Forest) and private. Range 31 East, section 32 in Arizona. Forest Service (Apache-Sitgreaves (iv) Negrito Creek—4.2 miles (6.8 km) Land ownership: U.S. Forest Service National Forest). of creek extending from the confluence (Apache-Sitgreaves National Forest) and (xii) Note: Map of Complex 4 for loach with the San Francisco River at private lands in Arizona; U.S. Forest minnow critical habitat, San Francisco Township 7 South, Range 18 West, Service (Gila National Forest) in New and Blue Rivers, (Map 4) follows: section 19 upstream to the confluence Mexico. BILLING CODE 4310–55–P
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BILLING CODE 4310–55–C
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(9) Complex 5—Upper Gila River confluence with the West Fork Gila Service (Gila National Forest) and Complex, Catron, Grant, and Hidalgo River at Township 11 South, Range 12 private lands. counties, New Mexico West, section 17 upstream to the (iv) West Fork Gila River—7.7 miles (i) Upper Gila River—102.1 miles confluence of Beaver and Taylor creeks (12.4 km) of river extending from the (164.3 km) of river extending from the at Township 13 South, Range 13 West, confluence with the East Fork Gila River confluence with Moore Canyon (near section 8. Land ownership: U.S. Forest at Township 13 South, Range 13 West, the Arizona/New Mexico border) at Service (Gila National Forest) and section 8 upstream to the confluence Township 18 South, Range 21 West, private lands. with EE Canyon at Township 12 South, section 32 upstream to the confluence of (iii) Middle Fork Gila River—11.9 Range 14 West, section 22. Land the East and West Forks of the Gila ownership: U.S. Forest Service (Gila River at Township 13 South, Range 13 miles (19.1 km) of river extending from the confluence with the West Fork Gila National Forest), National Park Service, West, section 8. Land ownership: and private lands. Bureau of Land Management, U.S. River at Township 12 South, Range 14 Forest Service (Gila National Forest), West, section 25 upstream to the (v) Note: Map of Complex 5 of loach State, and private lands. confluence with Brothers West Canyon minnow critical habitat, Upper Gila (ii) East Fork Gila River—26.1 miles at Township 11 South, Range 14 West, River Complex, (Map 5) follows: (42.0 km) of river extending from the section 33. Land ownership: U.S. Forest BILLING CODE 4310–55–P
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BILLING CODE 4310–55–C
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* * * * * (D) Water with low levels of periodically dewatered but that serve as pollutants such as copper, arsenic, connective corridors between occupied Spikedace (Meda fulgida) mercury and cadmium; human and or seasonally occupied habitat and (1) Critical habitat units are depicted animal waste products; pesticides; through which the species may move for Graham, Greenlee, Pinal, and suspended sediments; and gasoline or when the habitat is wetted. Yavapai Counties, Arizona; and Catron, diesel fuels and with dissolved oxygen (3) Each stream segment includes a Grant, and Hidalgo Counties, New levels greater than 3 parts per million lateral component that consists of 300 Mexico, on the maps and as described (ppm). feet on either side of the stream channel below. (ii) Sand, gravel, and cobble substrates measured from the stream edge at bank (2) Within these areas, the primary with low or moderate amounts of fine full discharge. This lateral component of constituent elements of critical habitat sediment and substrate embeddedness. critical habitat is intended as a surrogate for spikedace are the following: Suitable levels of embeddedness are for the 100-year floodplain. (i) Permanent, flowing, water with generally maintained by a natural, (4) Critical Habitat Map Areas. Data low levels of pollutants, including: unregulated hydrograph that allows for layers defining map areas, and mapping (A) Living areas for adult spikedace periodic flooding or, if flows are of critical habitat areas, was done using with slow to swift flow velocities modified or regulated, a hydrograph that Arc GIS and verifying with USGS 7.5′ between 20 and 60 cm/second (8–24 allows for adequate river functions, quadrangles. Legal descriptions for New inches/second) in shallow water such as flows capable of transporting Mexico and Arizona are based on the between approximately 10 cm (4 inches) sediments. Public Lands Survey System (PLSS). to 1 meter (40 inches) with shear zones (iii) Streams that have: (A) Low gradients of approximately Within this system, all coordinates where rapid flow borders slower flow, 1.0 percent or less; reported for New Mexico are in the New areas of sheet flow (or smoother, less (B) Water temperatures in the Mexico Principal Meridian (NMPM), turbulent flow) at the upper ends of approximate range of 35–85 °Fahrenheit while those in Arizona are in the Gila mid-channel sand/gravel bars, and (F) (1.7–29.4 °C) (with natural diurnal and Salt River Meridian (GSRM). eddies at downstream riffle edges; and seasonal variation); Township has been abbreviated as ‘‘T’’, (B) Living areas for juvenile spikedace (C) Pool, riffle, run, and backwater Range as ‘‘R’’, and section as ‘‘sec.’’ with slow to moderate water velocities components; and Where possible, the ending or starting of approximately 18 cm/second (8 (D) An abundant aquatic insect food points have been described to the inches/second) or higher in shallow base consisting of mayflies, true flies, nearest quarter-section, abbreviated as water between approximately 3 cm (1.2 caddisflies, stoneflies, and dragonflies. ‘‘1⁄4’’. Cardinal directions are also inches) to 1 meter (40 inches); (iv) Habitat devoid of nonnative fish abbreviated (N = North, S = South, W = (C) Living areas for larval spikedace species detrimental to spikedace, or West, and E = East). All mileage with slow to moderate flow velocities of habitat in which detrimental nonnative calculations were performed using GIS. approximately 10 cm/second (4 inches/ fish species are at levels that allow second) or higher in shallow water persistence of spikedace. (5) Note: Index map of critical habitat approximately 3 cm (1.2 inches) to 1 (v) Areas within perennial, units for spikedace (Map 1) follows: meter (40 inches) and; interrupted stream courses that are BILLING CODE 4310–55–P
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BILLING CODE 4310–55–C
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(6) Complex 1—Verde River, Yavapai section 25 upstream 106.9 miles to (ii) Note: Map of Complex 1 of County, Arizona. Sullivan Dam at Township 17 North, spikedace critical habitat, Verde River, (i) Verde River—106.5 miles (171.4 Range 2 West, section 15. Land (Map 2) follows: km) of river extending from the ownership: U.S. Forest Service (Prescott BILLING CODE 4310–55–P confluence with Fossil Creek at National Forest), Yavapai Apache Township 11 North, Range 6 East, Nation, State, and private.
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BILLING CODE 4310–55–C
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(7) Complex 3—Middle Gila/Lower (ii) Lower San Pedro River—13.4 Township 7 South, Range 16 East, San Pedro/Aravaipa Creek, Pinal and miles (21.5 km) of river extending from section 9 upstream to the confluence Graham counties, Arizona. the confluence with the Gila River at with Stowe Gulch at Township 6 South, (i) Gila River—39.0 miles (62.8 km) of Township 5 South, Range 15 East, Range 19 East, section 35. Land river extending from the Ashurst- section 23 upstream to the confluence ownership: Bureau of Land Hayden Dam at Township 4 South, with Aravaipa Creek at Township 7 Management, Tribal, and State lands. Range 11 East, section 8 upstream to the South, Range 16 East, section 9. Land (iv) Note: Map of Complex 3 of confluence with the San Pedro River at ownership: Bureau of Land spikedace critical habitat, Middle Gila/ Township 5 South, Range 15 East, Management, Tribal, State, and private. section 23. Land ownership: Bureau of (iii) Aravaipa Creek—28.1 miles (45.3 Lower San Pedro/Aravaipa Creek, (Map Reclamation, Bureau of Land km) of creek extending from the 3) follows: Management, State, and private. confluence with the San Pedro River at BILLING CODE 4310–55–P
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(8) Complex 4—San Francisco and South, Range 28 East, section 23 Sitgreaves National Forest), Tribal (San Blue Rivers, Pinal and Graham counties, upstream to the confluence of Dry Prong Carlos) lands, and private. Arizona. and East Eagle Creeks at Township 1 (ii) Note: Map of Complex 4 of (i) Eagle Creek—45.3 miles (72.9 km) North, Range 28 East, section 31. Land spikedace critical habitat, San Francisco of creek extending from the Phelps- ownership: U.S. Forest Service (Apache- and Blue Rivers, (Map 4) follows: Dodge Diversion Dam at Township 4 BILLING CODE 4310–55–P
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(9) Complex 5—Upper Gila River confluence with the West Fork Gila Service (Gila National Forest) and Complex, Catron, Grant, and Hidalgo River at Township 11 South, Range 12 private lands. counties, New Mexico. West, section 17 upstream to the (iv) West Fork Gila River—7.7 miles (i) Upper Gila River—102.1 miles confluence of Beaver and Taylor creeks (12.4 km) of river extending from the (164.3 km) of river extending from the at Township 13 South, Range 13 West, confluence with the East Fork Gila River confluence with Moore Canyon (near section 8. Land ownership: U.S. Forest at Township 13 South, Range 13 West, the Arizona/New Mexico border) at Service (Gila National Forest) and section 8 upstream to the confluence Township 18 South, Range 21 West, private lands. with EE Canyon at Township 12 South, section 32 upstream to the confluence of (iii) Middle Fork Gila River—7.7 Range 14 West, section 22. Land the East and West Forks of the Gila ownership: U.S. Forest Service (Gila River at Township 13 South, Range 13 miles (12.3 km) of river extending from the confluence with the West Fork Gila National Forest), National Park Service, West, section 8. Land ownership: and private lands. Bureau of Land Management, U.S. River at Township 11 South, Range 14 Forest Service (Gila National Forest), West, section 33 upstream to the (v) Note: Map of Complex 5 of State, and private lands. confluence with Big Bear Canyon at spikedace critical habitat, Upper Gila (ii) East Fork Gila River—26.1 miles Township 12 South, Range 14 West, River Complex, (Map 5) follows: (42.0 km) of river extending from the section 25. Land ownership: U.S. Forest BILLING CODE 4310–55–P
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BILLING CODE 4310–55–C Dated: December 6, 2005. * * * * * Craig Manson, Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 05–23999 Filed 12–19–05; 8:45 am] BILLING CODE 4310–55–P
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Part III
Department of Energy Federal Energy Regulatory Commission
18 CFR Parts 365 and 366 Repeal of the Public Utility Holding Company Act of 1935 and Enactment of the Public Utility Holding Company Act of 2005; Final Rule
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DEPARTMENT OF ENERGY 2006).4 Sections 1266, 1272, and 1275 of clear intent of Congress to repeal the EPAct 2005 direct the Commission to regulatory regime established by Federal Energy Regulatory issue certain rules and to provide PUHCA 1935 and to rely on state Commission detailed recommendations to Congress regulatory authorities and the on technical and conforming Commission to protect energy 18 CFR Parts 365 and 366 amendments to federal law within four customers, by supplementing the months after the date of enactment, i.e., Commission’s books and records [Docket No. RM05–32–000, Order No. 667] by December 8, 2005.5 In addition, authority under PUHCA 2005 and by Repeal of the Public Utility Holding EPAct 2005 directs the Commission to enhancing our already significant Company Act of 1935 and Enactment issue a final rule exempting certain authority over public utility mergers, of the Public Utility Holding Company entities from the federal access to books acquisitions and dispositions of 10 Act of 2005 and records provisions of EPAct 2005 jurisdictional facilities. As we within 90 days of the effective date of recognized in the NOPR, PUHCA 2005 Issued December 8, 2005. Title XII, Subtitle F of EPAct 2005. This is primarily a ‘‘books and records AGENCY: Federal Energy Regulatory rulemaking addresses all mandatory access’’ statute and does not give the Commission, DOE. rulemaking requirements contained in Commission any new substantive ACTION: Final rule. PUHCA 2005. authorities. In fact, the only substantive 2. On September 16, 2005, the requirement contained in the new law is SUMMARY: In this final rule, the Federal Commission issued a notice of proposed that we address requests involving Energy Regulatory Commission rulemaking (NOPR) 6 in which it certain allocations of costs of non-power (Commission) is amending its proposed to add a new Subchapter U goods and services. Accordingly, as regulations to implement the repeal of and Part 366 to Title 18 of the Code of discussed in greater detail below, we are the Public Utility Holding Company Act Federal Regulations to implement Title rejecting requests that we re-impose of 1935 and the enactment of the Public XII, Subtitle F of EPAct 2005 and to particular requirements in PUHCA 1935 Utility Holding Company Act of 2005, remove Subchapter T and Part 365 of that Congress chose not to include in by adding a new subchapter and part to Title 18 of the Code of Federal PUHCA 2005. its regulations and removing its exempt Regulations. 5. Our primary means of protecting wholesale generator rules as they are no 3. Section 1264 of PUHCA 2005 customers served by jurisdictional longer necessary. concerns Commission access to the companies that are members of holding books and records of holding companies company systems continues to be the DATES: This final rule will become and other companies in holding FPA and NGA. In particular, the effective on February 8, 2006. company systems, and section 1275 of Commission’s rate authorities and FOR FURTHER INFORMATION CONTACT: PUHCA 2005 addresses the information access authorities under the Brandon Johnson (Legal Information), Commission’s review and authorization FPA and NGA enable the Commission Federal Energy Regulatory of the allocation of costs for non-power to detect and disallow from Commission, 888 First Street, NE., goods or administrative or management jurisdictional rates any imprudently- Washington, DC 20426, (202) 502– services when requested by a holding incurred, unjust or unreasonable, or 6143. company system or state commission. unduly discriminatory or preferential Lawrence Greenfield (Legal As we stated in the NOPR, the federal costs resulting from affiliate transactions Information), Federal Energy books and records access provision, between companies in the same holding Regulatory Commission, 888 First section 1264, and the non-power goods company system.11 This includes both Street, NE., Washington, DC 20426, and services provision, section 1275, of power transactions and non-power (202) 502–6415. PUHCA 2005 supplement the goods or services transactions between James Guest (Technical Information), Commission’s existing authorities under Commission-regulated companies that Federal Energy Regulatory the Federal Power Act (FPA) 7 and the have captive customers and their Commission, 888 First Street, NE., Natural Gas Act (NGA) 8 to protect ‘‘unregulated’’ affiliates. The Washington, DC 20426, (202) 502– customers against improper cross- Commission routinely places code of 6614. subsidization or encumbrances of assets, conduct restrictions on power sales at SUPPLEMENTARY INFORMATION: including the Commission’s broad market-based rates between regulated Before Commissioners: Joseph T. authority under FPA section 301 and and non-regulated affiliates. In the Kelliher, Chairman; Nora Mead NGA section 8 to obtain the books and context of registered holding companies, Brownell, and Suedeen G. Kelly. records of regulated companies and any we also have placed conditions on non- person that controls or is controlled by power goods and services transactions Introduction such companies if relevant to involving public utilities. Further, as 1. On August 8, 2005, the Energy jurisdictional activities.9 discussed in greater detail infra, in the Policy Act of 2005 (EPAct 2005) 1 was 4. In responding to the comments on context of individual rate cases signed into law. In relevant part, it the NOPR and in deciding whether to involving public utilities that seek to repeals the Public Utility Holding adopt the proposals in the NOPR, our flow through in jurisdictional rates the Company Act of 1935 (PUHCA 1935) 2 decisionmaking has been guided by the costs of affiliate purchases of non-power and enacts the Public Utility Holding goods or services, the Commission has Company Act of 2005 (PUHCA 2005),3 4 Id. at § 1274(a). the ability to protect customers by which, with one exception not relevant 5 Id. at §§ 1266, 1272, 1275. reviewing the prudence and the justness here, will become effective six months 6 Repeal of the Public Utility Holding Company Act of 1935 and Enactment of the Public Utility 10 from the date of enactment (February 8, EPAct 2005 at § 1289. Holding Company Act of 2005, Notice of Proposed 11 Since the vast majority of registered holding Rulemaking, 70 Fed. Reg. 55,805 (2005), FERC companies have been electric public utility holding 1 Energy Policy Act of 2005, Public Law No. 109– Stats. & Regs. ¶ 32,588 (2005). companies, our description here focuses primarily 58, 119 Stat. 594 (2005). 7 16 U.S.C. 824d–e (2000). on the FPA. However, except for merger and 2 15 U.S.C. 79a et seq. (2000). 8 15 U.S.C. 717c–d (2000). corporate authority under the FPA, our authorities 3 EPAct 2005 at § 1261 et seq. 9 16 U.S.C. 825 (2000); 15 U.S.C. 717g (2000). and processes under the NGA are similar.
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and reasonableness of such costs. The service companies); 17 CFR 250.94 to file SEC Form U–5A, notification of Commission also has adopted rules and (annual reports by mutual and registration. Section 366.4 requires policies regarding cash management subsidiary service companies); 17 CFR holding companies to file a FERC–65 practices or arrangements that involve part 256 (uniform system of accounts for (Notification of Holding Company Commission-jurisdictional companies. mutual and subsidiary service Status), and, if they wish to claim an Importantly, repeal of PUHCA 1935 also companies) (SEC Uniform System of exemption from PUHCA 2005 or a does not repeal non-PUHCA securities Accounts); and 17 CFR part 257 waiver of the Commission’s regulations laws and accounting requirements for (preservation and destruction of records thereunder, FERC–65A (Exemption companies. for registered holding companies and of Notification) or FERC–65B (Waiver 6. It is against this backdrop that we mutual and subsidiary service Notification). The final rule does not have determined not to require in this companies) (SEC record-retention rules). adopt the 17 CFR 250.1(b) (registration final rule all of the filing requirements 9. Additionally, the NOPR proposed statement) and 250.1(c) (annual report that we originally proposed to adopt. In to require companies to file certain SEC for holding companies, to be filed on addition, in response to the numerous forms with the Commission, including: SEC Form U–5S). Section 366.21 of our comments filed, we have determined SEC Form U–13–60 (annual report for regulations instead contains a modified that it is appropriate to permit certain mutual and subsidiary service version of 17 CFR 250.26 (financial exemptions from those requirements companies); SEC Form U–5S (annual statement and recordkeeping that are being adopted, based upon an report for registered holding requirements for holding companies and expedited notification process. An companies); and a version of SEC Form subsidiaries), including subparagraph overview of the final rule’s requirements U–5A (notification of registration (a)(2) (requirement to maintain books and exemptions is provided below. We status). and records for auditing purposes), emphasize, however, that this final rule 10. As discussed further below, the paragraphs (d) and (f) (compliance with (including its exemptions) does not Commission has concluded that there is Commission and other agencies’ record- affect the Commission’s independent no statutory basis for continuing to retention rules), and paragraph (e) ability to obtain access to books and apply the statutory exemptions (savings clause for previous accounting records under the FPA and NGA. contained in PUHCA 1935, which orders). It does not adopt paragraphs Further, to the extent additional Congress has repealed.12 Although, as (a)(1) (mandating compliance with SEC rulemakings or orders may be needed to also discussed below, we will provide Regulation S–X), (b) (information to be protect customers, the Commission will certain exemptions from PUHCA 2005, supplied with form SEC Form U–5S), (c) take appropriate actions in the future. we will not re-create the PUHCA 1935 (mandating use of the equity method of The Commission will hold a technical distinction between ‘‘exempt’’ and accounting), or (g) (cross reference to conference no later than one year from ‘‘registered’’ holding companies. section 250.26). In section 366.1, we the effective date of PUHCA 2005 to Accordingly, we will apply the books adopt the definitions contained in 17 assess whether additional actions are and records requirements of PUHCA CFR 250.80 (definitions of terms), i.e., needed. 2005 equally to all holding companies. ‘‘services,’’ ‘‘goods,’’ and Overview of Final Rule However, the Commission will give ‘‘construction’’, and we add a definition 7. In the NOPR, the Commission holding companies until January 1, for service company. We also adopt proposed to incorporate in part 366 of 2007, to comply with the Commission’s streamlined versions of 17 CFR 250.93 its regulations, largely without record-retention requirements; holding (accounts and records of service modification, the provisions of PUHCA companies, in contrast to traditional, companies), 250.94 (annual reports for 2005, and we have adopted a number of centralized service companies (as service companies), and 259.313 (SEC those proposals in the final rule. distinguished from service companies Form U–13–60, for annual reports However, based on the very constructive that are special-purpose companies such pursuant to 250.94), in sections 366.21, comments received, the final rule as a fuel supply company or a 366.22 and 366.23, which prescribe the modifies or departs from the approach construction company), will not be Uniform System of Accounts and in the NOPR in several respects, and we required to comply with the annual reporting requirement for service summarize the final rule below. Commission’s Uniform System of companies. The final rule does not 8. In the NOPR, we proposed adopting Accounts. adopt 17 CFR 259.5s, and it does not several of the Securities and Exchange 11. The final rule adopts modified, require the submission of SEC Form U– Commission’s (SEC) accounting and streamlined versions of 17 CFR 250.1, 5S. The Commission has determined record-retention requirements into our 250.26, 250.80, 250.93, 250.94, and that the information in these eliminated own regulations and stated that we did 259.313 in Part 366 of its regulations. provisions is not relevant to the costs not intend to broaden their applicability Section 366.4(a) of our regulations will incurred by jurisdictional entities or is beyond the types of companies to which be a modified and simplified version of not necessary or appropriate for the they now apply. Specifically, the NOPR 17 CFR 250.1(a), which originally protection of utility customers with proposed to adopt the following required registered holding companies respect to jurisdictional rates. portions of the SEC’s accounting and 12. Specifically, the final rule also record-keeping requirements: 17 CFR 12 Section 5(a) of PUHCA 1935 provides five adopts the following requirements: 250.26 (financial statement and statutory exemptions for: (1) Holding companies will file recordkeeping requirements for (1) Predominantly intrastate holding companies; FERC–65 (Notification of Holding (2) Public-utility holding companies whose registered holding companies and operations as such do not extend beyond the State Company Status), which will be treated subsidiaries); 17 CFR 250.27 in which they are organized and states contiguous as an informational filing. (classification of accounts prescribed for thereto; (2) Holding companies seeking to utility companies not already subject (3) Holding companies that are only incidentally claim an exemption from PUHCA 2005 thereto); 17 CFR 250.80 (definitions of a holding company; or waiver of the Commission’s (4) Holding companies that are temporarily terms used in rules under section 13 of holding companies; or regulations thereunder may file FERC– PUHCA 1935); 17 CFR 250.93 (accounts (5) Primarily foreign utility holding companies. 65A (Exemption Notification) or FERC– and records of mutual and subsidiary 15 U.S.C. 79c(a)(1)–(5) (2000). 65B (Waiver Notification).
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(3) Traditional, centralized service exemptions and we have determined power goods or services transactions companies will be required to file a that it is appropriate to use an expedited between special-purpose subsidiaries newly-created FERC Form No. 60 notification process to either exempt and public utilities. (Annual Report for Service Companies), from the books and records 15. With respect to EWGs, we which is based on a streamlined version requirements of PUHCA 2005 or waive proposed to cease making case-by-case of SEC Form U–13–60. The FERC Form the Commission’s accounting, record- determinations of exempt wholesale No. 60 eliminates the following retention and reporting regulations generator status in the future and we supporting schedules originally thereunder for the following persons proposed to delete our EWG regulations. contained in SEC Form U–13–60: and classes of transactions: In light of the comments received, we Outside Services Employed—Account (1) Passive investors, including have determined that it is reasonable to 923; Employee Pensions and Benefits— mutual funds and other financial interpret PUHCA 2005 to permit new Account 926; General Advertising institutions; wholesale sellers to obtain EWG status. Expenses—Account 930.1; Rents— (2) Commission-jurisdictional utilities We will thus establish procedures in Account 931; Taxes Other Than Income that have no captive customers; section 366.7 of our regulations for both Taxes—Account 408; Donations— (3) Certain holding company and self-certification of EWG and FUCO Account 426.1; and Other Deductions— affiliate transactions that will not affect status, and Commission determinations Account 426.5. The schedules were jurisdictional rates; of EWG and FUCO status, similar to the eliminated to remove information that is (4) Electric power cooperatives; options available for entities seeking QF either duplicative or that the (5) Local distribution companies; status. Commission has determined is not (6) Single-state holding companies; 16. Additionally, for those definitions necessary to carry out its statutory (7) Holding companies that own 100 and other aspects of PUHCA 1935 that responsibilities under PUHCA 2005. MW or less of generation used have been re-enacted as part of PUHCA (4) Unless otherwise exempted by fundamentally for their own load or for 2005, we will, where appropriate, Commission rule or order, all holding sales to affiliated end-users;13 and follow the past practice and precedent companies and service companies must (8) Investors in independent of the SEC in interpreting these maintain and make available to the transmission companies. provisions of PUHCA 2005 to the extent that they are consistent with the Commission their books and records. In Other exemptions and waivers will be statutory language adopted by Congress addition, all holding companies and all considered through the declaratory service companies that do not currently in PUHCA 2005. order process on a case-by-base basis. 17. Finally, we do not view this final follow the Commission’s record- 14. With respect to Commission retention requirements in Parts 125 and rule as the only opportunity to address review of service company cost the books and records requirements and 225 of the Commission’s regulations, as allocations in section 1275(b) and the applicable, will be required to transition related reporting requirements under exemption for single-state holding PUHCA 2005, exemptions from and to the Commission’s requirements by companies in section 1275(d), the January 1, 2007. Holding companies waivers of these requirements, and any Commission sought comments as to registered under PUHCA 1935 that other issues that may arise as a result of whether the Commission should require currently follow the SEC’s record- the repeal of PUHCA 1935 and the the formal filing of service company retention rules in 17 CFR Part 257, and implementation of PUHCA 2005. We cost-allocation agreements under the their service companies, have the option intend to hold a technical conference no FPA and NGA, and whether the to follow either the Commission’s or the later than one year after PUHCA 2005 Commission should apply its traditional SEC’s record-retention rules, as they becomes effective to evaluate whether ‘‘market’’ standard for the pricing of exist on the day before the effective date additional exemptions, different non-power goods and services provided of PUHCA 2005, for calendar year 2006, reporting requirements, or other by system service companies or instead but these entities must transition to the regulatory actions (under PUHCA 2005 Commission’s record-retention rules by adopt the SEC ‘‘at-cost’’ standard. We or the FPA or NGA) need to be January 1, 2007. And, as noted above, conclude below that we will not require considered. The technical conference holding companies, unlike traditional, the formal filing of cost allocation will also address any needed changes or centralized service companies, will not agreements and that we will not require additions to accounting, cost allocation, be required to comply with the any entities that are currently using the recordkeeping, cross-subsidization, Commission’s Uniform System of SEC’s ‘‘at-cost’’ standard for traditional encumbrances of utility assets, and Accounts. centralized service companies to switch related rules, including any changes 13. The NOPR did not propose any to our ‘‘market’’ standard. With respect necessary to address difficulties with specific exemptions from the books and to traditional, centralized service compliance encountered by companies records requirements of PUHCA 2005, companies that use the ‘‘at cost’’ within previously-exempt holding except as required by section 1266 (i.e., standard, we will apply a presumption company systems during this transition persons that are holding companies that ‘‘at cost’’ pricing of the non-power period. In addition, while we do not solely with respect to one or more goods and services they provide to adopt the SEC Uniform System of exempt wholesale generators (EWGs), public utilities within their holding Accounts and record-retention rules in foreign utility companies (FUCOs), or company system is reasonable, but 17 CFR parts 256 and 257 into the qualifying facilities (QFs)), but sought persons may file complaints if they Commission’s regulations at this time, comments on whether passive investors believe that use of at cost pricing results we will initiate a separate rulemaking and mutual funds should be exempted. in costs that are above market price. We proceeding to address how the Rather, we proposed to rely on case-by- will also retain the Commission’s Commission’s Uniform System of case petitions for declaratory order to existing ‘‘market’’ standard for non- Accounts and record-retention rules in determine what additional waivers are Parts 101, 125, 201, and 225 of its appropriate. Based on the extensive 13 Holding companies that own more than 100 regulations can be modified to adopt or MW of generation used fundamentally for their own comments received, in the final rule we load or for sales to affiliated end users may seek otherwise integrate the relevant parts of have modified our original proposal to waivers, and the Commission will consider them, the SEC’s Uniform System of Accounts rely on declaratory order requests for on a case-by-case basis. and record-retention rules. The
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Commission intends to issue a final rule Shell WindEnergy) request that the definitions to exclude rural electric on any appropriate accounting or Commission deem EWGs, FUCOs, and cooperatives from the scope of PUHCA record-retention rule modifications well QFs not to be ‘‘electric utility 2005. APPA/NRECA argue that the in advance of January 1, 2007, so that companies’’ under PUHCA 2005, so that Commission should recognize that, service companies will be able to their upstream owners will not be under longstanding SEC precedent, transition to the Commission’s Uniform ‘‘holding companies’’ under PUHCA electric cooperatives were not regulated System of Accounts and record- 2005.15 as public utility holding companies retention rules and holding companies 21. With respect to the definition of under PUHCA 1935 because member can transition to the Commission’s ‘‘public-utility companies,’’ the Edison interests in cooperatives do not record-retention rules by the January 1, Electric Institute (EEI) urges the constitute a ‘‘voting security’’ interest.19 2007 deadline. Commission to clarify that energy Cooperatives state that the Commission could, alternatively, declare definitively 1. Definitions marketers are not ‘‘public-utility companies’’ under the PUHCA 2005 that member interests in cooperatives do 18. The Commission proposed in the definition. EEI notes that, under PUHCA not constitute a ‘‘voting security’’ NOPR to largely incorporate in section 2005, a ‘‘public-utility company’’ is interest for purposes of PUHCA 2005.20 366.1 of its regulations the text of either an ‘‘electric utility company,’’ If the Commission does not adopt this section 1262 of EPAct 2005, which which is an entity that owns or operates interpretation of ‘‘voting securities,’’ contains the definitions of relevant facilities used for the generation, APPA/NRECA urge the Commission to, terms used in PUHCA 2005 and in our transmission or distribution of electric at the very least, make clear that those proposed regulations. Commenters energy for sale, or a ‘‘gas utility cooperatives that have received no- suggested a number of changes to these company,’’ which is basically an entity action letters or other assurances in the definitions. As these definitions are that owns or operates facilities used for past from the SEC can continue to rely taken from section 1262 of EPAct 2005, distribution at retail of natural or on those assurances without any need to any modification would likely create manufactured gas. EEI further asserts seek additional confirmation or a no- undesirable discrepancies between our that the SEC has found that the action assurance or waiver from the regulations and the statutory language. ownership of only contracts and related Commission.21 Arizona Electric Power Accordingly, we will address these books and records are not facilities used Cooperative, Inc., Southwest comments below under the heading for the generation of electric energy, but Transmission Cooperative, Inc., and ‘‘Additional Technical and Conforming that only physical facilities are used for Sierra Southwest Cooperative Services, Amendments,’’ below. However, to the the generation of electric energy. Inc. (Cooperatives) argue that, while the extent that a given comment requesting According to EEI, if power marketers are Commission could grant the clarifications of the definitions not electric utility companies, their Cooperatives an individual waiver, the proposed in section 366.1 of the parent companies would not be better course would be for the Commission’s regulations can be considered utility holding companies Commission to create a class exemption addressed consistent with the statutory under PUHCA 2005 by reason of their from PUHCA 2005 for cooperatives. text, they are addressed below. ownership of such marketers. The same According to Cooperatives, with the Comments logic would apply to gas marketers, and recent amendment of FPA § 201(f), they too, therefore, should not be cooperatives are unlikely to qualify as 19. American Public Power public utilities, and cooperatives do not Association and National Rural Electric considered gas utility companies, provided they own no physical gas operate any NGA jurisdictional Cooperative Association (APPA/ pipelines.22 NRECA) note that section 1268 of distribution assets and their gas retail EPACT 2005 expressly exempts States sales are made through contracts.16 Commission Determination and any political subdivision of a state 22. Goldman Sachs Group (Goldman 25. We will grant the request of from the provisions of PUHCA 2005, Sachs) and Morgan Stanley Capital APPA/NRECA and others to clarify that while the definition of ‘‘electric utility Group (Morgan Stanley) urge the section 1268 exempts from PUHCA company’’ in the proposed section 366.1 Commission to adopt a rule similar to 2005 states and any political includes ‘‘any company that owns or the SEC’s 7(d) that excludes owner- subdivision of a state. Accordingly, we operates facilities used for the lessor and owner participants in lease clarify in section 366.2(a) that, for the generation, transmission, or distribution financing transactions involving utility purposes of this subchapter, no of electric energy for sale,’’ which assets from the definition of ‘‘public- provision of PUHCA 2005 shall apply to appears to come directly from section utility company’’ and their parent or be deemed to include: (1) The United 1262(5) of EPACT 2005. According to companies from the definition of States; (2) a state or political subdivision 17 APPA/NRECA, this section, read ‘‘holding company.’’ of a state; (3) any foreign governmental standing alone, could be construed to 23. NiSource Inc. (NiSource) requests authority not operating in the United state that the regulations apply to all that the Commission clarify that gas States; (4) any agency, authority, or electric utilities. APPA/NRECA thus utility companies authorized to make instrumentality of any entity referred to urge the Commission to make explicit sales for resale of natural gas pursuant in subparagraphs (1), (2) or (3); or (5) the exclusion of states and their to a blanket certificate are not subject to any officer, agent, or employee of any political subdivisions from the new part 366 of the Commission’s entity referred to in subparagraphs (1), regulations by cross-referencing in its regulations.18 (2), (3), or (4) as such in the course of regulations the exclusion in section 24. Finally, a number of commenters his or her official duty. 1268 of the statute.14 urge the Commission to amend certain 20. Coral Power, L.L.C. and Shell 19 APPA/NRECA Comments at 42. See also Santa WindEnergy, Inc. (Coral Power and 15 Coral Power/Shell WindEnergy Comments at Clara Comments at 23, TANC Comments at 23. 9–10. 20 Cooperatives Comments at 8. 16 14 APPA/NRECA Comments at 42. See also City EEI Comments at 19–20. 21 APPA/NRECA Comments at 42–44. See also of Santa Clara (Santa Clara) Comments at 23, 17 Goldman Sachs Comments at 7, Morgan Tri-State Comments at 3–7. Transmission Agency of Northern California Stanley Comments at 5. 22 Cooperatives Comments at 7. See also APPA/ (TANC) Comments at 23. 18 NiSource Comments at 15. NRECA Comments at 44.
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26. In response to the request of Coral for QFs, QFs previously received an company in a holding company system, Power and ShellWindEnergy that we exemption from PUHCA pursuant to the or any affiliate thereof, that the consider EWGs, FUCOs, and QFs not to Commission’s regulations under the Commission determines are relevant to be ‘‘electric utility companies’’ so that Public Utility Regulatory Policies Act of the costs incurred by a public utility or their upstream owners would not be 1978. Nothing in PUHCA 2005 changes natural gas company within such holding companies under PUHCA 2005, that. holding company system and necessary we note that Congress has exempted 28. With respect to EEI’s request that or appropriate for the protection of from section 1264 of EPAct 2005 entities we clarify that power marketers are not public utility or natural gas company that are holding companies solely with ‘‘public-utility companies,’’ we note that customers with respect to jurisdictional respect to EWGs, FUCOs, and QFs and EEI’s reference to the ‘‘Commission’’ rates. Finally, section 1264(d) forbids that exemption is reflected in the appears to be to the SEC rather than to any member, officer, or employee of the regulations we adopt herein. However, this Commission. While the SEC has not Commission from divulging any fact or we clarify that EWGs themselves are not treated power marketers as electric information that has come to his or her considered ‘‘electric utility companies’’ utility companies under PUHCA 1935, knowledge during the course of the under PUHCA 2005. The purpose of the Commission has determined that examination of such books and records, creating ‘‘exempt’’ wholesale generators electric marketers own facilities used for except as may be directed by the in the amendments to section 32 of wholesale sales, i.e., ‘‘paper facilities,’’ Commission or a court of competent PUHCA 1935 made by the Energy Policy and therefore are public utilities under jurisdiction.26 In the NOPR, the Act of 1992 (EPAct 1992) 23 was to the FPA. Similarly, we have treated Commission proposed to incorporate exempt from PUHCA 1935 persons that natural gas marketers making largely without modification the text of meet the definition of EWG. This was jurisdictional sales as natural gas section 1264 by adding section 366.2 to reflected in section 32(e) of PUHCA companies under the NGA. In light of the Commission’s regulations. 1935, which specifically provided that long-standing SEC precedent in 32. In the NOPR, the Commission also EWGs would not be considered electric interpreting PUHCA 1935, we will proposed to adopt certain accounting, utility companies under PUHCA 1935 follow the same interpretation under cost-allocation, recordkeeping, and and would be exempt. Here, we have PUHCA 2005 and will exempt power related rules promulgated by the SEC for determined to continue to allow and natural gas marketers from the holding companies and their service generators to obtain EWG status, so they definition of ‘‘public-utility company,’’ companies, as they existed on the date will not be considered electric utility as that term is used in PUHCA 2005. of enactment of EPAct 2005, specifically companies subject to PUHCA 2005. However, our interpretation here does 17 CFR 250.1, 250.26, 250.27, 250.80, 27. With respect to FUCOs and QFs, not change our long-standing precedent 250.93, 250.94, 259.5S, and 259.313 and we clarify as follows. Section 1262(6) of with respect to these entities’ 17 CFR parts 256 and 257. The PUHCA 2005 contains the term ‘‘foreign jurisdictional status under the FPA and Commission invited comments on utility company,’’ and cross-references the NGA. which SEC reporting requirements the section 33 of PUHCA 1935. Section 33 29. We will grant the request for Commission should retain, which ones of PUHCA 1935, as amended by EPAct clarification from Goldman Sachs and it should not retain, and whether the 1992,24 provided that a FUCO would be Morgan Stanley that we not treat owner- Commission should adopt any exempt from PUHCA 1935 and not lessors and owner participants in lease additional accounting, cost-allocation, deemed an electric utility company, but financing transactions involving utility recordkeeping and related rules to carry the exemption would not apply or be assets as ‘‘public-utility companies’’ and out its statutory duties under PUHCA effective unless the relevant state their parents as ‘‘holding companies’’ 2005. Finally, the Commission stated commission(s) certified that they had under PUHCA 2005, so long as the that it does not intend to broaden the the authority and resources to protect ownership arrangements are passive. applicability of any adopted reporting 30. We find that, as discussed below, ratepayers of public utility companies requirements beyond the types of electric power cooperatives should not that are associated or affiliated with the companies to which they now apply be regulated as holding companies FUCO. As with EWGs, we will continue and invited comments as to whether the under PUHCA 2005. to allow persons to obtain FUCO status. proposed scope of applicability is FUCOs will not be considered electric 2. Books and Records Requirements appropriate. 33. The comments below focused utility companies subject to PUHCA 31. Sections 1264(a) and (b) of EPAct primarily on the Commission’s proposal 2005 and will be exempt from PUHCA 2005 generally provide that each to adopt certain SEC regulations and are 1935 if they can demonstrate that the holding company and each associate organized as follows: (a) Scope of relevant state commission(s) have made company of a holding company, as well applicability, i.e., whether the books the determination described in section as each affiliate of a holding company and records requirements will apply to 33 of PUHCA 1935. However, even if or any subsidiary company of a holding all holding companies equally or only to FUCOs do not demonstrate that they company, shall maintain, and shall holding companies registered under should be totally exempted from make available to the Commission, such PUHCA 1935; (b) general comments on PUHCA 2005, we will waive the books, accounts, memoranda, and other the Commission’s proposal to adopt accounting, record-retention, and records (books and records) as the 25 certain SEC regulations, including reporting requirements thereunder. As Commission determines are relevant to whether PUHCA 2005 grants the the costs incurred by a public utility or Commission the legal authority to adopt 23 79 U.S.C. 79z–5a (2000). natural gas company that is an associate them; (c) comments on particular 24 79 U.S.C. § 79z–5b (2000). 25 As discussed infra, we will waive our company of such holding company and provisions of the SEC regulations; (d) accounting, record-retention, and reporting necessary or appropriate for the other issues related to the adoption of requirements for FUCOs, but we will not exempt protection of public utility or natural them from the general provision in section 1264 of gas company customers with respect to 26 There are comparable confidentiality PUHCA 2005 and repeated in section 366.2 of our jurisdictional rates. Moreover, section provisions in the FPA and the NGA for public regulations, which authorizes access to their books utility books and records and natural gas company and records as necessary, with respect to 1264(c) empowers the Commission to books and records. 16 U.S.C. 825 (2000); 15 U.S.C. jurisdictional rates. examine the books and records of any 717g (2000).
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SEC regulations; and (e) other comments equal treatment of all holding exemption which are, by definition and related to the books and records companies.29 determination by SEC, engaged in a requirements of section 1264. 35. However, a number of business other than being a public commenters argue that the Commission utility holding company.32 a. Scope of Applicability should continue to exempt under Comments PUHCA 2005 those holding companies Commission Determination exempted under PUHCA 1935 and SEC 37. With respect to the general 34. The majority of commenters urged precedent. MidAmerican Energy the Commission to apply any SEC applicability of the federal access to Company (MidAmerican) states that the books and records requirements in regulations adopted equally to all Commission should not impose a new holding companies, without regard to section 1264 of EPAct 2005, there is no set of accounting and reporting basis in PUHCA 2005 for distinguishing whether an entity was registered or requirements on entities that have been exempt under PUHCA 1935, primarily between holding companies based on exempt from the requirements their registered or exempt status under because PUHCA 2005 does not state that developed by the SEC to enforce PUHCA 1935 exemptions should PUHCA 1935. Accordingly, the PUHCA 1935. According to Commission will subject all holding continue in force.27 APPA/NRECA state MidAmerican, the information required that the Commission should apply any company systems, whether previously under the SEC rules would require these exempt or registered, to the books and rules to the full universe of companies entities to prepare and file reports that because, post-PUHCA 1935, there is no records requirements that PUHCA 2005 are duplicative of information contained imposes on holding companies and longer a statutory basis for in reports already filed with the affiliates, associate companies, and distinguishing between the former Commission (e.g., FERC Forms 1 and 2 subsidiaries thereof, unless they qualify registered and exempt holding and the quarterly financial reports) and for one of the statutory exemptions companies. APPA/NRECA contend that reports filed with the SEC (e.g., Form provided for under section 1266 of the Commission cannot treat some 10–K and Form 10–Q) and imposes an PUHCA 2005.33 We have also holding companies differently from unnecessary burden and expense on determined that, while we cannot others without a reasonable basis and such entities and provides no significant exempt certain persons from the that their legal designations under a additional information to the statutory requirements of PUHCA 2005, now-repealed statute are not a Commission. Accordingly, we can and should grant waivers of the reasonable basis. According to APPA/ MidAmerican states that the NRECA, the Commission should make Commission should make it perfectly accounting, record-retention, and distinctions based on the complexity of clear that its proposal to adopt the reporting requirements adopted herein each holding company’s corporate accounting, cost-allocation, for certain persons and classes of structure, the quantity and type of recordkeeping and related rules transactions. Additionally, for entities business risks in the corporate family, promulgated by the SEC applicable to that do have to comply with our filing the magnitude of potential for cross registered holding companies and their requirements, we will limit the filings subsidization (e.g., due to the presence service companies does not extend to that have to be made and will delay of common costs between the public public utility holding companies that until January 1, 2007, the compliance utility and non-utility businesses), and were not registered under PUHCA 1935 deadline for companies not currently the geographic reach of the holding and that, in addition, such rules should subject to the SEC rules. Finally, company (which could make state not apply to any entities that may throughout the following discussion, we regulation more difficult). They argue become public utility holding will distinguish between obligations that, to avoid charges of undue companies after February 8, 2006, the that apply to all service companies and effective date of repeal of PUHCA those that apply to traditional, discrimination, the Commission can 34 apply the rules to all holding companies 1935.30 centralized service companies. initially, announce these factors as 36. FirstEnergy suggests that, if the Traditional, centralized service among those it will consider in granting Commission adopts this proposal, it companies are a subset of service exemptions, and then invite requests for should clarify the regulatory text of companies that holding companies have proposed section 366.2(e) to delineate formed. They provide certain exemption from some or all of the 35 reporting companies.28 Similarly, between those holding company specialized services to other American Electric Power Service systems to which the rules apply and Corporation (AEP) and National Fuel those that are exempt from such 32 Alcoa Comments at 5. 33 Gas argue that the statute mandates provisions, and should explain the Section 1266, discussed infra, requires the 31 Commission to exempt any person that is a holding reasons justifying such distinction. company solely with respect to EWGs, FUCOs, and 27 See, e.g., Allegheny Energy, Inc. (Allegheny) Alcoa states that, even if the QFs. It also requires the Commission to exempt a Comments at 2, American National Power, Inc. Commission decides not to exempt from person or transaction if it finds that the books and (American National Power) Comments at 3, the reach of proposed section 366.2 all records of a person are not relevant to jurisdictional American Public Gas Association Comments at 3; companies that are currently exempt rates or a class of transactions is not relevant to Arkansas Public Service Commission (Arkansas jurisdictional rates. PSC) Comments at 19, E.ON AG and LG&E Energy holding companies under PUHCA 1935, 34 ‘‘Service companies’’ are defined in section LLC (E.ON/LG&E Energy) Comments at 8, Missouri consideration at least should be given to 366.1 as ‘‘any associate company within a holding Public Service Commission (Missouri PSC) blanket exemptions for holding company system organized specifically for the Comments at 25, National Fuel Gas Company companies having a section 3(a)(3) purpose of providing non-power goods or services (National Fuel Gas) Comments at 6, National or the sale of goods or construction work to any Association of Regulatory Utility Commissioners public utility in the same holding company (NARUC) Comments at 7, Southern Company 29 AEP Comments at 2–3, National Fuel Gas Reply system.’’ Services Comments at 2–3. But see Detroit Edison Comments at 3–4. 35 These ‘‘services,’’ as defined in section 366.1, Company (Detroit Edison) Reply Comments at 1, 30 MidAmerican Comments at 5–7. See also CEOB include ‘‘any managerial, financial, legal, PPL Companies (PPL) Reply Comments at 3–4 Comments (3) (supports case-by-case exemptions), engineering, purchasing, marketing, auditing, (urging Commission to reject comments proposing Chairman Barton Reply Comments at 5, Detroit statistical, advertising, publicity, tax, research, or to apply SEC regulations to holding companies Edison Comments at 3–5, Questar Reply Comments any other service (including supervision or exempted from PUHCA 1935). at 2. negotiation of construction or of sales), information 28 APPA/NRECA Comments at 30–31. 31 FirstEnergy Comments at 9. or data, which is sold or furnished for a charge.’’
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companies in the holding company comply with the Commission’s Uniform b. General Comments Concerning system. They are to be distinguished System of Accounts until January 1, Adoption of SEC Regulations from other service companies that are 2007. And, as noted above, holding Comments special-purpose companies such as a companies, while they will be required fuel supply company or a construction to comply with the Commission’s 40. APPA/NRECA suggest that, rather company. record-retention requirements, will not than incorporate the SEC rules by 38. Specifically, the Commission will be required to comply with the reference, the Commission should require the following for entities that are Commission’s Uniform System of import the actual wording (with not otherwise exempted from PUHCA Accounts. appropriate revisions as discussed 2005 requirements or granted a waiver below) into its own regulations. Merely of the Commission’s regulations (3) All entities that are currently or cross-referencing existing SEC thereunder: become holding companies under regulations (as proposed section (1) Unless otherwise exempted by PUHCA 2005, whether previously 366.2(e) would do) would fail in its Commission rule or order or granted a exempt or registered under PUHCA purpose if the SEC subsequently revises waiver, all holding companies and all 1935, must file FERC–65 (Notification of its own regulations to eliminate its service companies that do not currently Holding Company Status), which will PUHCA 1935-related regulations. follow the Commission’s record- be treated as an informational filing, and Moreover, rather than adopt the SEC retention requirements in Parts 125 and holding companies seeking to claim an rules word-by-word, APPA/NRECA urge 225 of the Commission’s regulations exemption from PUHCA 2005 or waiver the Commission to make certain must, effective January 1, 2007, comply of the Commission’s regulations there wording adjustments and offer with the Commission’s record-retention under may file FERC–65A (Exemption rationales based on the current and requirements. Formerly-registered Notification) or FERC–65B (Waiver likely future industry structure. 36 holding companies and service Notification). All persons that are 41. EEI urges the Commission to companies in such holding company holding companies on the effective date integrate whatever it adopts from SEC systems that currently follow the SEC’s of PUHCA 2005 must file FERC–65 practice into current Commission record-retention rules in 17 CFR part within 30 days of the effective date of procedures and forms. According to EEI, 257 have the option, until December 31, PUHCA 2005, and any person that repeal of PUHCA 1935 was intended to 2006, to follow either the Commission’s becomes a holding company thereafter reduce the level of holding company or the SEC’s record-retention must file FERC–65 within 30 days after regulation, but if current exempt requirements. But these service becoming a holding company; and holding companies suddenly are companies must transition to the (4) All traditional, centralized service required to contend with unfamiliar Commission’s rules by January 1, 2007. companies will be required to submit an SEC practice, it would have precisely Formerly-exempt holding companies annual report on FERC Form No. 60. the opposite effect. These formerly- and service companies within such Such service companies in formerly- exempt companies in effect would holding company systems, which registered holding company systems become subject to a new level of currently do not follow either the SEC’s must submit their first annual report, for complex regulation. To avoid this or the Commission’s record-retention calendar year 2005, by May 1, 2006. unintended consequence of repealing requirements will not be required to Such service companies in formerly- PUHCA 1935, EEI believes that the comply with the Commission’s record- exempt holding company systems will Commission should seek to integrate retention requirements until January 1, be required to submit their first FERC whatever it adopts from SEC practice 2007. Form No. 60, for calendar year 2007, by into current Commission procedures (2) Unless otherwise exempted by May 1, 2008. and forms, which would involve simply Commission rule or order or granted a including existing public filings, in waiver, traditional, centralized service 39. The Commission will not require the filing of SEC Forms U–5A particular a holding company’s SEC companies (i.e., those that are not Form 10–K, as exhibits to the special-purpose companies such as a (notification of registration status), U–5S Commission’s Form 1.37 fuel supply company or a construction (annual reports for registered holding 42. For the same reasons, EEI requests company) that do not currently follow companies), U3A–2 (statement by that the Commission provide a the Commission’s Uniform System of holding company claiming exemption), reasonable period between the effective Accounts in parts 101 and 201 of the or U–5B (registration statement), as date of its new rules and the date on Commission’s regulations, will be given previously proposed or suggested by which the initial filings will be due. EEI until January 1, 2007, to transition to the some commenters. Information in these proposes that the initial filings should Commission’s Uniform System of forms is in many cases available be due in April 2007, giving companies Accounts. Traditional, centralized elsewhere and/or was for the purpose of time to adopt any new recordkeeping service companies in formerly- monitoring activities or transactions registered holding company systems that, with the repeal of PUHCA 1935, and reporting requirements and to file that currently follow the SEC’s Uniform are no longer prohibited or no longer information starting with the next round System of Accounts have the option to require prior approval. Additionally, of Form 1 for which the new follow either the Commission’s or the this information is either not relevant to information would be available. The SEC’s Uniform System of Accounts for the costs incurred by jurisdictional Commission also should specify the calendar year 2006. But these service entities or is not necessary or format that will be required for filings companies must transition to the appropriate for the protection of utility under its new rules, and the Commission’s rules by January 1, 2007. customers with respect to jurisdictional Commission should make clear when Traditional, centralized service rates. Further, information needed to adopting the final rule, the date(s) on companies within formerly-exempt protect against inappropriate cross- which companies will first be required holding company systems, which subsidization will be contained in the 36 APPA/NRECA Comments at 23–24. See also currently do not follow either the SEC’s accounting and record-keeping FirstEnergy Service Company (FirstEnergy) or the Commission’s Uniform System of requirements that we are adopting Comments at 9. Accounts, will not be required to herein. 37 EEI Comments at 3–4.
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to make any newly required filings adopt SEC regulations under PUHCA rather than, for example, being under such rules.38 200543 or that PUHCA 2005 does not incorporated by reference. However, the 43. Georgia Public Service specifically authorize the imposition of Commission does not find it appropriate Commission (Georgia PSC) urges the reporting requirements.44 AGL to incorporate all of the relevant SEC Commission to ensure that the rules to Resources, Inc. (AGL Resources) rules at this time. Accordingly, the implement PUHCA 2005 provide that questions the appropriateness of any Commission will adopt in Part 366 of its the Commission will have access to all requirement to file any reports at all, regulations certain provisions of 17 CFR of the information and documents emphasizing that the requirement in parts 250 and 259, which are discussed previously provided to the SEC under section 1264 to maintain records does further below. We will not adopt the PUHCA 1935. Georgia PSC emphasizes not amount to a requirement to file SEC Uniform System of Accounts and that state commissions have relied upon reports. AGL Resources emphasizes that record-retention rules in 17 CFR parts the filings made by holding companies section 14 of PUHCA 1935, which 256 and 257 into the Commission’s with the SEC and on audits of holding permits the SEC to require certain regulations at this time. Instead, the companies performed by the SEC as a reports from companies subject to its Commission will initiate a separate crucial source of information necessary jurisdiction, has been repealed by EPAct rulemaking proceeding, which we in setting rates for the holding 2005, and the EPAct did not grant the intend to complete well in advance of companies’ subsidiaries that are Commission similar authority.45 the January 1, 2007 deadline, to address regulated by state commissions. 46. Electric Power Supply Association how the Commission’s Uniform System Accordingly, the Commission should (EPSA) argues that the adoption of the of Accounts and record-retention rules adopt all provisions of the SEC rules SEC rules as a means of implementing in parts 101, 125, 201, and 225 of its and retain all SEC reporting PUHCA 2005 is neither wise nor regulations can be modified to adopt or requirements.39 Similarly, the California necessary or appropriate for the otherwise integrate the relevant parts of Electricity Oversight Board (CEOB) and protection of utility customers with the SEC’s Uniform System of Accounts Utility Workers Union of American respect to jurisdictional rates. According and record-retention rules into the (Utility Workers) supports the to EPSA, the two statutory regimes are Commission’s regulations. As discussed Commission’s adoption of the SEC completely different and the PUHCA above, unless otherwise exempted or accounting, cost-allocation, 1935 regulations are incompatible with granted a waiver, both holding recordkeeping, and related rules the considerably more narrow scope of companies and service companies will identified in the PUHCA NOPR.40 PUHCA 2005, which the Commission be required to comply with the 44. Entergy Services, Inc. states that it itself notes is primarily a books and Commission’s record-retention agrees with the Commission’s proposal records access statute and a statute that requirements effective January 1, 2007, to adopt the SEC regulations, but that does not give the Commission authority but only traditional, centralized service the Commission should limit the to pre-approve holding company 46 companies will be required to comply applicability of these rules to those activities. EPSA further contends that with the Commission’s Uniform System items that are ‘‘relevant to costs the adoption of such rules would be of Accounts. We will give holding incurred by a public utility or natural contrary to Congress’ intent and exceed companies registered under PUHCA gas company’’ and ‘‘necessary or the authority granted to it under PUHCA 1935 and service companies within appropriate for the protection of utility 2005, improperly and unnecessarily formerly-registered holding company customers with respect to jurisdictional imposing PUHCA 1935-type regulation systems that currently follow the SEC’s on all PUHCA 2005 holding companies rates’’ as required by EPAct 2005 section record-retention rules in 17 CFR part and their relevant affiliates, including a 1264(a).41 Similarly, FirstEnergy argues 257 the option to follow either the large number of holding companies that the Commission should provide a Commission’s or the SEC’s record- exempted from PUHCA 1935.47 clear explanation of why each category retention rules, as they exist on the day Moreover, EPSA emphasizes that, while of information that is to be maintained before the effective date of PUHCA the Commission has the authority to is within the statutory limits above. To 2005, for calendar year 2006. Similarly, disallow a utility’s recovery in its reflect these limits, FirstEnergy argues traditional, centralized service jurisdictional rates of improper affiliate that, at a minimum, the Commission companies in formerly-registered charges, the Commission does not have should modify proposed section holding company systems that currently 366.2(e), consistent with the other the authority to regulate transactions among non-utility affiliates by requiring follow the SEC’s Uniform System of subsections of section 366.2, to add the ‘‘at cost’’ pricing, and, therefore, has no Accounts in 17 CFR part 256 may follow following qualification at the end of the authority to impose financial and either the SEC’s or the Commission’s paragraph: ‘‘insofar as the Commission complex accounting and reporting Uniform System of Accounts for determines that such accounting, cost- requirements to implement ‘‘at cost’’ calendar year 2006. But, as discussed allocation and related rules are relevant pricing.48 above, these entities must transition to to costs incurred by a public utility or the Commission’s rules, by January 1, natural gas company that is an associate Commission Determination 2007. company of such holding company and 47. We agree with the comments of 48. We also agree with the comments necessary or appropriate for the APPA/NRECA and EEI that any SEC of EEI that it is appropriate to provide protection of utility customers with regulations that the Commission adopts a reasonable transition period between 42 respect to jurisdictional rates.’’ should be imported into and integrated the effective date of this Final Rule and 45. Several commenters argued that with the Commission’s regulations, the date on which the initial filings will the Commission lacks the authority to be due. As discussed above, we will 43 See, e.g., Energy East Comments at 4–7, give traditional, centralized service 38 Dominion Comments at 3, EEI Comments at 6. National Fuel Gas Comments at 2. companies until January 1, 2007 to 39 Georgia PSC Comments at 1. 44 See, e.g., E.ON/LG&E Energy Comments at 12. 40 CEOB Comments at 2–3, Utility Workers 45 AGL Resources Comments at 5. conform their accounts and records to Comments at 3. 46 EPSA Comments at 6–7. the requirements of the Commission’s 41 Entergy Comments at 3. 47 Id. at 7. Uniform System of Accounts and 42 FirstEnergy Comments at 6. 48 Id. at 10. record-retention rules. Similarly, we
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will give holding companies and service avoid ambiguity, we have imported the we find that Congress has granted the companies until January 1, 2007 to text of these SEC regulations that the Commission the discretion to prescribe conform to the requirements of the Commission is adopting, with the manner in which these entities are Commission’s record-retention rules. appropriate modifications, into part 366 to ‘‘make available’’ their books and 49. However, as discussed below, this of the Commission’s regulations. records to the Commission and ‘‘the transition period will not apply to the Furthermore, as explained above, we form or forms of all statements, filing of FERC–65 (Notification of will not adopt into the Commission’s declarations, applications, and reports Holding Company status). Accordingly, regulations the SEC’s Uniform System of to be filed with the Commission.’’ all persons that are holding companies Accounts and record-retention rules at 53. For the same reasons, we similarly within the meaning of PUHCA 2005 on this time. Instead, we will initiate a reject the argument submitted by AGL the effective date of PUHCA 2005 will separate rulemaking proceeding to Resources, who notes that the SEC was be required to file FERC–65 within 30 address how the Commission’s Uniform empowered to require the filing of days of the effective date of PUHCA System of Accounts and record- reports by section 14 of PUHCA 1935, 2005 to inform the Commission of their retention rules in parts 101, 125, 201, which has been repealed, and concludes holding company status (and by the and 225 of its regulations can be from the fact that Congress has not same date, holding companies seeking modified to adopt or otherwise integrate enacted an identically-worded provision exemption or waiver must file a separate the relevant parts of the SEC’s Uniform in PUHCA 2005 that the Commission FERC–65A (Exemption Notification) or System of Accounts and record- lacks the authority to require entities to FERC–65B (Waiver Notification) to retention rules. file any reports under PUHCA 2005. assert their claims that they qualify for 52. We reject the contention AGL Resources’ interpretation appears the statutory exemptions contained in submitted by EPSA and others that the to rest on the erroneous assumption section 1266(a) of EPAct 2005 or the Commission lacks the authority under that, by using the terms ‘‘maintain’’ and other exemptions and waivers adopted PUHCA 2005 to adopt SEC regulations ‘‘make available,’’ Congress necessarily in this Final Rule). Any entities that (or versions thereof) and that doing so meant that entities were only required become holding companies after the is contrary to Congress’ intent in to make these books and records effective date of PUHCA 2005 will be repealing PUHCA 1935. The accounting, available to the Commission on the required to file FERC–65 no later than record-retention and filing requirements entities’ premises, rather than in the 30 days after becoming a holding adopted herein impose no substantive form of a report filed with the company. FERC–65 is in lieu of the restrictions and prior approval Commission. Had Congress meant to NOPR proposal to adopt SEC Form U– requirements such as those contained in restrict the Commission’s access to 5A, but will contain a subset of the PUHCA 1935. Moreover, sections books and records in this manner, it information that the Commission 1264(a) and 1264(b) of EPAct 2005 clearly could have done so, as it did originally proposed to be filed. FERC–65 expressly require each holding company with respect to state commissions under will be an information-only filing. We and each associate company, affiliate or section 1265; section 1265 provides that find that it is appropriate to impose this subsidiary thereof to ‘‘maintain’’ and entities are to ‘‘produce for inspection’’ notification requirement on all holding ‘‘make available’’ books and records as ‘‘upon * * * written request’’ of a state companies equally because it will the Commission determines are relevant commission a much more limited range permit the Commission to identify the to costs incurred by a public utility or of documents. Here, in section 1264 companies that may have books and natural gas company and necessary or (and sections 1272 and 1270), Congress records relevant to jurisdictional appropriate for the protection of utility chose not to adopt such a restriction. responsibilities under the FPA and the customers with respect to jurisdictional 54. Finally, we note that, where NGA. This notification requirement, rates. In turn, section 1272(1) of EPAct appropriate, we have removed from the moreover, will impose only a de 2005 directs the Commission to issue SEC regulations adopted herein all minimis burden. such regulations as may be necessary or references to PUHCA 1935 and related 50. We reject the recommendation of appropriate to implement PUHCA 2005, SEC regulations and, where appropriate, Georgia PSC that the Commission retain including section 1264. In addition, replaced them with references to all SEC regulations and ensure section 1270 of EPAct 2005 states that PUHCA 2005 or to the relevant collection of the same information as that the Commission shall have the Commission regulations. Therefore, we under PUHCA 1935. As we emphasized same powers as set forth in sections 306 will not further address in this Final above, Congress repealed PUHCA 1935 through 317 of the FPA to enforce the Rule the various comments received and nowhere in PUHCA 2005 did it give provisions of PUHCA 2005. In this suggesting that we remove such us the same substantive regulatory regard, we note that section 309 of the references. authority that the SEC had under FPA grants the Commission the power PUHCA 1935. Accordingly, we will to perform any and all acts and to c. Comments on Particular SEC adopt only those SEC regulations that prescribe by order, rule or regulation, as Regulations would be consistent with Congress’ it may find necessary or appropriate to 17 CFR 250.1 and 259.5A (Form U–5A) intent in enacting PUHCA 2005, carry out the provisions of the FPA, ‘‘the Comments namely, those that provide the form of all statements, declarations, Commission with access to books and applications, and reports to be filed 55. SEC Form U–5A requires each records relevant to the costs incurred by with the Commission.’’ 49 PUHCA 2005 non-exempt holding company to submit a public utility or natural gas company did not specify the manner in which a complete list of corporate affiliates and necessary or appropriate for the books and records are to be made and brief description of the kind of protection of public utility or natural available to the Commission, and, in the business each affiliate transacts. APPA/ gas company customers with respect to face of statutory silence on this specific NRECA support the adoption of 17 CFR jurisdictional rates. issue and the clear statements in 250.1, which will require each public 51. With respect to FirstEnergy’s sections 1272 and 1270 of EPAct 2005, utility holding company to inform the request that we amend section 366.2(e), Commission of its status. As to we note that we are not adopting this 49 16 U.S.C. 825h (2000); accord 15 U.S.C. 717o exemptions, APPA/NRECA argue that paragraph in the Final Rule. Instead, to (2000). the Commission should distinguish
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between the exemption available under submit FERC–65 (Notification of Commission analogue to 17 CFR section 1266(a) (for QFs, EWGs and Holding Company status) and, for 250.1(a) (i.e., the SEC’s registration FUCOs) and 1266(b) (for persons and companies seeking exemption or requirement) is tantamount to re- classes of transactions ‘‘not relevant to waiver, FERC–65A (Exemption imposing the registration requirement the jurisdictional rates of a public utility Notification) or FERC–65B (Waiver under PUHCA 1935. First and foremost, or natural gas company’’), so that the Notification) within 30 days of the the Commission in the NOPR proposed notification the Commission requests effective date of PUHCA 2005, February to use a version of the SEC Form U–5A would be limited to section 1266(a). 8, 2006. Furthermore, any entity that as a notification requirement, not as a According to APPA/NRECA, the becomes a holding company after the registration requirement. Moreover, in ‘‘relevance’’ exemption of section effective date of PUHCA 2005 must this Final Rule, we are not adopting the 1266(b) requires more Commission submit FERC–65 (and, if appropriate, proposal in the NOPR to require attention, in the form of general FERC–65A or FERC–65B) within 30 submission of SEC Form U–5A and standards to be applied case by case.50 days of the date on which such entity instead using what is called FERC–65 56. Energy East Corporation (Energy becomes a holding company. This filing (Notification of Holding Company East) opposes the adoption of this will be for informational purposes and Status). This notification requirement section because it contends that the will not be noticed in the Federal simply requires persons that are holding notification requirement is inconsistent Register, but will be available on the companies to inform the Commission of with the statement in the NOPR Commission’s website. their status as such and thus that they indicating that the Commission does not 59. As discussed above, entities are subject to the Commission’s access intend to reimpose the registration seeking exemption or waiver may do so to books and records under PUHCA requirement. Energy East states that the by filing FERC–65A or FERC–65B, along 2005. As commenters have noted, the Commission could simply instead rely with their FERC–65. All notifications of registration system established by on disclosure in FERC Forms 1 and 2 exemption or waiver submitted on PUHCA 1935 was part of a pervasive which require a public utility or natural FERC–65A and FERC–65B will be regulatory regime addressing virtually gas company to state the name of any noticed in the Federal Register. all aspects of a registered holding controlling corporation, the manner in 60. However, we will limit the use of company’s and its subsidiaries’ which control is held and the extent of FERC–65A and FERC–65B to those financial and corporate activities, while control.51 Similarly, Dominion persons who claim that they qualify for PUHCA 2005 is a narrower statute Resources, Inc. (Dominion) and EEI state one of the mandatory statutory intended to give the Commission access that the Commission’s intention to not exemptions in section 1266(a) (i.e., that to books and records relevant to costs reimpose the registration requirement is they are a holding company solely with incurred by a public utility or natural inconsistent with the adoption of the respect to one or more EWGs, FUCOs, gas company and necessary or or QFs) or for one of the class three filing requirements set forth in appropriate for the protection of utility exemptions or waivers that the section 250.1 (i.e., SEC Forms U–5A, U– customers with respect to jurisdictional Commission adopts in this Final Rule, 5B, and U–5S).52 rates. For the Commission to carry out which are listed in section 366.3(b) and 57. Dominion agrees with retention of its jurisdictional rate responsibilities, it (c) of the Commission’s regulations, or the Form U–5A filing requirement must be able to identify the entities that in subsequent rules or orders. Persons because this form is considerably less are holding companies of jurisdictional will be considered to have a temporary burdensome than either Form U–5B or public utilities or natural gas exemption or waiver upon a good faith U–5S. Dominion also suggests that this companies. The requirement to notify filing of FERC–65A or FERC–65B and form be revised to provide for a claim the Commission facilitates our ability to the exemption or waiver will be deemed of exemption under section 1266 of do so and is thus consistent with 53 granted after 60 days from the date of EPAct 2005. Scottish Power PLC the filing, absent Commission action to Congress’ intent in enacting PUHCA (Scottish Power) also supports the the contrary before that date. The Office 2005, and, in any event, is hardly retention of Form U–5A and suggests of the Secretary will periodically issue burdensome. that the Commission consider adding a a notice listing the persons whose 17 CFR 250.26 component to the Form U–5A to allow notifications of exemption or waiver Comments a holding company to make a claim for have gone into effect by operation of the an exemption from the books and Commission’s regulations, i.e., in the 63. 17 CFR 250.26 directs registered 54 records requirements of section 1264. absence of Commission action to the holding companies and their Commission Determination contrary within 60 days after the date of subsidiaries to comply with a number of filing. SEC accounting and record-keeping 58. The Commission will adopt in 61. Persons seeking any other type of rules, including Regulation S–X, the section 366.4(a) of its regulations a exemption or waiver must file a petition equity accounting method, and the provision analogous to that contained in for declaratory order pursuant to section record-retention rules in 17 CFR Part paragraph (a) of 17 CFR 250.1. However, 385.207(a) of the Commission’s 257. E.ON and LG&E Energy assert that the Commission will not require regulations, as required by section section 250.26(c), which requires holding companies to submit a 366.3(d) of the regulations adopted holding companies to use the equity Commission-adopted version of SEC herein. These petitions for declaratory method of accounting for investments in Form U–5A and will instead require order will be noticed in the Federal subsidiaries, is outside the jurisdiction persons that are holding companies on Register and no temporary exemption or of the Commission under section 1264 the effective date of PUHCA 2005 to waiver will attach. Such requests for of EPAct 2005 and should not be 55 50 exemptions or waivers will be adopted by the Commission. APPA/NRECA Comments at 24. considered case-by-case and deemed 51 Energy East Comments at 4. Dominion and EEI argue that section 52 Dominion Comments at 11–12, EEI Comments granted only upon order of the 250.26(b), which deals with information at 16. Commission. to be supplied with Form U–5S, should 53 Dominion Comments at 12. 62. We reject the assertion of Energy 54 Scottish Power Comments at 4. East and others that the adoption of a 55 E.ON/LG&E Energy Comments at 16.
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be deleted and that sections 250.26(c) exist on the day before the effective date 17 CFR 250.80 and (g) should not be adopted by the of PUHCA 2005, for calendar year 2006. Comments Commission. Moreover, EEI and These entities must transition to the Dominion argue that, rather than Commission’s rules by January 1, 2007. 68. Section 250.80 defines the terms ‘‘construction,’’ ‘‘goods,’’ and adopting section 250.26(d), which 17 CFR 250.27 mandates the use of SEC record- ‘‘services,’’ as used in the SEC retention policy, holding companies Comments regulations under PUHCA 1935. APPA/ should have the option of following 65. 17 CFR 250.27 requires registered NRECA support the adoption of section either SEC or Commission document holding companies and public-utility 250.80, but suggest that the Commission retention requirements.56 EPSA states company subsidiaries thereof that are should import the definitions of that 17 CFR 250.26 pertains to financial not subject to the Commission’s or a ‘‘service,’’ ‘‘goods,’’ and ‘‘construction’’ recordkeeping requirements that would state commission’s system of accounts in this section into its own rules.62 EEI conflict with accounting and reporting to conform to a classification of and Dominion also support the adoption requirements that many non-registered accounts prescribed by the Commission. of this section.63 E.ON and LG&E Energy holding company systems are not If the public-utility company subsidiary also endorse the Commission’s proposal currently required to follow, i.e., is a gas utility company, it must to adopt section 250.80.64 Regulation S–X. Moreover, EPSA notes conform to the system of accounts Commission Determination that Rule 250.26 prohibits any company recommended by NARUC. According to in a registered holding company system Dominion and EEI, it is questionable 69. We agree with APPA/NRECA and to declare or pay dividends or reacquire whether this rule currently applies to other commenters, and as these terms its securities absent SEC approval under any companies and whether there are and their definitions are relevant under section 12 of PUHCA 1935.57 Finally, any public utility companies under PUHCA 2005, we will adopt the Energy East opposes the adoption of this PUHCA 1935 that would not be subject definitions contained in 17 CFR 250.80 rule because all top-tier registered to the Commission’s Uniform System of in section 366.1 of the Commission’s holding companies are public issuers Accounts or the requirements of a state regulations and thereby import the and most large holding companies utility commission. In addition, SEC’s definitions of these terms for the subject to PUHCA 2005 are likely to be Dominion and EEI assert that section purposes of PUHCA 2005. In addition, public issuers and are thus already 250.27 is potentially inconsistent with we will remove references to PUHCA required to prepare financial statements the waiver of Part 101 of the 1935, where appropriate, as we have in accordance with Regulation S–X, Commission’s regulations commonly done with the other regulations adopted unless exempted by other SEC rules or received in connection with an in this final rule. form instructions.58 authorization to sell power at market- based rates because this section would 17 CFR 250.93 and 17 CFR Parts 256 Commission Determination subject to Part 101 any public utility and 257 64. With respect to the concerns under the FPA that is not required to Comments expressed by E.ON and LG&E Energy on comply with it.59 70. Section 250.93 requires service the use of the equity method of 66. APPA/NRECA oppose the companies to adopt the SEC’s Uniform accounting for investments in adoption of this section because it does System of Accounts in 17 CFR Part 256 subsidiaries and Energy East and EPSA not seem to add anything presently and its record-retention rules in 17 CFR regarding SEC Regulation S–X, the required by the Commission’s Uniform Part 257. Some commenters opposed the Commission is not adopting paragraph System of Accounts.60 Finally, Energy adoption of these SEC regulations, while (a)(1) of 17 CFR 250.26 (a)(1), which East opposes the adoption of this others supported their adoption or mandates compliance with this SEC section as unnecessary because there is suggested various ways in which their Regulation S–X, or paragraph (c), which no evidence that utilities subject to the application could be limited, in mandates use of the equity method of Commission’s ratemaking jurisdiction particular, by allowing holding accounting. In addition, the lack a uniform system of accounting companies and service companies to Commission is not adopting paragraph standards.61 adopt the Commission’s Uniform (b), which requires certain information Commission Determination System of Accounts in Part 101 of its to be supplied with the Form U–5S, or regulations and its record-retention paragraph (g), which is a cross reference 67. We agree with commenters that rules under Part 125 of its regulations.65 to 17 CFR 250.26. Also, as this provision should not be adopted as recommended by Dominion and EEI, the part of the Commission’s regulations 71. Dominion and EEI agree with the Commission will not adopt paragraph because it does not add anything to the Commission’s proposal to adopt the (d) regarding the SEC rules on record Commission’s Uniform System of SEC’s Uniform System of Accounts. retention in 17 CFR Part 257. Instead, as Accounts. All public utilities and However, they state this system of discussed above, we will permit holding natural gas companies, except those that accounts closely tracks the requirements companies registered under PUHCA have been granted waiver of the of SEC Form U–13–60 and therefore 1935 and service companies within Commission’s accounting, record- includes a number of components that such holding company systems that retention, and reporting requirements no longer will be relevant following currently follow the SEC’s record- (e.g., power marketers), already repeal of PUHCA 1935. They thus retention rules in 17 CFR Part 257 to maintain their books and records in recommend that the Commission adopt follow either the Commission’s or the accordance with the Commission’s only those portions of 17 CFR Part 256 SEC’s record-retention rules, as they Uniform System of Accounts in Parts that correspond to the information it 101 and 201 of its regulations. 56 Dominion Comments at 12, EEI Comments at 62 APPA/NRECA Comments at 25–26. 17. See also Southern Company Services, Inc. 59 Dominion Comments at 12–13, EEI Comments 63 Dominion Comments at 13, EEI Comments at (Southern Company Services) Comments at 5. at 18. 18. 57 EPSA Comments at 11. 60 APPA/NRECA Comments at 25. 64 E.ON/LG&E Energy Comments at 14. 58 Energy East Comments at 7. 61 Energy East Comments at 9. 65 But see APPA/NRECA Comments at 25–26.
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recommends be included with SEC 2005 to maintain and make available adequately addressed in the Form U–13–60.66 books and records apply equally to all Commission’s Uniform System of 72. Dominion and EEI also argue that holding companies and affiliates, Accounts. holding company service companies associate companies, and subsidiaries should have the option of adopting the 17 CFR 250.94 and 259.313 (Form U– thereof, regardless of their registered or 13–60) Commission’s Uniform System of exempt status under PUHCA 1935, Accounts and record-retention rules absent a prospective exemption or Comments instead of the SEC’s. They further waiver. Nevertheless, the Commission 78. Service companies are required by contend that there is no reason that any recognizes the long-standing differences 17 CFR 250.94 and 259.313 to file SEC company that currently follows the in the treatment of these classes of Form U–13–60, which is the annual Commission’s record-retention entities under PUHCA 1935 and SEC report for service companies in regulations should be required to adopt regulations, namely, that companies in registered holding company systems. It those found in 17 CFR part 257 and that formerly-registered holding companies requires the submission of the service the Commission could reconcile the systems were subject to PUHCA 1935 company’s financial statements for each differences between the two sets of and the SEC’s accounting and other calendar year prepared using the SEC’s requirements in a subsequent regulations thereunder, while Uniform System of Accounts. It also rulemaking.67 companies in formerly-exempt holding contains certain supporting schedules 73. Entergy encourages the company systems were not. We will providing a more detailed analysis of Commission to consider limiting the therefore provide all holding companies amounts recorded in individual applicability of these requirements to and service companies with a accounts, an analysis of billings to service companies and, in the case of reasonable period of time to transition associated and non-associated the record-retention requirements to the Commission’s regulations under companies, expense distribution by imposed under 17 CFR part 257, PUHCA 2005. Specifically, all service company department, and an limiting the scope of these requirements traditional, centralized service accompanying statement of methods of to information that bears a direct companies that do not currently follow cost allocation. relationship to costs incurred by service the Commission’s Uniform System of 79. Several commenters support the companies or other associate companies Accounts (Parts 101 and 201) will have adoption of 17 CFR 250.94 and 259.313. whose costs are reflected in the until January 1, 2007 to comply with the APPA/NRECA support the retention of jurisdictional rates or charges of public 17 CFR 250.94 and Form U–13–60.71 68 Commission’s Uniform System of utilities. Accounts, and all holding companies Energy East states that it is beneficial to 74. Energy East also opposes the and service companies that do not have one form of service company adoption of 17 CFR part 257 because, it currently follow the Commission’s report that could be filed with the contends, some of the SEC’s records record-retention requirements (Parts 125 Commission and state commissions that retention requirements are outdated, and 225) will have until January 1, 2007 require affiliate transactions reporting particularly as to the storage media to comply with the Commission’s and thus supports the proposed SEC specified, given information storage and Form U–13–60 filing requirement, with retrieval technologies that are now record-retention requirements. Furthermore, traditional, centralized which the states are already familiar. available and in common use. The Energy East further recommends that Commission’s rules are more flexible service companies within registered holding company systems that currently the Commission focus the requirements because a public utility or licensee may of Form U–13–60, as recommended by select its own storage media subject to follow the SEC’s Uniform System of Accounts in 17 CFR part 256 have the EEI, on the information that is most conditions related to life expectancy relevant to allocations of costs.72 and internal control procedures to option to follow either the Commission’s or the SEC’s Uniform 80. Dominion and EEI also note that assure data reliability. Energy East thus the current Form U–13–60 requires urges the Commission to expand its Part System of Accounts, as they exist on the day before the effective date of PUHCA companies to file a substantial amount 125 rules, making them applicable to of information that is not relevant to the public utilities, service companies, and 2005, for calendar year 2006. Similarly, all holding companies and service Commission’s duties under PUHCA holding companies.69 2005. EEI therefore proposes that the 75. Finally, APPA/NRECA suggest companies within registered holding company systems that currently follow balance sheet and income statement that the Commission adjust the portions of the Form U–13–60 be requirements of the SEC’s Uniform the SEC’s record-retention rules in 17 CFR part 257 have the option to follow retained, but that a number of accounts System of Accounts to make them and schedules not relevant to cost- consistent with the Commission’s either the Commission’s or the SEC’s record-retention requirements, as they allocation issues be eliminated, as these Uniform System of Accounts under the accounts and schedules in question are 70 exist on the day before the effective date FPA applicable to public utilities. extremely time consuming to prepare of PUHCA 2005, for calendar year 2006. and in some cases require invoice level Commission Determination But, as discussed above, these entities detail to complete, and EEI offers 76. As discussed above, the must transition to the Commission’s suggestions as to accounts and requirements of section 1264 of EPAct rules by January 1, 2007. schedules that should be modified.73 77. However, traditional, centralized Finally, EEI requests that the 66 Dominion Comments at 16, EEI Comments at service companies following the 20. Commission clarify that the form 67 Dominion Comments at 16–17, EEI Comments Commission’s Uniform System of applies to system service companies and at 20–21. According to Dominion and EEI, to the Accounts must also comply with the provide a definition of ‘‘service extent the coverage of the SEC requirements is General Instructions and other company’’ in section 366.1 that tracks broader than the Commission’s, the additional requirements contained in the SEC’s requirements relate largely to securities matters that the language in section 1275(b) of are no longer relevant under PUHCA 2005. Uniform System of Accounts. These 68 Entergy Comments at 6. instructions and requirements pertain 71 APPA/NRECA Comments at 25–26. 69 Energy East Comments at 9. specifically to service company 72 Energy East Comments at 10. 70 APPA/NRECA Comments at 25. accounts and are not, at present, 73 Id.
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PUHCA 2005, i.e., ‘‘a company report. Traditional, centralized service NGA, and in its review and approval of organized specifically for the purpose of companies in formerly-registered cost-allocations under section 1275 of providing non-power goods and services holding company systems must submit EPAct 2005. The accounting, record- to any public utility in the same holding their first FERC Form No. 60, for retention, and reporting rules for service company system.’’ 74 calendar year 2005, by May 1, 2006, companies that we are adopting in this 81. E.ON and LG&E Energy contend while traditional, centralized service Final Rule are a measured response to that the implementation of section companies in formerly-exempt holding the need for information about service 250.94 and Form U–13–60 is beyond the company systems will have until May 1, company costs and functions necessary scope of the jurisdiction granted to the 2008, to submit their first annual report, for the Commission to carry out its Commission in section 1275 of EPAct for calendar year 2007, on FERC Form statutory responsibilities. Finally, in 2005, which is much more limited than No. 60. response to EEI’s request that the that granted to the SEC to authorize the 83. SEC Form U–13–60 contains a set Commission provide a definition of organization and conduct of service of financial statements for service service company that tracks the companies under section 13 of PUHCA companies, detailed supporting language in section 1275(b), we note 1935. They suggest that, if it is schedules, organizational charts, a list of that we have added a definition of nonetheless appropriate for the cost-allocation methods they use, and service company in section 366.1 of the Commission in its administration of other information. Prior to the repeal of Commission’s regulations. PUHCA 2005 to impose reporting PUHCA 1935, the companies to which 85. While we believe an annual requirements under the FPA, the nature these reporting requirements applied reporting requirement for service and extent of such reports should be were entities formed specifically for the companies is an important tool to aid limited to those matters over which the purpose of providing non-power goods the Commission in carrying out its Commission is granted jurisdiction. and services to a public-utility responsibilities under the FPA and They further contend that Form U–13– company, as defined in section 366.1 of NGA, and its review of cost allocations 60 largely contains information which is the Commission’s regulations, of a requested under section 1275 of PUHCA not relevant to the jurisdiction of the holding company system. In 17 CFR 2005, as noted above, we have Commission and propose that the 250.80, the SEC defined the type of considered the comments received Commission should instead require that specialized services that these regarding the current content of SEC FERC Form 1 be supplemented to traditional, centralized service Form U–13–60 and concluded that include the following information: (i) companies provided to public-utility some, but not all, recommendations for Annual filing of cost-allocation companies within their holding modifications and deletions of certain methodology used by the service company systems, and we have taken schedules should be adopted. company to allocate costs; (ii) annual over this definition in section 366.1 of Specifically, there are a number of 76 filing of statement of receivables from our regulations. With the repeal of schedules currently contained in the and payables to associated companies, PUHCA 1935 and its associated rules on SEC Form U–13–60 that provide a identified by associate company name; cross-subsidization, diversification, and greater level of detail for some items and (iii) annual filing of all charges requirements to obtain SEC approval for than the Commission will require in received by associate companies from a affiliate transactions and the formation FERC Form No. 60 to carry out its services company, identified by of service companies, these traditional, statutory responsibilities. Therefore, we associate company and by FERC centralized service companies may will not carry over from SEC Form U– account.75 increasingly provide centralized 13–60 to FERC Form No. 60 the services not only for public utility requirement to submit supporting Commission Determination affiliates, but also for non-utility schedules for Outside Services 82. Based on the comments received, affiliates of financial institutions or Employed, Employee Pensions and the Commission has decided not to other industrial conglomerates, Benefits, General Advertising Expenses, adopt SEC Form U–13–60, and the increasing the opportunity for cross- Rents, Taxes Other than Income Taxes, Commission will instead require subsidization. Donations, and Other Deductions. traditional, centralized service 84. The annual financial reporting 86. We will not, however, adopt EEI’s companies to file their annual reports requirement for service companies in request to delete Schedule XIII—Current on FERC Form No. 60, attached as FERC Form No. 60, which is based on and Accrued Liabilities. This schedule Appendix 2, which is based on a a truncated version of SEC Form U–13– contains information about the streamlined version of SEC Form U–13– 60, will provide transparency and will outstanding balances of accounts and 60. FERC Form No. 60 substantially enable the Commission and others to notes payable to associated companies. reduces the amount of information better monitor for cross-subsidization. We consider this information to be required by SEC Form U–13–60 by Such information will aid the integral to understanding inter-company deleting certain schedules not necessary Commission in carrying out its statutory transactions and cost allocations within to fulfill our jurisdictional duties in a number of contexts, the holding company system. 87. We also will not adopt requests to responsibilities. Section 366.23 of the including in its assessment of whether modify or delete the Schedule of Commission’s regulations, which are a given disposition of jurisdictional Expense by Department or Service based on 17 CFR 250.94 and 259.313, facilities under section 203 of the FPA will result in cross-subsidization, in its Function or the Departmental Analysis will thus require all traditional, of Salaries. This information is relevant centralized service companies to file ratemaking under sections 205 and 206 of the FPA and sections 4 and 5 of the to affiliate costs recovered in with the Commission FERC Form No. 60 jurisdictional rates. Section 1275(b) of by May 1 of the year following the 76 EPAct 2005 specifically requires the calendar year that is the subject of the Section 366.1 defines these ‘‘services’’ as ‘‘any managerial, financial, legal, engineering, Commission in certain circumstances to purchasing, marketing, auditing, statistical, review and authorize the allocation of 74 Dominion Comments at 14, EEI Comments at advertising, publicity, tax, research, or any other 19. service (including supervision or negotiation of costs for non-power goods or services 75 E.ON/LG&E Energy Comments at 15–16. See construction or of sales), information or data, which provided by service companies to public also Entery Comments at 6. is sold or furnished for a charge.’’ utilities within the same holding
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company system. The determination of 90. APPA/NRECA support the deemed to be necessary or appropriate proper cost allocation requires retention of Form U–5S.78 Georgia PSC for the protection of utility customers knowledge of the total costs and how also supports the adoption of this with respect to jurisdictional rates. The they are distributed within the holding reporting requirement, and suggests that Commission should also provide a clear company system, particularly to the the Commission should add cash flow explanation of why each category of jurisdictional entity(ies). The statements to the Financial Statement information that is to be maintained is submission of the information in this and Exhibits section of Form U–5S.79 within the statutory limits.82 Finally, schedule will facilitate the 91. The majority of commenters, FirstEnergy notes that Item 10 of Form Commission’s understanding of cost however, oppose the adoption of Form U–5S contemplates that the annual allocations within the holding company U–5S. EEI argues that the Form U–5S report for each holding company system system.77 The Departmental Analysis of filing requirement should not be include consolidating financial Salaries shows how salary expenses are adopted because it imposes burdensome statements for the parent holding allocated to each parent company, and duplicative information collection company and each of its subsidiaries for associate company, and non-associate requirements. EEI states that, although the year of the report, and will be company based on the department or the Office of Management and Budget accompanied by the opinion of the service function allocation methods. estimates that companies need independent accountants as to the This schedule is a tool to determine approximately 13 hours to complete consolidated financial statements. This whether cost allocations are being made Form U–5S, in the experience of EEI’s requirement for an accountant’s opinion in accordance with the authorized registered holding company members imposes additional costs of obtaining an methods of cost allocation and whether this form requires hundreds of hours to opinion of the independent accountants inappropriate cross-subsidization has complete and as a result imposes with respect to the consolidated occurred. The Schedule of Expense by millions of dollars in costs on ratepayers financial statements. Because the Department or Service Function and shareholders. Much of the financial statements of the individual similarly promotes this end. information required by Form U–5S is subsidiaries would have been audited 88. Finally, the Commission will not contained in other public filings, and opinions prepared in anticipation of adopt EEI’s recommendation to delete including the Commission’s Form 1 and development of consolidated financial the supporting schedule for Account 3Q and the quarterly and annual reports statements, this need for an additional 930.2, Miscellaneous General Expenses. that companies file with the SEC on opinion with respect to the consolidated Account 930.2 is a catch-all account for Forms 10–Q and 10–K. Other financial statements is not necessary recording expenses not provided for information included in the Form U–5S and should be eliminated.83 elsewhere. A single-sum total for this relates to matters that repeal of PUHCA 94. Entergy submits that the proposed account simply does not provide 1935 has made irrelevant and that implementation of the comprehensive sufficient information about the nature holding companies no longer should be reporting requirements of the Form U– of the items included in the account or required to file.80 5S is unduly burdensome and the associated amounts for each item. 92. Similarly, AGL Resources and unnecessary for the Commission to The additional disclosure that this Emera Incorporated (Emera) argue that prevent cross-subsidization or otherwise schedule provides therefore remains the information solicited by this SEC to achieve purposes within the scope of important for understanding service form is generally irrelevant to the its jurisdiction. Entergy asserts that, at a company costs and functions. Commission’s ratemaking jurisdiction. minimum, the Commission should at Additionally, we note that a similar They further contend that the least review the individual items in the schedule is required for the FERC Form Commission already obtains the rules and SEC Forms and determine No. 1 submitted by public utilities. information that it needs to regulate what, if any, additional information is public utilities and natural gas really necessary for it to discharge its 17 CFR 259.5S (Form U–5S) companies on FERC Forms 1 and 2 and statutory obligations under PUHCA Comments that the Commission’s need for holding 2005 or the FPA.84 company-level information can be 89. SEC Form U–5S is the annual satisfied by reviewing regular SEC Commission Determination report registered holding companies reports on Forms 10–K, 10–Q and 8–K, 95. We will not require entities that must submit, which includes and by soliciting targeted information are holding companies under PUHCA information about the company’s on a case-by-case basis should particular 2005 to continue to file SEC Form U– corporate structure, board of directors, issues arise. Finally, they argue that the 5S. We agree with commenters that the acquisitions or sales of utility assets, Commission should delay the information in this form is available in securities transactions, investments in imposition of additional reporting other Commission or SEC filings and/or companies outside the holding company requirements until it has had sufficient is not relevant to costs incurred by family, political contributions, contracts time to evaluate the extent of its jurisdictional entities and is not between the service company and utility information needs.81 necessary or appropriate for the affiliates; relations between the holding 93. FirstEnergy suggests that, to the protection of utility customers with company and any EWG or FUCO, and extent that the Commission desires to respect to jurisdictional rates. a copy of the company’s yearly financial utilize information contained in those d. Other Issues Concerning Adoption of reports. forms, it should modify those forms so that the only information required to be SEC Regulations 77 As discussed elsewhere in this Final Rule, maintained is information that is Comments although we have the authority to require the filing of cost allocation agreements pursuant to our 96. NARUC submits that the 78 ratemaking authority under sections 4 and 5 of the APPA/NRECA Comments at 25–26. Commission should retain the reporting 79 NGA and sections 205 and 206 of the FPA, we will Georgia PSC Comments at 2. requirement set forth in 17 CFR not do so because the Commission believes that the 80 EEI Comments at 5. See also E.ON/LG&E submission of relevant cost-allocation information Energy Comments at 14, PacifiCorp Comments at 5, on FERC Form No. 60 provides a less burdensome Progress Energy Comments at 5. 82 FirstEnergy Comments at 5–6. method for collecting this information, for both 81 AGL Resources Comments at 4, Emera 83 Id. at 7. See also Emera Comments at 10. services companies and the Commission. Comments at 10. 84 Entergy Comments at 6.
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250.58(c), Quarterly Report on Form U– should continue to be made, but should 102. Detroit Edison submits that 9C–3 because this form contains now be made with the Commission. section 366.2 as currently worded is far information that is not reflected in the 100. We will not grant Detroit too open-ended, and leaves holding Annual Report on Form U–13–60.85 FPL Edison’s requested clarification that the companies in an untenable state of Group, Inc. (FPL Group) suggests that Commission will not require any uncertainty with respect to the the Commission adopt a simplified holding company (or its associate relevance of any ‘‘books, accounts, annual filing requirement based solely companies) to maintain books and memoranda’’ or ‘‘other records.’’ 91 on Part 3 of Form U–3A–2, which records that are not used in preparing PacifiCorp concurs and urges that, at a quarterly and annual filings for the requires the submission of certain minimum, the Commission clarify that Commission. The clarification Detroit quantifiable factors upon which the it will provide a notice-and-comment exemption is based. Other provisions in Edison requests could produce loopholes in holding company proceeding before expanding its current Form U–3A–2 should not be adopted, as information collection under this they are redundant to other required obligations to maintain and make provision.92 filings under the books and records available to the Commission their books provisions (to which exempt holding and records in sufficient detail to permit Commission Determination companies previously were not subject), examination, audit, and verification of or would not assist the Commission in the financial statements, schedules, and 103. In PUHCA 2005, Congress left it making the PUHCA 2005 exemption reports they are required to file with the to the Commission’s discretion to determination.86 PacifiCorp and Commission or that are issued to determine what books and records are Scottish Power argue that the shareholders, as required by sections relevant to the costs incurred by a Commission should not adopt any rules 366.21 and 366.22. For example, we will public utility or natural gas company similar to that of 17 CFR 250.24 which not carry over from SEC Form U–13–60 and necessary or appropriate for the require holding companies and their to FERC Form No. 60 the requirement to protection of public utility or natural subsidiaries to file certificates of submit a schedule that provides a more gas company customers with respect to notifications regarding terms and detailed breakdown of outside services, jurisdictional rates. We do not find it but the removal of this schedule does conditions to declarations and order appropriate here to follow APPA/ not relieve the traditional, centralized issued by the SEC prior to the NRECA’s suggestion that we provide a enactment of PUHCA 2005.87 service company of its obligation to provide this information upon request general definition of relevance. We have 97. Detroit Edison requests that the by the Commission. If we were to adopt instead adopted the requirements in Commission narrow the scope of the Detroit Edison’s suggested clarifying Part 366 of the Commission’s rule by clarifying that the Commission language, the traditional, centralized regulations. In particular, sections will not require any holding company service company (which is an associate 366.21 and 366.22 require that holding (or its associate companies) to maintain company within the holding company companies and service companies books, records or memoranda that are system) could argue that it does not maintain books and records of their not used in preparing quarterly and have to provide the requested transactions in sufficient detail to 88 annual filings for the Commission. information because it was not kept as permit examination, audit, and Commission Determination it was not necessary to complete FERC verification of the financial statements, Form No. 60. schedules, and reports they are required 98. The FERC–65 (Notification of e. Other Comments on the NOPR to file with the Commission or that are Holding Company Status) and FERC issued to shareholders. We will provide Form No. 60 (Service Company Report) Definition of ‘‘Relevance’’ further guidance as to what books and adopted above will provide us with Comments records are relevant at the technical information to carry out our statutory conference that we will convene within rate responsibilities under PUHCA 101. Several commenters urge the one year of the effective date of PUHCA 2005. It is neither necessary nor Commission to clarify its standard for 89 2005 and in the separate rulemaking appropriate to require the submission of relevance under section 1264. For additional forms at this time, though, in example, APPA/NRECA propose that proceeding we will institute to address light of the first year’s submissions, the the Commission should consider the changes in the Commission’s Uniform comments received at the technical books and records relating to a corporate System of Accounts and record- conference within the next year, and our relationship or transaction, and the retention requirements. We believe that day-to-day experience in implementing parties thereto, are ‘‘relevant’’ if there is these provisions provide adequate PUHCA 2005, we do not foreclose the a reasonable possibility that the certainty as to which books and records possibility that additional filing arrangement will affect a public utility that holding companies and service requirements will later be found affiliate in any material way, including companies need to maintain and make necessary. increasing its costs; adversely impacting available to the Commission. it financial rating or access to capital; 99. With respect to PacifiCorp and diminishing its sales opportunities; or state holding companies (or their public utility Scottish Power’s concerns, we will not adversely affecting operations, planning adopt 17 CFR 250.24. However, as affiliates) of non-utility businesses having no or maintaining activities.90 functional relationship to the public utility discussed below with respect to businesses; (iii) ownership of multiple public utility previously authorized activities, we 89 Arkansas PSC Comments at 8–11, Black Hills companies by non-utility ventures; (iv) financings have concluded that filings directed by Comments at 2–3, National Association of State by multi-state public utility companies that fall prior SEC financing authorizations Consumer Advocates (NASUCA) Comments at 7, outside standard debt-equity ratios, or that would Missouri PSC Comments at 16–18. fail the six criteria of Section 7(d)(1) of PUHCA 90 APPA/NRECA Comments at 19. According to 1935; (v) public utility loans to, or guarantees of 85 NARUC Comments at 2. APPA/NRECA, the following new corporate indebtedness of, the holding company or any other 86 FPL Group Comments at 4. relationships and transactions are of relevance to affiliate. Id. at 17–18. 87 PacifiCorp Comments at 6, Scottish Power the Commission: (i) ownership by a holding 91 Detroit Edison Comments at 5–6. See also Comments at 6. company of public utilities having no operational Cinergy Comments at 21, EEI Comments at 5. 88 Detroit Edison Comments at 6. integration with each other; (ii) ownership by multi- 92 PacifiCorp Comments at 5.
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Preemption of State Laws 301 of the FPA and section 8 of the and records of holding companies in 97 Comments NGA. accordance with that provision. With respect to Public Citizen’s request that Commission Determination 104. Several commenters request that the Commission use section 301 of the the Commission confirm that its own 107. The Commission grants APPA/ FPA to give states the opportunity to access under section 1264 does not NRECA’s proposed clarification. The request the maintenance and preempt rights to access information by Commission’s pre-EPAct 2005 access to preservation of books and records that state commissions under section 1265. books and records pursuant to section state commissions determine affect their In order to prevent future arguments 301 of the FPA and section 8 of the NGA retail rates, we do not interpret section that the federal access provisions of remains unchanged. As provided in 301 to give the Commission the section 1264 preempt state commission section 1271 of EPAct 2005, nothing in authority to provide a process for states access under section 1265, Santa Clara PUHCA 2005 limits the Commission’s to request maintenance of books and urges the Commission to grant this authority under the FPA or the NGA. records for retail purposes. Congress has clarification in the final rule.93 NARUC State Access to Books and Records addressed in section 1265 the issue of emphasizes that Congress expressly Obtained by the Commission state access to books and records of provided that states would have access holding company systems and their Comments under section 1265; that this means of members. 108. Oklahoma Corporation state access was non-exclusive; and that 3. Exemption Authority Congress did not contemplate federal Commission recommends that the occupation of this field.94 Moreover, Commission consider language that 110. Section 1266(a) of EPAct 2005 according to NARUC, there is no would allow state commissions to directs the Commission to issue a final inherent conflict between state access continue to receive notices of any rule within 90 days after the effective under either section 1265 or state law investigations of regulated public utility date of Subtitle F exempting from the and federal access under section 1264.95 companies.98 Public Citizen notes that requirements of section 1264 of EPAct Finally, Indiana Utility Regulatory Congress has not given state 2005 any person that is a holding Commission (IURC) requests that the commissions in PUHCA 2005 the right company, solely with respect to one or final regulations include language to require holding companies or their more: paralleling the language of sections associate companies to maintain, keep (1) Qualifying facilities under the 1265(d), 1267(b), 1269, and 1275(c) of or preserve any records affecting retail Public Utility Regulatory Policies Act of EPAct 2005 that confirms that the new rates, so that the state commission can 1978 (16 U.S.C. 2601 et seq. (2000)); law (and regulations promulgated under only require the maintenance of holding (2) Exempt wholesale generators; or company/associate company books and (3) Foreign utility companies. it) does not disturb historical state 111. Section 1266(b) further directs authority in the identified areas.96 records that affect only retail rates if the Commission uses its existing authorities the Commission to exempt a person or Commission Determination under FPA section 301 to do so. Public transaction from the requirements of section 1264 if, upon application or sua 105. We agree with NARUC that there Citizen thus urges the Commission to explicitly state in the final rule that the sponte: is no inherent conflict between state (1) The Commission finds that the access under either section 1265 or state Commission has the authority under FPA section 301 to require holding books and records of a person are not law and federal access under section relevant to the jurisdictional rates of a 1264. We find that our own access companies and their associates to maintain books and records that state public utility or natural gas company; or under section 1264 does not preempt (2) The Commission finds that a class commissions determine affect their rights to access information by state of transactions is not relevant to the retail rates and provide a process commissions under section 1265. With jurisdictional rates of a public utility or through which the states can request the respect to IURC’s argument, we do not natural gas company. find it necessary to adopt regulatory text maintenance and preservation of such 99 112. PUHCA 2005 requires the on this point, in light of the clear books and records. Commission to exempt any person that statutory language. Commission Determination falls within the classes designated by section 1266(a) from the requirements of Scope of Commission Authority and 109. In response to the request of section 1264, and therefore, the Access to Data Oklahoma Corporation Commission that state commissions be apprised of any Commission proposed to adopt such an Comments investigations of regulated public utility exemption. In the NOPR, however, the Commission did not propose to 106. APPA/NRECA urge the companies, we believe our current categorically exempt classes of entities Commission to explicitly state in the practices regarding the disclosure of or transactions described in section final rule that the data access granted investigations are appropriate and 1266(b) from the requirements of section under section 1264(a) of EPAct 2005 should not be broadened at this time. 1264. Rather, we proposed to rely on supplements, rather than supplants, the We are open to further consideration on case-by-case applications for these Commission’s pre-EPAct 2005 access to this point at the technical conference. exemptions until we have gained further books and records and that this pre- However, Congress set forth the rights of experience subsequent to the repeal of existing access stems from the state commissions to obtain access to PUHCA 1935. However, we sought Commission’s ratemaking authority and the books and records of companies comment on whether the Commission from the general provisions of section within a holding company system in section 1265 of EPAct 2005, and they should exempt classes of transactions involving mutual fund passive investors 93 may seek to obtain access to the books Santa Clara Comments at 23–24. See also or other groups of passive investors Arkansas PSC Comments at 21, Missouri PSC Comments at 26–27, TANC Comments at 23–24. 97 APPA/NRECA Comments at 21. from the new federal books and records 94 NARUC Reply Comments at 3. 98 Oklahoma Corporation Commission Comments access requirements. 95 Id. at 3–4. at 4. 113. Finally, we noted that, although 96 IURC Comments at 6. 99 Public Citizen Comments at 4. a person that is a holding company
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solely with respect to EWGs or QFs will regulations may not do so by means of assets are managed by banks, savings be exempted from the federal access to FERC–65A or FERC–65B. Such holding and loan associations and their books and records provisions in section companies must instead seek an operating subsidiaries, or brokers and 1264, many EWGs and QFs may individual exemption or waiver by dealers.105 National Grid suggests that nevertheless be public utilities under filing a petition for declaratory order the Commission should define a passive section 201 of the FPA 100 and remain pursuant to sections 366.3(e), investor as an entity that holds 50 subject to the Commission’s authority 366.4(b)(2) and 366.4(c)(2). Such percent or less of outstanding voting with regard to their books and records petitions will be noticed in the Federal securities of public utility or holding under section 301 of the FPA, unless Register. No temporary exemption or company and does not otherwise otherwise exempted.101 Below, the waiver will attach, and the requested exercise controlling influence.106 Commission addresses comments exemption or waiver will be effective Alternatively, National Grid suggests requesting that the Commission adopt only if approved by the Commission. that, if Commission does not adopt this the following exemptions or waivers: (a) 116. Finally, if a holding company proposal, it should define ‘‘holding Passive investors; (b) nontraditional that has been granted an exemption or company’’ to exclude passive investors utilities with no captive customers or waiver under section 366.4(b) or (c) fails who own, control, or hold 20 percent or non-utilities, including power to conform with any material facts or less of the outstanding voting marketers; (c) certain holding company representations presented in its securities.107 Finally, Morgan Stanley and affiliate transactions; (d) electric submittals to the Commission in FERC– recommends that the Commission power cooperatives; (e) local 65A or FERC–65B, the exemption or modify section 366.2 of the proposed distribution companies; (f) single-state waiver may no longer be relied on. Also, rules to make clear that holding holding companies; (g) holding the Commission may, on its own motion securities in the ordinary course of companies owning small generators; or on the motion of any person, revoke business as a broker/dealer, underwriter and (h) investors in independent the exemption or waiver granted under or as a fiduciary, and not exercising transmission companies. section 366. 4(b), if the holding operations control over the utility, does 114. As discussed further below, the company fails to conform to any of the not make one a ‘‘holding company.’’ 108 Commission is adopting certain specific Commission’s criteria under this part for 118. Some commenters expressed exemptions and waivers proposed by obtaining the exemption or waiver. general support for the proposed commenters. We are also providing in a. Exemption of Passive Investors exemption, but argued that passive section 366.4(b) and (c) of our investors should not be exempted when Comments regulations the procedures for filing for certain circumstances were present. exemption or waiver, which are 117. Commenters expressed near- NARUC submits that the Commission available for specified persons or classes unanimous support for an exemption for should not exempt passive investors of transactions. A holding company that mutual fund and other passive investors where either of the following conditions falls into one of the identified categories from the requirements of section occurs or is present: (1) The transaction may file for exemption or waiver by 1264.102 Commenters note that the SEC involves and will result in an ownership submitting FERC–65A (Exemption exempted passive investors under interest of ten percent or more of the Notification) or FERC–65B (Waiver PUHCA 1935 and contend that such debt or equity capital of any entity Notification) and shall be deemed to passive investors are similarly exempt within the holding company system; or have a temporary exemption or waiver from PUHCA 2005.103 EEI urges the (2) the transaction will result in the upon a good faith filing. Notices of all Commission to follow current SEC no- mutual fund or other passive investor such notifications of exemption or action letter practice for exempting groups holding two or more seats or ten waiver will be published in the Federal passive investors from holding company percent or more of the voting Register. If the Commission has taken status under section 2(a)(7) of PUHCA representation seats on the board of no action within 60 days after the date 1935 and Commission practice in directors of any entity within the of the filing, the exemption or waiver disclaiming jurisdiction under section holding company system.109 Wisconsin shall be deemed to have been granted. 201(e) of the FPA.104 Barclays requests PSC and CEOB assert that passive The Commission may toll the 60-day the Commission establish an additional, investors can exert control where their period to request additional information regulatory exclusion from the books and stock ownership or debt interest grants or for further consideration of the records requirements for passive request; in such case, the claim for them control or influence over the investments in utilities that are made by selection of the board of directors. They exemption or waiver will remain collective investment vehicles whose temporary until such time as the urge the Commission to scrutinize carefully an application for an Commission has informed the holding 102 See, e.g., APPA/NRECA Comments at 20, company of its decision to grant or deny exemption filed by a passive investor Arkansas PSC Comments at 12, Capital Research who holds the power to influence the the application by letter or order. In and Management Company Comments at 3–4, addition, the Office of the Secretary will Emera Comments at 8, E.ON/LG&E Energy outcome of any jurisdictional issue that periodically issue notices listing the Comments at 9–11, International Transmission comes before the holding company’s Company Comments at 10, Investment Adviser board of directors, and to deny the holding companies whose notifications Association Comments at 2, Investment Company Institute Comments at 2–3, Missouri PSC Comments application for exemption in those of exemption or waiver are deemed to 110 have been granted in the absence of at 19, PacifiCorp Comments at 5, Southern circumstances. MBIA Insurance, on Commission action to the contrary Company Services Comments at 9, Tri-State the other hand, argues that the Generation Comments at 8. Commission should not at this time within 60 days after the date of filing. 103 Chairman Barton Reply Comments at 5, EPSA 115. Holding companies that seek Comments at 21–22 (stating that there is a long line 105 Barclay Comments at 5. exemptions or waivers other than those of SEC no-action letter precedent addressing 106 National Grid Comments at 12. specifically identified in section passive investor equity interests in holding companies and public utility companies under 107 Id. at 14. 366.3(b) or (c) of the Commission’s PUHCA 1935 in which it was determined that 108 Morgan Stanley Comments at 9. passive investors did not own voting securities), 109 NARUC Comments at 7–8. 100 16 U.S.C. 824(e) (2000). Scottish Power Comments at 6–7. 110 CEOB Comments at 3, Wisconsin PSC 101 Id. at section 825. 104 EEI Comments at 21. Comments at 5.
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grant an across-the-board exemption for customers, the potential for standing determination that power entities that may claim passive investor ‘‘transactions undertaken by any of the marketers are public utilities under the status.111 non-traditional affiliates [affiliates FPA. As discussed above, we will without captive customers] at the follow SEC precedent for purposes of Commission Determination expense of other non-traditional interpreting PUHCA 2005 and will not 119. We agree with the majority of affiliates simply results in an allocation treat power marketers as ‘‘electric utility commenters that the Commission of revenues among the ‘non-regulated’ companies’’ under PUHCA 2005. should exempt passive investors from affiliates; the profits ultimately go to the However, this interpretation will not section 1264. Passive investors do not shareholders regardless of the entity that affect our long-standing interpretation exercise control over jurisdictional makes the sale.’’ 114 that power marketers selling at companies, and thus the Commission 122. EPSA proposes that the wholesale in interstate commerce are does not need access to their books and Commission should not consider energy public utilities under the FPA. records for purposes of ensuring just marketers (i.e., energy sellers owning no and reasonable rates. In response to the ‘‘hard’’ assets for power sales but only c. Certain Holding Company and comments of Barclay’s and Morgan contracts for wholesale or retail electric Affiliate Transactions Stanley, we will also clarify here that energy sales or retail gas sales) to be Comments the exemption for passive investors ‘‘public-utility companies’’ under the 124. MidAmerican proposes that the applies to the following entities: Mutual PUHCA 2005 definition. According to Commission exempt from proposed funds; passive investments in collective EPSA, if power marketers are not section 366.2(e) the following classes of investment vehicles whose assets are electric utility companies, their parent transactions: (i) Where the holding managed by banks, savings and loan companies would not be considered company affirmatively certifies on associations and their operating utility holding companies under behalf of itself and its subsidiaries, as subsidiaries, or brokers/dealers; and PUHCA 2005 by reason of their applicable, that it will not charge, bill or persons that directly, or indirectly ownership of such marketers. The same allocate to the public utility or natural through their subsidiaries or affiliates, logic would apply to gas marketers, and gas company any costs or expenses in buy and sell the securities of public they too, therefore, should not be connection with goods and service utilities in the ordinary course of considered gas utility companies, transactions, and will not engage in business as a broker/dealer, underwriter provided that they own no physical gas financing transactions with any public or fiduciary, and not exercising distribution assets and their gas retail utility except as authorized by a state operational control over the public sales are made through contracts.115 utility. commission or the Commission; (ii) 120. We will not adopt a specific Commission Determination transactions between or among affiliates definition of ‘‘passive investor’’ at this 123. The Commission will exempt that are independent of and do not time. Our precedent under the FPA on power marketers and other utilities that include a public utility or natural gas whether certain asset owners are do not serve captive customers and are company; and (iii) transactions between ‘‘passive’’ and thus not public utilities not affiliated with a utility that serves a public utility company or a natural gas provides guidance for purposes of captive customers (i.e., non-traditional company and an affiliate if such claiming exemption under PUHCA utilities) from section 1264 because we transactions are conducted in the 2005; further guidance may be provided find that the books and records of these ordinary course of business, occur at in the Commission’s rulemaking to entities are not necessary to protect prevailing market prices or on terms not implement EPAct 2005 amendments to customers. Although we regulate most different from those made available to section 203 of the FPA. In addition, power marketers’ rates under the FPA unaffiliated entities and do not exceed claimants should describe the relevant pursuant to their authorizations to sell individually or in the aggregate in cost facts in their FERC–65 (Notification of at market-based rates, in situations to the public utility company or natural Holding Company Status), FERC–65A where they have no captive customers gas company one-half of one percent of (Exemption Notification), or petition for and are not affiliated with anyone that its operating revenue during its most declaratory order. does have such customers, their records recent fiscal year, or are conducted in accordance with and pursuant to an b. Nontraditional Utilities With No are not necessary to fulfilling our approved rate or service tariff.116 Captive Customers or Non-Utilities jurisdictional responsibilities to ensure just and reasonable rates. With respect 125. MidAmerican states that, by Comments to EPSA’s request for exemption of granting an exemption where a holding 121. EPSA proposes that the following holding companies that own only company certifies that it will not charge, classes of entities be exempted from nontraditional utilities and/or EWGs, bill or allocate to the public utility or section 1264’s requirements: (i) Utilities FUCOs, or QFs, PUHCA 2005 already natural gas company any costs in that do not serve captive customers and exempts persons that are holding connection with goods and service are not affiliated with a utility that companies solely with respect to one or transactions, the Commission will be serves captive customers (nontraditional more EWGs, FUCOs, or QFs, and we encouraging additional investments utilities); and (ii) a holding company have determined it appropriate to from outside the utility industry in the that owns only nontraditional utilities exempt power marketers and other country’s energy infrastructure.117 and/or EWGs, FUCOs, or QFs.112 utilities that do not have captive Further, the Commission could According to EPSA, the PUHCA 2005 customers. With respect to power periodically confirm the exemption rate protections simply are not needed marketers, as previously noted, the SEC through a review of the books and for such entities.113 EPSA notes that the did not treat power marketers as public- records of the public utility or natural Commission has reasoned that when utility companies under PUHCA 1935, gas company or annual certification by nontraditional utilities serve no captive in contrast to the Commission’s long- the holding company.118
111 MBIA Insurance Comments at 14. 114 Id. (citing U.S. Gen Power Services, L.P., 73 116 MidAmerican Comments at 8–11. 112 EPSA Comments at 18. FERC ¶ 61,037 at 61,846 (1995)). 117 Id. at 8. 113 Id. 115 EPSA Comments at 19–20. 118 Id.
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126. MidAmerican proposes d. Rural Electric Cooperatives exemption pursuant to the procedures 122 exemptions for transactions in the Comments in section 366.4(b). ordinary course of business between 129. Several commenters urge the e. Local Distribution Companies and among a public utility holding Comments company’s non-utility subsidiaries and Commission to exempt rural electric affiliates and de minimis ordinary cooperatives from section 1264. APPA/ 131. American Gas Association NRECA argue that the Commission course transactions involving the public requests that the Commission clarify should recognize that under utility company. In arguing for these that local distribution companies that longstanding SEC precedent, electric are not regulated by the Commission are exemptions, MidAmerican states that cooperatives were not regulated as not embraced within the phrase without these exemptions these public utility holding companies under ‘‘natural-gas company.’’ 123 American transactions will be too numerous to PUHCA 1935 and that, read together Gas Association also notes that the track and requiring an individual with the plain language of PUHCA 2005, Commission does not regulate local exemption for each of them from Rule that precedent shows that rural distribution companies.124 Washington 366.2(e) could overwhelm the cooperatives fall outside PUHCA 2005. Gas & Light argues that the Commission Commission while increasing the cost of In addition, APPA/NRECA contend that, should clarify that the proposed rules doing business for the regulated at an absolute minimum, the do not apply to local distribution entities.119 Commission should make clear that companies and section 7(f) companies Commission Determination those cooperatives that have received that have previously been exempt from no-action letters or other assurances in regulation by the Commission.125 127. We will grant MidAmerican’s the past from the SEC can continue to Washington Gas & Light notes that no first and second requests for rely on those assurances without any regulatory gap exists here, and new exemptions: (i) In cases where the need to seek additional confirmation or Commission regulation would be holding company affirmatively certifies a no-action assurance or waiver from the duplicative.126 on behalf of itself and its subsidiaries, Commission and adopt a class Commission Determination as applicable, that it will not charge, bill exemption from PUHCA 2005 for cooperatives that are organized and 132. The Commission finds that the or allocate to the public utility or books and records of local distribution natural gas company any costs or operate in reliance on such well-settled precedent.120 Similarly, Santa Clara and companies that are not regulated by the expenses in connection with goods and Commission are not relevant to service transactions, and will not engage TANC note that the SEC has consistently excluded rural cooperatives jurisdictional rates. Therefore, we will in financing transactions with any amend the proposed rules to reflect that public utility except as authorized by a from PUHCA 1935 requirements for several reasons, including the fact that local distribution companies are exempt state commission or the Commission; from the regulations. and (ii) transactions between or among the ownership relationship in a cooperative is not a voting security affiliates that are independent of and do f. Single-State Holding Companies under PUHCA 1935 and urge the not include a public utility or natural Comments Commission to follow this precedent in gas company. These classes of implementing PUHCA 2005.121 133. Consolidated Edison (ConEd) transactions are not relevant to contends that customers of single-state jurisdictional rates and will therefore be Commission Determination holding companies are adequately exempted from the books and records 130. The Commission finds the protected by the Commission’s existing requirements of section 1264. arguments of APPA/NRECA and other regulatory authority under the FPA and 128. The Commission will deny commenters in this regard persuasive. NGA, so that the imposition of MidAmerican’s request for an We find that all electric power additional books-and-records exemption of transactions between a cooperatives, including those that are requirements would be superfluous. public utility or a natural gas company regulated by the Commission under the Accordingly, ConEd requests that the and an affiliate if such transactions are FPA, i.e., those that are not financed proposed regulations be revised to conducted in the ordinary course of under the Rural Electrification Act of expressly exempt from the provisions of business, occur at prevailing market 1936 or that sell four million or more section 366.2 all single-state holding prices or on terms not different from megawatt-hours of electricity per year, companies that were exempt under those made available to unaffiliated should be exempted. We are therefore PUHCA 1935 as of the date of enactment entities and do not exceed individually granting the request to define ‘‘voting of PUHCA 2005 and all companies that or in the aggregate in cost to the public security’’ to not include member subsequently demonstrate to the utility or natural gas company one-half interests in electric power cooperatives; Commission their status as a single-state of one percent of its operating revenue this definition in and of itself should holding company. Those companies during its most recent fiscal year, or are result in most cooperatives being should remain exempt pending a change conducted in accordance with and excluded from the definition of a 122 To the extent electric cooperatives are public pursuant to an approved rate or service holding company, and thus most cooperatives will automatically fall utilities subject to our jurisdiction under the FPA, tariff. These transactions involve as noted above, we have broad authority under FPA regulated companies, and we do not outside the scope of PUHCA 2005. For section 301 to obtain the books and records of believe they should be exempted those cooperatives that might still fall regulated companies and any person that controls within the definition of holding or is controlled by such companies if relevant to because of the potential for cross- company and thus within the scope of jurisdictional activities. 16 U.S.C. 825 (2000); subsidization between regulated and accord 15 U.S.C. 717g (2000). PUHCA 2005, they may be exempted non-regulated companies in the same 123 American Gas Association Comments at 2. See from PUHCA 2005 by filing for holding company system, which could also Keyspan Corporation (Keyspan) Comments at 6–7. adversely affect jurisdictional rates. 120 APPA/NRECA Comments at 42–44. 124 American Gas Association Comments at 3. 121 Santa Clara Comments at 23, TANC Comments 125 Washington Gas & Light Comments at 3. 119 Id. at 11. at 23. See also Redding Comments at 3. 126 Id. at 4.
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in circumstances that alters a company’s additional electrical generation.130 jurisdiction should be exempted and single-state status.127 Alternatively, Mittal Steel requests that that, without this exemption, this 134. In its reply comments, Public the Commission issue an exemption to requirement creates a new barrier to Citizen argues that the single state any company who would not otherwise investment.132 qualify as a ‘‘holding company,’’ but for exemption, for example, requires that Commission Determination both a utility and its holding company its ownership of an entity that has been primarily operate in a single state, so granted authority to sell electric power 140. The Commission will grant that the state is capable of regulating the for resale at market-based rates. If the waiver of the our regulations under holding company, as well as the utility, Commission is unwilling to adopt a PUHCA 2005 for investors in under state law. Such companies at a general exemption as proposed by independent transmission companies. minimum should be required to file an Barrick and Mittal Steel at this time, the The rate issues that may arise in annual statement, as they do now, to Commission should grant a limited connection with entities that serve retail show that they continue to meet the waiver of its PUHCA 2005 regulations to customers or that generate or sell standards for such an exemption.128 persons that file good faith applications electricity at wholesale are not present for exemptions under section 366.3 with respect to an independent Commission Determination within sixty (60) days of the transmission company. Further, the Commission’s final order in this Commission has sufficient authority 135. We cannot approve a categorical proceeding, with such waiver effective under sections 205 and 206 of the FPA, exemption for single-state holding until such time as the Commission as well as informational authority under companies. Congress has chosen not to denies the exemption application.131 section 301 of the FPA and section 1264 re-enact this exemption from PUHCA of EPAct 2005, to obtain the relevant Commission Determination 1935, and ConEd has not demonstrated books and records of a jurisdictional that single-state holding companies 137. The Commission is not independent transmission company, satisfy the criterion for exemption persuaded by the arguments of Barrick and any company that controls or is pursuant to section 1266(b) of PUHCA and Mittal Steel to provide a blanket controlled by such jurisdictional 2005 (i.e., that their books and records exemption for holding companies company. Therefore, the Commission are not relevant to the jurisdictional owning industrial small generators, will grant a waiver of our requirements rates of a public utility or natural gas since they have not demonstrated that in sections 366.21, 366.22, and 366.23 of company). Nevertheless, single-state the statutory criterion is satisfied, i.e., our regulations for investors in holding companies do not present the that books and records of such holding independent transmission-only scope of potential cross-subsidy and companies are not relevant to companies. cost allocation issues that multi-state jurisdictional rates. However, to holding companies do; state eliminate what might otherwise be a 4. Allocation of Costs of Non-Power commissions generally have significant barrier to the development of additional Goods or Services regulatory authority over single-state electric generation, we will allow a 141. Section 1275(b) of EPAct 2005 holding companies and their waiver of our requirements in sections provides that, in the case of non-power transactions, and we have sufficient 366.21, 366.22, and 366.23 of our goods or administrative or management authority pursuant to sections 205 and regulations to persons that own a small services provided by an associate 206 of the FPA and sections 4 and 5 of amount of generation (100 MW or less) company organized specifically for the the NGA to address any issues that used fundamentally for their own load purpose of providing such goods or could affect jurisdictional rates for or for sales to affiliated end-users. services to any public utility in the same public utilities in single-state holding Similar entities, but owning more than holding company system, at the election companies. Therefore, the Commission 100 MW of generation, may individually of certain holding company systems or will grant a waiver of our requirements seek waiver by filing a petition for a state commission having jurisdiction in sections 366.21, 366.22, and 366.23 of declaratory order, and we will consider over the public utility, the Commission, our regulations 129 for single-state such petitions in light of all relevant after the effective date of PUHCA 2005, holding companies. information. shall review and authorize an allocation 138. With respect to Mittal Steel’s g. Holding Companies Owning of costs for such goods and services to request regarding good faith Industrial Small Generators the extent relevant to that associate applications, we note that in section company. In the NOPR, we proposed to Comments 366.4(b) of our regulations, we have reflect this statutory provision in new provided that the filing of FERC–65B 136. Barrick Goldstrike Mines argue section 366.5(b) of our regulations. provides temporary waiver upon a good that the Commission should exempt the faith filing and that after 60 days a a. Mandatory Filing of Cost-Allocation holding companies of small industrial waiver is deemed to be granted, absent Agreements generators and their transactions from timely Commission action to the 142. In the NOPR, we noted that, regulatory oversight because the contrary. irrespective of the new section 1275(b) exemptions that have existed until now, of PUHCA 2005, with the repeal of have encouraged the development of h. Investors in Independent Transmission Companies PUHCA 1935 and the elimination of SEC review of the allocation of costs for 127 ConEd Comments at 3. Comments non-power goods and services, we have 128 Public Citizen Reply Comments at 13. 129 The Commission is permitted to exempt 139. International Transmission authority under sections 205 and 206 of entities from the requirements of section 1264 only Company submits that investors in the FPA and sections 4 and 5 of the if their books and records are not relevant to independent transmission companies NGA to review the rate recovery in jurisdictional rates. In this case, the books and that are subject to Commission jurisdictional rates of such associate and records are relevant to jurisdictional rates, so we cannot exempt single-state holding companies from affiliated company non-power goods the statute. However, the Commission always 130 Barrick Goldstrike Mines Comments at 9. See possesses discretion to waive a regulatory also Morgan Stanley Reply Comments at 6. 132 International Transmission Company requirement. 131 Mittal Steel Reply Comments at 1–2. Comments at 8.
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and services costs, either upon the Commission to require the filing of FPA. EPSA asserts that section 205 of application under section 205 of the all cost-allocation practices between the FPA requires only public utilities as FPA or section 4 of the NGA or upon public utility and non-utility activities, defined in section 201(e) of the FPA to complaint or our own motion under including both formerly registered and file with the Commission the schedules, section 206 of the FPA and section 5 of exempted utility holding companies.138 tariffs and agreements under which they the NGA, and that we also have the NARUC recommends that the provide FPA jurisdictional services. authority to review and/or require the Commission institute procedures for Registered holding companies, by filing of cost-allocation agreements with periodic audits of cost allocations, to be contrast, (and non-registered holding the Commission since they are contracts conducted in coordination with state companies) may have public utility 133 139 affecting jurisdictional rates. We regulators. subsidiaries, but they are not public 145. Several commenters opposed the invited comments as to whether, in light utilities under section 201(e) of the FPA. Commission’s proposed filing of the repeal of PUHCA 1935, holding In addition, EPSA claims that being companies that prior to the repeal of requirement as contrary to Congress’ required to make filings under section PUHCA 1935 were registered holding intent and inconsistent with the 205 of the FPA could force a holding companies should be required to file statutory scheme established by PUHCA such cost-allocation agreements with 2005 and the FPA. FirstEnergy contends company to become a fully regulated the Commission under section 205 of that there is nothing in PUHCA 2005 to public utility. Under existing the FPA and section 4 of the NGA. suggest that the Congress intended to Commission precedent, upon the grant the Commission the authority to acceptance of a filing under section 205 Comments regulate the agreements for procurement of the FPA, the Commission has deemed 143. A number of commenters of non-power goods and services by that the filing entity owns FPA supported the Commission’s proposal to public utility companies from jurisdictional facilities within the require holding companies that were associated service companies in the meaning of section 201(e) of the FPA. registered under PUHCA 1935 to file same way that it regulates the sale of Hence, they argue, if registered holding cost-allocation agreements under electricity for resale and that, if the companies are required to file cost- section 205 of the FPA and section 4 of Commission found that such agreements allocation agreements under section the NGA.134 These commenters are ‘‘* * * contracts affecting 205, this could have the unintended emphasize the importance of jurisdictional rates’’ within the meaning effect of forcing such companies to information on cost allocations for of section 205(c) of the FPA it would be become public utilities.142 effective federal and state regulation.135 asserting jurisdiction over virtually 147. A number of commenters state In addition, Santa Clara argues that every agreement for procurement of that the Commission already has Commission oversight of cost non-power goods and services by all allocations is necessary due to the lack regulated electric utilities.140 Entergy authority under sections 205, 206, and of uniformity of state review.136 Santa argues that the Commission’s proposal 301 of the FPA and PUHCA 2005 to Clara further emphasizes that, under is inconsistent with the voluntary require the public utility to file any current rules promulgated pursuant to review procedures established under relevant cost-allocation agreements with section 13 of PUHCA 1935, the SEC section 1275(b) of EPAct 2005. affiliates to the extent they affect generally requires that such companies According to Entergy, to mandate the jurisdictional rates. Thus, they argue, seek prior approval from the SEC to filing of such service company there is no need to impose an additional engage in such transactions. Thus, the agreements would read out of PUHCA filing requirement.143 Dominion and EEI requirement to file cost-allocation 2005 the ability of the holding company argue that there should be no mandatory agreements with the Commission would or applicable retail regulators to elect or, filing unless these agreements are simply maintain the current obligation, more importantly, to not elect relevant to Commission review of cost- albeit with a different agency.137 Commission review and authorization allocation at the election of a holding 144. Some commenters suggest of cost allocations.141 company or a state commission expansion of the Commission’s 146. EPSA opposes the mandatory pursuant to section 1275(b) of PUHCA proposed filing requirement. APPA/ filing requirement because it contends 2005, or where they are relevant to a NRECA noted that the risk of that the Commission lacks jurisdiction Commission rate proceeding. According misallocation of costs and cross- to impose this requirement under the to Dominion and EEI, there are no subsidization does not depend on grounds for reopening all cost-allocation whether the public utility holding 138 APPA/NRECA Comments at 7. See also arrangements at this time by requiring company was registered or statutorily American Public Gas Association Comments at 4, that allocation agreements to be filed for exempted under PUHCA 1935 and urge MBIA Insurance Comments at 20, Missouri PSC Comments at 8–9, NASUCA Comments at 9, Ohio PUC Comments at 3, Utility Workers Comments at 142 EPSA Comment at 23–25. EPSA’s argument 133 16 U.S.C. 824d–e (2000); accord 15 U.S.C. 3–4, Wisconsin PSC Comments at 7. that the filing of a contract affecting jurisdictional 717c–d (2000); see generally EPAct 2005 at 139 NARUC Comments at 9 (arguing that multi- rates forces every party to the contract to become § 1275(c) (stating that nothing in section 1275 state holding companies should be subject to filing a jurisdictional public utility is erroneous and a affects the authority of the Commission under other requirement), Ohio PUC Reply Comments at 2, misunderstanding of the law. See also NiSource applicable law). While the scope of our jurisdiction AGPA Comments at 4, NASUCA Comments at 9. Comments at 13. NiSource further states that it is over wholesale sales of natural gas is more limited But see National Grid Reply Comments at 9–10. opposed to the mandatory filing requirement, but if than our jurisdiction over wholesale sales of electric National Grid responds to NARUC, arguing that filing is made mandatory, such agreements should energy, and our rate review may differ in certain there is no general distinction under PUHCA 2005 be filed for informational purposes only in the same respects, such reviews could be undertaken under between formerly registered multi-state holding manner as cash management agreements. sections 4 or 5 of the NGA. companies and typically exempt single-state 143 Ameren Services (Ameren) Comments at 15– 134 See, e.g., Georgia PSC Comments at 2, Santa holding companies except in section 1275’s single- 16, Entergy Comments at 14, E.ON/LG&E Energy Clara Comments at 6–7, TANC Comments at 6–7. state exemption and that there is no reason to Comments at 19, EPSA Comments at 24–25, 135 Georgia PSC at 2, IURC Comments at 7, impose a separate requirement to file cost allocation Scottish Power Comments at 9, Santa Clara NARUC Comments at 9, Ohio PSC Reply Comments agreements on any holding company. Comments at 6–7. See also Energy East Comments at 2. 140 FirstEnergy Comments at 11. at 14 (arguing that cost-allocation methods are 136 Santa Clara Comments at 8. 141 Entergy Comments at 7–8. See also Chairman disclosed in the report on Form U–13–60, so there 137 Id. at 6. See also American Public Gas Barton Reply Comments at 9, Southern Company is no reason to require their filing in another Association Comments at 4. Services Comments at 3. context).
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review under section 205 of the FPA 151. The Commission will not company systems and state and section 4 of the NGA.144 mandate the blanket filing of cost- commissions having jurisdiction over 148. Finally, Coral Power and Shell allocation agreements governing the gas utility companies and natural gas WindEnergy argue that holding costs of non-power goods and services companies in the holding company companies that own only EWGs, purchased by jurisdictional public systems are included within the scope FUCOs, and QFs and are not affiliated utilities from affiliated service of section 1275(b). companies under section 1275(b) of with traditional utilities with captive Comments ratepayers should be exempted from the EPAct 2005. As discussed above, filing requirement. They argue that such although we have the authority to 154. Commenters were generally entities typically sell energy at require the filing of cost-allocation supportive of the Commission’s negotiated or market-based rates, not at agreements pursuant to our ratemaking proposal in this regard. Dominion and cost-based rates, so there can be no issue authority under sections 4 and 5 of the EEI state that such a clarification would of cost allocation when rates are not NGA and sections 205 and 206 of the be appropriate with respect to holding based on the generator’s costs, so that FPA, we do not find it necessary to do companies with combined electric they cannot pass through excessive so in light of the requirement that utility company and gas utility company costs associated with affiliate traditional, centralized service systems because cost allocations in transactions without pricing themselves companies (i.e., service companies that those systems will affect both types of out of the market.145 are not special-purpose companies such companies and the inclusion of both in as a fuel supply company or a section 1275(b) would help ensure that Commission Determination construction company) file relevant a consistent approach is applied 147 149. We reject arguments that the cost-allocation information on FERC throughout the system. NARUC also Commission does not have the authority Form No. 60. FERC Form No. 60 is a less supports the proposal, arguing that, under the FPA to require public utilities burdensome method for collecting this since gas utility companies and natural that are members of a holding company information from service companies. gas companies are included in most of system to file agreements involving the Furthermore, where appropriate, we the other provisions of PUHCA 2005, their omission from section 1275(b) allocation of costs of non-power goods will rely on our ratemaking authority to impacts the Commission’s ability to and services to public utilities and other examine these agreements or require prevent the cross-subsidization of members of the holding company. them to be filed on an as-needed basis affiliates of public utilities and natural Clearly, if one or more of the public to determine whether the regulated gas companies, as well as effectively utility members of the holding company utility’s purchases of non-power goods eliminating the prior review of the seeks to recover their share of the and services were prudently incurred allocation of service company costs allocated costs in jurisdictional rates, and just and reasonable. upon the request of state commissions the agreement is a contract affecting 152. We agree with the numerous and holding company systems to public rates and may be reviewed by the commenters who express a desire to protect captive customers from inflated utilities.148 In addition, NARUC Commission insofar as it pertains to affiliate transactions. However, recommends that gas-related agreements jurisdictional rates. imposing a blanket requirement to file be filed with the Commission and that 150. We also disagree with Entergy’s each cost-allocation agreement for non- the Commission institute procedures for argument that, if the Commission were power goods and services is not periodic audits, as discussed above in to require cost-allocation agreements necessary to fulfill our jurisdictional reference to the electric context.149 affecting jurisdictional rates to be filed, responsibilities. Instead, we believe that 155. Duke opposes the inclusion of this would be inconsistent with section the review of cost-allocation natural gas companies under section 1275(b) of PUHCA 2005, which allows information contained in FERC Form 1275(b) because, unlike public utilities, holding company systems or state No. 60 submissions by traditional, natural gas companies are not subject to commissions to obtain a Commission centralized service companies, review of the ratemaking authority of state determination of appropriate cost service agreements and other regulatory commissions, and therefore allocations under such agreements. information in the context of rate are not in danger of incurring trapped or While the Commission has discretion proceedings, and/or review of cost otherwise unrecoverable costs as a under section 205(c) of the FPA to information through the audit function result of conflicting state commission require contracts affecting jurisdictional provide sufficient protection for decisions.150 rates to be filed (i.e., contracts affecting customers. rates are to be filed within such time Commission Determination and in such form as the Commission b. Inclusion of Natural Gas Companies 156. In the report to Congress may prescribe),146 and may on its own Under Section 1275(b) mandated by section 1272(2) of EPAct change cost allocations to jurisdictional 153. In the NOPR, we also noted that 2005, we intend to request that Congress companies that seek recovery of the section 1275(b) provides that holding clarify whether it intended section costs in jurisdictional rates, we interpret companies and state commissions may 1275(b) to include natural gas section 1275(b) to require the under certain circumstances require companies and, if so, to adopt a Commission to make a cost-allocation Commission review and authorization conforming amendment. As EEI and determination if one is sought by the of cost allocations for non-power goods holding company system or the state or services provided by service 147 Dominion Comments at 19–20, EEI Comments commission. at 26. See also Ameren Comments at 16, Cinergy companies to public utilities, but it does Comments at 24–25, Energy East Comments at 12, not provide for such determinations Keyspan Comments at 5, NASUCA Comments at 3, 144 Dominion Comments at 18–19, EEI Comments where such non-power goods and Northeast Utilities Comments at 6, Oklahoma at 25–26. See also Alliant Comments at 6, Ameren services are provided to gas utility Corporation Commission Comments at 5. 148 Comments at 15, Scottish Power Comments at 9. companies and natural gas companies. NARUC Comments at 9–10. See also IURC 145 Coral Power/Shell WindEnergy Comments at Comments at 9–10, Ohio PUC Comments at 3–4. 12. We invited comments as to whether the 149 Id. at 10. 146 16 U.S.C. 824d(c) (2000). See also 15 U.S.C. Commission should recommend an 150 Duke Comments at 5. See also NiSource 717c(c) (2000). amendment clarifying that holding Comments at 9.
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Dominion note, many holding company assert that the pricing rule that supports incurred costs), thereby facilitating systems include both electric and these principles is the Commission’s oversight by the Commission and by natural gas companies, utilities, market standard.153 Second, with outside auditors.156 affiliates, and subsidiaries. Maintaining respect to the sale of goods and services 160. NARUC supports a lower of cost a consistent standard would add to by the public utility to the non-utility or market standard, noting that the transparency and reduce confusion. affiliate, APPA/NRECA contend that the NARUC Guidelines state that: price to the non-utility affiliate should ‘‘Generally, the price for services, c. Adoption of the SEC ‘‘At Cost’’ be at no less than cost. According to products and the use of assets provided Standard APPA/NRECA, this rule follows from by a non-regulated affiliate to a 157. The SEC and state commissions the public utility’s obligation to regulated affiliate should be at the lower previously have been primarily minimize its revenue requirement, and of fully allocated cost or prevailing responsible for determining allocations a standard of no less than cost removes market prices. Under appropriate of costs for non-power goods and any incentive for a public utility to circumstances, prices could be based on services among the various associate ‘‘over acquire’’ resources and provide incremental cost, or other pricing companies in registered holding them at a price below cost to a non- mechanisms as determined by the company systems, and these allocations utility affiliate.154 Finally, with respect regulator.’’ Although the NARUC have been made on an ‘‘at cost’’ basis. to public utility provision of financial Guidelines call for more flexibility than By contrast, the Commission’s long- support to affiliated non-utility was reflected in the NOPR, NARUC standing policy is that registered ventures, APPA/NRECA note that asserts that its position and the holding company special-purpose section 12(c) of PUHCA 1935 prohibited Commission’s standard for the subsidiaries must provide non-power a registered holding company from allocation of costs for non-power goods goods and services to a public utility receiving any such benefit from a public and services are consistent.157 regulated by the Commission at a price utility subsidiary or any other 161. In their reply comments, Xcel no higher than market. For at least a subsidiary and urges the Commission to and Progress Energy submit that there decade, we have imposed this standard continue this prohibition.155 are a number of fallacies to the as a condition for approval of mergers 159. APPA/NRECA note that the arguments in favor of the market that result in the creation of a new argument made for service companies is standard. Xcel states that, first, if the registered holding company.151 We the efficiency of centralization, but affiliated service company charges for invited comments as to whether the argue that the use of such companies its services at cost, it does not and Commission should apply the market can do damage to auditability. The cannot profit from its activities. Second, standard for the allocation of costs for damage arises from the holding the notion that at cost pricing could non-power goods and services, or if we company practice, endorsed by the SEC, cause a utility to pay a service company should instead adopt the SEC at cost of charging service company costs to more for services than it would standard. FERC Account 923—Outside Services. otherwise incur is, as a practical matter, Comments According to APPA/NRECA, what also wrong. Third, the underlying appears on the public utility’s books is premise of service company formation is 158. The comments as to whether the not detail about each service company that such administrative and general Commission should adopt the SEC’s ‘‘at cost, but instead a single large charge activities can be performed more cost’’ standard were mixed, with a representing the public utility’s efficiently and at a less costly rate by a number of entities expressing general allocated share of total service company service company on behalf of a utility support for a lower of cost or market cost. They further argue that the use of than a utility could perform the service standard.152 APPA/NRECA argue that, the Commission’s ‘‘Outside Services’’ for itself.158 Progress Energy contends first, with respect to purchases of goods account implies an arm’s-length that, typically, service companies and services by the public utility from relationship between the buyer of the provide administrative services such as a non-utility affiliate, a public utility outside services and the supplier; but in tax, accounting, human resources, legal, should not pay to a non-utility affiliate fact the relationship between service information technology, finance and a price exceeding what the public utility company and public utility is not at shareholder relations, which are would have incurred had the public arm’s length. APPA/NRECA contend materially different from other products utility self-provided the service or that the solution for this problem would or services needed by a utility such as purchased it prudently from an be for the Commission to require an fuel, vehicles, poles, transformers, etc. unaffiliated third party; similarly, if the accounting process that treats the public Specifically, the services provided by a affiliate can produce the good or service utility operating company incurring service company are not fungible, and at a below-market price, presumably so these inter-affiliate costs as if the public there is no market for such specialized can the public utility. APPA/NRECA utility had incurred the costs directly. services.159 The public utility then would post the 162. On the other hand, the majority 151 See Inquiry Concerning the Commission’s charges to the appropriate accounts of commenters favor the continued use Merger Policy Under the Federal Power Act: Policy (making sure to segregate the costs Statement, Order No. 592, 61 FR 68595 (Dec. 18, of the SEC’s at-cost standard. Dominion 1996), FERC Stats. & Regs., Regulations Preambles passed through by the service company and EEI argue that the Commission has July 1996–December 2000 ¶ 31,044 at 30,124–25 from the public utility’s own directly not demonstrated the need to revise the (1996) (Merger Policy Statement), reconsideration current standards. They assert that the denied, Order No. 592–A, 62 FR 33341 (June 19, 153 APPA/NRECA Comments at 9. See also cost-allocation factors found in 1997), 79 FERC ¶ 61,321 (1997). Where the Arkansas PSC Comments at 3, Electricity regulated public utility has provided non-power Consumers Resource Council, et al. (ELCON) registered holding company system goods for services to the non-regulated affiliate, our Comments at 6, Kentucky Public Service service agreements have been worked policy has been that the public utility provides the Commission (Kentucky PSC) Comments at 1, out in cooperation with both the SEC goods or services at the higher of cost or market. Missouri PSC Comments at 11, NASUCA 10. 152 See, e.g., Georgia PSC Comments at 3, 154 Id. at 10. See also Arkansas PSC Comments at 156 NASUCA Comments at 10, Northeast Utilities 3, Missouri PSC Comments at 14, NASUCA APPA/NRECA Comments at 29. Comments at 6 (Commission should also apply Comments at 10. 157 NARUC Comments at 20. standard to construction activities), Santa Clara 155 Id. at 10–11. See also Missouri PSC Comments 158 Xcel Reply Comments at 3–4. Comments at 10–12, TANC Comments at 10–12. at 15–16. 159 Progress Energy Reply Comments at 2.
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and the relevant state commissions, and Similarly, MidAmerican argues that, by standard.171 EPSA argues that the that there is no evidence that the using cost, the public utility company or Commission does not have authority application of this standard has led to affiliate is not required to undertake a under the FPA, NGA or PUHCA 2005 to cross subsidization or other forms of potentially lengthy and subjective approve the formation and corporate abuse.160 MidAmerican emphasizes that process to ascertain what a market price structure of any company in a holding public utilities have relied on the at cost would be for the non-power goods or company system, let alone companies standard as the basis for assigning the service, which in many instances, such that propose to provide services to costs of non-power goods and services as the allocation of employee labor, is holding company system companies. and that these costs may be subject to not readily available due to the variation Thus, while the Commission has the the provisions of an intercompany in pay scales across the industry and the authority to disallow a utility’s recovery services agreement which has received country.167 Moreover, EEI argues that in its jurisdictional rates of improper state regulatory approval and have there is a significant danger of under- affiliate charges, the Commission does proven to work well.161 In addition, recovery of costs under the not have the authority to regulate Entergy argues that its existing retail Commission’s market standard where transactions among non-utility affiliates rates are based on the at-cost standard the service company’s cost to provide a by requiring at-cost pricing, and, and any changes will disrupt existing service is higher than market. Thus, agreements and retail rate structures.162 therefore, has no authority to impose while the at-cost standard keeps the financial and complex accounting and MBIA Insurance, however, also asserts service company whole, a lower of cost that many utilities have already reporting requirements to implement at- or market standard can lead only to cost pricing.172 committed to using a lower-of-cost or under-recovery and an increase in the market standard as part of various regulated utilities’ cost of capital.168 166. Finally, some commenters mergers. It contends that holding Finally, Oklahoma Corporation suggest alternatives to switching to the companies already applying the lower Commission opposes the adoption of SEC’s at-cost standard. Dominion argues of-cost-or-market standard for non- the Commission’s market basis because that service companies that have been power goods and services should it might impose additional costs on such subject to the SEC at-cost standard continue meeting this requirement and entities due to potential requirements under PUHCA 1935 should be permitted not disrupt pre-existing that companies enter into a competitive to continue using that standard if they arrangements.163 bidding processes, hire consultants, so elect.173 American Transmission 163. Dominion and EEI further argue Company recommends that the that there is no need to revise these enter into special contracts, and use Commission establish a rebuttable standards because the Commission can variable pricing structures based on the 169 presumption that cost equals market for address this issue in ratemaking different services that are provided. proceedings. Given the repeal of Santa Clara responds that the at-cost those companies that can demonstrate PUHCA 1935 and section 318 of the standard allows the holding company to that they have appropriate purchasing FPA, they assert that there is no longer bill its utility affiliate for the total cost practices in force for those goods or an impediment to the exercise of the of the non-power goods or services, no services above a certain dollar Commission’s powers under sections matter how unnecessarily high the costs amount.174 Entergy states that the 205 and 206 of the FPA to disallow might be. Thus, the holding company Commission should not preclude particular expenditures made at cost has no incentive to minimize its holding company systems from that the Commission finds to be costs.170 deviating from the at-cost standard to imprudent.164 AEP adds that cost-based 165. Energy East and EPSA contend the extent that such alternative pricing standards also have the benefit of being that the Commission lacks the authority proposals are demonstrated to not result verifiable and easy to audit.165 to impose its pricing standard. Energy in inappropriate cross-subsidization of 164. EEI further asserts that a market East asserts that the plain language of non-utility associate companies.175 test can be difficult to apply for highly- section 1275(b) indicates Congress’ IURC states that, while in most cases, specialized goods or services because intent that the Commission should the SEC’s fully-distributed cost may be there is no market for the services retroactively review costs and then appropriate, there will be instances supplied by a system service company properly allocate them. Nothing in where the market standard will be and, thus, it can be extremely difficult section 1275(b), argues Energy East, appropriate; specifically, where there is to calculate a market price for such indicates that Congress intended that reasonable confidence that the market is services. None of these difficulties the Commission pre-approve the cost of sufficiently competitive to produce an 166 accompany the at-cost standard. non-power goods and services rendered unbiased competitive price. In the to associated public utilities under a absence of a competitive market to 160 Dominion Comments at 17, EEI Comments at 22–23. See also Cinergy Comments at 21–22, lower of cost or market pricing determine the appropriate arm’s-length Entergy Comments 9, E.ON/LG&E Energy value for a specific transaction, Comments at 14, FirstEnergy Comments at 14, Comments at 16, AEP Comments at 6, Cinergy incremental costs might be Keyspan Comments at 4, Progress Energy Comments at 22, Energy East Comments at 13, appropriate.176 Comments at 3, Southern Company Services Entergy Comments at 10, E.ON/LG&E Energy Comments at 4. Comments at 14, FirstEnergy Comments at 15, 161 MidAmerican Comments at 13–14. Keyspan Comments at 4, Progress Energy 171 Energy East Comments at 12. 162 Entergy Comments at 9. See also Alliant Comments at 4, Southern Company Services 172 EPSA Comments at 10–11. Comments at 5–6, Keyspan Comments at 4, Progress Comments at 4, Xcel Comments at 6. 173 Dominion Comments at 17, EEI Comments at Comments at 4. 167 MidAmerican Comments at 13. 22–23. See also Black Hills Comments at 4, Energy 163 MBIA Comments at 17. 168 EEI Comments at 23. See also Ameren East Comments at 13, FirstEnergy Comments at 13, 164 Dominion Comments at 18, EEI Comments at Comments at 15, AEP Comments at 6, Duke NiSource Comments at 14, Northeast Utilities 23–24. See also Cinergy Comments at 23, E.ON/ Comments at 4, Entergy Comments at 10, Energy Comments at 5, Southern Company Services LG&E Energy Comments at 14, Xcel Comments at East Comments at 13–14, FirstEnergy Comments at Comments at 4. 6. 14. 174 American Transmission Company Comments 165 AEP Comments at 5. See also Cinergy at 23. 169 Oklahoma Corporation Commission at 4. 166 EEI Comments at 23. See also Alliant Energy Comments at 5–6. 175 Entergy Comments at 10–11. Corporation (Alliant) Comments at 5–6, Ameren 170 Santa Clara Comments at 12. 176 IURC Comments at 11.
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Commission Determination is a special-purpose company within a holding company affiliates other than 167. As an initial matter, some holding company (e.g., a fuel supply traditional, centralized service commenters appear to misconstrue the company or construction company), companies, i.e., service companies that purposes of the Commission’s request provides non-power goods or services to are non-regulated, special-purpose for comments on the use of the SEC’s one or more public utilities in the same affiliates such as a fuel supply company ‘‘at-cost’’ standard. Contrary to EPSA’s holding company system. The same or a construction company, we will 178 implication that the Commission seeks potential issues arise: Whether the continue our prior policies. First, to approve the formation and corporate public utility’s costs incurred in with respect to sales from a public structure of companies within a holding purchasing from the affiliate are utility to a non-regulated, affiliated company system, this was not the prudently incurred and just and special-purpose company, we agree subject of the Commission’s proposal or reasonable, and whether non-regulated with APPA/NRECA that the price request for comments. Rather, there are affiliates purchasing non-power goods should be no less than cost, i.e., the two circumstances in which the ‘‘at- and services from the same special- higher of cost or market; otherwise, a cost’’ or ‘‘market’’ standard may arise in purpose company are receiving public utility could attempt to game the the context of the Commission’s preferential treatment vis-a`-vis the system and forego profits it could jurisdictional responsibilities. First, the public utility. The Commission in this otherwise obtain by selling to a non- Commission has a responsibility to context also, if it found costs were affiliate, to the benefit of its non- ensure that the costs of non-power imprudent, unjust and unreasonable, or regulated affiliate who receives a good goods and services provided by a unduly discriminatory vis-a`-vis the or service at a below-market price. traditional, centralized service company public utility, would develop a rate or When the situation is reversed, i.e., the to public utilities within the holding remedy applicable to the jurisdictional non-regulated, affiliated special-purpose company system are just, reasonable, public utility. company is providing non-power goods and not unduly discriminatory or 169. With these two types of and services to the public utility preferential. This can arise in the situations in mind—traditional, affiliate, the Commission will continue context of a review of the prudence of centralized service companies and to apply its market standard. The non- costs incurred when a public utility service companies that are special- regulated, affiliated special-purpose seeks to flow through the costs in purpose companies—we reach the company may not sell to its public jurisdictional rates or a general review following conclusions based on the utility affiliate at a price above the of the justness and reasonableness of the comments. The Commission will not market price. We believe that such public utility’s costs. It can arise in the require traditional, centralized service transactions involving such non- context of an individual public utility companies currently using the SEC’s at- regulated, affiliated special-purpose within the holding company system or cost standard to comply with the companies pose a greater risk of in the context of the appropriate non- Commission’s market standard for their inappropriate cross-subsidization and discriminatory allocation among sales of non-fuel, non-power goods and adverse effects on jurisdictional rates. multiple public utilities within the same services to regulated affiliates. 172. APPA/NRECA note that section holding company system.177 In Fundamentally, we agree with 12(c) of PUHCA 1935 prohibits a public reviewing centralized service company commenters such as American utility from providing financial support cost allocations, the Commission’s focus Transmission Company and Progress to affiliated non-utility ventures, and would be on the costs allocated to the Energy that centralized provision of they suggest that the Commission jurisdictional public utilities, whether accounting, human resources, legal, tax continue this prohibition through its the jurisdictional public utilities are and other such services benefits regulations. Congress did not reenact bearing their fair share of costs vis-a`-vis ratepayers through increased efficiency this provision of PUHCA 1935 in the non-regulated affiliates (i.e., whether and economies of scale. Further, we PUHCA 2005, and, although we believe the non-regulated affiliates are receiving recognize that it is frequently difficult to we have authority under the FPA and an undue preference), and whether costs define the market value of the NGA to impose such a restriction, we do are fairly allocated among public specialized services provided by not believe such a restriction is utilities. If the Commission disallowed centralized service companies. necessary at this time. 173. We find that APPA/NRECA raise costs to be allocated to public utilities Accordingly, the Commission will apply some valid points concerning service or changed the allocation among a rebuttable presumption that costs company billings and how those multiple public utilities, this would not incurred under ‘‘at cost’’ pricing of such amounts should be reflected in the directly affect allocations to the non- services are reasonable. However, we accounts of a public utility company. jurisdictional, non-regulated companies. will entertain complaints that ‘‘at cost’’ However, resolution of this issue may Our concern and jurisdictional pricing for such services exceeds the have policy implications as well as responsibilities relate to how the costs market price, but complainants will practical accounting system are allocated to and among Commission- have the burden of demonstrating that implementation issues that should be jurisdictional companies, not how that is the case. 170. We also agree with commenters remaining costs are allocated among the such as Dominion and EEI that the 178 Our adoption of different policies for non-regulated affiliates. Commission has the power to disallow traditional, centralized service companies 168. The second context in which the compared to special-purpose companies could ‘‘at-cost’’ or ‘‘market’’ standard is likely any expenditures that it finds to be make the distinction between the two more to arise is when a service company that imprudent under sections 205 and 206 important than it has been previously. We view the of the FPA, and sections 4 and 5 of the former as performing generally corporate NGA. Additionally, the audit function administration functions and the latter as providing 177 While the Commission would have authority generally a single input to utility operations, such to require pre-approval of non-power goods and can be used to identify and protect as fuel supply, construction, or real estate. If services cost allocations to public utilities that want against any cross-subsidization between holding companies are unclear about whether a recovery of such costs in Commission-juridictional regulated public utilities and non- subsidiary is a traditional, centralized service rates, the Commission historically has not taken company or a special-purpose company, they may such an approach, and instead typically reviews regulated affiliates. seek a determination in an appropriate proceeding. such matters at the time the public utiltiy files for 171. With respect to non-power goods We will also monitor the issue through the auditing rate recovery. and services transactions between process.
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explored more broadly than the record 176. A number of commenters dependent on the form of filing of in this proceeding allows. Therefore, we expressed concern about the potential service agreements with the decline to adopt at this time APPA/ preemptive effect of Commission review Commission.184 NiSource states that it NRECA’s recommendations on this of cost-allocation agreements. In order fails to see how the Commission can issue. to avoid any preemption issue, NARUC approve service company cost 174. We disagree with Energy East suggests that the filing of such allocations that will apply to entities and EPSA that section 1275 of PUHCA agreements occur under section 304 of across multiple states if one of these 2005 in any way restricts this the FPA and section 10 of the NGA, state commissions can then simply Commission’s authority to impose either instead of under section 205 of the FPA refuse to accept the Commission’s cost the market standard or the at-cost and section 4 of the NGA.181 Missouri allocation as binding. For this reason, standard. By remaining silent on the PSC states that a Commission-approved NiSource requests that the Commission standard to be employed, Congress has allocation should bind Commission needs to provide certainty in the final placed the matter squarely within the ratemaking but not state ratemaking, rule that a Commission-approved cost Commission’s discretion. Contrary to except in limited circumstances, and allocation is binding on the states.185 assertions by EPSA and others, the urges the Commission to make clear that 178. Dominion and EEI contend that Commission is not exceeding its a state commission is not preempted by the primary situation in which the authority by establishing policies any Commission-determined service Commission would need to impose a governing the sale or provision of non- cost allocation, whether the initiating specific methodology would be a power goods and services by a non- entity is a holding company system or situation in which a multi-state holding regulated company to an affiliated another state commission.182 In company system finds that all state public utility. The standard used affects addition, Missouri PSC urges the commissions do not approve a single jurisdictional rates, and the Commission Commission not to interpret section allocation agreement. In such cases, the has the authority to establish a standard 1275(b) to permit gaming of the state multi-state holding company system insofar as it pertains to jurisdictional commission retail ratemaking process would apply to the Commission to rates pursuant to its ratemaking by holding companies or state impose consistent requirements that authority under sections 205 and 206 of commissions, i.e., to permit state would eliminate the possibility of the FPA and section 4 and 5 of the NGA, commissions or holding companies to trapped costs.186 as well as pursuant to the additional petition the Commission to review and authority to review and authorize cost authorize a holding company system- Commission Determination allocations requested under section wide cost-allocation methodology that 179. In response to APPA/NRECA’s 1275 of EPAct 2005. would be imposed on all state concerns regarding the ‘‘organized d. Other Issues Regarding Cost- commissions. Finally, Missouri PSC specifically’’ language, we clarify that Allocation Agreements contends that an interpretation of we do not interpret this to allow a cost section 1275(b) giving Commission- allocation to escape review if the Comments approved cost allocations preemptive associate company later takes on 175. APPA/NRECA assert that the effect would also be contrary to the clear additional responsibilities. In response language of proposed section 366.5(b) language contained within section to the comments from MBIA Insurance, could be misinterpreted to mean that a 1275(c), which provides that: ‘‘Nothing the Commission has authority to review company ‘‘organized specifically’’ for in this section shall affect the authority any intra-system costs to any one purpose (say, providing legal of the Commission or a state jurisdictional company under FPA and services to the system’s utility members) commission under other applicable NGA authority. and that later takes on other law.’’ Since state commissions have 180. In response to the requests for responsibilities (like providing state law authority to set retail rates, clarification of the potential preemptive accounting services to the system’s including authority to disallow effect of section 1264 and the utility members) can escape review purchase costs or sales prices deemed Commission’s regulations thereunder, under this section (for example, at the unreasonable or imprudent, section we believe that issues related to request of a state commission). Such 1275(c) on its face protects the state preemption are more appropriately ‘‘after-acquired’’ functions should not commissions from any asserted addressed on a case-by-case basis to give preclude Commission review.179 preemptive effect of a Commission the Commission the opportunity to Similarly, MBIA Insurance contends allocation under section 1275(b).183 consider the potential preemptive effect that, even if the non-utility associate 177. By contrast, Xcel and NiSource of section 1264 in specific exists primarily for another purpose, contend that any Commission-approved circumstances. However, we anticipate such as providing services to companies cost allocations under section 1275 will that such issues would arise only in outside of the system, its intra-system necessarily preempt state unusual circumstances. costs to regulated utilities should still be determinations. Xcel argues that it subject to the Commission’s review, if a would negate the intent of Congress to 5. Single-State Holding Company state or holding company opts for give the Commission the authority to Systems and Other Classes of Commission review. To the extent that review these allocations if state Transactions the Commission believes it may lack the commissions could undertake their own 181. Section 1275(d) of EPAct 2005 authority to adopt such a regulation, cost allocations and urges the directs the Commission to issue rules no MBIA Insurance urges the Commission Commission to avoid any kind of later than four months after the date of to ask Congress to clarify or grant the actions or statements that would enactment of EPAct 2005 to exempt Commission this authority to protect support the argument that the from the requirements of section 1275 customers and prevent regulatory preemptive effect of section 1275 is (service allocation requests by holding gaps.180 181 NARUC Comments at 2. 184 Xcel Reply Comments at 5–6. 179 APPA/NRECA Comments at 8. See also 182 Missouri PSC Comments at 9. 185 NiSource Reply Comments at 7. Missouri PSC at 9. 183 Id. at 11–12. See also Progress Energy 186 Dominion Comments at 18–19, EEI Comments 180 MBIA Insurance Comments at 18. Comments at 9. at 25–26.
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company systems or state commission) 184. A number of commenters who regulations.190 NiSource supports the 70 ‘‘any company in a holding company agree with the Commission’s percent threshold because, first, it system whose public utility operations interpretation also suggest various would be unusual for a traditional are confined substantially to a single modifications to the scope of the single- public utility that has its physical state’’ and any other class of state holding company exemption and operations in one state to derive more transactions that the Commission finds propose definitions of the phrase than 30 percent of its gross utility are not relevant to the jurisdictional ‘‘confined substantially to a single operating revenues from outside that rates of a public utility. We interpreted state.’’ EEI suggests that the Commission state. Second, NARUC’s proposed this to exempt single-state holding follow SEC practice and precedent in standard correctly captures the statutory companies and sought comments on interpreting this exemption, in language of section 1275(d); whereas the how the Commission should define particular, section 3(a)(1) of PUHCA Commission’s proposed language in ‘‘confined substantially to a single 1935 which provides an exemption for proposed section 366.5(c) of the NOPR state.’’ intrastate holding companies. According is, at best, ambiguous.191 182. While section 1275(d) states that to EEI, under current SEC practice, a 186. Commenters also suggested companies in single-state holding holding company will qualify for the revisions to the Commission’s proposed company systems are exempt from the intrastate exemption if it derives no regulatory text in section 366.5. ‘‘requirements’’ of section 1275, section more than approximately 13 percent of NiSource notes that the current 1275 does not impose any requirements its utility revenues from out-of-state language can be read so that a holding on holding company systems or public utility company operations. EEI company with operations in multiple companies within these systems, but further suggests that, in administering states falls under section 1275(b) even if rather grants holding company systems this exemption, the Commission should its public utility is confined and relevant state commissions the right follow current SEC practice and require substantially (or entirely) to a single to obtain Commission review and the annual submission of information in state. NiSource urges the Commission to authorization of cost allocations. Part 3 of Form U–3A–2 by companies modify the first sentence in section Instead, the only requirements in seeking an exemption under section 366.5(c) to read that ‘‘any company in section 1275 are directed toward the 1275(d).187 Scottish Power also agrees a holding company system whose Commission, in particular that ‘‘the that Congress intended to deny single- public utility operations are confined Commission shall review and state holding company systems and substantially to a single state, as defined authorize’’ cost allocations if asked to relevant state commissions the right to herein, is exempt from paragraph (b) of 192 do so by the holding company system or obtain Commission review of cost this section.’’ Santa Clara and TANC the relevant state commission. Based on allocations pursuant to section 1275 and state that, in light of the complexities of the structure of section 1275, we urges the Commission to clearly reflect effective state oversight and regulations suggested that the most reasonable this limitation by excluding single-state of holding companies, the Commission interpretation of the exemption in holding company systems from the should interpret the definition of single- section 1275(d) is that Congress scope of Commission review under state strictly and narrowly to prevent intended to deny single-state holding section 366.5(b) of the Commission’s creeping variations from the letter and company systems and state regulations.188 spirit of the exemption, and avoid a gap commissions having jurisdiction over a 185. NARUC submits that the in effective regulation of multi-state public utility in such systems the right exemption should apply to any utility holding company systems. Santa to obtain Commission review of cost company in a holding company system Clara and TANC therefore urge the allocations pursuant to section 1275. whose public utility operations are Commission to reevaluate its Accordingly, we proposed to reflect this confined substantially to a single state, interpretation of the single-state holding limitation by excluding single-state rather than applying the exemption to company exemption from Commission 193 holding company systems from the the holding company system that is review under section 1275. Ameren scope of Commission review under confined substantially to a single state. argues that the focus of the term section 366.5(b) of the Commission’s Thus, the relevant inquiry should ‘‘confined substantially to a single state’’ regulations. The Commission invited involve an analysis of the extent to should be on the state or states in which comments on this interpretation of which the individual company operates a holding company system is subject to section 1275(d). in a single state rather than the extent retail rate regulation since there are no to which the holding company system is ‘‘captive’’ customers who could be a. Definition of Single-State Holding predominately single-state in nature.189 harmed in a state where the public Company System Exemption NARUC further asserts that the utility does not have cost-based rates.194 Comments Commission should follow the SEC’s Finally, Public Citizen contends that the interpretation of this single-state single-state exemption requires that 183. Some commenters agree with the holding company exemption under both a public utility and its holding Commission’s interpretation that section PUHCA 1935. Consistent with this 1275(d) exempts single-state holding precedent, NARUC proposes that, if a 190 Id. See also E.ON/LG&E Energy Comments at company systems whose public utilities company in a holding company system 18–19 (the standard should be whether 80 percent operations are confined substantially to or more of the retail customers served by the public whose public utility operation derives a single state (i.e., all of the holding utilities in the holding company system are located 70 percent or more of its gross utility companies’ public utility affiliates or within a single state). operating revenues from within a single 191 NiSource Comments at 9. subsidiaries operate principally in a state, that individual company should 192 Id. NiSource further states that the final rule single state), whereas other commenters be considered exempt from section 1275 should make clear that section 1275 applies only to (as discussed below) interpret the traditional public utilities. In addition, if a and any related Commission exemption to apply only to individual traditional public utility engages in wholesale sales beyond its service territory, such sales should not ‘‘companies’’ within the holding 187 EEI Comments at 27–28. See also render the utility subject to section 1275. company system, i.e., where the MidAmerican Comments at 11. 193 Santa Clara Comments at 14–15, TANC individual public utility, operating 188 Scottish Power Comments at 11. Comments at 14–15. primarily in a single state. 189 NARUC Comments at 12–13. 194 Ameren Comments at 18.
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company primarily operate in a single 189. We agree with several provide the full text of any such state, so that the state is capable of commenters that the relevant analysis authorization (whether by rule, order, or regulating the holding company, as well should be whether a holding company’s letter) and the application(s) or as the public utility, under state law.195 regulated public utility operations are pleading(s) underlying such confined substantially to a single state, authorization (whether by rule, order, or Commission Determination not whether the holding company itself letter). 187. Despite the ambiguous language is confined substantially to a single 193. A number of commenters have of section 1275(d), we believe that the state. As discussed above, we interpret noted that proposed section 366.6 states most reasonable interpretation of the single-state holding company that persons will be able to continue to section 1275(b) and (d) together is that exemption in section 1275(d) to apply engage in activities or transactions section 1275(b) is designed to offer this in cases where a holding company has authorized under PUHCA 2005, and that Commission as a forum for holding multiple non-utility subsidiaries it should instead refer to PUHCA 1935. company systems and state operating in more than one state, but In response to the comments, we have commissions to obtain cost allocations one public utility subsidiary that corrected this error in the regulations within holding companies whose public operates primarily in a single state. In adopted here. utility operations are not confined such a case, the holding companies’ Comments substantially to a single state. public utility operations would be Specifically, section 1275(b) is designed subject to the jurisdiction of a single 194. The majority of the comments to allow multi-state holding companies, state commission, while the holding supported the Commission’s proposal to or the regulatory agencies of states in companies’ operations would not. allow entities to rely on SEC orders, in Accordingly, we find that Public particular, SEC financing which the holding company’s public 197 utility subsidiaries operate, to obtain Citizen’s interpretation is inconsistent authorizations. For example, Commission review and authorization with the text of section 1275(d). Dominion and EEI note that, with the of cost allocations. However, Congress repeal of section 318 of the FPA, many b. Other Classes of Transactions That additional public utilities will become in section 1275(d) does not permit Should Be Exempted single-state holding companies to take subject to Commission jurisdiction advantage of the procedures in section 190. In the NOPR, we concluded that under section 204 and that, unless registered holding company public 1275(b).196 This means that, if a holding an exemption under section 1275(d) utility subsidiaries can rely on their company has several public utility forecloses Commission review under current SEC orders, it will be necessary subsidiaries operating in different states, section 1275(b). In section 366.5(c) of for them to apply immediately for even if the individual subsidiaries’ the Commission’s regulations, we Commission authorization under businesses are each confined proposed to establish a procedure by section 204 of the FPA. According to substantially to a single state, the which the Commission, either upon Dominion and EEI, this would create a holding company itself does not confine petition for declaratory order or upon its substantial burden for the holding its public utility operations to a single own motion, may exclude from the companies and their public utility state, and therefore, the exemption does scope of Commission review and authorization under section 366.5(b) any subsidiaries and could also lead to a not apply. On the other hand, if the surge in section 204 applications at holding company has multiple non- class of transactions that we determine are not relevant to the jurisdictional precisely the time that the Commission utility subsidiaries operating in more is burdened with implementing its new than one state, but one or more public rates of a public utility. The Commission invited comments as to duties under EPAct 2005. Dominion and utility subsidiaries that all operate EEI thus recommend that the primarily in the same state, the other classes of transactions that, pursuant to section 1275(d), should be Commission in its rulemaking make a exemption would apply. finding under section 204 of the FPA 188. Several commenters agree that a exempted from the requirements of section 1275. authorizing holding company public holding company should be considered utility subsidiaries, at their option, to to be a single-state holding company if Comments issue securities and assume liabilities it complies with current SEC practice on 191. No comments were received on following the effective date of PUHCA granting a similar exemption under this subject. Accordingly, we will not at 2005, provided that they comply with PUHCA 1935, which requires that a this time establish any blanket the terms of their SEC financing certain percentage of public-utility exemptions for certain classes of authorization. Dominion and EEI further revenues be derived from operations transactions. recommend that this authorization within a single state. We believe it is continue through the later of December reasonable to adopt a standard that is 6. Previously Authorized Activities 31, 2007 or the date on which the SEC consistent with SEC rules and will 192. Section 1271 of EPAct 2005 order is set to expire.198 define a single-state holding company as states essentially that a person may 195. EEI further suggests that, to the one that does not derive more than 13 continue to engage in activities or degree it deems necessary, the percent of its public-utility revenues transactions authorized by rule or order Commission could condition its from outside a single state. as of the date of enactment of EPAct acceptance of SEC financing 2005 if that person continues to comply authorizations on specific requirements 195 Public Citizen Comments at 13. with the terms of the authorization. In related to the provisions of FPA section 196 With respect to NARUC’s alternative the NOPR, the Commission proposed to 204, such as the restrictions on secured interpretation of the scope of this exemption, we and unsecured debt set forth in Westar note that the phrase ‘‘whose public utility reflect this statutory provision in section operations are confined substantially to a single 366.6 of the Commission’s regulations. state’’ directly follows, and thus modifies, ‘‘holding The Commission also proposed to 197 See, e.g., Cinergy Comments at 25–27, company system’’ rather than ‘‘company.’’ This require that, if any such activities are FirstEnergy Comments at 16–17, National Grid interpretation is consistent with the structure of Comments at 7–8, Scottish Power Comments at 12, section 1275(b) which provides the election to the challenged in a formal Commission Xcel Comments at 6. holding company system, rather than individual proceeding, the person claiming prior 198 Dominion Comments at 20–21, EEI Comments companies within it. authorization shall be required to at 29–30.
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Energy, Inc.199 However, if the Westar company by the SEC under PUHCA Commission’s new regulations until the or other conditions are imposed, EEI 1935.202 Commission makes an affirmative contends that they should apply 198. Finally, Entergy requests finding that the person is a ‘‘natural gas prospectively only and not to securities clarification of the statement in the utility’’ under PUHCA 2005.205 issued prior to February 8, 2006.200 NOPR that such authorizations will 201. Northeast Utilities Service 196. Entergy supports the remain effective only ‘‘so long as that Company (Northeast Utilities) notes that Commission’s proposed interpretation person continues to comply with the some registered holding companies may of the savings provision in section 1271, terms of such authorization.’’ According have obtained amendments to existing but asserts that there are several to Entergy, many orders issued by the SEC orders or new orders after August technical concerns regarding the SEC require periodic reporting to the 8, 2005, i.e., date of enactment of EPAct manner in which the proposed rule is SEC of financing transactions that are 2005, and thus urges the Commission to drafted that, if not corrected, may consummated pursuant to the make clear that such modified and/or prevent the rule from achieving its authorization set forth in the order, so new orders should also be intended purpose. Entergy urges the the question arises as to whether such grandfathered, if possible.206 Commission to clarify the condition in reporting requirements will be 202. Some commenters, however, the proposed rules insofar as it provides considered ‘‘terms’’ of the PUHCA 1935 emphasized that section 1271 of EPAct authority to continue to engage in authorization that must be satisfied in 2005 does not insulate activities ‘‘activities or transactions’’ approved by order to continue to engage in the SEC- previously approved by the SEC from the SEC ‘‘[u]nless, otherwise provided approved financing transactions Commission review under the FPA or by Commission rule or order.’’ Entergy subsequent to the February 8, 2006. NGA.207 According to APPA/NRECA, inquires if, for example, a Commission Entergy requests that the Commission the savings provision in section 1271(a) section 204 financing order imposes a clarify that following February 8, 2006, of EPAct 2005, which allows entities condition that is not present in an such reports (originally required to be with SEC approvals to continue existing SEC financing order issued to filed with the SEC pursuant to Rule 24, engaging in the transactions so another public utility under PUHCA adopted under PUHCA 1935) are to be approved, does not diminish the 1935, can the other public utility filed with the Commission, rather than Commission’s authority to establish continue to rely on its PUHCA 1935 with the SEC.203 conditions that ensure just and order or is the applicability of the saving 199. PacifiCorp requests that the reasonable rates under the FPA or provision negated by the referenced Commission clarify that SEC financing NGA.208 APPA/NRECA further condition? Similarly, Entergy asserts authorizations will be preserved for a emphasize that any interpretation of that there may be a question whether sufficient period of time to permit a section 1271(a) that would limit the the ‘‘unless otherwise provided reasonable transition period (through Commission’s ability to review the language’’ will necessitate compliance December 31, 2007) to the requirements effect of particular activities or with the requirements of Part 34 of the of section 204 for both utilities and the transactions on Commission- Commission’s regulations or other Commission. PacifiCorp further requests jurisdictional rates would be regulatory conditions or requirements that the Commission provide a inconsistent with section 1271(b), adopted by the Commission, to the mechanism for such further approvals which makes clear that section 1271(a) extent that such requirements are absent until February 8, 2006, and to preserve does not circumscribe in any way the from an existing PUHCA 1935 financing tax treatment by retaining the right of Commission’s regulatory authority order (which otherwise would continue holding companies to avail themselves under the FPA and the NGA.209 in effect beyond the PUHCA 1935 repeal of Internal Revenue Code section 1081, Similarly, Santa Clara notes that it date as a result of the saving which section 1271 also preserves.204 might be argued that a conflict between provision).201 200. MGTC requests that the section 1271(a) and 1271(b) arises when 197. Entergy also seeks clarification as Commission clarify that prior status SEC rules under PUHCA 1935 require to the statement in the NOPR that determinations by the SEC remain valid different or less rigorous standards than existing PUHCA 1935 authorizations are and are grandfathered by the operation the Commission’s rules under the FPA, to remain ‘‘in effect for the period of of section 1271, so that, for example, if e.g. SEC at-cost standard vs. the time provided in such authorization’’ a person was declared not to be a ‘‘gas Commission’s market standard. Santa with respect to authorizations that do utility company’’ by the SEC, and the Clara urges the Commission to clarify not contain a specified expiration date, facts on which that determination was that all activities, including those in particular, orders authorizing made have not materially changed, that previously authorized by the SEC and creation of service companies, which person will not be a ‘‘natural gas the Commission itself, are subject to typically do not reference any company’’ under PUHCA 2005 and review, rules, regulations and policy expiration date. Entergy recommends implementing regulations. MGTC administered independently by the that authorizations granted by the SEC further contends that, if the Commission Commission under the FPA.210 under PUHCA 1935 should remain in is not willing at this time to issue a 203. Finally, Oklahoma Corporation effect after repeal, unless and until such broad declaration that prior SEC status Commission suggests that the time as such authorization would determinations are grandfathered by Commission should amend proposed otherwise expire under the applicable section 1271, the Commission should section 366.6 to include language that PUHCA 1935 order, rule or statutory nonetheless hold that a person that the clearly articulates that said person or SEC found was not a ‘‘gas utility provision, or until such time as the company’’ under PUHCA 1935 will not 205 Commission issues a new order MGTC Reply Comments at 1, 4. See also Mittal be required to comply with the Steel Reply Comments at 2–5. expressly modifying the authorization 206 Northeast Utilities Comments at 6. previously granted to the applicable 207 202 Id. at 13–14. See, e.g., Arkansas PSC Comments at 7, 203 Id. See also NiSource Comments at 14–15 (the Missouri PSC Comments at 14–15. 199 102 FERC ¶ 61,186 (2003), order rescinding Commission should clarify that only the SEC’s 208 APPA/NRECA Comments at 4. See also Santa authorization, 104 FERC ¶ 61,018 (Westar). conditions and terms apply, unless the Commission Clara Comments at 17, TANC Comments at 17. 200 EEI Comments at 30. states otherwise in a specific order). 209 Id. at 13–14. 201 Entergy Comments at 12–13. 204 PacifiCorp Comments at 7–8. 210 Santa Clara Comments at 18–19.
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entity should also bear the burden of which it is legally engaged or authorized We do not think it is reasonable to proof that that person or entity has to engage on the date of enactment of assume that Congress intended to carry complied with the rule, order, or PUHCA 2005, if that person continues forward the SEC’s financing letter.211 to comply with the terms (other than an authorizations without the specific expiration date or termination date) of reports required to be submitted as a Commission Determination any such authorization. This provision, condition of those authorizations. More 204. In the NOPR, we noted that the and section 366.6 of our regulations that importantly, the receipt of such reports repeal of PUHCA 1935 and section 318 we adopt herein, permit persons to rely will allow the Commission to perform of the FPA would give the Commission on the SEC multi-year financing its oversight duties, while allowing the jurisdiction under section 204 of the authorizations for the period of time entities to continue to rely on these SEC FPA over certain issuances of securities provided in that authorization. financing authorizations for a and assumptions of liabilities by Accordingly, we clarify that, to the reasonable transition period. companies within holding company extent companies in a holding company 210. PacifiCorp appears to be systems that are currently subject to the system engage in authorized financing requesting that the Commission grant jurisdiction of the SEC. Furthermore, transactions, in compliance with the further financing approvals under Congress expanded the Commission’s terms of that authorization, we will not PUHCA 1935 until February 8, 2006, jurisdiction over holding company require those entities to seek additional since it could not do so under PUHCA acquisitions of securities through its authorization under sections 203 or 204 2005, which does not take effect before amendments to section 203 of the FPA at this time. that date. While the Commission has no in section 1289 of EPAct 2005. Finally, 207. We find that EEI’s concerns authority to take any action under Congress explicitly stated in section regarding Westar are beyond the scope PUHCA 1935, which was entrusted to 1271(b) that nothing in PUHCA 2005 of this rulemaking and, therefore, we the SEC, to the extent necessary to limits the Commission’s authority under will not address them here. Instead, the permit continuity of financing the FPA and the NGA. Thus, it is clear Commission will consider whether to authorizations or to preserve tax that in EPAct 2005 Congress intended to place Westar conditions upon future treatment referenced in section 1271(c) preserve, and in some ways expand, the applications on a case-by-case basis. of PUHCA 2005,212 the Commission will Commission’s authority over issuances 208. Section 1271(a) permits a person entertain requests for financing of securities, assumptions of liabilities to engage in previously-authorized approvals prior to February 8, 2006, but by companies within holding company activities if that person continues to will be able to make any such approvals systems, and holding company comply with the terms of that effective only upon the effective date of acquisitions of securities. However, authorization, other than an expiration PUHCA 2005, February 8, 2006. Congress also included in PUHCA 2005 date or termination date. We agree that 211. As noted, section 1271(c) a transition provision, which allows it is necessary to provide a reasonable explicitly states that tax treatment under persons to continue to rely on transition period for entities subject to section 1081 of the Internal Revenue previously-granted SEC authorizations. the requirements of PUHCA 2005 and, Code of 1986 as a result of transactions 205. We will adopt section 366.6 as therefore, we agree with Dominion and ordered in compliance with PUHCA proposed in the NOPR and allow EEI that these authorizations should 1935 shall not be affected in any manner entities to continue to rely on SEC continue through the later of December due to the repeal of PUHCA 1935 and orders, including SEC financing 31, 2007 or the date on which the SEC the enactment of PUHCA 2005, and we order is set to expire and with authorizations. We will also grant a will comply with this provision insofar PacifiCorp that section 204 number of the clarifications with respect as such tax treatment is reflected in authorizations should not be required to SEC financing authorizations jurisdictional rates or in the until December 31, 2007, without regard requested by commenters. However, the Commission’s Uniform System of to the duration of the SEC authorization. Commission will require all holding Accounts and the SEC’s Uniform We conclude that it is reasonable to companies that intend to rely on their System of Accounts, as they exist on the permit entities to rely on their SEC SEC financing authorizations to issue day before the date of enactment of financing authorizations for the period securities, assume liabilities, or engage PUHCA 2005. of their duration or through December in securities transactions that would 212. We will also grant Northeast 31, 2007, whichever is later. Similarly, otherwise be reportable under section Utilities’ request that section 1271 will with respect to Entergy’s request for 203 of the FPA, as amended by EPAct apply to modifications of SEC orders clarification regarding authorizations for 2005, or section 204 of the FPA to file made between the date of enactment the formation of service companies, with the Commission a copy of these and the effective date of PUHCA 2005. which do not have a termination date, SEC orders by the effective date of 213. We will also grant the we conclude that PUHCA 2005 does not PUHCA 2005. The filing of these orders clarification requested by APPA/NRECA grant the Commission authority over will permit the Commission to maintain and others that transactions entered into service company formation and thus effective oversight of the previously- pursuant to prior SEC authorizations are authorized activities and transactions Commission authorization is not required. not insulated from Commission review that, due to the repeal of PUHCA 1935, under the FPA and the NGA. are now subject to the Commission’s 209. We will also grant Entergy’s clarification that, after the effective date Previously, certain securities jurisdiction under the FPA. transactions were exempted from 206. Section 1271(a) states that of PUHCA 2005 (i.e., February 8, 2006), for SEC orders that require periodic Commission jurisdiction due to section nothing in PUHCA 2005 or PUHCA 318 of the FPA, which Congress has 1935 and the rules, regulations, and reporting to the SEC of financing transactions that are consummated repealed. While we agree that section orders thereunder, prohibits a person 1271(a) permits companies within from engaging in or continuing to pursuant to the authorization set forth in the order, such reports are to be filed engage in activities or transactions in 212 Section 1271(c) of PUHCA 2005 states that with the Commission, rather than with such tax treatment shall not be affected in any 211 Oklahoma Corporation Commission the SEC, so long as the company manner due to the repeal of PUHCA 1935 and Comments at 7. continues to rely on such authorization. enactment of PUHCA 2005.
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holding company systems to continue to new federal books and records access statute.215 According to Calpine, by rely on SEC financing authorizations, requirements add to the Commission’s incorporating the definition of EWG into this authorization simply permits them existing very broad books and records PUHCA 2005 and relying on that to engage in such transactions without access authority under FPA section 301 definition to permit holding companies prior Commission approval under and NGA section 8, we concluded that with respect to only EWGs, QFs, and/or sections 203 and 204 of the FPA, but our interpretation served to err on the FUCOs to be exempt from the federal does not insulate them from our review side of greater customer protection. books and records access requirement, of jurisdictional rates under sections 217. We also noted that, in any event, Congress recognized the continuing 205 and 206 of the FPA and sections 4 entities that qualified as EWGs under need for EWG determinations after the and 5 of the NGA. PUHCA 1935 were not exempted from repeal of PUHCA 1935 takes effect; 214. We will not adopt Oklahoma the Commission’s authority under the nowhere in EPAct 2005 is the Corporation Commission’s suggestion FPA if they met the FPA definition of exemption limited to holding that we amend section 366.6 to include ‘‘public utility,’’ including the very companies with EWGs prior to the language that clearly articulates that broad access to books and records repeal of PUHCA 1935 takes effect. said person or entity should also bear provisions of FPA section 301. Nor will Calpine thus contends that, if Congress the burden of proof that that person or they be exempt from these FPA wanted to restrict EWG determinations entity has complied with the rule, order, provisions as a result of PUHCA 2005. to a certain time period, it knew how to or letter. We find that such an do so, but chose not to.216 Similarly, amendment is unnecessary at this time. 218. In addition, we noted that Congress repealed section 33 of PUHCA Dominion and EEI argue that, by 7. Exempt Wholesale Generators and 1935, which addresses FUCOs. As with preserving the meaning of the term Foreign Utility Companies EWGs, we stated our belief that ‘‘exempt wholesale generator’’ found in Congress intended to limit the PUHCA 1935, Congress in essence 215. EPAct 2005 repeals PUHCA 1935 preserved section 32(a) of PUHCA 1935, in its entirety, including section 32, exemption for persons that are holding companies with respect to FUCOs to which defines an EWG, in part, as a which requires the Commission to make company that the Commission EWG determinations on a case-by-case those attaining FUCO status before repeal of PUHCA 1935. The determines to be an EWG. Thus, basis, upon application. Although the according to Dominion and EEI, the definitional section of PUHCA 2005 Commission invited comments as to this interpretation of EPAct 2005. Commission’s case-by-case references section 32 of PUHCA 1935, determination process is incorporated the Congress nevertheless repealed Comments directly in the definition.217 Morgan section 32 in its entirety and did not re- Stanley argues that the Commission’s enact that provision in the new PUHCA 219. Some commenters expressed interpretation effectively renders 2005. The Commission stated in the support for the Commission’s decision superfluous the EWG exemption NOPR that it believed that the most to no longer make determinations of contained in EPAct 2005.218 reasonable interpretation of EPAct 2005, EWG status. These commenters note 221. Other commenters believe that given the omission of section 32 in the that, while Congress repealed the the Commission’s interpretation is not a new PUHCA 2005, is that Congress did section of PUHCA 1935 addressing permissible one because the decision to not intend the Commission to continue EWGs, the exemption in subsection eliminate Part 365 and future EWG to make case-by-case determinations of 1266(a)(2) refers to these repealed determinations would produce EWG status in the future (i.e., after the designations, they have to apply to unreasonable or unduly discriminatory effective date of PUHCA 2005). Rather, something, and they agree with the results. Calpine argues that, under the we stated in the NOPR that the most Commission’s position that the Commission’s interpretation of the reasonable interpretation of the statute exemptions must apply only to the statute, if Calpine added one more is that only those entities that are 213 existing EWGs and FUCOs. Public wholesale generator that would have holding companies with respect to Citizen agrees that grandfathered EWGs been an EWG under Part 365, Calpine persons granted EWG status before the have a reliance argument for and its subsidiaries will lose the repeal of PUHCA 1935 would qualify for maintaining their status, but disagrees an exemption from the new federal exemption and thus it is not reasonable with extending such grandfathering to for the addition of one wholesale books and records access requirements new entities that are now aware that the under proposed section 366.3(a)(2) of generator that is identical to Calpine’s distinction no longer exists. EWG affiliates in every respect but one the Commission’s regulations. Furthermore, Public Citizen states that Accordingly, we proposed to remove (i.e., EWG status), to result in all of these grandfathered EWGs must continue to companies and their affiliates being Part 365 of the Commission’s comply with EWG requirements to regulations, which set forth the filing subject to the books and records access maintain their grandfathered EWG requirements and SEC rules, requirements and ministerial status and that they should be required procedures for persons seeking EWG particularly when these companies were to make an annual filing with the exempt from regulation under PUHCA status under section 32 of PUHCA 1935, Commission stating how each continues and we invited comments on whether 1935 and have no captive customers in to comply with the original terms of its need of protection.219 Further, Calpine we should do so. EWG or FUCO exemptions.214 216. We further noted that the benefit 220. The majority of commenters, 215 of EWG status under PUHCA 1935 was See, e.g., Coral Power/Windenergy Comments however, opposed the Commission’s at 8, EPSA Comments at 16–17, Goldman Sachs that entities that the Commission proposal to stop making determinations Comments at 5, PPM Energy Comments at 3–4. determined to have met the definition of of EWG status as contrary to Congress’ 216 Calpine Comments at 5–6 (quoting section 1253(a) of EPAct 2005 definign ‘‘existing qualifying EWG were exempted from the myriad intent and the plain meaning of the requirements of PUHCA 1935. The cogeneration facility’’). 217 principal benefit of being an EWG under Dominion Comments at 22–23, EEI Comments 213 APP/NRECA Comments at 21, Georgia PSC at 32. PUHCA 2005 is exemption from the Comments at 3, Santa Clara Comments at 18, TANC 218 Morgan Stanley Comments at 7. new federal books and records access Comments at 18. 219 Calpine Comments at 6. See also Coral Power/ requirements. To the extent that these 214 Public Citizen Comments at 5. Shall WindEnergy Comments at 8.
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asserts that the use of proposed section under the FPA and NGA with respect to Commission within 60 days after the 366.3(b), which would provide for jurisdictional rates.224 date of filing of a self-certification entities to file for a petition for a 224. Some commenters suggested that notice, the exempt wholesale generator declaratory order that they are exempt the Commission should adopt a self- status or foreign utility company status from the Commission’s books and certification process similar process to shall be deemed to have been granted. records requirements, is not an adequate that used by the SEC. For example, The Office of the Secretary will alternative for Calpine due to the high Scottish Power argues that FUCOs that periodically issue notices listing the costs of filing such petitions.220 Morgan operate exclusively outside of the U.S. entities whose self-certification of EWG Stanley further argues that comments should not be subject to Commission or FUCO status is deemed to have been supporting the Commission’s proposed oversight. The Commission should granted in the absence of Commission deletion of Part 365 offer no substantive continue the SEC’s practice of allowing action to the contrary within 60 days basis for why such a course of action for the creation of FUCOs by submittal after the date of filing. We believe that comports with legislative intent, nor do of a notice filing. FUCOs and their such a self-certification of EWG and they explain how it will not chill subsidiary operations are generally FUCO status will be adequate in the vast investor confidence or dissuade capital separate from that of the domestic majority of cases. from entering the wholesale generation utility operations and therefore would 227. For entities that require a higher 221 not bear in any way on the jurisdiction degree of legal certainty as to their sector. Finally, Dominion and EEI 225 note that a number of states provide rates of such utility company. status, we will permit them to seek a Commission determination of their exemptions from state laws based on Commission Determination EWG status and that failure to make EWG and FUCO status as defined under 225. Having again reviewed the section 366.1 of the Commission’s additional EWG determinations would ambiguities in statutory construction, also deprive those companies of the regulations. Specifically, section and balancing the facts that Congress 366.7(b) provides that they may seek benefits of those laws.222 repealed section 32 of PUHCA 1935 in such a determination by filing a petition 222. With respect to determinations of its entirety, yet referred to section 32 in for declaratory order pursuant to Rule FUCO status, Calpine disagrees with the the definitional sections of PUHCA 207(a) of the Commission’s Rules of Commission’s proposal in the NOPR. 2005, we conclude that it is reasonable Practice and Procedure justifying the Calpine asserts that, by incorporating to interpret PUHCA 2005 to allow request for EWG or FUCO status. These the definition of FUCO into PUHCA entities to obtain EWG status under petitions will be noticed in the Federal 2005 and relying on that definition to PUHCA 2005. However, we will reject Register. A person filing a petition for permit holding companies with respect the requests from various commenters declaratory order in good faith will be to only EWGs, QFs, and/or FUCOs to be that we retain part 365 of our deemed to have temporary EWG or exempt from the federal books and regulations, which permit only case-by- FUCO status until the Commission takes records access requirement, Congress case applications for EWG status. action to grant or deny the petition. recognized the continuing need for 226. Instead, in line with the 228. The self-certification procedure FUCOs after the repeal of PUHCA 1935 comments received from Scottish Power established herein, along with the takes effect. As with EWGs, Calpine and others, we will establish a self- continued availability of Commission contends that it is not reasonable for the certification process for companies that determinations of EWG and FUCO addition of a single foreign subsidiary believe they satisfy the criteria for EWG status, ensures that the EWG and FUCO having no potential to impact the or FUCO status. This process is similar exemptions will continue to be available operations of its domestic affiliates to to that used for self-certifications for to any persons who satisfy the statutory subject such affiliates to the books and QFs under the Public Utility Regulatory criteria. Moreover, we note that the self- records access requirement and the SEC Policies Act of 1978, and is set forth in certification procedures established rules when they were not subject to section 366.7. Section 366.7(a) provides herein, and advocated by various such rules under PUHCA 1935.223 that the owner or operator of an EWG commenters, are less burdensome than or FUCO, or its representative, may file the procedures established under 223. EEI proposes that the with the Commission a notice of self- Commission should exempt FUCOs section 32 of PUHCA 1935. certification demonstrating that it 229. We disagree with commenters from the requirement that they maintain satisfies the definition of EWG or FUCO. such as Calpine and EEI who argue that their books and records under proposed In the case of EWGs, the owner or Congress, by incorporating the Rule 366.2(e), but that they otherwise operator must also file a copy of the definition of EWGs and FUCOs into should be subject to the books and notice with the state regulatory PUHCA 2005, carried over the records access provisions of section authority of each state in which the requirement from PUHCA 1935 that the 366.2 of the Commission’s proposed facility is located. Notices of self- Commission make case-by-case regulations. According to EEI, the certification or self-recertification will determinations of EWG status. This Commission should continue to have be published in the Federal Register. argument appears to rest on the access to FUCO records to the extent An entity filing a good faith notice of erroneous assumption that Congress that such records are relevant to the self-certification of EWG or FUCO status effectively reenacted (only) section 32(a) costs incurred by a public utility or will be deemed to have temporary status of PUHCA 1935. Had Congress meant to natural gas company that is an associate upon filing. If no action is taken by the do so, it could have simply so stated in of a holding company and necessary PUHCA 2005; alternatively, it could and appropriate for the proper exercise 224 EEI Comments at 34. See also National Grid have imported the text from section of the Commission’s statutory charge Comments at 5–8. National Grid also argues that extending the Commission’s books and records 32(a) of PUHCA 1935, with appropriate mandates to FUCOs would subject them to modifications, into section 1262(6) of 220 Id. at 10–11. conflicting mandates resulting in maintaining EPAct 2005, as it did for many of the 221 Morgan Stanley Reply Comments at 2–3. separate duplicative books and inappropriately other definitions carried over from 222 Dominion Comments at 23, EEI Comments at expand the extraterritorial impact of PUHCA 2005 33. without any benefit to U.S. consumers. PUHCA 1935. Instead, however, 223 Calpine Comments at 8–9. See also EPSA 225 Scottish Power Comments at 14. See also EEI Congress directed that ‘‘[t]he terms Comments at 16–17, PPM Comments at 3. Comments at 34, Public Citizen Comments at 6. ‘exempt wholesale generator’ and
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‘‘foreign utility company’’ have the ratemaking authorities under sections to rules on cross-subsidization and same meanings as in section 32 and 33’’ 205 and 206 of the FPA and sections 4 encumbrances of utility assets, several of PUHCA 1935 as they existed on the and 5 of the NGA to protect commenters emphasize that additional day prior to the date of enactment of jurisdictional customers against Commission rules are unnecessary EPAct 2005. We believe it is a inappropriate cross-subsidization or because existing Commission and state reasonable interpretation that, even if encumbrances of utility assets on an oversight is adequate.229 For example, Congress preserved the option of EWG ongoing basis. E.ON and LG&E Energy assert that it is status determinations going forward, it 232. In the NOPR, we also noted that not necessary or appropriate for the did not prescribe the procedural the Commission already has in place, Commission to promulgate additional mechanics requiring a case-specific pursuant to the FPA and NGA, certain rules or adopt additional policies with Commission ruling on what it means for reporting requirements regarding money respect to cross-subsidization or a person ‘‘to be engaged directly, or pools and cash management activities encumbrances of utility assets because, indirectly through one more affiliates that affect jurisdictional companies.226 with the repeal of PUHCA 1935, * * *, and exclusively in the business Further, in the electric area, we have Congress expressed the clear intent to of owning or operating, all or part of one policies that protect against cross- eliminate the comprehensive regulation more eligible facilities and selling subsidization occurring as a result of of holding company systems which had electric energy at wholesale.’’ Thus, we wholesale power sales between affiliates been characterized by PUHCA 1935. In conclude that, by repealing section 32 of in a holding company system as well as addition, E.ON and LG&E Energy assert PUHCA 1935, Congress left to the sales of non-power goods and services that current Commission and state Commission the discretion to prescribe between such affiliates.227 In the NOPR, regulation of affiliate transactions is the procedures for obtaining EWG we invited comment on whether, in sufficient, emphasizing that: (i) Affiliate status. light of the repeal of PUHCA 1935, the transactions also are controlled and/or 230. As noted earlier, with respect to Commission needs to promulgate monitored on an ongoing basis through FUCOs, section 33 of PUHCA 1935, as additional rules or to adopt additional codes of conduct in many states; (ii) the amended by EPAct 1992 provided that policies to protect against inappropriate Commission regulates wholesale power FUCOs would be exempt from PUHCA cross-subsidization or encumbrances of sales between affiliates, which is often 1935 and not deemed an electric utility utility assets, pursuant to our authorities the largest portion of affiliate company, but the exemption would not under the FPA and NGA. For example, transactions activity; (iii) under section apply or be effective unless relevant we asked whether, if it has the authority 1275 of EPAct 2005, the Commission state commission(s) certified that they to do so, the Commission should issue has additional authority to review the had the authority and resources to rules regarding public utility holding allocation of non-power goods and protect ratepayers of public utility company diversification into non-utility service transactions between service companies associated or affiliated with businesses. Would the Commission companies and public utilities; (iv) the the FUCO. Given that PUHCA 2005 is have authority to promulgate such rules terms of affiliate financing transactions largely a books and records statute, we under its FPA or NGA ratemaking also are closely monitored by the will waive our accounting and reporting authority? Should the Commission Commission and state commissions to requirements for FUCOs. However, we modify its existing cash management make sure that public utility capital will not exempt them from section 366.2 rules to apply not only to public costs are not inflated; (v) where state of our regulations, which allows us to utilities, natural gas companies, and oil commissions do not have jurisdiction obtain access as necessary with respect pipelines, but also to include public over such issuances, Commission to jurisdictional rates. The case-by-case utility holding companies? We sought authorization would be required under approach that we adopt here is comment on these and any other related section 204 of the FPA; and (vi) the consistent with our precedent issues in order to determine whether, in Commission has jurisdiction under concerning the treatment of FUCOs addition to the regulations being section 203 of the FPA over the sale, under the FPA and will allow us to proposed herein under PUHCA 2005, lease or disposal of public utility ensure adequate protection of captive the Commission may need to consider facilities subject to Commission customers in the United States. promulgating separate, additional rules jurisdiction and under section 204 of 8. Cross-Subsidization and under the FPA or the NGA. the FPA, the Commission must Encumbrances of Utility Assets authorize the assumption of any Comments obligation or liability as guarantor, 231. In the NOPR, we noted that 233. Commenters were largely indorser, surety, or otherwise in respect PUHCA 2005 is primarily a ‘‘books and opposed to the adoption of any new of any security of another person.230 records access’’ statute and does not rules on cross-subsidization, FirstEnergy argues that the routine give the Commission any new encumbrances of utility assets, review of each of the FirstEnergy substantive authorities, other than the diversification into non-utility Operating Companies by independent requirement in section 1275 of EPAct businesses, or the extension of existing financial rating agencies also acts as a 2005 that the Commission review and cash management rules.228 With respect deterrent to inappropriate cross- authorize certain non-power goods and services cost allocations among holding 226 Regulation of Cash Management Practices, 30–31, Emera Comments at 12, Entergy Comments company members upon request. Nor Order No. 634, 68 FR 40500 (Jul. 8, 2003), III FERC at 14–16, International Transmission Company does it give the Commission authority to Stats. & Regs. ¶ 31,145 (June 26, 2003), Order No. Comments at 11, KeySpan Comments at 7–8, 634–A, 68 FR 61993 (Oct. 31, 2003), III FERC Stats. MidAmerican Comments at 14, National Grid pre-approve holding company activities. & Regs. ¶ 31,152 (2003). Comments at 31–32, PacifiCorp Comments at 7–8, Accordingly, outside the context of 227 See Merger Policy Statement, FERC Stats. & Progress Energy Comments at 8, Questar Comments reviewing a holding company Regs. ¶ 31,044 at 30,124–25. See also Heartland at 5–6, Southern Company Services Comments at 8, transaction requiring approval under Energy Services, Inc., 68 FERC ¶ 61,223 at 62,062– Washington Gas & Light Comments at 5, Xcel section 203 of the FPA or a proposed 65 (1994); LG&E Power Marketing Inc., 68 FERC Comments at 7, Scottish Power Comments at 14– ¶ 61,247 at 62,121–24 (1994). 15. issuance of securities under section 204 228 See, e.g., Alliant Comments at 6, AEP 229 See, e.g., EPSA Comments at 25, FirstEnergy of the FPA, the Commission will Comments at 9–10, Ameren Comments at 20, AGL Comments at 17–19. continue to rely primarily on its Resources Comments at 8–9, Cinergy Comments at 230 E.ON/LG&E Energy Comments at 21.
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subsidization or establishment of structural separation requirements utility in order to fund a diversification unreasonable encumbrances on utility regarding transactions between utility program and from issuing debt or assets.231 Finally, Energy East agrees and non-utility affiliates. APPA/NRECA preferred securities to pay dividends to that no new rules are required, but argue that the Commission must ensure a holding company or to making unduly contends that some benefit could be complete structural protection, so that risky loans to any organization within gained from a single, uniform set of the public utility’s affiliation with a the holding company system. federal rules on cross-subsidization and non-utility business causes no Specifically, the Commission should affiliate abuse and federal code of additional, non-utility risk, including guard against a situation where the conduct to avoid potentially conflicting the following requirements: (i) Public relationship between a financially state-imposed standards.232 utility business must be conducted strong public utility and relatively 234. With respect to rules on through corporations legally distinct weaker affiliates has the effect of diversification, several commenters (and financially insulated) from non- increasing the utility’s cost of capital to argued that the Commission lacks the utility affiliates; (ii) public utilities must the detriment of customers. In the event statutory authority to adopt such maintain books and records that are that a public utility became over- rules.233 For example, commenters separate from the books and records of leveraged as a result of subsidization of argue that the SEC had authority under non-utility affiliates, and must prepare the holding company, Commission section 10 and 11 of PUHCA 1935 to separate financial statements; (iii) should consider taking appropriate regulate such diversification, but that public utilities must not commingle action, including limitations of the these sections were repealed and their assets or liabilities with the assets payment of common stock dividends Congress did not provide the or liabilities of a non-utility affiliate, or from the utility to a parent.238 Commission with authority to issue pledge or encumber their assets on these or similar rules and that the cross- behalf of a non-utility affiliate; and (iv) 237. NASUCA argues that, in the case subsidization language in the PUHCA service or management fees charged by of captive customers, the proper Repeal Subtitle is only a reference to the a public utility’s holding company structural protection would be to Commission’s existing authorities under parent or affiliated service company to prohibit a utility’s affiliation with non- the FPA, not a new grant of authority the public utility must not include utility businesses, unless there is no risk and that the Commission already has allocations of financing costs for entities involved. If a customer has power ample authority under sections 203, 205 other than the public utility, charges supply options, dealings between and 206 of that statue to address against equity in other subsidiaries of utilities and their non-utility affiliates whether inappropriate cross- the parent holding company, or could be approved if: (a) the information subsidization or other forms of affiliate operating losses of the parent holding on the risk is fully disclosed; (b) the abuse have occurred. company or other affiliated potential gains to the customer are 235. With respect to the Commission’s companies.236 MBIA Insurance argues commensurate with the risk; and (c) cash management rules, Dominion and that the Commission should impose there can be no possible level of harm EEI contend that there is no need to financial and corporate separation so large as to render the utility unable extend the Commission’s current cash requirements regarding transactions to comply with its duty to provide management rules to apply to holding between utility and non-utility affiliates service reliably and economically.239 companies. According to Dominion and to adequately protect utilities and their Finally, Ohio PUC recommends that the EEI, the rules already effectively apply customers: (i) A utility company must Commission adopt rules similar to those to holding companies because, where a not declare or pay any dividend on any found in its transition plan jurisdictional utility is a participant in security of the utility if such action administrative rules, which prevent a cash management arrangement with a would threaten the financial integrity of electric utilities from issuing any holding company, that arrangement the utility; (ii) utilities should have at security for the acquisition, ownership, must comply with Commission cash least one independent director on their or operation of an affiliate, assuming management rules and the agreement boards of directors; (iii) non-utility liabilities with respect to any security of must be filed. The only ‘‘extension’’ of affiliates should not have recourse an affiliate, or pledge, mortgage, or use the rules would be to require a holding against the tangible or intangible assets as collateral any of its assets for the company to comply with the rule in a of utility affiliates; (iv) a utility must not benefit of an affiliate. In addition, Ohio cash management arrangement that cross-subsidize or shift costs from a PUC recommends the Commission involved only non-utility companies. non-utility affiliate of the utility to the utilize the newly-established joint That would be an inappropriate utility, and must fully disclose and fully federal/state board to develop ‘‘ring- expansion of the Commission’s value any assets or services by the fencing’’ rules to insulate regulated authority.234 utility that are provided for the benefit assets from being the subject of cross- 236. A number of commenters, of a non-utility affiliate; (v) electricity collateralization with unregulated however, argued that the Commission and natural gas customers must not be assets.240 should adopt additional rules to protect subject to the financial risks of non- against the dangers of cross- utility diversification, and must not be 238 NARUC Comments at 13–14. National Grid subsidization and diversification into subject to rates or charges that are not and NiSource assert that NARUC has not shown non-utility businesses,235 in particular, that the existing protections are ineffective and that reasonably related to the provision of NARUC’s proposed additional reporting electricity or natural gas service.237 requirements are unnecessary. National Grid Reply 231 FirstEnergy Comments at 19. NARUC urges the Commission to Comments at 7–8, NiSource Reply Comments at 5. 232 Energy East Comments at 14–15. prohibit holding companies from 239 NASUCA Comments at 11–12. 233 See, e.g., Chairman Barton Reply Comments at encumbering the assets of its public 240 Ohio PUC Comments at 6–8. AGL Resources 10–11, Dominion Comments at 25, EEI Comments argues that Ohio PUC’s ring-fencing proposals are at 36, E.ON/LG&E Energy Comments at 22, EPSA unnecessary, but that if the Commission decides to Comments at 25. 22, TANC Comments at 21–22, Utility Workers impose additional rules, it should do so through a 234 Dominion Comments at 24, EEI Comments at Comments at 3. collaborative process including the Commission, 35. 236 APPA/NRECA Comments at 34–35. state commissions, and industry participants. AGL 235 See, e.g., CEOB Comments at 3, Missouri PSC 237 MBIA Insurance Comments at 20–24. But see Resources Reply Comments at 2. See also National Comments at 30–32, Santa Clara Comments at 21– EEI Reply Comments at 3. Grid Reply Comments at 7–8.
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238. With respect to the procedure for authority to issue additional PUHCA 2005 or modifications we implementing these structural measures Commission rules regarding cross- should make to our proposed regulatory to protect customers against the risks of subsidization, encumbrances of utility text. diversification into non-utility assets, diversification into non-utility a. Amendments of Definitions businesses, APPA/NRECA urge the businesses, or the extension of existing Commission to create a procedure for cash management rules. Rather, any Comments evaluating a public utility’s acquisition such authority resides in the FPA and 246. Oklahoma Corporation of, or acquisition by, a non-utility NGA. In addition, as noted by E.ON and Commission requests that the business to ensure: (a) Compliance with LG&E Energy, current Commission and definitions of ‘‘affiliate’’ and aforementioned limits; (b) non- state regulations already provide ‘‘subsidiary’’ in PUHCA 2005 be interference by the non-utility side in oversight regarding cross-subsidization amended. Oklahoma Corporation and encumbrances of utility assets. the management of the public utility Commission contends that the Accordingly, we will monitor industry side; and (c) that holders of the public difference in the two percentages, i.e., activities, and we will adopt new utility’s debt, and credit rating agencies five percent for affiliates and ten percent regulations on cross-subsidization or which rate that debt, have confirmed for subsidiaries, would cause an affiliate encumbrances of utility assets, pursuant that there is no risk of adverse effect on company that is five percent owned by 241 to our FPA and NGA authorities, only their position. a holding company to be subject to at such time as our current regulations 239. These commenters argue that the Commission rules while a subsidiary appear to be insufficient. However, Commission has sufficient authority to that is also owned five percent by a these matters will be further addressed issue additional rules on cross- holding company would avoid the subsidization and diversification. For at the technical conference that we will be holding within the next year. Commission rules. Thus, it urges the example, Arkansas PSC contends that Commission to consider definitions that the Commission has authority under 242. The Commission finds persuasive Dominion’s argument that would cause both the terms ‘‘affiliate’’ sections 203, 205, and 206 of the FPA and ‘‘subsidiary’’ to have the same 242 Congress repealed the investment to issue such rules. Emera argues that requirements and treatment.246 the Commission should use its current diversification limitations that have been applicable to registered holding 247. A number of entities requested authority under sections 203 and 204 of amendments to the definition of the FPA to address international companies, and therefore we will not propose additional rules regarding ‘‘electric utility company.’’ Morgan diversification. Emera thus urges the Stanley contends that the definition of Commission to explain in its orders diversification into non-utility businesses at this time. Moreover, we ‘‘electric utility company’’ is not in authorizing public utility financing accord with other definitions in PUHCA under FPA section 204 that no public note that, if the Commission were to propose such rules, we would have to 2005 and that Congress intended that utility shall use the proceeds of any the two types of ‘‘public-utility such financing to finance the do so under our FPA and NGA authorities, as we lack the authority to companies,’’ i.e. ‘‘electric utility acquisition or operation of a FUCO, company’’ and ‘‘gas utility company’’ while pledges of utility assets to support do so under PUHCA 2005. 243. Finally, we will not propose to should relate to retail activities only. FUCO financings would similarly be extend our cash management rules to Accordingly, Morgan Stanley restricted under FPA section 203.243 holding companies. As noted by recommends that the words ‘‘and not for 240. A number of entities also Dominion and EEI, the cash resale’’ be placed at the end of the supported the extension of the management rules adopted under the PUHCA 2005 definition of ‘‘electric Commission’s cash management rules to FPA and NGA already effectively apply utility company’’ to conform this public utility holding companies.244 to holding companies because, where a definition with ‘‘public utility According to MBIA Insurance, the jurisdictional utility is a participant in company’’ and ‘‘gas utility Commission’s cash management rules a cash management arrangement with a company.’’ 247 are insufficient to adequately protect holding company, that arrangement 248. Morgan Stanley also urges the regulated utilities, and it urges the must comply with Commission cash Commission to recommend to Congress Commission to broaden the application management rules and the agreement that at least the entire definition of of the rules beyond utilities and to must be filed. Therefore, the ‘‘exempt wholesale generator’’ from apply them to holding companies.245 Commission will not propose to extend PUHCA 1935 be incorporated into Commission Determination existing cash management rules. PUHCA 2005, including other terms that appear within that defined term, 241. We interpret section 1275(c) of 9. Additional Conforming or Technical namely, ‘‘eligible facility’’ from 15 EPAct 2005 to be a savings clause, Amendments U.S.C. 79z–5(a)(2), and ‘‘affiliate’’ from which does not give the Commission the 244. Section 1272(2) of EPAct 2005 15 U.S.C. 79b(a)(11)(B).248 directs the Commission to submit to 241 APPA/NRECA Comments at 35–36. See also 249. Emera and National Grid NASUCA Comments at 12. Congress detailed recommendations on recommend that the Commission adopt 242 Arkansas PSC Comments at 24–32. technical and conforming amendments a definition of ‘‘foreign utility 243 Emera Comments at 7. to federal law necessary to carry out company’’ clarifying that a FUCO is not 244 See, e.g., Georgia PSC Comments at 4, Santa PUHCA 2005 within four months after a ‘‘public-utility company’’, an ‘‘electric Clara Comments at 22, TANC Comments at 22. AGL the date of enactment. In the NOPR, the utility company,’’ or a ‘‘gas utility Resources opposes comments to expand cash Commission invited comments as to management rule, noting that some holding company.’’ Emera contends that such a companies such as AGL have two cash management what technical and conforming definition would be consistent with programs to address concerns regarding cross- amendments the Commission should section 33 of PUHCA 1935 which subsidization and encumbrances, i.e., separate include in this submission to Congress. utility and non-utility money pools and that the 245. We received comments on Commission’s current rules allow it to review the 246 Oklahoma Corporation Commission utility money pool. AGL Resources Reply recommendations we should make to Comments at 7. Comments at 4–5. Congress, as well as comments on how 247 Morgan Stanley Comments at 10. 245 MBIA Insurance Comments at 25. we should interpret certain terms in 248 Id.
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provides that FUCOs are not ‘‘public- regulations promulgated by state Therefore, FUCOs are not required to utility companies.’’ 249 commissions, creating compliance follow PUHCA 2005 accounting and 250. Emera and National Grid argue issues that might have to be litigated in reporting requirements, but must that the Commission should implement order to find resolution.253 continue to grant the Commission the exemption for passive investors by access to their accounts, books, Commission Determination seeking an amendment the definition of memoranda, and other records. ‘‘holding company’’ to exclude passive 252. We will reject Oklahoma 255. We will reject Emera’s and investors in a public-utility company or Corporation Commission’s request to National Grid’s request that we holding company securities, such as modify the definitions of ‘‘affiliate’’ and recommend an amendment to the investment companies.250 ‘‘subsidiary.’’ Congress chose to carry definition of ‘‘holding company’’ to 251. Some commenters have over these long-standing definitions reflect the exemption for passive requested that local distribution from PUHCA 1935 to PUHCA 2005 and investors. We have already adopted this companies be exempted from the thus clearly expressed its intent to exemption in our regulations, and thus requirements of PUHCA 2005 and retain these statutory thresholds. it is unnecessary to amend the statutory suggest that the Commission exclude However, we emphasize that section definition. them from the definition of ‘‘natural gas 1262(16)(B) gives the Commission the 256. With respect to the requests by company.’’ For example, American Gas authority to deem someone a various commenters on an amendment Association requests that the ‘‘subsidiary’’ if necessary for the rate concerning local distribution companies Commission clarify that local gas protection of utility customers, even for that are not regulated by the distribution companies that are not ownership interests of less than ten Commission as natural gas companies regulated by the Commission are not percent. Further, section 1264 gives the under the NGA, we find that such a embraced within the phrase ‘‘natural- Commission the authority to examine statutory amendment is unnecessary, as gas company,’’ noting that EPAct 2005 the books and records of any company we have exempted local distribution defines the separate term ‘‘gas utility’’ as in a holding company system, including companies from the books and records a local distribution company. AGA affiliates and subsidiaries. Thus, we requirements of PUHCA 2005 in section asserts that, while many local believe that the Commission has 366(c) of our regulations, pursuant to distribution companies are technically sufficient authority to protect customers our exemption authority under section ‘‘natural-gas companies’’ under the NGA without seeking a modification of these 1266(b). because the natural gas in their systems definitions. 253. We will reject the requests of b. Other Proposed Amendments flows in interstate commerce, the Morgan Stanley and others to amend the Comments Commission does not regulate local definitions of ‘‘electric utility 257. EEI suggests that Commission distribution companies that are company.’’ The definitions of ‘‘electric exempted under section 1(b) of the recommend a technical amendment to utility company’’ and ‘‘gas utility section 3(c)(8) of the Investment NGA, Hinshaw pipelines exempted company’’ in PUHCA 1935 similarly under section 1(c) of the NGA, entities Company Act of 1940 (ICA). According differed in that the definition of to EEI, section 3(c)(8) currently provides subject to service-area determinations ‘‘electric utility company’’ was not under section 7(f) of the NGA, and local that, notwithstanding the definition of limited to retail activities. By carrying ‘‘investment company’’ found in section distribution companies with blanket over this distinction into PUHCA 2005, 251 3(a) of the ICA, a company subject to certificates. Dominion requests that it is clear that Congress did not intend the Commission clarify that this same regulation under PUHCA 1935 shall not that these two definitions should be be an investment company. By the date pattern of exemption from Commission consistent. Moreover, if adopted, regulation will be carried over with the repeal of PUHCA 1935 becomes Morgan Stanley’s proposal would effective, many holding companies will respect to the rules that the Commission deprive the Commission of jurisdiction proposes to issue here.252 Finally, need to assert their exempt status under over holding companies that own public section 3(b)(1) of the ICA, or seek an Washington Gas & Light urges the utilities, and Morgan Stanley has not Commission to clarify that the proposed order of exemption from the SEC under provided any evidence that Congress section 3(b)(2) of the ICA; if section rules do not apply to local distribution meant to do so. With respect to the companies and section 7(f) companies 3(c)(8) is not amended, holding definition of ‘‘exempt wholesale companies may be expected to seek the that have previously been exempt from generator,’’ we will grant Morgan regulation by the Commission. certainty provided by an SEC order Stanley’s request to carry over the under section 3(b)(2), rather than to rely Washington Gas & Light emphasizes definition of ‘‘eligible facility’’ since that no regulatory gap would result on ‘‘self-certification’’ under section that term is used within the definition 3(b)(1). EEI asserts that an amendment because these local distribution of EWG. The definition of eligible companies and section 7(f) companies to section 3(c)(8) would, by continuing facility and other relevant provisions are the exemption from investment are subject to oversight of their rates and cross-referenced in the regulatory text of terms and conditions of service by company status that holding companies this final rule. have enjoyed to date, make sure that relevant local regulatory commissions. 254. We deny Emera and National holding company financing may Washington Gas & Light further Grid’s requests that we change the proceed without disruption after the contends that failure to grant this definition of FUCO to state that a FUCO date repeal of PUHCA 1935 becomes exemption could cause federal rules, shall ‘‘not be deemed a public utility effective.254 especially for rate setting purposes, to company, electric utility company or become inconsistent with the 258. NARUC notes that section 1270 gas company under this part.’’ However, of EPAct 2005 indicates that the we clarify the definition of FUCO to 249 Commission has the same powers to Emera Comments 3–4. See also National Grid state that these companies shall not be Comments at 4–11. enforce the provisions of PUHCA 2005 250 Id. at 9. subject to any of the requirements of 251 American Gas Association Comments at 3–4. this subchapter other than section 366.2. 254 EEI Comments at 37. See also Energy East See also Keyspan Comments at 6. Comments at 18–19, National Grid Comments at 252 Dominion Comments at 26–27. 253 Washington Gas & Light Comments at 3–4. 34–35.
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available under Sections 306 through Commission and interested parties court of competent jurisdiction. 317 of the FPA. NARUC recommends additional time in which to learn from Furthermore, the Commission already that the Commission request an their experience under the final rules has in place procedures governing the amendment clarifying that the that are adopted in this proceeding, to treatment of confidential and other non- Commission is able to enforce the give further consideration to the many public information in Part 388 of its provisions of PUHCA 2005 concerning issues that have been raised by the regulations. Commenters have not natural gas companies using the Commission in the NOPR, and to work demonstrated that the Commission’s equivalent powers granted under the toward development of final rules that current rules are inadequate, and we NGA.255 are properly designed to protect the conclude that it is unnecessary to adopt 259. EEI submits that the Commission public interest.260 further rules at this time. should recommend that section 1274(a) 266. We will also reject FirstEnergy’s of EPAct 2005 be amended to specify Commission Determination request that the Commission clarify that that the savings provisions of section 262. EEI recommends an amendment any rules adopted in this final rule are 1271 are effective as of the date EPAct to section 3(c)(8) of the Investment of an interim nature. Nevertheless, the 2005 was enacted.256 Similarly, Company Act of 1940, which provides Commission will evaluate the rules it PacifiCorp suggests that, in order to that a company subject to regulation adopts here on an ongoing basis based avoid any gaps, the Commission under PUHCA 1935 shall not be an on its own experience and the propose a correction to the savings ‘‘investment company’’ as defined in submissions received from parties in provision in section 1271 of EPAct 2005 and regulated under the Investment individual proceedings and the that allows activities and transactions Company Act of 1940.261 While such technical conference. authorized under PUHCA 1935 or other companies can file with the SEC and Information Collection Statement law until February 8, 2006, when seek exemption from the Investment PUHCA 2005 takes effect, to continue Company Act of 1940 by claiming that 267. Office of Management and under the terms of the authorization they fall within other exemptions, EEI Budget (OMB) regulations require OMB notwithstanding any provision of notes that an amendment to section to approve certain information PUHCA 2005 or related Commission 3(c)(8) would allow such companies to collection requirements imposed by regulations to the contrary.257 avoid having to make such filings with agency rule.262 However, the 260. EEI submits that the Commission the SEC. The Investment Company Act Commission is carrying out an express should provide a procedure similar to of 1940, however, is not a statute with statutory mandate spelled out in EPAct the SEC’s general procedural rules, for which the Commission has experience, 2005. Moreover, to the extent that the submitting information on a and the amendment is not essential for Commission is carrying over and confidential basis.258 FirstEnergy states the Commission to carry out its applying requirements that the SEC that certain information is contained in responsibilities under PUHCA 2005 or previously has applied, we note that the Form U–5S is proprietary information any other statute the Commission proposed regulations assume and that, although the Commission has administers. Consequently, the responsibility for already approved rejected requests by regulated public Commission will bring this issue to the information collections and reduce their utilities to protect the confidentiality of attention of Congress, but will not make reporting burdens. Indeed, insofar as the certain information contained in their any recommendation. regulations adopted herein eliminate FERC Forms 1, the SEC has permitted 263. We agree with the comments of certain SEC regulations concerning information reported in Form U–5S to NARUC and will recommend an accounting, cost-allocation, be so protected. FirstEnergy argues that amendment to section 1270 clarifying recordkeeping, and related rules, they the Commission should therefore make that the Commission is able to enforce reduce the information collection clear that it will similarly protect the the provisions of PUHCA 2005 burden on regulated entities. confidentiality of such information.259 concerning natural gas companies using 268. In particular, we are adopting a 261. FirstEnergy further contends the equivalent powers granted under the FERC Form No. 60 (annual reports for that, because of the very limited time NGA. service companies), a substantially available to the Commission to adopt 264. We also agree with the streamlined version of what had rules needed to implement PUHCA suggestions of EEI and others regarding previously been SEC Form U13–60 2005, the Commission should make the effective date of the savings implemented by the SEC. In addition, clear that any rules that may be adopted provisions in section 1271, and we will we will require entities that are or in this proceeding are only interim rules recommend that section 1274(a) of become holding companies within the that will be in effect for no longer than EPAct 2005 be amended to specify that meaning of PUHCA 2005 to submit a one year. Such a procedure would the savings provisions of section 1271 simple one-time filing, FERC–65 enable the Commission to meet its are effective as of the date EPAct 2005 (Notification of Holding Company obligation to adopt rules required for was enacted. Status), as compared to the more implementation of PUHCA 2005 within 265. In response to the requests of EEI substantial filings and forms previously four months after its enactment, but and others concerning the protection of required by SEC Form U–5A. We would provide assurance that such confidential information, we note that establish a similar, simplified filing, as hastily-crafted rules would not be in section 1264(d) provides that no compared to the SEC’s existing filings effect indefinitely. FirstEnergy contends member, officer, or employee of the and forms, for exemptions and waivers, that this approach would give the Commission shall divulge any fact or namely FERC–65A (Exemption information that may come to his or her Notification) and FERC–65B (Waiver 255 NARUC Comments at 14. See also NASUCA knowledge during the course of Notification). Comments at 3. examination of books and records as 269. The Commission also eliminates 256 EEI Comments at 36. See also Cinergy the requirements contained in its own Comments at 31, Dominion Comments at 25. provided in this section, except as may 257 PacifiCorp Comments at 6. be directed by the Commission or by a regulations in 18 CFR part 365; the 258 EEI Comments at 37–38, FirstEnergy corresponding information collection is Comments at [259]. 260 Id. at 21–22. 259 FirstEnergy Comments at 8. 261 15 U.S.C. 80a–3(c)(8) (2000). 262 5 CFR 1320.11 (2005).
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FERC–598 ‘‘Determinations for Entities its place, we are allowing a much burden estimates and the Commission’s Seeking Wholesale Generator Status.’’ In simpler self-certification. projections.) Public Reporting Burden: (The table below reflects both SEC reporting
Number of Data collection Number of Number of hours Total annual respondents responses per response hours
SEC U–5A (current) ...... 4 1 80 320 SEC U–13–60 ...... 65 1 13.5 878 FERC Form 60 ...... 65 1 8 520 FERC–65 ...... 110 1 3 330 FERC–65A ...... 35 1 1 35 FERC–65B ...... 20 1 1 20 FERC–568 (current) ...... 112 1 6 672 FERC–598 (proposed) ...... 27 1 3 51
Action: Revision and adoption by environment.263 The Commission has Rule will not have a significant Commission of currently approved SEC categorically excluded certain actions economic impact on a substantial collections of information. from this requirement as not having a number of small entities. Moreover, OMB Control Nos.: Currently the significant effect on the human PUHCA 2005 exempts certain persons, relevant SEC and Commission environment. Included in the exclusion and allows the Commission to exempt information collections have the are rules that carry out legislation, other persons and classes of involve information gathering, analyses following control numbers—SEC: 3235– transactions. The various exemptions and dissemination, and involve 0153, 3235–0164, 3235–0182, 3235– and waivers adopted herein further accounting.264 Thus, we affirm the 0183, 3235–0306 and Commission: minimize the effect of the Final Rule on finding made in the NOPR that this small entities, as many of the entities 1902–0166. Final Rule carries out EPAct 2005 and that should be able to take advantage of Frequency of Responses: The FERC involve information gathering and Form No. 60 information collection has analysis and accounting and therefore these exemptions and waivers are small annual submissions while FERC Form falls under this exception; consequently, entities. Nos. 65, 65A, and 65B involve one-time no environmental consideration is Document Availability submittals. FERC–598 certifications will necessary. 273. In addition to publishing the full be submitted on occasion. Regulatory Flexibility Act Certification Necessity of the Information: The text of this document in the Federal 272. The Regulatory Flexibility Act of Register, the Commission provides all proposed rule implements new rules 1980 (RFA) requires rulemakings to under part 366 of the Commission’s interested persons an opportunity to contain either a description and analysis view and/or print the contents of this regulations and deletes requirements of the effect that the rule will have on contained in part 365 of its regulations. document via the Internet through the small entities or to contain a Commission’s Home Page (http:// These revisions are to implement the certification that the rule will not have www.ferc.gov) and in the Commission’s repeal of PUHCA 1935 and the a significant economic impact on a Public Reference Room during normal implementation of certain provisions of substantial number of small entities. 265 the EPAct 2005. The Commission concludes that the business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., 270. For information on the Final Rule would not have such an Room 2A, Washington, DC 20426. requirements, submitting comments on impact on small entities. Most these collection of information companies to which the Final Rule 274. From the Commission’s Home including ways to reduce the burden applies do not fall within the RFA’s Page on the Internet, this information is imposed by these requirements, please definition of small entity.266 Therefore, available in the Commission’s document send your comments to the Federal the Commission certifies that this Final management system, eLibrary. The full Energy Regulatory Commission, 888 text of this document is available on 263 First Street, NE., Washington, DC 20426 Regulations Implementing the National eLibrary in PDF and Microsoft Word Environmental Policy Act, Order No. 486, 52 FR (Attention: Michael Miller, Office of the 47897 (Dec. 17, 1987), FERC Stats. & Regs. format for viewing, printing, and/or Executive Director, (202–502–8415)) or Preambles 1986–1990 ¶ 30,783 (1987). downloading. To access this document send comments to the Office of 264 18 CFR 380.4(a)(3), (5), (16) (2005). in eLibrary, type the docket number Management and Budget (Attention: 265 5 U.S.C. 603 (2000). excluding the last three digits of this 266 5 U.S.C. 601(3) (2000), citing to section 3 of Desk Officer for the Federal Energy the Small Business Act, 15 U.S.C. 632 (2000). document in the docket number field. Regulatory Commission, fax: 202–395– Section 3 of the Small Business Act defines a 275. User assistance is available for 7285, e-mail: ‘‘small business concern’’ as a business that is eLibrary and the Commission’s website [email protected].) independently owned and operated and that is not dominant in its field of operation. 15 U.S.C. 632 during normal business hours. For Environmental Analysis (2000). The Small Business Size Standards assistance, please contact FERC Online component of the North American Industry Classification System, for example, defines a small Support at 1–866–208–3676 (toll free) or 271. The Commission is required to electric utility as one that, including its affiliates, 202–502–6652 (e-mail at prepare an Environmental Assessment is primarily engaged in the generation, [email protected]), or the or an Environmental Impact Statement transmission, and/or distribution of electric energy Public Reference Room at 202–502– for any action that may have a for sale and whose total electric output for the preceding fiscal year did not exceed four million 8371, TTY 202–502–8659 (e-mail at significant adverse effect on the human MWh. 13 CFR 121.201 (2005). [email protected]).
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Effective Date and Congressional Subpart B—PUHCA 2005 Accounting and 5a(a)(2)–(4), 79z–5b(b)–(d)) shall apply. Notification Recordkeeping An exempt wholesale generator shall This final rule will take effect 366.21 Accounts and records of holding not be considered an electric utility February 8, 2006. The Commission has companies. company under this subchapter. 366.22 Accounts and records of service Foreign utility company. (1) The term determined with the concurrence of the companies. Administrator of the Office of ‘‘foreign utility company’’ means any 366.23 FERC Form No. 60, annual reports company that owns or operates facilities Information and Regulatory Affairs of by service companies. the Office of Management and Budget, that are not located in any state and that Authority: Sections 1261 et seq. Pub. L. are used for the generation, that this rule is not a major rule within 109–58, 199 Stat. 594. the meaning of section 251 of the Small transmission, or distribution of electric energy for sale or the distribution at Business Regulatory Enforcement Subpart A—PUHCA 2005 Definitions retail of natural or manufactured gas for Fairness Act of 1996.267 The and Provisions Commission will submit the Final Rule heat, light, or power, if such company: (i) Derives no part of its income, to both houses of Congress and the § 366.1 Definitions. directly or indirectly, from the General Accounting Office.268 For purposes of this part: Affiliate. The term ‘‘affiliate’’ of a generation, transmission, or distribution List of Subjects in 18 CFR Parts 365 and company means any company, 5 of electric energy for sale or the 366 percent or more of the outstanding distribution at retail of natural or Electric power, Natural gas, Public voting securities of which are owned, manufactured gas for heat, light, or utility holding companies and service controlled, or held with power to vote, power, within the United States; and (ii) Neither the company nor any of its companies, Reporting and directly or indirectly, by such company. subsidiary companies is a public utility recordkeeping requirements, and Cost Associate company. The term allocations. company operating in the United States. ‘‘associate company’’ of a company (2) A foreign utility company shall not By the Commission. means any company in the same be subject to any requirements of this Magalie R. Salas, holding company system with such subchapter other than § 366.2. Secretary. company. Gas utility company. The term ‘‘gas Commission. The term ‘‘Commission’’ I In consideration of the foregoing, utility company’’ means any company means the Federal Energy Regulatory that owns or operates facilities used for under the authority of EPAct 2005, the Commission. Commission is amending Chapter I of distribution at retail (other than the Company. The term ‘‘company’’ distribution only in enclosed portable Title 18 of the Code of Federal means a corporation, partnership, Regulations, as set forth below: containers or distribution to tenants or association, joint stock company, employees of the company operating SUBCHAPTER T—[REMOVED AND business trust, or any organized group of such facilities for their own use and not RESERVED] persons, whether incorporated or not, or for resale) of natural or manufactured a receiver, trustee, or other liquidating PART 365—[REMOVED] gas for heat, light, or power. For the agent of any of the foregoing. purposes of this subchapter, ‘‘gas utility I 1. Subchapter T, consisting of part Construction. The term company’’ shall not include entities that 365, is removed and reserved. ‘‘construction’’ means any construction, engage only in marketing of natural and I 2. Subchapter U, consisting of part extension, improvement, maintenance, manufactured gas. 366, is added to read as follows: or repair of the facilities or any part Goods. The term ‘‘goods’’ means any thereof of a company, which is SUBCHAPTER U—REGULATIONS UNDER goods, equipment (including THE PUBLIC UTILITY HOLDING COMPANY performed for a charge. machinery), materials, supplies, ACT OF 2005 Electric utility company. The term appliances, or similar property ‘‘electric utility company’’ means any (including coal, oil, or steam, but not PART 366—PUBLIC UTILITY HOLDING company that owns or operates facilities including electric energy, natural or COMPANY ACT OF 2005 used for the generation, transmission, or manufactured gas, or utility assets) distribution of electric energy for sale. which is sold, leased, or furnished, for Subpart A—PUHCA 2005 Definitions and For the purposes of this subchapter, Provisions a charge. ‘‘electric utility company’’ shall not Holding company. Sec. include entities that engage only in (1) In general. The term ‘‘holding 366.1 Definitions. marketing of electric energy or ‘‘exempt company’’ means— 366.2 Commission access to books and wholesale generators.’’ (i) Any company that directly or records. Exempt wholesale generator. The term 366.3 Exemption from Commission access indirectly owns, controls, or holds, with to books and records; waivers of ‘‘exempt wholesale generator’’ means power to vote, 10 percent or more of the accounting, record-retention, and any person engaged directly, or outstanding voting securities of a reporting requirements. indirectly through one or more affiliates public-utility company or of a holding 366.4 FERC–65, notification of holding as defined in this subchapter, and company of any public-utility company; company status, FERC–65A, exemption exclusively in the business of owning or and notification, and FERC–65B, waiver operating, or both owning and (ii) Any person, determined by the notification. operating, all or part of one or more Commission, after notice and 366.5 Allocation of costs for non-power eligible facilities and selling electric opportunity for hearing, to exercise goods and services. energy at wholesale. For purposes of directly or indirectly (either alone or 366.6 Previously authorized activities. 366.7 Procedures for obtaining exempt establishing or determining whether an pursuant to an arrangement or wholesale generator and foreign utility entity qualifies for exempt wholesale understanding with one or more company status. generator status, sections 32(a)(2) persons) such a controlling influence through (4), and sections 32(b) through over the management or policies of any 267 See 5 U.S.C. 804(2) (2000). (d) of the Public Utility Holding public-utility company or holding 268 See 5 U.S.C. 801(a)(1)(A) (2000). Company Act of 1935 (15 U.S.C. 79z– company as to make it necessary or
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appropriate for the rate protection of Public-utility company. The term ‘‘voting security’’ shall not include utility customers with respect to rates ‘‘public-utility company’’ means an member interests in electric power that such person be subject to the electric utility company or a gas utility cooperatives. obligations, duties, and liabilities company. For the purposes of this imposed by this subtitle upon holding subchapter, the owner-lessors and § 366.2 Commission access to books and records. companies. owner participants in lease financing (2) Exclusions. The term ‘‘holding transactions involving utility assets (a) In general. Unless otherwise company’’ shall not include— shall not be treated as ‘‘public-utility exempted by Commission rule or order, (i) A bank, savings association, or companies.’’ each holding company and each trust company, or their operating Service. The term ‘‘service’’ means associate company thereof shall subsidiaries that own, control, or hold, any managerial, financial, legal, maintain, and shall make available to with the power to vote, public utility or engineering, purchasing, marketing, the Commission, such books, accounts, public utility holding company auditing, statistical, advertising, memoranda, and other records as the securities so long as the securities are— publicity, tax, research, or any other Commission determines are relevant to (A) Held as collateral for a loan; service (including supervision or costs incurred by a public utility or (B) Held in the ordinary course of negotiation of construction or of sales), natural gas company that is an associate business as a fiduciary; or information or data, which is sold or company of such holding company and necessary or appropriate for the (C) Acquired solely for purposes of furnished for a charge. protection of utility customers with liquidation and in connection with a Service company. The term ‘‘service respect to jurisdictional rates. However, loan previously contracted for and company’’ means any associate for purposes of this subchapter, no owned beneficially for a period of not company within a holding company provision in the subchapter shall apply more than two years; or system organized specifically for the to or be deemed to include: (ii) A broker or dealer that owns, purpose of providing non-power goods (1) the United States; controls, or holds with the power to or services or the sale of goods or construction work to any public utility (2) A state or political subdivision of vote public utility or public utility a state; holding company securities so long as in the same holding company system. Single-state holding company system. (3) Any foreign governmental the securities are— The term ‘‘single-state holding company authority not operating in the United (A) Not beneficially owned by the system’’ means a holding company States; broker or dealer and are subject to any system whose public utility operations (4) Any agency, authority, or voting instructions which may be given are confined substantially to a single instrumentality of any entity referred to by customers or their assigns; or state. in paragraphs (a)(1), (2), or (3) of this (B) Acquired in the ordinary course of State commission. The term ‘‘state section; or business as a broker, dealer, or commission’’ means any commission, (5) Any officer, agent, or employee of underwriter with the bona fide intention board, agency, or officer, by whatever any entity referred to in paragraphs of effecting distribution within 12 name designated, of a state, (a)(1), (2), (3), or (4) of this section as months of the specific securities so municipality, or other political such in the course of his or her official acquired. subdivision of a state that, under the duty. Holding company system. The term laws of such state, has jurisdiction to (b) Affiliate companies. Unless ‘‘holding company system’’ means a regulate public utility companies. otherwise exempted by Commission holding company, together with its Subsidiary company. The term rule or order, each affiliate of a holding subsidiary companies. ‘‘subsidiary company’’ of a holding company or of any subsidiary company Jurisdictional rates. The term company means— of a holding company shall maintain, ‘‘jurisdictional rates’’ means rates (1) Any company, 10 percent or more and shall make available to the accepted, established or permitted by of the outstanding voting securities of Commission, such books, accounts, the Commission for the transmission of which are directly or indirectly owned, memoranda, and other records with electric energy in interstate commerce, controlled, or held with power to vote, respect to any transaction with another the sale of electric energy at wholesale by such holding company; and affiliate, as the Commission determines in interstate commerce, the (2) Any person, the management or are relevant to costs incurred by a transportation of natural gas in policies of which the Commission, after public utility or natural gas company interstate commerce, and the sale in notice and opportunity for hearing, that is an associate company of such interstate commerce of natural gas for determines to be subject to a controlling holding company and necessary or resale for ultimate public consumption influence, directly or indirectly, by such appropriate for the protection of utility for domestic, commercial, industrial, or holding company (either alone or customers with respect to jurisdictional any other use. pursuant to an arrangement or rates. Natural gas company. The term understanding with one or more other (c) Holding company systems. The ‘‘natural gas company’’ means a person persons) so as to make it necessary for Commission may examine the books, engaged in the transportation of natural the rate protection of utility customers accounts, memoranda, and other records gas in interstate commerce or the sale of with respect to rates that such person be of any company in a holding company such gas in interstate commerce for subject to the obligations, duties, and system, or any affiliate thereof, as the resale. liabilities imposed by this subtitle upon Commission determines are relevant to Person. The term ‘‘person’’ means an subsidiary companies of holding costs incurred by a public utility or individual or company. companies. natural gas company within such Public utility. The term ‘‘public Voting security. The term ‘‘voting holding company system and necessary utility’’ means any person who owns or security’’ means any security presently or appropriate for the protection of operates facilities used for transmission entitling the owner or holder thereof to utility customers with respect to of electric energy in interstate commerce vote in the direction or management of jurisdictional rates. or sales of electric energy at wholesale the affairs of a company. For the (d) Confidentiality. No member, in interstate commerce. purposes of this subchapter, the term officer, or employee of the Commission
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shall divulge any fact or information (4) Transactions between or among later than 30 days after their formation. that may come to his or her knowledge affiliates that are independent of and do Notifications shall be made by during the course of examination of not include a public utility or natural submitting FERC–65 (notification of books, accounts, memoranda, or other gas company; holding company status), which records as provided in this section, (5) Electric power cooperatives; contains the following: The identity of except as may be directed by the (6) Local distribution companies that the holding company and of the public Commission or by a court of competent are not regulated as ‘‘natural gas utilities and natural gas companies in jurisdiction. companies’’ pursuant to sections 1(b) or the holding company system; the 1(c) of the Natural Gas Act, 15 U.S.C. identity of service companies or special- § 366.3 Exemption from Commission purpose subsidiaries providing non- access to books and records; waivers of 717(b), (c)). accounting, record-retention, and reporting (c) Waivers. The following persons power goods and services; the identity requirements. may file to obtain a waiver of the of all affiliates and subsidiaries; and (a) Exempt classes of entities. Any accounting, record-retention, and filing their corporate relationship to each person that is a holding company, solely requirements of § 366.21, 366.22, and other. This filing will be for with respect to one or more of the 366.23 pursuant to the notification informational purposes and will not be following, is exempt from the procedures contained in § 366.4(c)(1): noticed in the Federal Register, but will requirements of § 366.2 and any (1) Single-state holding company be available on the Commission’s Web accounting, record-retention, or systems as defined in § 366.1; site. (b) FERC–65A (exemption reporting requirements in this (2) Holding companies that own notification) and petitions for subchapter: generating facilities that total 100 MW (1) Qualifying facilities under the or less in size and are used exemption. (1) Persons or companies Public Utility Regulatory Policies Act of fundamentally for their own load or for seeking exemption from the 1978 (16 U.S.C. 2601 et seq.); sales to affiliated end-users; or requirements of PUHCA 2005 and the (2) Exempt wholesale generators; or (3) Investors in independent Commission’s regulations thereunder (3) Foreign utility companies. transmission-only companies. under § 366.3(a), or one of the class (b) Exemptions of additional persons (d) Commission authority to exempt exemptions adopted under § 366.3(b), and classes of transactions. The additional persons and classes of may do so by filing FERC–65A Commission has determined that the transactions. The Commission shall (exemption notification). These filings following persons and classes of exempt a person or classes of will be noticed in the Federal Register; transactions satisfy the requirements of transaction from the requirements of persons or companies that file FERC– paragraph (d) of this section and may § 366.2 if, upon individual application 65A must include a form of notice file to obtain an exemption from the as described in paragraph (e) of this suitable for publication in the Federal requirements this subchapter pursuant section or upon the motion of the Register in accordance with the to the notification procedure contained Commission— specifications in § 385.203(d). Persons in § 366.4(b)(1): (1) The Commission finds that the or companies that file FERC–65A in (1) Passive investors, so long as the books, accounts, memoranda, and other good faith shall be deemed to have a ownership remains passive, including: records of any person are not relevant to temporary exemption upon filing. If the (i) Mutual funds, the jurisdictional rates of a public utility Commission has taken no action within (ii) Collective investment vehicles or natural gas company; or 60 days after the date of filing FERC– whose assets are managed by banks, (2) The Commission finds that any 65A, the exemption shall be deemed to savings and loan associations and their class of transactions is not relevant to have been granted. The Commission operating subsidiaries, or brokers/ the jurisdictional rates of a public utility may toll the 60-day period to request dealers; and or natural gas company. additional information or for further (iii) Persons that directly, or indirectly (e) Other requests for exemptions and consideration of the request; in such through their subsidiaries or affiliates, waivers. Any person seeking an case, the claim for exemption will buy and sell the securities of public exemption or waiver that is not covered remain temporary until such time as the utilities in the ordinary course of by paragraphs (b) or (c) of this section, Commission has determined whether to business as a broker/dealer, underwriter shall file a petition for declaratory order grant or deny the exemption. Authority or fiduciary, and not exercising pursuant to § 385.207(a) of this chapter to toll the 60-day period is delegated to operational control over the utility; justifying its request for exemption. Any the Secretary or the Secretary’s (2) Commission-jurisdictional utilities person seeking such an exemption or designee, and authority to act on that have no captive customers and that waiver shall bear the burden of uncontested FERC–65A filings is are not affiliated with any jurisdictional demonstrating that such an exemption delegated to the Director of the Office of utility that has captive customers, and is warranted. Markets, Tariffs and Rates or to the holding companies that own or control Director of the Office of Markets, Tariffs only such utilities; § 366.4 FERC–65, notification of holding and Rates’ designee. (3) Transactions where the holding company status, FERC–65A, exemption (2) Persons or companies that do not company affirmatively certifies on notification, and FERC–65B, waiver qualify for exemption pursuant to behalf of itself and its subsidiaries, as notification. § 366.3(a) or § 366.3(b) may seek an applicable, that it will not charge, bill or (a) Notification of holding company individual exemption from this allocate to the public utility or natural status. Companies that meet the subchapter. They may not do so by gas company in its holding company definition of a holding company as means of filing FERC–65A and instead system any costs or expenses in provided by § 366.1 as of February 8, must file a petition for declaratory order connection with goods and services 2006, shall notify the Commission of as required under § 366.3(e). Such transactions, and will not engage in their status as a holding company no petitions will be noticed in the Federal financing transactions with any such later than March 10, 2006. Holding Register; persons or companies that file public utility or natural gas company, companies formed after February 8, a petition must include a form of notice except as authorized by a state 2006, shall notify the Commission of suitable for publication in the Federal commission or the Commission; their status as a holding company, no Register in accordance with the
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specifications in § 385.203(d). No may no longer rely upon FERC–65A, Any holding company system or state temporary exemption will attach upon FERC–65B, or a Commission commission seeking to obtain such a filing and the requested exemption will determination granting the exemption or determination under this subsection be effective only if approved by the waiver. shall file a petition for declaratory order Commission. Persons or companies may (2) The Commission may, on its own pursuant to Rule 207(a) of the also seek exemptions for classes of motion or on the motion of any person, Commission’s Rules of Practice and transactions by filing a petition for revoke the exemption or waiver granted Procedure justifying its request for declaratory order. under paragraphs (b) or (c) of this exemption (§ 385.207(a) of this chapter). (c) FERC–65B (waiver notification) section, if the person or company fails Any holding company system or state and petitions for waiver. (1) Persons or to conform to any of the Commission’s commission seeking such an exemption companies seeking a waiver of the criteria under this part for obtaining the shall bear the burden of demonstrating Commission’s regulations under exemption or waiver. that such determination is warranted. PUHCA 2005 pursuant to § 366.3(c) may (d) Nothing in paragraphs (a) through do so by filing FERC–65B (waiver § 366.5 Allocation of costs for non-power (c) of this section shall affect the goods and services. notification). FERC–65B will be noticed authority of the Commission under the in the Federal Register; persons or (a) Commission review. In the case of Federal Power Act (16 U.S.C. 791 et companies that file FERC–65B must non-power goods or administrative or seq.), the Natural Gas Act (15 U.S.C. 717 include a form of notice suitable for management services provided by an et seq.), or other applicable law, publication in the Federal Register in associate company organized including the authority of the accordance with the specifications in specifically for the purpose of providing Commission with respect to rates, § 385.203(d). Companies that file FERC– such goods or services to any public charges, classifications, rules, 65B in good faith shall be deemed to utility in the same holding company regulations, practices, contracts, have a temporary exemption upon system, at the election of the system (the facilities, and services. filing. If the Commission has taken no public utility holding company, together action within 60 days after the date of with its subsidiary companies) or a state § 366.6 Previously authorized activities. filing of FERC–65B, the waiver shall be commission having jurisdiction over the (a) General. Unless otherwise deemed to have been granted. The public utility, the Commission shall provided by Commission rule or order, Commission may toll the 60-day period review and authorize the allocation of a person may continue to engage in to request additional information or for the costs for such goods or services to activities or transactions authorized further consideration of the request; in the extent relevant to that associate under the Public Utility Holding such case, the waiver will remain company. Such election to have the Company Act of 1935 prior to the temporary until such time as the Commission review and authorize cost effective date of the Public Utility Commission has determined whether to allocations shall remain in effect until Holding Company Act of 2005, February grant or deny the waiver. Authority to further Commission order. 8, 2006, until the later of the date such toll the 60-day period is delegated to the (b) Exemptions. Any holding authorization expires or December 31, Secretary or the Secretary’s designee, company system whose public utility 2007, so long as that person continues and authority to act on uncontested operations are confined substantially to to comply with the terms of such FERC–65B filings is delegated to the a single state is exempt from the authorization. If any such activities or Director of the Office of Markets, Tariffs requirements of paragraph (a) of this transactions are challenged in a formal and Rates or the Director of the Office section. A holding company system’s Commission proceeding, the person of Markets, Tariffs and Rates’ designee. public utility operations will be deemed claiming prior authorization shall be (2) Persons or companies that do not confined substantially to a single state if required to provide at that time the full qualify for waiver pursuant to § 366.3(c) the holding company system does not text of any such authorization (whether may seek an individual waiver from this derive more than 13 percent of its by rule, order, or letter) and the subchapter. They may not do so by public-utility revenues from outside a application(s) or pleading(s) underlying means of filing FERC–65B and instead single state. A holding company system such authorization (whether by rule, must file a petition for declaratory order or state commission may, pursuant to order, or letter). pursuant as required under § 366.3(e). this subsection, seek a Commission (b) Financing authorizations. Holding Such petitions will be noticed in the determination that a holding company’s companies that intend to rely on Federal Register; persons or companies public utility operations are confined financing authorization orders or letters that file a petition must include a form substantially to a single state by filing a issued by the Securities and Exchange of notice suitable for publication in the petition for declaratory order pursuant Commission must file these orders or Federal Register in accordance with the to Rule 207(a) of the Commission’s letters with the Commission within 30 specifications in § 385.203(d) of this Rules of Practice and Procedure days after the effective date of the Public chapter. No temporary waiver will (§ 385.207(a) of this chapter). Any Utility Holding Company Act of 2005, attach upon filing and the requested holding company system or state February 8, 2006; any reports or other exemption will be effective only if commission seeking such a submissions that, pursuant to such approved by the Commission. Persons determination shall bear the burden of financing authorizations, previously or companies may also seek waivers for demonstrating that such determination were filed with the Securities and classes of transactions by filing a is warranted. Exchange Commission must instead be petition for declaratory order. (c) Other classes of transactions. filed with the Commission, effective (d) Revocation of exemption or Either upon petition for declaratory February 8, 2006. For the purposes of waiver. (1) If a person or company that order or upon its own motion, the this section, compliance with the terms has been granted an exemption or Commission may exclude from the of such financing authorizations waiver under paragraphs (b) or (c) of scope of Commission review and includes the requirement to notify the this section fails to conform with any authorization under paragraph (a) of this Commission of any financing material facts or representations section any class of transactions that the transactions that a holding company presented in its submittals to the Commission finds is not relevant to the engages in pursuant to such financing Commission, such company or company jurisdictional rates of a public utility. authorization.
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§ 366.7 Procedures for obtaining exempt (c) Revocation of status. (1) If an or order, beginning January 1, 2007, wholesale generator and foreign utility exempt wholesale generating facility or every service company shall maintain company status. a foreign utility company fails to and make available to the Commission (a) Self-certification notice procedure. conform with any material facts or such books, accounts, memoranda, and An exempt wholesale generator or a representations presented by the other records in such manner and foreign utility company, or their applicant in its submittals to the preserve them for such periods, as the representative, may file with the Commission, the notice of self- Commission prescribes in parts 125 and Commission a notice of self-certification certification of the status of the facility 225 of this chapter in sufficient detail to demonstrating that it satisfies the or Commission order certifying the permit examination, audit, and definition of exempt wholesale status of the facility may no longer be verification, as necessary and generator or foreign utility company. In relied upon. appropriate for the protection of utility the case of exempt wholesale generators, (2) The Commission may, on its own customers with respect to jurisdictional the person filing a notice of self- motion or on the application of any rates. certification under this section must person, revoke the status of a facility or (2) Transition period. Until December also file a copy of the notice with the company, if the facility or company fails 31, 2006, service companies in holding state regulatory authority of the state in to conform to any of the Commission’s company systems registered under the which the facility is located. Notices of criteria under this part. Public Utility Holding Company Act of self-certification will be published in 1935 (16 U.S.C. 79a et seq. (2000)) may the Federal Register. Persons that file Subpart B—PUHCA 2005 Accounting follow either the Commission’s record- such notices must include a form of and Recordkeeping retention requirements in parts 125 and notice suitable for publication in the 225 of this chapter or the Securities and Federal Register in accordance with the § 366.21 Accounts and records for holding Exchange Commission’s record- companies. specifications in § 385.203(d) of this retention rules in 17 CFR part 257. chapter. A person filing a notice of self- (a) General. Unless otherwise (3) Nothing in this section shall certification in good faith will be exempted or granted a waiver by relieve any service company subject deemed to have temporary exempt Commission rule or order, every holding thereto from compliance with wholesale generator or foreign utility company shall maintain and make requirements as to record-retention that company status. If the Commission available to the Commission books, may be prescribed by any other takes no action within 60 days from the accounts, memoranda, and other records regulatory agency. date of filing of the notice of self- of all of its transactions in sufficient (b) Accounting requirements—(1) certification, the self-certification shall detail to permit examination, audit and General. Unless otherwise exempted or be deemed to have been granted. The verification, as necessary and granted a waiver by Commission rule or Commission may toll the 60-day period appropriate for the protection of utility order, beginning January 1, 2007, every to request additional information, or for customers with respect to jurisdictional service company that is not a special- further consideration of the request; in rates, of the financial statements, purpose company (e.g., a fuel supply such cases, the person’s exempt schedules and reports required to be company or a construction company) wholesale generator or foreign utility filed with the Commission or issued to shall maintain and make available to the company status will remain temporary stockholders. Commission such books, accounts, until such time as the Commission has (b) Unless otherwise exempted or memoranda, and other records as the determined whether to grant or deny granted a waiver by Commission rule or Commission prescribes in parts 101 and exempt wholesale generator or foreign order, beginning January 1, 2007, all 201 of this chapter, in sufficient detail utility company status. Authority to toll holding companies must comply with to permit examination, audit, and the 60-day period is delegated to the the Commission’s record-retention verification, as necessary and Secretary or the Secretary’s designee, requirements for public utilities and appropriate for the protection of utility and authority to act on uncontested licensees or for natural gas companies, customers with respect to jurisdictional notices of self-certification is delegated as appropriate (parts 125 and 225 of this rates. Every such service company shall to the General Counsel or the General chapter). Until December 31, 2006, maintain and make available such Counsel’s designee. holding companies registered under the books, accounts, memoranda, and other (b) Optional procedure for Public Utility Holding Company Act of records in such manner as are Commission determination of exempt 1935 (16 U.S.C. 79a et seq.) may follow prescribed in parts 101 and 201 of this wholesale generator status or foreign either the Commission’s record- chapter, and shall keep no other records utility company status. A person may retention rules for public utilities and with respect to the same subject matter file for a Commission determination of licensees or for natural gas companies, except: exempt wholesale generator status or as appropriate (parts 125 and 225 of this (i) Records other than accounts; foreign utility company status under chapter), or the Security and Exchange (ii) Records required by federal or § 366.1 by filing a petition for Commission’s record-retention rules in state law; declaratory order pursuant to Rule 17 CFR part 257. (iii) Subaccounts or supporting 207(a) of the Commission’s Rules of (c) Nothing in this section shall accounts which are not inconsistent Practice and Procedure (§ 385.207(a) of relieve any company subject thereto with the accounts required either by the this chapter), justifying its request for from compliance with the requirements Uniform System of Accounts in parts exemption. Persons that file petitions as to recordkeeping and record-retention 101 and 201 of this chapter; and must include a form of notice suitable that may be prescribed by any other (iv) Such other accounts as may be for publication in the Federal Register regulatory agency. authorized by the Commission. in accordance with the specifications in (2) Transition period. Until December § 385.203(d) of this chapter. Authority § 366.22 Accounts and records of service 31, 2006, service companies in holding to act on uncontested notices of self- companies. company systems registered under the certification is delegated to the General (a) Record-retention requirements— Public Utility Holding Company Act of Counsel or the General Counsel’s (1) General. Unless otherwise exempted 1935 (16 U.S.C. 79a et seq.), as designee. or granted a waiver by Commission rule described in paragraph (b)(1) of this
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section, may follow either the that is not a special-purpose company for extensions of time to file any such Commission’s Uniform System of (e.g., a fuel supply company or a reports or to waive the requirements Accounts in parts 101 and 201 of this construction company) that provides applicable to any such reports, chapter or the Securities and Exchange non-power goods or services to a including granting or denying such Commission’s Uniform System of Commission-jurisdictional public utility motions, in whole or in part, is Accounts in 17 CFR part 256. or natural gas company shall file with delegated to the Chief Accountant or the (3) Nothing in this section shall the Commission by May 1, 2006 and by Chief Accountant’s designee. relieve any service company subject May 1 each year thereafter, a report, (b) Transition period. Service thereto from compliance with FERC Form No. 60, for the prior companies in holding company systems requirements as to accounting that may calendar year. Every such report shall be exempted from the requirements of the be prescribed by any other regulatory submitted on the FERC Form No. 60 Public Utility Holding Company Act of agency. then in effect and shall be prepared in 1935 (16 U.S.C. 79a et seq.) need not file accordance with the instructions § 366.23 FERC Form No. 60, annual an annual report, FERC Form No. 60, for incorporated in such form. For good calendar years 2005 and 2006. reports by service companies. cause shown, the Commission may (a) General. Unless otherwise extend the time within which any such Note: The following appendixes will not exempted or granted a waiver by report is to be filed or waive the appear in the Code of Federal Regulations. Commission rule or order, every service requirements applicable to any such company in a holding company system report. The authority to act on motions Appendix 1 List of Commenters
Acronym Name
AGL Resources ...... AGL Resources Inc. Alcoa ...... Alcoa Inc. Allegheny Energy Inc. Alliant ...... Alliant Energy Corporation. Ameren ...... Ameren Services Company. AEP ...... American Electric Power Service Corporation. AGA ...... American Gas Association. American National Power ...... American National Power, Inc. APGA ...... American Public Gas Association. APPA/NRECA ...... American Public Power Association/National Rural Electric Cooperative Association. American Transmission Company LLC. Cooperatives ...... Arizona Electric Power Cooperative, Inc./Southwest Transmission Cooperative, Inc./Sierra Southwest Cooperative Services, Inc. Arkansas PSC ...... Arkansas Public Service Commission. Barclays ...... Barclays Global Investors, N.A. Barrick ...... Barrick Goldstrike Mines Inc. Black Hills ...... Black Hills Corporation. CEOB ...... California Electricity Oversight Board. Calpine ...... Calpine Corporation. Capital Research and Management Company. Cinergy ...... Cinergy Corporation. City of Redding, California. Santa Clara ...... City Santa Clara, California. Chairman Barton ...... Congressman Joe Barton. ConEd ...... Consolidated Edison Company of New York, Inc. Coral Power and Shell WindEnergy ... Coral Power, LLC and Shell WindEnergy Inc. Detroit Edison ...... Detroit Edison Company. Dominion ...... Dominion Resources, Inc. Duke Energy ...... Duke Energy Corporation. EEI ...... Edison Electric Institute. EPSA ...... Electric Power Supply Association. ELCON ...... Electricity Consumers Resource Council/American Iron and Steel Institute/American Chemistry Council/ Portland Cement Association. Emera ...... Emera Incorporated. Energy East ...... Energy East Corporation. Entergy ...... Entergy Services, Inc. E.ON/LG&E Energy ...... E.ON AG and LG&E Energy LLC. Exelon ...... Exelon Corporation. FirstEnergy ...... FirstEnergy Service Company. FPL Group ...... FPL Group, Inc. Georgia PSC ...... Georgia Public Service Commission. Goldman Sachs ...... The Goldman Sachs Group, Inc. IURC ...... Indiana Utility Regulatory Commission. International Transmission Company. Investment Advisor Association. Investment Company Institute. Kentucky PSC ...... Kentucky Public Service Commission. Keyspan ...... Keyspan Corporation. MBIA ...... MBIA Insurance Corporation. MGTC ...... MGTC Inc. MidAmerican ...... MidAmerican Energy Holdings Company. Missouri PSC ...... Missouri Public Service Commission.
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Acronym Name
Mittal Steel ...... Mittal Steel USA ISG, Inc. Morgan Stanley ...... Morgan Stanley Capital Group Inc. NARUC ...... National Association of Regulatory Utility Commissioners. NASUCA ...... National Association of State Utility Consumer Advocates. National Fuel ...... National Fuel Gas Company. National Grid ...... National Grid USA. NiSource ...... NiSource Inc. Northeast Utilities ...... Northeast Utilities Service Company. PG&E Corporation. Ohio PUC ...... Public Utilities Commission of Ohio. Oklahoma Corporation ...... Oklahoma Corporation Commission. Pacificorp. Pepco Holding, Inc./Potomac Electric Power Company/Atlantic City. Electric Company/Delmarva Power & Light Company/Conectiv. Energy Supply, Inc./PEPCO Energy Services Inc./PHI Service Company and other system companies. Portland General Electric Company. PPL ...... PPL Companies. PPM Energy, Inc. Progress Energy ...... Progress Energy, Inc. Public Citizen ...... Public Citizen Inc. Wisconsin PSC ...... Public Service Commission of Wisconsin. Questar Corporation. Scottish Power. Southern Company Services, Inc. TANC ...... Transmission Agency of Northern California. Tri-State Generation/Transmission Association, Inc. Utility Workers ...... Utility Workers Union of America. WGL Holdings, Inc. and Washington Gas & Light Company. Xcel ...... Xcel Energy Services Inc.
Appendix 2 FERC Form No. 60 Form 60 and in accordance with the has been filed with the Commission shall Instructions for that form. submit an amended report including only United States those pages, schedules and entries that are to 2. Number of Copies Federal Energy Regulatory Commission be amended or corrected. A cover letter shall Each annual report shall be filed in be submitted requesting the Commission to Washington, DC 20426 duplicate. The company should prepare and incorporate the amended report changes and FORM 60 retain at least one extra copy for itself in case shall be signed by a duly authorized officer correspondence with reference to the report of the company. ANNUAL REPORT becomes necessary. 8. Definitions FOR THE PERIOD 3. Period Covered by Report Definitions contained in Instruction 01–8 Beginning llll and Ending llll The first report filed by the company shall to the Uniform System of Accounts for cover the period from the date the Uniform Mutual Service Companies and Subsidiary To the System of Accounts was required to be made Service Companies, Public Utility Holding Federal Energy Regulatory Commission of effective as to that company to the end of that Act of 2005, shall be applicable to words or calendar year. Subsequent reports should terms used specifically within this Form 60. cover a calendar year. (Exact Name of Reporting Company) 9. Organization Chart llll A Service Company 4. Report Format The Service Company shall submit with (’’Mutual’’ or ‘‘Subsidiary’’) Reports shall be submitted on the forms each annual report a copy of its current prepared by the Commission. If the space organization chart. Date of Incorporation llll If not provided on any sheet of such form is Incorporated, Date of Organization inadequate, additional sheets may be inserted 10. Methods of Allocation llll. of the same size as a sheet of the form or The Service Company shall submit with State or Sovereign Power under which folded to each size. each annual report a listing of the currently Incorporated or Organized llll effective methods of allocation being used by Location of Principal Executive Offices of 5. Money Amounts Displayed the service company and on file and Reporting Company llll All money amounts required to be shown approved previously by the Securities and Name, title, and address of officer to whom in financial statements may be expressed in Exchange Commission pursuant to the Public correspondence concerning this report whole dollars, in thousands of dollars or in Utility Holding Company Act of 19355. should be addressed: hundred thousands of dollars, as appropriate 11. Annual Statement of Compensation for (Name) (Title) (Address) and subject to provisions of Regulation S–X (210.3–01). Use of Capital Billed The service company shall submit with Name of Principal Holding Company under 6. Deficits Displayed which Reporting Company is organized: each annual report a copy of the annual Deficits and other like entries shall be statement supplied to each associate Instructions For Use of Form 60 indicated by the use of either brackets or a company in support of the amount of parenthesis with corresponding reference in 1. Timing of Filing compensation for use of capital billed during footnotes (Regulation S–X, 210.3–01(c)). the calendar year. On or before the first day of May in each calendar year, each mutual service company 7. Major Amendments or Corrections 12. Collection of Information and each subsidiary service company shall Any company desiring to amend or correct The information requested by this form is file with Commission an annual report on a major omission or error in a report after it being collected under authority of the Public
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Utility Holding Act of 2005. The Commission on this form will not be kept confidential. An 13. Where To File estimates that it will take each respondent agency may not conduct or sponsor, and a File Form 60 at the following address: thirteen and one-half (13.5) hours to respond person is not required to respond to, a Federal Energy Regulatory Commission, to this collection of information. A response collection of information unless a currently 888 First Street, NE., to this form is mandatory. The information valid OMB control number is displayed. Washington, DC 20426.
LISTING OF SCHEDULES AND ANALYSIS OF ACCOUNTS
Description of Schedules and Accounts Schedule or Account No. Page No.
Comparative Balance Sheet ...... Schedule I ...... 5 Service Company Property ...... Schedule II ...... 7 Accumulated Provision for Depreciation and Amortization of Service Company Prop- Schedule III ...... 8 erty. Investments ...... Schedule IV ...... 9 Accounts Receivable from Associate Companies ...... Schedule V ...... 9 Fuel Stock Expenses Undistributed ...... Schedule VI ...... 10 Stores Expense Undistributed ...... Schedule VII ...... 10 Miscellaneous Current and Accrued Assets ...... Schedule VIII ...... 11 Miscellaneous Deferred Debits ...... Schedule IX ...... 11 Research, Development, or Demonstration Expenditures ...... Schedule X ...... 12 Proprietary Capital ...... Schedule XI ...... 12 Long-Term Debt ...... Schedule XII ...... 13 Current and Accrued Liabilities ...... Schedule XIII ...... 14 Notes to Financial Statements ...... Schedule XIV ...... 14 Comparative Income Statement ...... Schedule XV ...... 15 Analysis of Billing—Associate Companies ...... Account 457 ...... 16 Analysis of Billing—Nonassociate Companies ...... Account 458 ...... 17 Analysis of Charges for Service—Associate and Nonassociate Companies ...... Schedule XVI ...... 18 Schedule of Expense Distribution by Department or Service Function ...... Schedule XVII ...... 19 Departmental Analysis of Salaries ...... Account 920 ...... 20 Miscellaneous General Expenses ...... Account 930.2 ...... 20 Notes to Statement of Income ...... Schedule XVIII ...... 21 Organization Chart ...... 22 Methods of Allocation ...... 22 Annual Statement of Compensation for Use of Capital Billed ...... 22
ANNUAL REPORT OF llllllllll
SCHEDULE I—COMPARATIVE BALANCE SHEET [Give balance of the Company as of December 31 of the current and prior year.]
As of December 31, Account Assets and other debits Current Prior
Service Company Property 101 ...... Service company property (Schedule II) 107 ...... Construciton work in progress (Schedule II) Total Property 108 ...... Less: Accumulated provision for depreciation and amortization of service company property (Schedule III) Net Service Company Property Investments 123 ...... Investments in associate companies (Schedule IV) 124 ...... Other investments (Schedule IV) Total Investments Current and Accrued Assets 131 ...... Cash 134 ...... Special deposits 135 ...... Working funds 136 ...... Temporary cash investments (Schedule IV) 141 ...... Notes receivable 143 ...... Accounts receivable 144 ...... Accumulated provision for uncollectible accounts 146 ...... Accounts receivable from associate companies (Schedule V) 152 ...... Fuel stock expenses undistributed (Schedule VI) 154 ...... Materials and supplies 163 ...... Stores expense undistributed (Schedule VII) Prepayments 165 ...... Miscellaneous current and accrued assets (Schedule VIII) 174 ...... Total Current and Accrued Assets
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SCHEDULE I—COMPARATIVE BALANCE SHEET—Continued [Give balance of the Company as of December 31 of the current and prior year.]
As of December 31, Account Assets and other debits Current Prior
Deferred Debits Unamortized debt expense 181 ...... Clearing accounts 184 ...... Miscellaneous deferred debits (Schedule IX) 186 ...... Research, development, or demonstration expenditures (Sch. X) 188 ...... Accumulated deferred income taxes 190 ...... Total Deferred Debits Total Assets and Other Debits
ANNUAL REPORT OF llllllllll
SCHEDULE I—COMPARATIVE BALANCE SHEET
As of December 31, Account Liabilities and proprietary capital Current Prior
Proprietary Capital 201 ...... Common stock issued (Schedule XI) 211 ...... Miscellaneous paid-in-capital (Schedule XI) 215 ...... Appropriated retained earnings (Schedule XI) 216 ...... Unappropriated retained earnings (Schedule XI) Total Proprietary Capital Long-Term Debt 223 ...... Advances from associate companies (Schedule XII) 224 ...... Other long-term debt (Schedule XII) 225 ...... Unamortized premium on long-term debt 226 ...... Unamortized discount on long-term debt-debit Total Long-Term Debt Current and Accrued Liabilities 228 ...... Accumulated provision for pensions and benefits 231 ...... Notes payable 232 ...... Accounts payable 233 ...... Notes payable to associate companies (Schedule XIII) 234 ...... Accounts payable to associate companies (Schedule XIII) 236 ...... Taxes accrued 237 ...... Interest accrued 241 ...... Tax collections payable 242 ...... Miscellaneous current and accrued liabilities (Schedule XIII) 243 ...... Obligations under capital leases—Current Total Current and Accrued Liabilities Deferred Credits 253 ...... Other deferred credits 255 ...... Accumulated deferred investment tax credits Total Deferred Credits 282 ...... Accumulated Deferred Income Taxes Total Liabilities and Proprietary Capital
ANNUAL REPORT OF llllllllll For the Year Ended lllllllllll
SCHEDULE II—SERVICE COMPANY PROPERTY
Balance at Retirements or Other Balance at Account Description beginning of Additions 1 year sales changes close of year
301 ...... Organization 303 ...... Miscellaneous Intangible Plant 304 ...... Land and Land Rights 305 ...... Structures and Improvements 306 ...... Leasehold Improvements 307 ...... Equipment 2 308 ...... Office Furniture and Equipment
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SCHEDULE II—SERVICE COMPANY PROPERTY—Continued
Balance at Balance at Account Description beginning of Additions Retirements or Other 1 close of year year sales changes
309 ...... Automobiles, Other Vehicles and Re- lated Garage Equipment 310 ...... Aircraft and Airport Equipment 311 ...... Other Property: 3
Sub-Totals Total 107 Construction Work in Progress 4
Subaccount description Additions Balance at close of year
ANNUAL REPORT OF llllllllll For the Year Ended lllllllllll
SCHEDULE III—ACCUMULATED PROVISION FOR DEPRECIATION AND AMORTIZATION OF SERVICE COMPANY PROPERTY
Balance at Additions Other changes Account Description beginning of charged to Retirements additions Balance at year account 403 (deductions) * close of year
301 ...... Organization 303 ...... Miscellaneous Intangible Plant 304 ...... Land and Land Rights 305 ...... Structures and Improvements 306 ...... Leasehold Improvements 307 ...... Equipment 308 ...... Office Furniture and Equipment 309 ...... Automobiles, Other Vehicles and Re- lated Garage Equipment 310 ...... Aircraft and Airport Equipment 311 ...... Other Service Company Property: * Provide an explanation of those changes considered material.
ANNUAL REPORT OF llllllllll For the Year Ended lllllllllll
SCHEDULE IV—INVESTMENTS [Instructions: Complete the following schedule concerning investments. Under Account 124 ‘‘Other Investments’’, state each investment sepa- rately, with description, including the name of issuing company, number of shares or principal amount, etc. Under Account 136, ‘‘Temporary Cash Investments’’, list each investment separately.]
Balance at Description beginning of Balance at year close of year
Account 123—Investment in Associate Companies Account 124—Other Investments Account 136—Temporary Cash Investments Total
ANNUAL REPORT OF llllllllll For the Year Ended lllllllllll
1 Provide an explanation of those changes provide a listing by subaccount of equipment 4 Describe construction work in progress. considered material. additions during the year and balance at the close 2 Subaccounts are required for each class of of the year. equipment owned. The service company shall 3 Describe other service company property.
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SCHEDULE V—ACCOUNTS RECEIVABLE FROM ASSOCIATE COMPANIES [Instructions: Complete the following schedule listing accounts receivable from each associate company. Where the service company has pro- vided accommodation or convenience payments for associate companies, a separate listing of total payments for each associate company by subaccount should be provided.]
Balance at Description beginning of Balance at year close of year
Account 146—Accounts Receivable from Associate Companies Total Analysis of Convenience or Accommodation Payments: Total Payments for each associate Total Payments
ANNUAL REPORT OF llllllllll For the Year Ended lllllllllll
SCHEDULE VI—FUEL STOCK EXPENSES UNDISTRIBUTED [Instructions: Report the amount of labor and expenses incurred with respect to fuel stock expenses during the year and indicate amount attrib- utable to each associate company. Under the section headed ‘‘Summary’’ listed below give and overall report of the fuel functions performed by the service company.]
Description Labor Expenses Total
Account 152—Fuel Stock Expenses Undistributed Total Summary:
ANNUAL REPORT OF llllllllll For the Year Ended lllllllllll
SCHEDULE VII—STORES EXPENSE UNDISTRIBUTED [Instructions: Report the amount of labor and expenses incurred with respect to stores expense during the year and indicate amount attributable to each associate company.]
Description Labor Expenses Total
Account 163—Stores Ex- pense Undistributed Total
ANNUAL REPORT OF llllllllll For the Year Ended lllllllllll
SCHEDULE VIII—MISCELLANEOUR CURRENT AND ACCRUED ASSETS [Instructions: Provide detail of items in this account. Items less than $10,000 may be grouped, showing the number of items in each group.]
Balance at be- Balance at Description ginning of year close of year
Account 174—Miscellaneous Current and Accrued Assets Total
ANNUAL REPORT OF llllllllll For the Year End llllllllllll
SCHEDULE IX—MISCELLANEOUS DEFERRED DEBITS [Instructions: Provide detail of items in this account. Items less than $10,000 may be grouped, showing the number of items in each group.]
Balance at be- Balance at Description ginning of year close of year
Account 186—Miscellaneous Deferred Debits Total
ANNUAL REPORT OF llllllllll For the Year Ended lllllllllll
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SCHEDULE X—RESEARCH, DEVELOPMENT OR DEMONSTRATION EXPENDITURES [Instructions: Provide a description of each material research, development, or demonstration project which incurred costs by the service corporation during the year.]
Description Amount
Account 188—Research, Development, or Demonstration Expenditures Total
ANNUAL REPORT OF llllllllll For the Year Ended lllllllllll
SCHEDULE XI—PROPRIETARY CAPITAL
Class of Number of shares Par or stated value per Outstanding number of Close of period total Account No. stock authorized share shares amount
201 ...... Common Stock Issued
Instructions: Classify amounts in each Account 215—Appropriated Retained compensation for the use of capital owed or account with brief explanation, disclosing Earnings net loss remaining from servicing the general nature of transactions which give Total nonassociates per the General Instructions of the Uniform System of Accounts. For rise to the reported amounts. Instructions: dividends paid during the year in cash or llllll Description Amount Give particulars concerning net income or otherwise, provide rate percentage, amount Account 211—Miscellaneous Paid-In Capital (loss) during the year, distinguishing between of dividend, date declared and date paid.
Balance at beginning of Description year Net income or (loss) Dividend paid Balance at close of year
Account 216—Unappropri- ated Retained Earnings.
ANNUAL REPORT OF llllllllll For the Year Ended lllllllllll
SCHEDULE XII—LONG-TERM DEBT [Instructions: Advances from associate companies should be reported separately for advances on notes, and advances on open accounts. Names of associate companies from which advances were received shall be shown under the class and series of obligation column. For Ac- count 224—Other long-term debt, provide the name of creditor company or organization, terms of the obligation, date of maturity, interest rate, and the amount authorized and outstanding.]
Term of obli- gation class & Date of Amount Balance at Additions de- Balance at Name of creditor series of maturity Interest rate authorized beginning of ductions * close of year obligation year
Account 223 Advances From Asso- ciate Companies Account 224—Other Long-Term Debt: Total * Given an explanation of deductions:
ANNUAL REPORT OF llllllllll For the Year Ended lllllllllll
SCHEDULE XIII—CURRENT AND ACCRUED LIABILITIES [Instructions: Provide balance of notes and accounts payable to each associate company. Give description and amount of miscellaneous current and accrued liabilities. Items less than $10,000 may be grouped, showing the number of items in each group.]
Balance at be- Balance at Description ginning of year close of year
Account 233—Notes Payable to Associate Companies Total Account 234—Accounts Payable to Associate Companies Total
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SCHEDULE XIII—CURRENT AND ACCRUED LIABILITIES—Continued [Instructions: Provide balance of notes and accounts payable to each associate company. Give description and amount of miscellaneous current and accrued liabilities. Items less than $10,000 may be grouped, showing the number of items in each group.]
Balance at be- Balance at Description ginning of year close of year
Account 242—Miscellaneous and Accrued Liabilities Total
ANNUAL REPORT OF llllllllll Schedule XIV—Notes to Financial assets or liabilities existing at the end of the For the Year Ended lllllllllll Statements year. Notes relating to financial statements Instructions: The space below is provided for shown elsewhere in this report may be important notes regarding the financial indicated here by reference. statements or any account thereof. Furnish ANNUAL REPORT OF llllllllll particulars as to any significant contingent For the Year Ended lllllllllll
SCHEDULE XV—COMPARATIVE INCOME STATEMENT
Account Description Current year Prior year
Income 457 ...... Services rendered to associate companies taxes 458 ...... Services rendered to non associate companies 421 ...... Miscellaneous income or loss Total Income Expense 920 ...... Salaries and wages 921 ...... Office supplies and expenses 922 ...... Administrative expense transferred—credit 923 ...... Outside services employed 924 ...... Property insurance 925 ...... Injuries and damages 926 ...... Employee pensions and benefits 928 ...... Regulatory commission expense 930.1 ...... General advertising expenses 930.2 ...... Miscellaneous general expenses 931 ...... Rents 403 ...... Depreciation and amortization expense 408 ...... Taxes other than income taxes 409 ...... Income taxes 410 ...... Provision for deferred income taxes 411 ...... Provision for deferred income taxes—credit 411.5 ...... Investment Tax Credit 426.1 ...... Donations 426.5 ...... Other deductions 427 ...... Interest on long-term debt 430 ...... Interest on debt to associate companies 431 ...... Other interest expense Total Expense Net Income of (Loss)
ANNUAL REPORT OF llllllllll For the Year Ended lllllllllll
ANALYSIS OF BILLING ASSOCIATE COMPANIES—ACCOUNT 457
Compensation Name of associate company Direct costs Indirect costs for use of Total amount charged charged capital billed
457–1 457–2 457–3
Total For the Year Ended lllllllllll ANNUAL REPORT OF llllllllll
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ANALYSIS OF BILLING ASSOCIATE COMPANIES—ACCOUNT 458 [Instruction: Provide a brief description of the services rendered to each nonassociate company:]
Compensation Name of associate company Direct costs Indirect costs for use of cap- Total amount charged charged ital billed
458–1 458–2 458–3
ANNUAL REPORT OF llllllllll For the Year Ended lllllllllll
SCHEDULE XVI—ANALYSIS OF CHARGES FOR SERVICE—ASSOCIATE AND NONASSOCIATE COMPANIES [Instruction: Total cost of service will equal for associate and nonassociate companies the total amount billed under their separate analysis of billing schedules.]
Associate company Nonassociate company Total charges for services Acct. Description of items Direct Indirect Direct Indirect Direct Indirect cost cost Total cost cost cost Total cost cost cost Total cost
920 ...... Salaries and wages 921 ...... Office supplies and expenses 922 ...... Administrative ex- pense trans- ferred—credit 923 ...... Outside services employed 924 ...... Property insurance 925 ...... Injuries and dam- ages 926 ...... Employee pensions and benefits 928 ...... Regulatory commis- sion expense 930.1 ...... General advertising expenses 930.2 ...... Miscellaneous gen- eral expense 931 ...... Rents 403 ...... Depreciation and amortization ex- pense 408 ...... Taxes other than in- come taxes 409 ...... Income taxes 410 ...... Provision for de- ferred income taxes 411 ...... Provision for de- ferred income taxes—credit 411.5 ...... Investment Tax Credit 426.1 ...... Donations 426.5 ...... Other deductions 427 ...... Interest on long- term debt 430 ...... Interest on debt to associate compa- nies 431 ...... Other interest ex- pense Total Expense Compensation for Use of Equity Capital Interest on Debt to Associate Com- panies Total Cost of Service
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ANNUAL REPORT OF llllllllll For the Year Ended lllllllllll
SCHEDULE XVII—SCHEDULE OF EXPENSE DISTRIBUTION BY DEPARTMENT OR SERVICE FUNCTION [Instruction: Indicate each department or service function. (See Instruction 01–3 General Structure of Accounting System: Uniform System of Accounts).]
Department or Account Description of items Total amount Overhead service function
920 ...... Salaries and wages 921 ...... Office supplies and expenses 922 ...... Administrative expense transferred—credit 923 ...... Outside services employed 924 ...... Property insurance 925 ...... Injuries and damages 926 ...... Employees pensions and benefits 928 ...... Regulatory commission expenses 930.1 ...... General advertising expenses 930.2 ...... Miscellaneous general expenses 931 ...... Rents 403 ...... Depreciation and amortization expenses 408 ...... Taxes other than income taxes 409 ...... Income taxes 410 ...... Provision for deferred taxes 411 ...... Provision for deferred taxes—credit 411.5 ...... Investment tax credit 426.1 ...... Donations 426.5 ...... Other deductions 427 ...... Interest on long-term debt 430 ...... Interest on debt to associated companies 431 ...... Other interest expense
ANNUAL REPORT OF llllllllll For the Year Ended lllllllllll
DEPARTMENTAL ANALYSIS OF SALARIES
Name of Department Departmental Salary Expense Included in Amounts Billed to Others indicate each department Number of personnel or service function Total amount Parent company Other associates Nonassociates end of year
Total
ANNUAL REPORT OF llllllllll For the Year Ended lllllllllll
MISCELLANEOUS GENERAL EXPENSES—ACCOUNT 930.2 [Instructions: Provide a listing of the amount included in Account 930.2, ‘‘Miscellaneous General Expenses’’ classifying such expenses according to their nature. Payments and expenses permitted by Section 321 (b)(2) of the Federal Election Campaign Act, as amended by Public Law 94–283 in 1976 (2 U.S.C. 441(b)(2)) shall be separately classified.]
Description Amount
Total
ANNUAL REPORT OF llllllllll during the year. Notes related to financial Methods of Allocation For the Year Ended lllllllllll statements shown elsewhere in this report ANNUAL REPORT OF llllllllll may be indicated here by reference. SCHEDULE XVIII—Notes to Statement of For the Year Ended lllllllllll ANNUAL REPORT OF llllllllll Income For the Year Ended lllllllllll Annual Statement of Compensation for Use Instructions: The space below is provided for of Capital Billed important notes regarding the statement of Organization Chart ANNUAL REPORT OF llllllllll income or any account thereof. Furnish ANNUAL REPORT OF llllllllll particulars as to any significant increase in For the Year Ended lllllllllll For the Year Ended lllllllllll services rendered or expenses incurred
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Signature Clause this report to be signed on its behalf by the (Signature of Signing Officer) lllllllllllllllllllll Pursuant to the requirements of the Public undersigned officer thereunto duly Utility Holding Company Act of 2005 and the authorized. (Printed Name and Title of Signing Officer) rules and regulations of the Federal Energy lllllllllllllllllllll Date: llllllllllllllllll Regulatory Commission issued thereunder, (Name of Reporting Company) [FR Doc. 05–24116 Filed 12–19–05; 8:45 am] lllllllllllllllllllll the undersigned company has duly caused BILLING CODE 6717–01–P
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Part IV
Department of Transportation Federal Transit Administration
FTA Fiscal Year 2006 Apportionments and Allocations; Notice
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DEPARTMENT OF TRANSPORTATION 9. FY 2006 Section 5309 Fixed Guideway apportioned by statutory formula. Modernization Apportionments Funding for the other seven is allocated Federal Transit Administration 10. FY 2006 Fixed Guideway on a discretionary or competitive basis. Modernization Program Apportionment FTA Fiscal Year 2006 Apportionments Formula A. Funding Based on FY 2006 and Allocations 11. FY 2006 Bus and Bus Facility Program Appropriations Act Allocations 12. FY 2006 New Starts Program The 2006 Appropriations Act AGENCY: Federal Transit Administration provides funding from the General Fund (FTA), DOT. Allocations 13. FY 2006 Section 5310 Special Needs of the Treasury and Mass Transit ACTION: Notice. for Elderly Individuals and Individuals Account of the Highway Trust Fund that With Disabilities Apportionments totals $8.59 billion for FTA programs. SUMMARY: The ‘‘Transportation, 14. FY 2006 Section 5311 and Section 5340 This amount is slightly less than the Treasury, Housing and Urban Nonurbanized Apportionments and $8.62 billion authorized for FY 2006 in Section 5311(b)(3) Rural Transit Development, the Judiciary, the District SAFETEA–LU. Table 1 shows the of Columbia, and Independent Agencies Assistance Program (RTAP) Apportionments SAFETEA–LU authorized funding levels Appropriations Act, 2006’’ (Pub. L. 109– 15. FY 2006 National Research Program for transit programs. Table 2 of this 115), signed into law by President Bush Allocations document shows the appropriated on November 30, 2005, appropriates 16. FY 2006 Job Access and Reverse funding levels for FTA programs for FY funds for all of the surface Commute Program Apportionments 2006. The 2006 Appropriations Act transportation programs of the 17. FY 2006 New Freedom Program made funding available for the entire Apportionments Department of Transportation for the fiscal year. fiscal year ending September 30, 2006. 18. FY 2006 Alternative Analysis This notice provides information on the Allocations B. Apportionments and Allocations 19. Extended Earmarks for Bus and Bus FY 2006 transit appropriations for the Facility and New Starts Programs An apportionment or allocation table FTA assistance programs, and Appendix is included in this Notice for each apportions and allocates FY 2006 funds. program, except for the Section 5340 The Notice also makes corrections to I. Overview Growing States and High Density States information in the SAFETEA–LU This document apportions or allocates Formula. The apportionments for this implementation Notice published in the annual appropriations among potential formula were combined with the Federal Register on November 30, 2005. program recipients. In addition, the Section 5307 or Section 5311 FOR FURTHER INFORMATION CONTACT: For document contains specific instructions apportionments, as appropriate, and general information about this notice or guidance for FTA programs and shown as a single amount, as directed contact Mary Martha Churchman, funding, in the ‘‘Transportation, by Congress in the SAFETEA–LU Director, Office of Transit Programs, Treasury, Housing and Urban conference report. The amount shown (202) 366–2053. Please contact the Development, the Judiciary, the District in a table for an urbanized area, State, appropriate FTA regional office for any of Columbia, and Independent Agencies or specific project or recipient is specific requests for information or Appropriations Act, 2006’’ (Pub. L. 109– available for obligation or award to a technical assistance. The Appendix at 115, November 30, 2005; hereafter grant, under the respective FTA the end of this notice includes contact called the 2006 Appropriations Act). program. information for FTA regional offices. On November 30, 2005, the FTA Because we combined Sections 5307 Notice entitled ‘‘FTA Transit Program and 5340 apportionments as directed by SUPPLEMENTARY INFORMATION: Changes, Authorized Funding Levels Congress, we did not include in this Table of Contents and Implementation of the Safe, Notice a separate breakout of the Accountable, Flexible, Efficient I. Overview apportionment amounts to urbanized II. FY 2006 Funding for FTA Programs Transportation Equity Act: A Legacy for areas (UZAs) or States for Small Transit A. Funding Based on FY 2006 Users’’ was published in the Federal Intensive Cities (STIC) or for Section Appropriations Act Register. That Notice contains 5340 formulas. However, this B. Apportionments and Allocations information about FTA program information is available and may be III. Specific Directions and Instructions in the guidance, requirements, period of obtained from the FTA regional offices 2006 Appropriations Act availability, and other important for your UZA or State. IV. Corrections information for FY 2006, and should be Unless the law provides otherwise, Tables used together with this document. It can earmarked project allocations for Clean 1. SAFETEA–LU Authorized Programs and be found on the FTA Web site at http:// Fuels, Bus and Bus Facility, New Starts, Funding Levels _ _ 2. FY 2006 Appropriations and www.fta.dot.gov/2930 ENG HTML.htm, Alternative Analysis, and the National Apportionments for Grant Programs and is also available for public comment Research Program must conform to the 3. FY 2006 Metropolitan Transportation on the DOT Docket Web site: http:// eligibility requirements of the particular Planning Program and Statewide dms.dot.gov identified by DOT DMS program. Prospective recipients are Transportation Planning Program Docket Number FTA–2005–23089. Two encouraged to contact the appropriate Apportionments corrections to the November 30 Notice FTA regional office to discuss project 4. FY 2006 Section 5307 and Section 5340 are included in this Notice. eligibility. The regional office can Urbanized Area Apportionments provide technical assistance to help II. FY 2006 Funding for FTA Programs 5. FY 2006 Section 5307 Apportionment develop an eligible project. Formula The three major FTA program areas 6. FY 2006 Formula Programs included in the notice are formula and III. Specific Directions and Instructions Apportionment Data Unit Values in the 2006 Appropriations Act 7. Urbanized Areas 200,000 or More in bus grants, capital investments, and Population Eligible To Use Section 5307 research. Of the 17 separate FTA The 2006 Appropriations Act and Funds for Operating Assistance programs contained in this notice that accompanying conference report 8. FY 2006 Clean Fuels Program fall under the major program area include instructions on the use or Allocations headings, the funding for 10 is disposition of selected program funding,
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and on the use of funds for particular FTA to enter preliminary engineering managers accompanying Public Law projects. These provisions are listed before expending FY 2006 New Starts 108–199, may be made available to the below, with supplemental information funds for preliminary engineering. Jacksonville Transportation Authority where appropriate. (6) Section 112 provides funding for for any purpose authorized under the (1) The Appropriations Act transfers activities eligible under Title 23 or Title Job Access and Reverse Commute $47,766,000 from the Fixed Guideway 49 at 100 percent Federal share, and are program. Modernization program to New Starts available until expended. Surface (11) Section 149 provides that for activities under that program. Transportation Projects and Highway notwithstanding any other provision of (2) The Appropriations Act transfers Priority Projects to be funded under this law, any funds made available to the $25,215,000 available for the Clean section are designated in the conference South Shore Commuter Rail, Indiana, Fuels program to the Bus and Bus report. These earmarks include some project under the Federal Transit Facility program. Of the $43,000,000 transit projects, similar to Section 115 Administration Capital Investment made available for the Clean Fuels and Section 117 in the FY 2004 and FY Grants Account in Division H of Public program, $17,785,000 remains available 2005 appropriations acts. Recipients of Law 108–447 that remain available may for Clean Fuels projects authorized by designations for transit projects under be used for remodernization of the SAFETEA–LU. Section 112 should initiate discussions South Shore Commuter Rail system. (3) The Conference Report directs with the appropriate FHWA division FTA not to reallocate funds designated office to identify transit projects that IV. Corrections for certain Bus and New Starts projects may be administered by FTA and The following corrections are made to designated in FY 2003 and prior years. request that FHWA allot the funds to information in the Federal Register These extended earmarks are listed in FTA. published November 30, entitled ‘‘FTA Table 19, along with several other bus (7) Section 145 states that amounts Transit Program Changes, Authorized projects extended by previous made available from the bus category of Funding Levels and Implementation of Congressional action. the Capital Investment Grants Account the Safe, Accountable, Flexible, (4) Section 113 provides that or Discretionary Grants Account in this Efficient Transportation Equity Act: A ‘‘notwithstanding any other provision of or any other previous Appropriations Legacy for Users’’ (70 FR 71950 et seq.). law, projects and activities described in Act that remain unobligated or 1. In the description of eligibility of the statement of managers unexpended in a grant for a multimodal intercity bus and intercity rail facilities accompanying this Act under the transportation facility in Burlington, in section IV part (A), subsection 4 headings ‘‘Federal-Aid Highways’’ and Vermont, may be used for site- ‘‘Intercity Bus and Intercity Rail’’ on ‘‘Federal Transit Administration’’ shall preparation and design purposes of a page 71952, the phrase ‘‘physical and be eligible for fiscal year 2006 funds multimodal transportation facility in a functional relationship to public made available for the project for which different location within Burlington, transportation’’ should read ‘‘physical each project or activity is so designated: Vermont, than originally intended or functional relationship to public Provided, That the Federal share notwithstanding previous expenditures transportation.’’ payable on account of any such projects incurred for such purposes at the 2. In the description of the Job Access and activities subject to this section original location. Reverse Commute Program in section VI shall be the same as the share required (8) Section 146 provides that part (M), page 71967, under subsection by the Federal program under which notwithstanding any other provision of 2, ‘‘Basis for Formula Apportionment,’’ each project or activity is designated law, funds designated in the conference in the 2nd paragraph, the phrase unless otherwise provided in this Act.’’ report accompanying Public Law 108– ‘‘persons with disabilities’’ should read This general provision makes the 447 and Public Law 108–199 for the ‘‘low-income individuals and welfare Section 5309 bus projects and activities King County Metro Park and Ride on recipients.’’ designated in the FY 2006 conference First Hill, Seattle, Washington, shall be report eligible for the purposes available to the Swedish Hospital Issued on: December 13, 2005. indicated. The specific bus and clean parking garage, Seattle, Washington, David B. Horner, fuels projects designated in SAFETEA– subject to the same conditions and Acting Deputy Administrator. LU are also eligible by virtue of being requirements of section 125 of Division Appendix—FTA Regional Offices in statute. In some instances, FTA may H of Public Law 108–447. approve use of the funds under the (9) Section 147 provides that funds in Richard H. Doyle, Regional Administrator, Section 5309 Bus and Bus Facilities or this Act that are apportioned to the Region 1—Boston, Kendall Square, 55 Clean Fuels program for eligible Charleston Area Regional Broadway, Suite 920, Cambridge, MA activities other than those designated in Transportation Authority to carry out 02142–1093, Tel. 617 494–2055 statute or report language upon section 5307 may be used to acquire States served: Connecticut, Maine, Massachusetts, New Hampshire, Rhode clarification from the relevant House land, equipment, or facilities used in Island, and Vermont and Senate committees on authorization public transportation from another Letitia Thompson, Regional Administrator, or appropriations respectively. governmental authority in the same Region 2—New York, One Bowling Green, (5) The New Starts project allocations geographic area. The non-Federal share Room 429, New York, NY 10004–1415, Tel. listed in Table 12 include some projects under section 5307 may include No. 212 668–2170 which may not have yet conducted or revenues from the sale of advertising States served: New Jersey, New York, and the completed alternatives analysis. and concessions. Virgin Islands Pursuant to SAFETEA–LU, FY 2006 (10) Section 148 provides that Susan Borinsky, Regional Administrator, New Starts funds may only be used for notwithstanding any other provision of Region 3—Philadelphia, 1760 Market preliminary engineering, final design, law, any unobligated funds designated Street, Suite 500, Philadelphia, PA 19103– 4124, Tel. 215 656–7100 and construction. A New Starts project to the Jacksonville Transportation States served: Delaware, Maryland, designated to receive Section 5309 New Authority, Community Transportation Pennsylvania, Virginia, West Virginia, and Starts funds in the FY 2006 Coordinator Program under the heading District of Columbia Appropriations Act must complete ‘‘Job Access and Reverse Commute Yvette G. Taylor, Regional Administrator, alternatives analysis and be approved by Grants’’ in the statement of the Region 4—Atlanta, Atlanta Federal Center,
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Suite 17T50, 61 Forsyth Street SW, States served: Arkansas, Louisiana, Street, Room 2210, San Francisco, CA Atlanta, GA 30303, Tel. 404 562–3500 Oklahoma, New Mexico and Texas 94105–1926, Tel. 415 744–3133 States served: Alabama, Florida, Georgia, Mokhtee Ahmad, Regional Administrator, States served: American Samoa, Arizona, Kentucky, Mississippi, North Carolina, Region 7—Kansas City, MO, 901 Locust California, Guam, Hawaii, Nevada, and the Puerto Rico, South Carolina, and Street, Room 404, Kansas City, MO 64106, Northern Mariana Islands Tennessee Tel. 816 329–3920 Don Gismondi, Deputy Regional States served: Iowa, Kansas, Missouri, and Rick Krochalis, Regional Administrator, Administrator, Region 5—Chicago, 200 Nebraska Region 10—Seattle, Jackson Federal West Adams Street, Suite 320, Chicago, IL Lee O. Waddleton, Regional Administrator, Building, 915 Second Avenue, Suite 3142, 60606, Tel. 312 353–2789 Region 8—Denver, 12300 West Dakota Seattle, WA 98174–1002, Tel. 206 220– States served: Illinois, Indiana, Michigan, Ave., Suite 310, Lakewood, CO 80228– 7954 Minnesota, Ohio, and Wisconsin 2583, Tel. 720–963–3300 States served: Alaska, Idaho, Oregon, and Robert C. Patrick, Regional Administrator, States served: Colorado, Montana, North Washington Region 6—Ft. Worth, 819 Taylor Street, Dakota, South Dakota, Utah, and Wyoming Room 8A36, Ft. Worth, TX 76102, Tel. 817 Leslie T. Rogers, Regional Administrator, BILLING CODE 4910–57–P 978–0550 Region 9—San Francisco, 201 Mission
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[FR Doc. 05–24154 Filed 12–19–05; 8:45 am] BILLING CODE 4910–57–C
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Reader Aids Federal Register Vol. 70, No. 243 Tuesday, December 20, 2005
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. 2...... 74950 Presidential Documents 3 CFR 13...... 74950 Proclamations: Executive orders and proclamations 741–6000 31...... 75423 7967...... 72575 The United States Government Manual 741–6000 50...... 75085 7968...... 73903 110...... 74950 Other Services Executive Orders: Electronic and on-line services (voice) 741–6020 13392...... 75373 11 CFR Privacy Act Compilation 741–6064 5 CFR 106...... 75379 Public Laws Update Service (numbers, dates, etc.) 741–6043 300...... 75379 TTY for the deaf-and-hard-of-hearing 741–6086 300...... 72065 307...... 72065 Proposed Rules: 315...... 72065 109...... 73946 ELECTRONIC RESEARCH 316...... 72065 12 CFR 330...... 72065 World Wide Web 201...... 75385 335...... 72065 229...... 73128, 74998 Full text of the daily Federal Register, CFR and other publications 451...... 74995 707...... 72895 is located at: http://www.gpoaccess.gov/nara/index.html 531...... 74995, 74996 796...... 72702 550...... 72065 Federal Register information and research tools, including Public 1805...... 73887 551...... 72065 Inspection List, indexes, and links to GPO Access are located at: Proposed Rules: http://www.archives.gov/federallregister/ 575...... 74995 720...... 72065 Ch.III ...... 73652 E-mail Proposed Rules: 13 CFR 337...... 73646 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 121...... 72577 930...... 73646 an open e-mail service that provides subscribers with a digital 123...... 72577 1216...... 74714 form of the Federal Register Table of Contents. The digital form 300...... 74193 of the Federal Register Table of Contents includes HTML and 7 CFR 301...... 74193, 74196 PDF links to the full text of each document. 210...... 72349 304...... 74193, 74196 To join or leave, go to http://listserv.access.gpo.gov and select 220...... 72349 308...... 74195 Online mailing list archives, FEDREGTOC-L, Join or leave the list 226...... 72349 14 CFR (or change settings); then follow the instructions. 272...... 72350 23 ...... 72068, 72070, 75000 PENS (Public Law Electronic Notification Service) is an e-mail 274...... 72350 25 ...... 73559, 73561, 75002 service that notifies subscribers of recently enacted laws. 276...... 72350 39 ...... 72358, 72361, 72363, To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 278...... 72350 279...... 72350 72366, 72368, 72595, 72902, and select Join or leave the list (or change settings); then follow 73347, 73351, 73355, 73358, the instructions. 280...... 72350 301...... 73553 73361, 73364, 73576, 73577, FEDREGTOC-L and PENS are mailing lists only. We cannot 305...... 72881 73579, 73581, 73583, 73919, respond to specific inquiries. 319...... 72068, 72881 73921, 73923, 73925, 73930, 73933, 73935, 74639, 74641, Reference questions. Send questions and comments about the 800...... 73556 74645, 74647, 75004, 75386, Federal Register system to: [email protected] 906...... 73123 979...... 72699 75388, 75390 The Federal Register staff cannot interpret specific documents or 984...... 72195, 72892 71 ...... 72371, 72905, 73129, regulations. 985...... 72355 73131, 73132, 73134, 74197, 1030...... 73126 75392, 75393, 75394, 75395 FEDERAL REGISTER PAGES AND DATE, DECEMBER 1902...... 73347 97 ...... 72703, 72705, 73367, Proposed Rules: 73785 72065–72194...... 1 319...... 74215 121...... 75396 72195–72348...... 2 330...... 74215 145...... 75396 72349–72576...... 5 340...... 74215 Proposed Rules: 72577–72698...... 6 927...... 73167 13...... 72403 72699–72880...... 7 1124...... 74166 39 ...... 72083, 72085, 72088, 72881–73122...... 8 1131...... 74166 72327, 72406, 72409, 72599, 72601, 72726, 72938, 72939, 73123–73346...... 9 1207...... 73945 72942, 72945, 72947, 73171, 73347–73552...... 12 1209...... 73945 1220...... 72257 73173, 73391, 73392, 73633, 73553–73904...... 13 1496...... 74717 73665, 73668, 73671, 74235, 73905–74192...... 14 74237, 75426, 75428, 75430, 74193–74638...... 15 9 CFR 75435 74639–74994...... 16 94...... 73905 47...... 72403 74995–75378...... 19 61...... 72403 75379–75710...... 20 10 CFR 71 ...... 72949, 72950, 73959, Proposed Rules: 75438 1...... 74950 91...... 72403
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93...... 73674 941...... 72908 37 CFR Proposed Rules: 183...... 72403 Proposed Rules: 253...... 72077 64...... 75102 399...... 73960 3282...... 73966 73...... 72763, 73972 38 CFR 76...... 73973 15 CFR 26 CFR 3...... 72211 748...... 72073 48 CFR 1 ...... 72376, 72908, 72914, 4...... 75398 Ch. 2 ...... 75411 16 CFR 75028 20...... 72211 31...... 74198 1...... 73415 303...... 73369 32...... 74198 39 CFR 2...... 73415 801...... 73369 4...... 73415 301...... 74658 111...... 72221 803...... 73369 5...... 73415 602...... 72908, 72914 232...... 72078 6...... 73415 17 CFR Proposed Rules: 1 ...... 72260, 72952, 73393, 40 CFR 7...... 73415 200...... 72566 8...... 73415 73967, 74259, 75090 52 ...... 72597, 72720, 73380, 201...... 72566 9...... 73415 54...... 72953 75399 229...... 72372 12...... 73415 301 ...... 72954, 73393, 74259 60 ...... 73138, 74679, 74870 231...... 73344 13...... 73415 61...... 73138, 73595 239...... 72372 15...... 73415 27 CFR 63 ...... 73138, 73595, 75042, 241...... 73344 16...... 73415 9 ...... 72707, 72710, 72713, 75047, 75320 271...... 73344 17...... 73415 72717 70...... 75320, 75399 420...... 73378 19...... 73415 Proposed Rules: 71...... 75320 Proposed Rules: 22...... 73415 4...... 72731 80...... 74552 4...... 74240 25...... 73415 5...... 72731 82...... 73604 15...... 74246 28...... 73415 7...... 72731 86...... 72917, 75403 16...... 74246 30...... 73415 9...... 72733 180...... 74679, 74688 17...... 74246 32...... 73415 420...... 73618 18...... 74246 36...... 73415 28 CFR 710...... 74696, 75059 19...... 74246 42...... 73415 21...... 74248 1617...... 72199 Proposed Rules: 48...... 73415 240...... 74598 905...... 73587 51...... 72268, 75439 49...... 73415 249...... 74598 906...... 74200 52 ...... 72740, 72741, 72744, 50...... 73415 274...... 74598 73414, 74259, 75093, 75440 52...... 73415 29 CFR 55...... 72094 18 CFR 53...... 73415 4011...... 72074 60...... 75348 35...... 75005 201...... 75411 4022...... 72074, 74200 61...... 73183, 73675 205...... 73148 365...... 75592 4044 ...... 72076, 72205, 73330, 63 ...... 72330, 73098, 73183, 366...... 75592 211...... 73150 74200 73675, 75096 213...... 75411 Proposed Rules: Proposed Rules: 70...... 75440 216...... 73151 41...... 72730 1611...... 73413 80...... 74582 217...... 73151 158...... 72730 81...... 73183 284...... 72090 30 CFR 223...... 73150 86...... 72970 225...... 73152, 73153 286...... 72730 204...... 72381 96...... 72268 349...... 72730 226...... 73148 250...... 74659 112...... 73518, 73524 232...... 75412 19 CFR 122...... 73676 252 ...... 73148, 73150, 73152, 31 CFR 180...... 72757 360...... 72373 73153 Proposed Rules: 272...... 75098 1852...... 74206 1...... 72739 20 CFR 41 CFR 9901...... 73423 9903...... 73423 422...... 74649 32 CFR 60-250...... 72148 423...... 73135 Proposed Rules: 655...... 72556 285...... 73378 Proposed Rules: Ch. 2 ...... 73187 1002...... 75246, 75313 346...... 72917 51-2...... 74721 208...... 73187 Proposed Rules: 51-3...... 74721 Proposed Rules: 215...... 75440 51-4...... 74721 260...... 73175 235...... 75091 225...... 73189 635...... 73181 320...... 73175 42 CFR 230...... 75440 341...... 73176 252 ...... 73187, 73189, 75440 33 CFR 405...... 73623 404...... 72411, 72416 253...... 73187, 75440 416...... 72411, 72416 104...... 74663 Proposed Rules: 105...... 74663 1001...... 73186 49 CFR 21 CFR 117...... 73380, 73937 105...... 73156 44 CFR Ch. I ...... 72074 151...... 74669 106...... 73156 172...... 72906 153...... 74669 64...... 72078, 74204 107...... 73156 510...... 74652, 75398 160...... 74663 65...... 73634 110...... 73156 520 ...... 73136, 75016, 75017, 165 ...... 74202, 74676, 75036 Proposed Rules: 171...... 73156 75398 Proposed Rules: 67...... 73677 172...... 73156 524...... 73137 100...... 72964 173...... 72930, 73156 558...... 74652, 75017 117...... 72419, 72967 45 CFR 174...... 73156 610...... 72197, 75018 155...... 74259 Proposed Rules: 175...... 73156 1300...... 74653 157...... 74259 1180...... 73967 176...... 73156 1308...... 74653 177...... 73156 34 CFR 46 CFR Proposed Rules: 178...... 73156 310...... 73178 Proposed Rules: 4...... 74669 180...... 73156 358...... 73178 200...... 74624 225...... 75414 610...... 72257 300...... 74624 47 CFR 234...... 72382 64...... 75070 236...... 72382 24 CFR 36 CFR 73 ...... 72723, 73939, 73940, 571...... 73383 203...... 72696 1011...... 73587 73941, 73942 1540...... 72930
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Proposed Rules: 50 CFR 75418 216...... 73426 192...... 74262, 74265 17 ...... 73820, 74112, 74138, 660...... 72385, 75075 223...... 72099 195...... 74265 75071 679 ...... 73389, 74208, 75080, 635...... 73980 229...... 73070 23...... 74700 75419 648 ...... 72100, 74285, 75111, 238...... 73070 300...... 73943 680...... 75419 75114 571...... 74270 622...... 73383 Proposed Rules: 660...... 72777, 75115 635 ...... 72080, 72724, 74712 17 ...... 72776, 72973, 73190, 679...... 74723, 74739 648 ...... 72082, 72934, 75074, 73699, 74284, 74426, 75546 697...... 73717
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REMINDERS Water pollution control: 30-05; published 11-30- The items in this list were COMMENTS DUE NEXT National Pollutant Discharge 05 [FR 05-23407] editorially compiled as an aid WEEK Elimination System— INTERIOR DEPARTMENT to Federal Register users. Cooling water intake Surface Mining Reclamation Inclusion or exclusion from AGRICULTURE structures at Phase III and Enforcement Office this list has no legal DEPARTMENT facilities; comments due Permanent program and significance. Animal and Plant Health by 12-27-05; published abandoned mine land Inspection Service 11-25-05 [FR 05-23276] reclamation plan Water pollution; effluent submissions: RULES GOING INTO Plant-related quarantine, domestic: guidelines for point source Missouri; comments due by EFFECT DECEMBER 20, Emerald ash borer; categories: 12-29-05; published 11- 2005 comments due by 12-30- Meat and poultry products 29-05 [FR 05-23456] 05; published 10-31-05 processing facilities; Open Montana; comments due by COMMERCE DEPARTMENT [FR 05-21608] for comments until further 12-29-05; published 11- National Oceanic and COMMERCE DEPARTMENT notice; published 9-8-04 29-05 [FR 05-23396] [FR 04-12017] Atmospheric Administration National Oceanic and Texas; comments due by Fishery conservation and Atmospheric Administration FEDERAL 12-29-05; published 11- management: Fishery conservation and COMMUNICATIONS 29-05 [FR 05-23402] Alaska; fisheries of management: COMMISSION Wyoming; comments due by Exclusive Economoic Northeastern United States Radio stations; table of 12-29-05; published 11- Zone— fisheries— assignments: 29-05 [FR 05-23399] Bering Sea and Aleutian Atlantic herring; comments New York; comments due JUSTICE DEPARTMENT Islands king and tanner due by 12-30-05; by 12-27-05; published Privacy Act; implementation; crab; published 12-20- published 12-15-05 [FR 11-23-05 [FR 05-22837] comments due by 12-27-05; 05 05-24079] Oklahoma; comments due published 11-16-05 [FR 05- DEFENSE DEPARTMENT West Coast States and by 12-27-05; published 22640] 11-23-05 [FR 05-22838] Acquisition regulations: Western Pacific INTERIOR DEPARTMENT fisheries— HEALTH AND HUMAN Contract financing; published National Indian Gaming Pacific sardine; comments SERVICES DEPARTMENT 12-20-05 Commission due by 12-27-05; Food and Drug Acquisition regulations: Management contract published 10-28-05 [FR Administration provisions: Technical amendments; 05-21561] Food for human consumption: published 12-20-05 Minimum internal control DEFENSE DEPARTMENT Frozen desserts— standards; revision; FEDERAL RESERVE Army Department Goat’s milk ice cream, comments due by 12-30- SYSTEM Privacy Act; implementation; mellarine, ice cream 05; published 11-15-05 Extensions of Credit by comments due by 12-27-05; and frozen custard, [FR 05-22506] Federal Reserve Banks published 10-25-05 [FR 05- sherbet, water ices, and NUCLEAR REGULATORY (Regulation A): 21113] parmesan and reggiano COMMISSION Primary credit rate; ENVIRONMENTAL cheese; food standards; Fitness for duty programs: published 12-20-05 PROTECTION AGENCY comments due by 12- Conformance with HHS HEALTH AND HUMAN Air pollutants, hazardous; 27-05; published 9-27- testing guidelines, etc.; SERVICES DEPARTMENT national emission standards: 05 [FR 05-19194] comments due by 12-27- Food and Drug Organic liquids distribution HOMELAND SECURITY 05; published 8-26-05 [FR Administration (non-gasoline); comments DEPARTMENT 05-15576] Animal drugs, feeds, and due by 12-29-05; Coast Guard SOCIAL SECURITY related products: published 11-14-05 [FR Ports and waterways safety; ADMINISTRATION 05-22108] Sponsor name and address regulated navigation areas, Ticket to Work Self-Sufficiency Air quality implementation changes— safety zones, security Program; comments due by plans; approval and zones, etc.: 12-29-05; published 9-30-05 Pharmaceutical Ventures, promulgation; various Ltd.; published 12-20-05 Alaska; high capacity [FR 05-19530] States; air quality planning passenger vessels TRANSPORTATION TRANSPORTATION purposes; designation of protection; comments due DEPARTMENT DEPARTMENT areas: by 12-30-05; published Workplace drug and alcohol Federal Aviation California; comments due by 10-31-05 [FR 05-21576] Administration 12-30-05; published 11- testing programs: Chicago Sanitary and Ship 30-05 [FR 05-23502] Adulterated, substituted, and Air carrier certification and Canal, IL; comments due diluted specimen results; operations: Air quality implementation by 12-31-05; published 8- instructions to laboratories Hazardous materials training plans; approval and 10-05 [FR 05-15781] and medical review requirements promulgation; various States: INTERIOR DEPARTMENT officers; comments due by Correction; published 12- Fish and Wildlife Service 12-30-05; published 10- 20-05 Georgia; comments due by 12-29-05; published 11- Endangered and threatened 31-05 [FR 05-21488] Airworthiness directives: 29-05 [FR 05-23417] species: TRANSPORTATION Learjet; published 12-5-05 Indiana; comments due by Findings on petitions, etc.— DEPARTMENT VETERANS AFFAIRS 12-27-05; published 11- Gray wolf; northern Rocky Federal Aviation DEPARTMENT 25-05 [FR 05-23278] Mountain distinct Administration Disabilities rating schedule: Solid waste: population segment; Air carrier certification and Rheumatoid (atrophic) Hazardous waste; comments due by 12- operations: arthritis, mental disorders identification and listing 27-05; published 10-26- Pilot supplemental oxygen in epilipsies, and Exclusions; comments due 05 [FR 05-21344] use; comments due by dementia; published 12- by 12-27-05; published Peirson’s milk-vetch; 12-27-05; published 11- 20-05 11-25-05 [FR 05-23229] comments due by 12- 10-05 [FR 05-22456]
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Airworthiness directives: Aluminum cylinders H.J. Res. 75/P.L. 109–128 manufactured of 6351-T6 Aerospatiale; comments due LIST OF PUBLIC LAWS Making further continuing by 12-27-05; published aluminum alloy used in appropriations for the fiscal SCUBA, SCBA, carbon 10-28-05 [FR 05-21338] This is a continuing list of year 2006, and for other dioxide, and oxygen Bell; comments due by 12- public bills from the current purposes. (Dec. 18, 2005; 119 27-05; published 10-28-05 service; requalification and session of Congress which Stat. 2549) [FR 05-21541] use criteria; comments have become Federal laws. It Last List December 14, 2005 Boeing; comments due by due by 12-27-05; may be used in conjunction 12-27-05; published 11-9- published 10-26-05 [FR with ‘‘PLUS’’ (Public Laws 05 [FR 05-22306] 05-21273] Update Service) on 202–741– Sikorsky Aircraft Corp.; TREASURY DEPARTMENT 6043. This list is also Public Laws Electronic comments due by 12-27- available online at http:// Notification Service Internal Revenue Service 05; published 10-26-05 www.archives.gov/federal- (PENS) [FR 05-21256] Privacy Act; implementation; register/laws.html. Airworthiness standards: comments due by 12-28-05; The text of laws is not Special conditions— published 11-28-05 [FR E5- published in the Federal PENS is a free electronic mail 06577] Garmin AT, Inc.; Mooney Register but may be ordered notification service of newly in ‘‘slip law’’ (individual M20M and M20R TREASURY DEPARTMENT enacted public laws. To airplanes; comments pamphlet) form from the subscribe, go to http:// due by 12-30-05; Alcohol and Tobacco Tax Superintendent of Documents, listserv.gsa.gov/archives/ published 11-30-05 [FR and Trade Bureau U.S. Government Printing publaws-l.html Office, Washington, DC 20402 05-23481] Alcohol, tobacco and other (phone, 202–512–1808). The Note: This service is strictly excise taxes: TRANSPORTATION text will also be made for E-mail notification of new DEPARTMENT Special occupational tax; available on the Internet from laws. The text of laws is not Pipeline and Hazardous suspension; comments GPO Access at http:// available through this service. Materials Safety due by 12-30-05; www.gpoaccess.gov/plaws/ PENS cannot respond to Administration published 10-31-05 [FR index.html. Some laws may specific inquiries sent to this Hazardous materials: 05-21562] not yet be available. address.
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