12–6–04 Vol. 69 No. 233 Monday Dec. 6, 2004 Pages 70351–70536

12–6–04 Monday Vol. 69 No. 233 Dec. 6, 2004

Pages 70351–70536

VerDate jul 14 2003 17:08 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00001 Fmt 4710 Sfmt 4710 E:\FR\FM\06DEWS.LOC 06DEWS

i II Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004

The FEDERAL REGISTER (ISSN 0097–6326) is published daily, SUBSCRIPTIONS AND COPIES Monday through Friday, except official holidays, by the Office PUBLIC of the Federal Register, National Archives and Records Administration, Washington, DC 20408, under the Federal Register Subscriptions: Act (44 U.S.C. Ch. 15) and the regulations of the Administrative Paper or fiche 202–512–1800 Committee of the Federal Register (1 CFR Ch. I). The Assistance with public subscriptions 202–512–1806 Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402 is the exclusive distributor of the official General online information 202–512–1530; 1–888–293–6498 edition. Periodicals postage is paid at Washington, DC. Single copies/back copies: The FEDERAL REGISTER provides a uniform system for making Paper or fiche 202–512–1800 available to the public regulations and legal notices issued by Assistance with public single copies 1–866–512–1800 Federal agencies. These include Presidential proclamations and (Toll-Free) Executive Orders, Federal agency documents having general FEDERAL AGENCIES applicability and legal effect, documents required to be published Subscriptions: by act of Congress, and other Federal agency documents of public interest. Paper or fiche 202–741–6005 Documents are on file for public inspection in the Office of the Assistance with Federal agency subscriptions 202–741–6005 Federal Register the day before they are published, unless the issuing agency requests earlier filing. For a list of documents currently on file for public inspection, see www.archives.gov. What’s NEW! The seal of the National Archives and Records Administration authenticates the Federal Register as the official serial publication Federal Register Table of Contents via e-mail established under the Federal Register Act. Under 44 U.S.C. 1507, Subscribe to FEDREGTOC, to receive the Federal Register Table of the contents of the Federal Register shall be judicially noticed. Contents in your e-mail every day. The Federal Register is published in paper and on 24x microfiche. It is also available online at no charge as one of the databases If you get the HTML version, you can click directly to any document on GPO Access, a service of the U.S. Government Printing Office. in the issue. The online edition of the Federal Register www.gpoaccess.gov/ To subscribe, go to http://listserv.access.gpo.gov and select: nara, available through GPO Access, is issued under the authority Online mailing list archives of the Administrative Committee of the Federal Register as the official legal equivalent of the paper and microfiche editions (44 FEDREGTOC-L U.S.C. 4101 and 1 CFR 5.10). It is updated by 6 a.m. each day Join or leave the list the Federal Register is published and includes both text and Then follow the instructions. graphics from Volume 59, Number 1 (January 2, 1994) forward. For more information about GPO Access, contact the GPO Access User Support Team, call toll free 1-888-293-6498; DC area 202- 512-1530; fax at 202-512-1262; or via e-mail at [email protected]. The Support Team is available between 7:00 a.m. and 9:00 p.m. What’s NEW! Eastern Time, Monday–Friday, except official holidays. Regulations.gov, the award-winning Federal eRulemaking Portal The annual subscription price for the Federal Register paper edition is $749 plus postage, or $808, plus postage, for a combined Regulations.gov is the one-stop U.S. Government web site that makes Federal Register, Federal Register Index and List of CFR Sections it easy to participate in the regulatory process. Affected (LSA) subscription; the microfiche edition of the Federal Try this fast and reliable resource to find all rules published in the Register including the Federal Register Index and LSA is $165, Federal Register that are currently open for public comment. Submit plus postage. Six month subscriptions are available for one-half comments to agencies by filling out a simple web form, or use avail- the annual rate. The prevailing postal rates will be applied to orders according to the delivery method requested. The price of able e-mail addresses and web sites. a single copy of the daily Federal Register, including postage, The Regulations.gov e-democracy initiative is brought to you by is based on the number of pages: $11 for an issue containing NARA, GPO, EPA and their eRulemaking partners. less than 200 pages; $22 for an issue containing 200 to 400 pages; and $33 for an issue containing more than 400 pages. Single issues Visit the web site at: http://www.regulations.gov of the microfiche edition may be purchased for $3 per copy, including postage. Remit check or money order, made payable to the Superintendent of Documents, or charge to your GPO Deposit Account, VISA, MasterCard, American Express, or Discover. Mail to: New Orders, Superintendent of Documents, P.O. Box 371954, Pittsburgh, PA 15250-7954; or call toll free 1-866- 512-1800, DC area 202-512-1800; or go to the U.S. Government Online Bookstore site, see bookstore.gpo.gov. There are no restrictions on the republication of material appearing in the Federal Register. How To Cite This Publication: Use the volume number and the page number. Example: 69 FR 12345. Postmaster: Send address changes to the Superintendent of Documents, Federal Register, U.S. Government Printing Office, Washington DC 20402, along with the entire mailing label from the last issue received.

VerDate jul 14 2003 17:08 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00002 Fmt 4710 Sfmt 4710 E:\FR\FM\06DEWS.LOC 06DEWS III

Contents Federal Register Vol. 69, No. 233

Monday, December 6, 2004

Agriculture Department See Western Area Power Administration See Commodity Credit Corporation NOTICES See Food and Nutrition Service Patent licenses; non-exclusive, exclusive, or partially See Foreign Agricultural Service exclusive: MOBOTECUSA, 70435–70436 Air Force Department NOTICES Environmental Protection Agency Meetings: PROPOSED RULES Scientific Advisory Board, 70434 Toxic substances: Significant new uses— Broadcasting Board of Governors Polybrominated diphenylethers, 70404–70412 NOTICES NOTICES Meetings; Sunshine Act, 70434 Grants and cooperative agreements; availability, etc.: Tribal Open Dump Cleanup Project, 70442 Centers for Disease Control and Prevention Meetings: NOTICES Acute Exposure Guideline Levels for Hazardous Reports and guidance documents; availability, etc.: Substances National Advisory Committee, 70442– Guidelines for preventing the tranmission of 70443 mycobacterium tuberulosis in health-care settings, 2005, 70457–70458 Executive Office of the President See Presidential Documents Coast Guard See Trade Representative, Office of United States RULES Drawbridge operations: Farm Credit Administration Connecticut, 70373–70374 NOTICES Ports and waterways safety: Meetings; Sunshine Act, 70443 San Carlos Bay, FL; regulated navigation area, 70374– 70377 Federal Aviation Administration RULES Commerce Department Airworthiness directives: See National Oceanic and Atmospheric Administration Bombardier, 70368–70371 Class D airspace, 70371–70372 Commodity Credit Corporation Jet routes, 70372–70373 RULES Loan and purchase programs: Federal Communications Commission Tobacco, 70367–70368 RULES NOTICES Practice and procedure: Grants and cooperative agreements; availability, etc.: Quiet zones; immediate processing of applications, etc.; Farm and Ranch Lands Protection Program, 70427–70432 correction, 70378–70379

Copyright Office, Library of Congress Federal Deposit Insurance Corporation RULES NOTICES Copyright office and procedures: Meetings; Sunshine Act, 70443–70444 Inspection and copying of records, 70377 Federal Emergency Management Agency Defense Department RULES See Air Force Department Flood insurance; communities eligible for sale: Various States, 70377–70378 Drug Enforcement Administration NOTICES NOTICES Agency information collection activities; proposals, Applications, hearings, determinations, etc.: submissions, and approvals, 70465–70466 Cedarburg Pharmaceuticals, Inc.; correction, 70470 Disaster and emergency areas: Johnson Matthey, Inc., 70470–70471 Alabama, 70466 Organichem Corp., 70471 Alaska, 70466 Delaware, 70466–70467 Education Department Florida, 70467 NOTICES Georgia, 70468 Agency information collection activities; proposals, New York, 70468–70469 submissions, and approvals, 70434–70435 Federal Energy Regulatory Commission Energy Department NOTICES See Federal Energy Regulatory Commission Electric rate and corporate regulation filings, 70436–70439

VerDate jul<14>2003 17:45 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00001 Fmt 4748 Sfmt 4748 E:\FR\FM\06DECN.SGM 06DECN IV Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Contents

Federal Reserve System Internal Revenue Service NOTICES PROPOSED RULES Banks and bank holding companies: Estate and gift taxes: Bank Holding Company Rating System; risk management Generation-skipping transfer tax; predeceased parent rule; and financial factors assessments, 70444–70456 public hearing cancellation, 70404 Change in bank control, 70456–70457 Formations, acquisitions, and mergers, 70457 Justice Department See Drug Enforcement Administration Federal Transit Administration NOTICES Meetings: NOTICES Violence Against Women National Advisory Committee, Grants and cooperative agreements; availability, etc.: 70470 United We Ride State Coordination Grants, 70501–70504 Labor Department Fish and Wildlife Service See Occupational Safety and Health Administration RULES Endangered and threatened species: Land Management Bureau Florida manatee; protection areas— NOTICES Additions, 70382–70395 Resource management plans, etc.: Importation, exportation, and transportation of wildlife: Bristol Bay and Goodnews Bay, AK, 70469–70470 Houston, TX; Louisville, KY; and Memphis, TN; designated port status, 70379–70382 Library of Congress PROPOSED RULES See Copyright Office, Library of Congress Endangered and threatened species: Florida manatee; protection areas— National Highway Traffic Safety Administration Additions, 70412–70414 NOTICES Motor vehicle safety standards: Food and Drug Administration Nonconforming vehicles— NOTICES Importation eligibility determinations, 70504–70505 Agency information collection activities; proposals, National Oceanic and Atmospheric Administration submissions, and approvals, 70458 RULES Committees; establishment, renewal, termination, etc.: Fishery conservation and management: Cellular Tissue and Gene Therapies Advisory Committee; Atlantic highly migratory species— nonvoting industry representative, 70458–70459 Bigeye tuna, bluefin tuna, and swordfish, 70396–70401 PROPOSED RULES Food and Nutrition Service Fishery conservation and management: NOTICES Northeastern United States fisheries— Agency information collection activities; proposals, Summer flounder, scup and black sea bass, 70414– submissions, and approvals, 70432–70433 70426

Foreign Agricultural Service National Science Foundation NOTICES NOTICES Agency information collection activities; proposals, Antarctic Conservation Act of 1978; permit applications, submissions, and approvals, 70433–70434 etc., 70471

Health and Human Services Department Nuclear Regulatory Commission See Centers for Disease Control and Prevention NOTICES See Food and Drug Administration Reports and guidance documents; availability, etc.: See Health Resources and Services Administration Fuel cycle facilities; licensee integrated safety assessments, license applications or amendment Health Resources and Services Administration requests, or related activities; review, 70475–70480 Applications, hearings, determinations, etc.: NOTICES Carolina Power & Light Co., 70471–70473 Health professional shortage areas: FirstEnergy Nuclear Operating Co., 70473–70475 Commissioned officers; recruitment of clinicians and assignment sites, 70459–70460 Occupational Safety and Health Administration RULES Homeland Security Department Construction safety and health standards: See Coast Guard Methylenedianiline standard for construction; correction, See Federal Emergency Management Agency 70373 PROPOSED RULES Privacy Act; implementation, 70402–70403 Office of United States Trade Representative NOTICES See Trade Representative, Office of United States Privacy Act: Systems of records, 70460–70465 Personnel Management Office RULES Interior Department Senior Executive Service: See Fish and Wildlife Service Pay and performance awards; aggregate limitation on pay, See Land Management Bureau 70355–70367

VerDate jul<14>2003 17:45 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00002 Fmt 4748 Sfmt 4748 E:\FR\FM\06DECN.SGM 06DECN Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Contents V

NOTICES Trade Representative, Office of United States Agency information collection activities; proposals, NOTICES submissions, and approvals, 70480 Trade Act of 1974: Oman; free trade agreement; intent to initiate Presidential Documents negotiations, 70498–70500 PROCLAMATIONS United Arab Emirates; free trade agreement; intent to Special observances: initiate negotiations, 70500–70501 National Drunk and Drugged Driving Prevention Month (Proc. 7851), 70353 Transportation Department World AIDS Day (Proc. 7850), 70351–70352 See Federal Aviation Administration See Federal Transit Administration Securities and Exchange Commission See National Highway Traffic Safety Administration NOTICES Securities: Treasury Department Short sale price provisions; suspension of operation for See Internal Revenue Service designated securities and time periods, 70480–70482 See Thrift Supervision Office Self-regulatory organizations; proposed rule changes: NOTICES Chicago Board Options Exchange, Inc., 70482–70485 Agency information collection activities; proposals, National Association of Securities Dealers, Inc., 70485– submissions, and approvals, 70505–70506 70488 Pacific Exchange, Inc., 70488–70492 Western Area Power Administration Philadelphia Stock Exchange, Inc., 70492–70496 NOTICES Power rates: Small Business Administration Central Valley Project et al., 70509–70536 NOTICES Provo River Project, 70439–70442 Disaster loan areas: Florida, 70496 Tennessee, 70496 Separate Parts In This Issue Small business size standards: Nonmanufacturer rule; waivers— Adhesives and sealants manufacturing, 70496–70497 Part II Petroleum and coal products manufacturing, 70497– Energy Department, Western Area Power Administration, 70498 70509–70536 Small arms ammunition manufacturing, 70497

State Department Reader Aids NOTICES Consult the Reader Aids section at the end of this issue for Foreign terrorists and terrorist organizations; designation: phone numbers, online resources, finding aids, reminders, Jam’at al Tawid wa’al-Jihad, et al., 70498 and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents Thrift Supervision Office LISTSERV electronic mailing list, go to http:// NOTICES listserv.access.gpo.gov and select Online mailing list Agency information collection activities; proposals, archives, FEDREGTOC-L, Join or leave the list (or change submissions, and approvals, 70506–70508 settings); then follow the instructions.

VerDate jul<14>2003 17:45 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00003 Fmt 4748 Sfmt 4748 E:\FR\FM\06DECN.SGM 06DECN VI Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Contents

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.

3 CFR Proclamations: 7850...... 70351 7851...... 70353 5 CFR 317...... 70355 352...... 70355 359...... 70355 451...... 70355 530...... 70355 531...... 70355 534...... 70355 575...... 70355 6 CFR Proposed Rules: 5...... 70402 7 CFR 1464...... 70367 14 CFR 39...... 70368 71 (2 documents) ...... 70371, 70372 26 CFR Proposed Rules: 26...... 70404 29 CFR 1926...... 70373 33 CFR 117...... 70373 165...... 70374 37 CFR 201...... 70377 40 CFR Proposed Rules: 721...... 70404 44 CFR 64...... 70377 47 CFR 1...... 70378 27...... 70378 74...... 70378 90...... 70378 101...... 70378 50 CFR 14...... 70379 17...... 70382 635...... 70396 Proposed Rules: 17...... 70412 648...... 70414

VerDate jul 14 2003 17:09 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00001 Fmt 4711 Sfmt 4711 E:\FR\FM\06DELS.LOC 06DELS 70351

Federal Register Presidential Documents Vol. 69, No. 233

Monday, December 6, 2004

Title 3— Proclamation 7850 of December 1, 2004

The President World AIDS Day, 2004

By the President of the United States of America

A Proclamation

HIV/AIDS is the greatest health crisis of our time. Its defeat requires the cooperation of the entire global community. On World AIDS Day, people around the world unite to demonstrate our commitment to fighting HIV/ AIDS and to offer prayers and support for those living with HIV/AIDS and for their families and caregivers. America and many nations have great opportunities to improve health, expand prosperity, and extend freedom in our time. My Administration has made turning the tide against HIV/AIDS a priority. In my 2003 State of the Union Address, I was proud to announce the Emergency Plan for AIDS Relief. This plan commits $15 billion over 5 years to fight the HIV/AIDS pandemic in over 100 countries throughout the world, focusing on 15 of the hardest-hit countries in Africa, the Caribbean, and Asia. These funds are already at work and will help prevent 7 million new infections, treat 2 million infected individuals, and care for 10 million individuals, including orphans and vulnerable children infected or affected by this disease. This year, we also recognize the challenges HIV/AIDS poses to women. Through the Emergency Plan, the United States supports drug therapy and counseling to prevent mother-to-child transmission of HIV/AIDS. In addition, we are working to prevent girls from becoming infected through sexual coercion or exploitation and to increase support and services to help reduce the burden on women who are called upon to care for a sick loved one. In order to defeat this pandemic, we also must discover new treatments and cures. America joined with other countries at the G-8 Summit in June to announce the Global HIV Vaccine Enterprise, a major commitment from the world’s leading scientists to find ways to combat this devastating disease. My Administration also supports efforts to encourage testing because in the United States alone, one-quarter of those infected with HIV each year do not know that they are infected. And, because abstinence is the only sure way to avoid sexually transmitted diseases, my Administration has more than tripled funding for abstinence-only programs since taking office. Our country and other nations around the world are working to bring new hope to those suffering with HIV/AIDS and contribute to a healthier future for people around the world. NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim December 1, 2004, as World AIDS Day. I urge the Governors of the States and the Commonwealth of Puerto Rico, officials of the other territories subject to the jurisdiction of the United States, and the American people to join me in remembering those who have lost their lives to this disease and to comfort and support those living with and affected by HIV/AIDS.

VerDate jul<14>2003 07:56 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00001 Fmt 4705 Sfmt 4790 E:\FR\FM\06DED0.SGM 06DED0 70352 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Presidential Documents

IN WITNESS WHEREOF, I have hereunto set my hand this first day of December, in the year of our Lord two thousand four, and of the Independ- ence of the United States of America the two hundred and twenty-ninth. W

[FR Doc. 04–26833 Filed 12–3–04; 8:45 am] Billing code 3195–01–P

VerDate jul<14>2003 17:51 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00002 Fmt 4705 Sfmt 4790 E:\FR\FM\06DED0.SGM 06DED0 70353

Federal Register Presidential Documents Vol. 69, No. 233

Monday, December 6, 2004

Title 3— Proclamation 7851 of December 2, 2004

The President National Drunk and Drugged Driving Prevention Month, 2004

By the President of the United States of America

A Proclamation As a Nation, we have made great strides in reducing the deadly cost of impaired driving, but driving under the influence of alcohol or drugs still shatters too many lives and robs too many people of their potential. During National Drunk and Drugged Driving Prevention Month, we continue our work to end impaired driving and urge all Americans to be responsible and safe drivers this holiday season and throughout the year. My Administration is committed to saving lives and preventing injuries resulting from alcohol- and drug-impaired driving. The NHTSA sponsors public education programs such as the ‘‘You Drink & Drive. You Lose.’’ campaign to raise awareness about the dangers of drunk and drugged driving, and works with State and local law enforcement agencies as they conduct sobriety checkpoints and saturation patrols. In addition, the National Youth Anti-Drug Media Campaign has invested millions of dollars to educate Ameri- cans about the threat posed by illegal drugs and drugged driving. We are also increasing resources for State enforcement and education programs. My Administration awarded $80.6 million in grants this year to States that have lowered the legal threshold for impaired driving to .08 blood alcohol concentration (BAC). As of this year, all 50 States, the District of Columbia, and the Commonwealth of Puerto Rico have adopted this legal definition of impaired driving. Individuals across our country can help prevent drunk and drugged driving by encouraging responsible actions, identifying sober designated drivers, and educating young people about safe, substance-free driving behavior. Working together, all Americans can make our roads safer and save lives by preventing drunk and drugged driving. NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim December 2004 as National Drunk and Drugged Driving Prevention Month. IN WITNESS WHEREOF, I have hereunto set my hand this second day of December, in the year of our Lord two thousand four, and of the Independ- ence of the United States of America the two hundred and twenty-ninth. W [FR Doc. 04–26834 Filed 12–3–04; 8:45 am] Billing code 3195–01–P

VerDate jul<14>2003 07:59 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00001 Fmt 4705 Sfmt 4790 E:\FR\FM\06DED1.SGM 06DED1 70355

Rules and Regulations Federal Register Vol. 69, No. 233

Monday, December 6, 2004

This section of the FEDERAL REGISTER The new SES pay system assures a In this final rule document, OPM will contains regulatory documents having general clear and direct linkage between address the comments received on both applicability and legal effect, most of which performance and pay, a cornerstone of the interim regulations on conversion to are keyed to and codified in the Code of the President’s Management Agenda. the SES pay system and the proposed Federal Regulations, which is published under For those agencies with senior executive regulations on the administration of SES 50 titles pursuant to 44 U.S.C. 1510. performance appraisal systems certified pay and performance awards. We The Code of Federal Regulations is sold by under 5 CFR part 430, subpart D, the received no comments on the proposed the Superintendent of Documents. Prices of new SES pay band provides a broad changes in the regulations on the new books are listed in the first FEDERAL range of rates (a minimum rate of aggregate limitation on pay (5 CFR part REGISTER issue of each week. $104,927 and a maximum rate of 531, subpart B). $158,100 in 2004) within which Minimum SES Rate of Basic Pay agencies may set pay based on the OFFICE OF PERSONNEL senior executive’s individual Under § 534.406(a) of the interim MANAGEMENT performance, contribution to the regulations (and § 534.403(a) of the agency’s performance, or both, as proposed regulations), OPM established 5 CFR Parts 317, 352, 359, 451, 530, determined under a rigorous the minimum rate of basic pay in the 531, 534, and 575 performance management system. In SES rate range at an amount equal to the RIN 3206–AK34 addition, agencies with applicable minimum rate of basic pay under 5 certified performance appraisal systems U.S.C. 5376 for senior-level positions Senior Executive Service Pay and may apply a higher aggregate limitation (excluding locality-based comparability Performance Awards; Aggregate on pay up to the Vice President’s salary payments under 5 U.S.C. 5304). One Limitation on Pay ($203,000 in 2004) for their senior commenter recommended that OPM executives and senior professionals. establish a higher minimum rate of basic AGENCY: Office of Personnel Management. On January 13, 2004, OPM issued pay in the SES rate range, since the interim regulations to establish the new current minimum rate ($104,927) is less ACTION: Final rule. SES performance-based pay system (69 than the rate for GS–15, step 3 SUMMARY: The Office of Personnel FR 2048). The interim regulations are (including locality pay), in the Management (OPM) is issuing final available at http://frwebgate1.access. Washington, DC, area. The commenter regulations to establish a performance- gpo.gov/cgi-bin/waisgate.cgi? is concerned that the current minimum based pay system for the Senior WAISdocID=764393445783+15+0+0& SES rate of basic pay does not take into Executive Service (SES) and a higher WAISaction=retrieve. In those interim account that SES members are no longer aggregate limitation on pay for SES regulations, OPM established the entitled to locality pay. In addition, the members and employees in senior-level structure of the SES rate range, rules for commenter suggested that setting the and scientific or professional positions. conversion to the new pay system, and minimum rate at this low rate does not These regulations prescribe the criteria the criteria for providing pay give an agency the latitude it needs to for the administration of rates of basic adjustments to SES members on or after set pay upon appointment to the SES at pay and performance awards under the the first pay period beginning on or after a level that is commensurate with the SES performance-based pay system and January 1, 2004 (January 11, 2004). The duties and responsibilities of an SES the rules for applying the aggregate 60-day comment period ended on position. Under 5 U.S.C. 5382, the limitation on pay. March 15, 2004. We received comments minimum rate of basic pay for the SES from two agencies, one individual, and rate range may not be less than the DATES: The regulations are effective on an executive association. minimum rate of basic pay (excluding December 6, 2004. On July 29, 2004, OPM issued locality pay) payable under 5 U.S.C. FOR FURTHER INFORMATION CONTACT: Jo proposed regulations to prescribe rules 5376. In establishing the new SES open- Ann Perrini by telephone at (202) 606– for establishing and adjusting SES rates range pay band, OPM determined that it 2858; by FAX at (202) 606–0824; or by of basic pay, paying performance would be most beneficial to agencies e-mail at pay-performance- awards to senior executives, and and employees to ensure the widest rate [email protected]. applying the aggregate limitation on pay range possible under the new SUPPLEMENTARY INFORMATION: The Office if an agency receives certification of an performance-based pay system. of Personnel Management (OPM) is applicable performance appraisal Agencies may choose to consider the issuing final regulations to establish a system under 5 U.S.C. 5307(d) (69 FR applicable locality payment when performance-based pay system for the 45536). The proposed regulations are setting the rate of basic pay of a senior Senior Executive Service (SES) and a available at http://frwebgate2. executive upon initial appointment to higher aggregate limitation on pay for access.gpo.gov/cgi-bin/ the SES. SES members and employees in senior- waisgate.cgi?WAISdocID= Prohibition on Reducing an SES level (SL) and scientific or professional 764180215293+2+0+0& Member’s Rate of Basic Pay for 1 Year (ST) positions. In these regulations, we WAISaction=retrieve. The 30-day interchangeably use the terms ‘‘SES comment period ended on August 30, Consistent with section 1125(c)(2) of members’’ and ‘‘senior executives’’ to 2004. We received comments from a the National Defense Authorization Act mean members of the Senior Executive Member of Congress, six Federal for Fiscal year 2004 (Public Law 108– Service. In addition, we refer to SL/ST agencies, two individuals, and an 136, November 24, 2003), employees as ‘‘senior professionals.’’ executive association. § 534.406(b)(2) of the interim

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 70356 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations

regulations (and § 534.406(b) of the reassignment to the 48 contiguous States for level III of the Executive Schedule if proposed regulations) prohibits agencies or the District of Columbia. The such an increase would cause the senior from reducing a senior executive’s rate commenters believe the limitation executive’s rate of basic pay to exceed of basic pay, including any applicable unfairly penalizes employees who the rate for level III of the Executive locality payment, below the rate that accepted an assignment outside the 48 Schedule unless the senior executive was in effect on November 24, 2003, for contiguous States without a geographic has received an annual summary rating 12 months following the effective date mobility requirement, since all SES of outstanding for the most recently of the new SES pay system (January 11, members, by definition, must be mobile completed appraisal period and the 2004). A commenter believes OPM’s and accept reassignment upon agency head or designee approves the regulations establish a more restrictive management request. We agree and have increase. Second, a pay increase may limitation on reductions in SES rates of revised § 534.406(b)(3) (now not be provided to a senior executive pay than does the controlling statute. § 534.406(c)), accordingly. Since this whose rate of basic pay is above the rate The commenter believes section rule applies to any reassignment to the for level III of the Executive Schedule 1125(c)(2) prohibited only reductions in 48 contiguous States effective on the unless the senior executive has received the discrete SES pay levels (ES–1, ES– first day of the first pay period an annual summary rating of 2, etc.) and applicable locality beginning on or after January 1, 2004 outstanding for the most recently payments, but did not prohibit (January 11, 2004), agencies may need to completed appraisal period and the reductions in pay based on performance correct the rate of basic pay for those agency head or designee approves the or conduct. We disagree. Section SES members who were reassigned to increase. However, in the case of a 1125(c)(2) specifically prohibits any the 48 contiguous States after January senior executive whose rate of basic pay reduction in pay resulting from the 11, 2004, and before the effective date is above the rate for level III of the amendments made by section 1125(a), of these final SES pay regulations. Executive Schedule and who has been which establishes the minimum and We also have revised § 534.406(c) to rated below outstanding, but above fully maximum rates of the SES rate range clarify that the conversion rule applies successful, for the most recently and requires each senior executive to be only for the senior executive’s initial completed appraisal period, the agency paid at one of the rates within that rate reassignment to the 48 contiguous head or designee may approve such a range. Section 1125(c)(2) provides that States, not for each subsequent pay increase in limited circumstances, the rates of pay for senior executives reassignment to the 48 States, and we such as for an exceptionally meritorious under the new performance-based SES have deleted an unnecessary reference accomplishment. A pay increase made pay system, which became effective on to § 534.403(a)(2). to allow a senior executive to maintain January 11, 2004, may not be reduced Adjusting SES Rates of Pay his or her relative position in the rate for 1 year after that date. range is not an entitlement and is not Several commenters recommended considered a pay adjustment for the Conversion to New SES Pay System that OPM revise the regulations to purpose of applying the 12-month rule Section 534.406(b)(3) of the interim ensure that those senior executives in § 534.404(c). regulations (and § 534.406(c) of the performing at the fully successful or A commenter recommended that proposed regulations) states that only higher level receive a periodic increase OPM allow agencies to delegate certain SES members in positions that in pay to account for their good throughout the organization (e.g., to have geographic mobility requirements performance and to protect their salaries bureau heads) the authority to approve and who are assigned outside the against inflation. The commenters noted rates of basic pay higher than the rate contiguous 48 States and the District of that the removal of locality pay for for level III of the Executive Schedule Columbia to a position overseas or in senior executives eliminated any ability and to make exceptions to the 12-month Alaska, Hawaii, Guam and the to account for market forces or rule. We disagree. We believe it is Commonwealth of the Northern Mariana comparability as part of the pay-setting necessary to ensure that the agency Islands, Puerto Rico, the U.S. Virgin process for senior executives. The official who is held responsible for the Islands, or other U.S. territories and commenters fully support the notion assessment of an agency’s performance possessions as of the first day of the first that the highest performers should and oversight of an agency’s senior pay period beginning on or after January receive the highest salaries, but believe executive appraisal process, as 1, 2004, will be converted to a new rate the new SES pay system must include prescribed in 5 CFR 430.404(a)(5) and of basic pay that equals their current consideration of economic realities to (6), should also be held responsible for rate of basic pay, plus the amount of allow employees who are successfully ensuring that pay determinations reflect locality pay authorized for the meeting their performance expectations and recognize both individual and applicable locality pay area upon to maintain their relative position in the organizational performance. reassignment to a position in the 48 rate range. contiguous States or the District of To address these concerns, we have Additional Increases in Rates for the Columbia. Any pay increase resulting added a new § 534.404(b)(4) to allow an Executive Schedule from conversion to the new SES pay agency to increase the rate of basic pay In the Preamble to the proposed system for these SES members is not of a senior executive who meets or regulations, OPM solicited the views of considered a pay adjustment under exceeds his or her performance commenters on a proposal to allow an § 534.404(c) for the purpose of limiting expectations on the effective date of an additional pay increase during a 12- an agency’s flexibility to adjust pay increase in the minimum or maximum month period to address situations more than once during a 12-month rate of basic pay of the SES rate range where the rates of pay for levels II and period. by an amount that does not exceed the III of the Executive Schedule are Two commenters requested that OPM amount necessary to maintain the senior increased after an agency has already revise § 534.406(b)(3) to remove the executive’s relative position in the SES granted pay increases to its senior limitation that only certain SES rate range, with the following two executives following the SES members subject to a geographic exceptions. First, a pay increase may not performance appraisal period. Agencies mobility requirement may receive this be provided to a senior executive whose would be permitted, at their discretion, entitlement to a pay increase upon rate of basic pay is at or below the rate to grant an additional pay increase to a

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations 70357

senior executive whose rate of basic pay authority to set pay upon initial additional pay increase is warranted. is equivalent to the maximum rate for appointment to the SES. Under Any pay adjustment must be made in the applicable SES rate range (i.e., level § 534.404(a), an agency may set the rate accordance with paragraphs (b), (d), and II or level III of the Executive Schedule) of basic pay of a newly appointed SES (e) of § 534.404 and the agency’s plan when the applicable maximum rate is member at any rate within the SES rate for adjusting SES rates of pay increased, and the pay increase would range, subject to the limitation on established under paragraph (g) of that not be considered a pay adjustment for setting pay above the rate for level III of section. the purpose of applying the 12-month the Executive Schedule. The agency Setting Pay Upon Reassignment or rule. Seven commenters fully supported must determine the appropriate rate of Transfer this proposal. One commenter objected pay based on the nature and quality of to this proposal because it did not the individual’s experience, Under § 534.404(c)(4)(ii) of the promote pay differentiation based on qualifications, and accomplishments as proposed regulations, an authorized performance. We disagree with this they relate to the requirements of the agency official may approve an objection since the proposed additional SES position, as well as the individual’s additional increase in pay during a 12- pay increase is directly associated with current responsibilities. month period if the agency head or the initial pay increase, which was designee determines that the increase is Setting Pay Upon a Break in Service based on performance. We have added needed because the senior executive is a new § 534.404(f)(2) to allow an agency Under § 534.404(i)(1) of the proposed being reassigned to a position with to provide an additional pay increase to regulations, if a former SES member has substantially greater scope and a senior executive whose rate of basic had a break in service of 30 days or less, responsibility. A commenter pay is equal to the rate for level II or III the employing agency must set his or recommended that OPM broaden this when the applicable maximum rate is her rate of basic pay upon exception to include situations where increased and becomes effective after an reappointment to the SES at a rate at an additional pay increase is needed to agency has already granted a pay least equal to the employee’s former SES recruit a senior executive from a increase to the senior executive. rate of basic pay. Two commenters position in another agency. We agree Federal agencies recommended that opposed this requirement because it and have revised § 534.404(c)(4)(ii) to OPM clarify and simplify the rules for unduly limits an agency’s discretion to permit an agency to provide an increasing a senior executive’s rate of set pay based on the scope and level of additional pay increase during a 12- basic pay as a result of increases in the responsibility of the new position. We month period if the agency head or rates of pay for the Executive Schedule. agree. We have revised § 534.404(i)(1)to designee determines that a pay increase If an agency believes an additional pay state that if there has been a break in is needed to recruit a senior executive increase is warranted for a senior SES service of 30 days or less, the senior with superior leadership or other executive as a result of an increase in executive’s rate of basic pay may be set competencies from a position in another the rates of pay for the Executive at any rate within the SES rate range agency. Schedule under § 534.404(f)(1) (when (without regard to whether the Section 534.404(c)(4)(iii) permits an there is an additional increase in the employee received a pay adjustment agency to provide an additional pay rates for the Executive Schedule in a during the previous 12-month period), adjustment during a 12-month period to calendar year and that increase becomes but not higher than the employee’s a senior executive who is critical to the effective on the same date as prescribed former SES rate of basic pay. Where mission of the agency and is likely to in 5 U.S.C. 5318) and § 534.404(f)(2) there has been a break in service of 30 leave the agency in the absence of a pay (when there is an increase in the rates days or less, the agency head or increase. A commenter recommended of pay for the Executive Schedule after designee who performs the functions that OPM require an agency to an agency has already granted pay described in 5 CFR 430.404(a)(5) and (6) document the justification for an increases to its senior executives (including the Inspector General, where additional pay increase. We agree and following the performance appraisal applicable) may approve a higher rate have revised § 534.404(c)(5) to require period), the agency may grant such a than the senior executive’s former rate an agency to provide written pay increase without regard to whether of basic pay, if warranted. documentation approving any exception the employee had received a pay Under § 534.404(i)(2) of the proposed to the 12-month rule under adjustment during the previous 12- regulations, we address the § 534.404(c)(4). month period. We have revised reinstatement of an individual who was serving under a Presidential Agency Plan for Setting and Adjusting § 534.404(c)(3) to state that any SES Rates determination to provide an additional appointment requiring Senate pay increase under § 534.404(f) is not confirmation. In the final regulations, Federal agencies requested additional considered a pay adjustment for the we are clarifying this paragraph to state guidance on the criteria they should purpose of applying the 12-month rule that if the individual elected to remain establish to ensure that decisions on in § 534.404(c). subject to the SES pay provisions while setting and adjusting SES rates of basic serving under a Presidential pay are based on individual Setting Pay Upon Initial Appointment appointment, his or her SES rate may be performance and/or contributions to the to the SES adjusted upon reinstatement to the SES, agency’s performance. To address these One commenter recommended that whether in the agency where the concerns, we have revised agencies be required to provide senior individual held the Presidential § 534.404(g)(1) to require agency plans executives with a pay increase upon appointment or in another agency, if at to specify the criteria that will be used initial appointment to the SES. The least 12 months have elapsed since the to set and adjust a senior executive’s commenter believes that entry into the employee’s last SES pay adjustment. If rate of basic pay to ensure that SES is a distinct honor and should fewer than 12 months have elapsed individual pay rates or pay adjustments, guarantee a pay raise for those joining since the employee’s last SES pay as well as their overall distribution this elite group of civil servants. We adjustment, an authorized agency within the SES rate range, reflect believe OPM’s regulations provide official may approve an additional pay meaningful distinctions within a single agencies with broad discretionary increase under § 534.404(c)(4) if the performance rating level (e.g., the higher

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 70358 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations

the employee’s relative performance authority to reduce a senior executive’s Pay Increase To Prevent Falling Below within a rating level, the higher the pay rate of basic pay by up to 10 percent Minimum SES Rate adjustment) and/or between may be misused to affect or influence a Under § 534.406(a) of the interim performance rating levels (e.g., the desired politically motivated decision. regulations (and § 534.403(a) of the higher the rating level, the higher the The commenter is concerned that the proposed regulations), an SES member pay adjustment). In addition, we suggest authority to reduce pay by 10 percent may not receive a rate of basic pay that that agencies may wish to consider the may violate the merit systems principle is less than the minimum rate of the SES senior executive’s broad scope of that employees be protected against rate range. To preclude the possibility authority and level of responsibility and arbitrary action or coercion for partisan that an SES member’s pay might fall his or her personal accountability for political purpose under 5 U.S.C. below the minimum rate of the SES rate the success (or failure) of an agency’s 2301(b)(8)(A)). The commenter noted range, we have revised the regulations at programs. that while the reduction procedure has § 534.404(c)(3) to provide that an A commenter requested that OPM’s elements of due process within an regulations require agencies to provide increase in pay necessary to ensure that agency, no appeal outside the agency, for transparency in the processes for an SES member’s rate of basic pay such as to the Merit Systems Protection making pay decisions and disclose remains within the SES rate range is not Board (MSPB), is allowed. The information about the operation of the considered a pay adjustment for the SES performance management system. commenter recommended that OPM purpose of applying the 12-month rule We have revised § 534.404(g) to require reduce the maximum reduction in pay in § 534.404(c). to 5 percent, comparable to the former transparency in the processes for Involuntary Removal From the SES making pay decisions, while assuring regulatory limitation on reductions in Federal agencies requested guidance confidentiality. The commenter also pay of one SES pay level, which worked on how to set pay for a career SES recommended that OPM require successfully prior to implementation of member who is receiving a rate of basic agencies to provide summary the new SES pay system. pay equivalent to the rate for level III of information concerning performance The commenter believes that if a the Executive Schedule ($145,600 in ratings and annual salary adjustments senior executive deserves a pay 2004) and who is involuntarily removed for senior executives, the percentage of reduction of 10 percent, he or she can senior executives who received bonuses, from the SES based on a less than fully be removed from the SES, with the successfully performance rating. Under and the range of bonus awards granted. limited protections provided by law. We do not believe this additional 5 U.S.C. 3594 and 5 CFR part 359, The commenter recommends that if subpart G, a career SES employee who reporting requirement is needed, since OPM truly believes a 10 percent under 5 CFR 430.405(g), agencies with is involuntarily placed in a position reduction in pay is necessary to manage outside of the SES at the GS–15 or certified performance appraisal systems the SES, OPM should make any are required to provide this information equivalent level as the result of removal reduction in pay greater than 5 percent for less than fully successful annually to OPM. fully appealable to MSPB or delay an Section 5382 of title 5, United States performance is entitled to receive basic agency’s authority to reduce pay for SES Code, requires that an SES member will pay at the highest of—(1) the rate of members for 1 year following issuance be paid at one of the rates within the basic pay in effect for the position in of OPM’s final rule, consistent with SES rate range, based on individual which he or she is being placed, (2) the performance, contribution to the Congress’ prohibition against reducing rate of basic pay currently in effect for agency’s performance, or both, as the pay of an SES member for the first the position the appointee held in the determined under a rigorous year after the effective date of the new civil service immediately before being performance management system. SES pay system. The commenter appointed to the SES, or (3) the rate of Federal agencies requested guidance on believes that before senior executives basic pay in effect for the appointee the difference between individual experience the threat or possibility of a immediately before removal from the performance and contribution to agency 10 percent pay reduction, they should SES. An employee who is placed in a performance, since individual be under new performance plans and General Schedule (GS) position under performance directly leads to the new performance management the provisions of 5 U.S.C. 3594 and 5 contributing to an agency’s system for a full year. CFR part 359, subpart G, is not subject performance. We believe the intent of The new SES pay system provides to the GS basic pay limitation of level the legislation is that a senior greater opportunities for higher rates of V of the Executive Schedule, as executive’s pay rate may be determined basic pay and larger pay adjustments, provided in 5 U.S.C. 5303(f). Upon based on an accomplishment that he or and with these opportunities come appointment to a GS position, the she attained through individual greater risks. We believe it is necessary employee is entitled to receive a locality performance and/or an accomplishment to provide agencies with the authority to payment at the rate applicable in the attained through the management of his reduce basic pay up to 10 percent. locality pay area in which the employee’s GS position is located, or her staff which contributes to the Therefore, we made no changes in the subject to 5 U.S.C. 5304(g)(1), which agency’s performance. regulations. limits GS basic pay plus locality pay to Reductions in Pay A commenter recommended that we the rate for level IV of the Executive A commenter opposed the proposed add a statement to § 534.404(j)(2) that a Schedule. rule in § 534.404(j), which would allow reduction in pay is not an appealable In the case of an employee whose SES an agency to reduce a career SES action under 5 U.S.C. 7543 (removal and rate of pay was equal to the rate for level member’s rate of basic pay by up to 10 suspensions for more than 14 days for III of the Executive Schedule, his or her percent based on performance or misconduct, negligence of duty, current SES rate of basic pay of conduct. The commenter stated that one malfeasance, or failure to accept a $145,600 is the highest applicable rate, of the purposes of the SES is to help directed reassignment). We agree and and he or she is entitled to that saved maintain consistency of the civil service have added the statement to rate. Since the employee’s rate of basic during political change and that the § 534.404(j)(2). pay exceeds the limitation on GS basic

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations 70359

pay plus locality pay (level IV of the certification provision in 5 U.S.C. enforcement officers, Reporting and Executive Schedule), he or she may not 5307(d), these executives do not have recordkeeping requirements, Hospitals, receive a locality payment. Under 5 access to a rate higher than the rate for Students, and Wages. U.S.C. 3594, the employee also is level III of the Executive Schedule. Office of Personnel Management. entitled to 50 percent of any increase in Therefore, we have revised §§ 534.303 Kay Coles James, the maximum rate of basic pay for the and 534.304 to state that the maximum Director. GS grade to which he or she is placed rate of basic pay for executives and until the saved rate is equal to or lower certain senior staff in temporary I The interim rule published January 13, than the maximum rate of pay for that organizations is the rate for level III of 2004, at 69 FR 2048 is adopted as final grade, at which time the employee’s pay the Executive Schedule. Executives in with the changes set forth below, and is set at that maximum rate. temporary organizations are not entitled OPM further amends 5 CFR chapter I as If the saved pay provisions under 5 to locality pay, since SES members are follows: U.S.C. 3594 are not applicable, the no longer eligible for locality-based agency may exercise the use of pay comparability payments as a result of PART 359—REMOVAL FROM THE retention as provided in 5 U.S.C. 5363 the amendments made to 5 U.S.C. SENIOR EXECUTIVE SERVICE; and 5 CFR part 536 in situations where 5304(h). GUARANTEED PLACEMENT IN OTHER an SES member moves to a GS position PERSONNEL SYSTEMS and the movement is caused or Miscellaneous I 1. The authority citation for part 359 influenced by a management action. We have added definitions of relative continues to read as follows: Additional Payments performance and performance expectations in § 534.402, consistent Authority: 5 U.S.C. 1302 and 3596, unless In the Preamble to the proposed with the definitions in § 430.402; we otherwise noted. regulations, OPM advised agencies to have indicated throughout the Subpart C—[Removed and Reserved] review any determination to provide regulations in part 534, as appropriate, additional payments (e.g., retention the authority of an agency’s Inspector I 2. Subpart C (§§ 359.301—359.304) is allowances) to senior executives based General for setting and adjusting rates of removed and reserved. on the senior executive’s rate of basic pay for senior executives in the Office pay, since a senior executive’s rate of of the Inspector General; and we have PART 451—EMPLOYEE AWARDS basic pay now includes locality removed subpart C of 5 CFR part 359 payments. We remind agencies that (Removal from the Senior Executive Subpart A—Agency Awards under 5 U.S.C. 5754 and OPM’s Service), since section 1321 of the regulations at 5 CFR 575.306(a), I 3. The authority citation for part 451 Homeland Security Act repealed SES continues to read as follows: retention allowances are expressed as a recertification requirements and subpart percentage of basic pay. If an C is no longer needed. Authority: 5 U.S.C. 4302, 4501–4509; E.O. employee’s rate of basic pay is increased 11438, 12828. (e.g., as a result of including a locality Pay Adjustments for SES Members I payment in the senior executive’s rate of Without Supervisors 4. In § 451.101 paragraph (d), remove the reference ‘‘534.403’’ and add the basic pay upon conversion to the new A commenter recommended that SES pay system), the dollar amount of reference ‘‘534.405’’ in its place, and add OPM develop a new pay system to allow a new paragraph (e) to read as follows: his or her retention allowance will a higher maximum rate of basic pay for automatically increase unless the senior executives who do not have a § 451.101 Authority and coverage. agency takes action to reduce the superior within their agencies who can * * * * * retention allowance percentage in order evaluate their performance (e.g., senior (e) An agency may grant performance- to retain the previous dollar value. An executives in small agencies where based cash awards (i.e., on the basis of agency must process an SF–50 (810 political appointments have not a rating of record) under the authority action) each time the percentage of a occurred) and for Inspectors General. of 5 U.S.C. 4505a and the provisions of retention allowance changes. This recommendation is beyond the this part to eligible non-GS employees Executive Level Positions in Temporary scope of these regulations. Legislation who are covered by 5 U.S.C. chapter 45 Organizations would be needed to provide a higher and this part, and who are not otherwise maximum rate of basic pay to these Under 5 U.S.C. 3161(d), the rate of covered by an explicit statutory employees. basic pay for executive positions authority for the payment of such appointed to temporary organizations Regulatory Flexibility Act awards, including 5 U.S.C. 5384 (SES may not exceed the maximum rate of performance awards). I certify that these regulations will not I basic pay established for the SES, have a significant economic impact on 5. In § 451.104(a)(3), remove the including any locality-based a substantial number of small entities reference ‘‘534.403’’ and add the comparability payment provided under because they will apply to only Federal reference ‘‘534.405’’ in its place. 5 U.S.C. 5304. Under 5 U.S.C. 5382, the agencies and employees. maximum rate of basic pay for SES PART 530—PAY RATES AND members is the rate for level III of the E.O. 12866, Regulatory Review SYSTEMS (GENERAL) Executive Schedule, unless the This rule has been reviewed by the I 6. The authority citation is revised to employee is covered by a certified Office of Management and Budget in read as follows: performance appraisal system as accordance with E.O. 12866. provided in 5 U.S.C. 5307(d), in which Authority: 5 U.S.C. 5305 and 5307; E.O. 12748, 56 FR 4521, 3 CFR, 1991 Comp., p. case the maximum rate of basic pay is List of Subjects in 5 CFR Parts 317, 352, 359, 451, 530, 531, 534, and 575 316. the rate for level II of the Executive Subpart B also issued under secs. 302(c) Schedule. Since senior executives in Administrative practice and and 404(c) of the Federal Employees Pay temporary organizations are not covered procedure, Decorations, medals, awards, Comparability Act of 1990, Public Law 101– by the SES performance appraisal Government employees, Law 509, 104 Stat. 1462 and 1466, respectively.

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 70360 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations

Subpart C also issued under sec. 4 of the (9) Post differentials under 5 U.S.C. deductions. Basic pay includes night Performance Management and Recognition 5925; and environmental differentials for System Termination Act of 1993, Public Law (10) Danger pay allowances under 5 prevailing rate employees under 5 103–89, 107 Stat. 981; and sec. 1322 of the U.S.C. 5928; U.S.C. 5343(f) and 5 CFR 532.511. Basic Chief Human Capital Officers Act of 2002, (11) Post differentials based on Public Law 107–296, 116 Stat. 2297 (5 U.S.C. pay excludes additional pay of any 5307). environmental conditions for employees other kind, including locality payments stationed in nonforeign areas under 5 under 5 U.S.C. 5304. I 7. Revise subpart B to read as follows: U.S.C. 5941(a)(2); Discretionary payment means a (12) Physicians’ comparability payment an agency has discretion to Subpart B—Aggregate Limitation on allowances under 5 U.S.C. 5948; make or not to make to an employee. A Pay (13) Continuation of pay under 5 retention allowance under 5 U.S.C. 5754 U.S.C. 8118; and an extended assignment incentive Sec. (14) Lump-sum payments in excess of 530.201 Purpose. under 5 U.S.C. 5757 are discretionary 530.202 Definitions. the aggregate limitation on pay as payments. However, other payments 530.203 Administration of aggregate required by § 530.204; and that are preauthorized to be made to an limitation on pay. (15) Other similar payments employee at a regular fixed rate each 530.204 Payment of excess amounts. authorized under title 5, United States pay period are not discretionary 530.205 Records. Code, excluding— payments. (i) Overtime pay under the Fair Labor Employee has the meaning given that Subpart B—Aggregate Limitation on Standards Act of 1938, as amended, and term in 5 U.S.C. 2105. Pay 5 CFR part 551; Estimated aggregate compensation (ii) Severance pay under 5 U.S.C. § 530.201 Purpose. means the agency’s projection of the 5595; aggregate compensation an employee This subpart establishes regulations (iii) Lump-sum payments for for limiting an employee’s aggregate actually would receive during a accumulated and accrued annual leave calendar year but for application of the annual compensation. An employee’s upon separation under 5 U.S.C. 5551 or aggregate compensation received in any aggregate limitation to future payments. 5552; This projection must be based upon given calendar year may not exceed the (iv) Back pay awarded to an employee rate of pay for level I of the Executive known factors. Estimated aggregate under 5 U.S.C. 5596 because of an compensation includes— Schedule or the rate payable to the Vice unjustified personnel action; President at the end of the calendar (1) The total amount of basic pay the (v) Student loan repayments under 5 employee will receive during the year, whichever is applicable to the U.S.C. 5379; and employee based on the certification calendar year; (vi) Nonforeign area cost-of-living (2) Any lump-sum payment of excess status under 5 CFR part 430, subpart D, allowances under 5 U.S.C. 5941(a)(1). amounts from a previous calendar year, of the performance appraisal system Aggregate limitation means the as described in § 530.204; covering that employee. These limitation on aggregate compensation (3) The total amount of regulations must be applied in received in any given calendar year as nondiscretionary payments the conjunction with 5 U.S.C. 5307. established by 5 U.S.C. 5307. For an employee would be entitled to receive executive branch employee (including § 530.202 Definitions. during the calendar year; and employees in Senior Executive Service (4) The total amount of discretionary In this subpart: positions paid under 5 U.S.C. 5383 and Agency means an executive agency as payments the employee would be employees in senior-level or scientific authorized to receive during the defined at 5 U.S.C. 105. or professional positions paid under 5 Aggregate compensation means the calendar year. U.S.C. 5376), a General Schedule total of— employee in the legislative branch, or § 530.203 Administration of aggregate (1) Basic pay received as an employee limitation on pay. of the executive branch or as an General Schedule employee in the employee outside the executive branch judicial branch (excluding those paid (a) Except as provided in paragraph to whom the General Schedule applies; under 28 U.S.C. 332(f), 603, and 604), (b) of this section, no executive branch (2) Locality payments under 5 U.S.C. the limitation on aggregate employee or General Schedule 5304; continued rate adjustments under compensation is equal to the rate for employee in the legislative branch (or 5 CFR part 531, subpart G; or special level I of the Executive Schedule in General Schedule employee in the pay adjustments for law enforcement effect at the end of the applicable judicial branch, excluding those paid officers under section 404 of the Federal calendar year. For an employee in a under 28 U.S.C. 332(f), 603, and 604), Employees Pay Comparability Act of Senior Executive Service position paid may receive any allowance, differential, 1990 (Public Law 101–509); under 5 U.S.C. 5383 and an employee in bonus, award, or other similar cash (3) Premium pay under 5 U.S.C. a senior-level or scientific or payment under title 5, United States chapter 53, subchapter IV; professional position paid under 5 Code, in any calendar year which, in (4) Premium pay under 5 U.S.C. U.S.C. 5376 covered by an applicable combination with the employee’s basic chapter 55, subchapter V; performance appraisal system that has pay (whether received under title 5, (5) Incentive awards and been certified under 5 CFR part 430, United States Code, or otherwise), performance-based cash awards under 5 subpart D, the limitation on aggregate would cause the employee’s aggregate U.S.C. chapters 45 and 53; compensation is equal to the total compensation to exceed the rate for (6) Recruitment and relocation annual compensation payable to the level I of the Executive Schedule on the bonuses under 5 U.S.C. 5753; Vice President under 3 U.S.C. 104 at the last day of that calendar year (i.e., the (7) Retention allowances under 5 end of a calendar year. aggregate limitation). U.S.C. 5754 and extended assignment Basic pay means the total amount of (b)(1) Subject to paragraph (b)(2) of incentives under 5 U.S.C. 5757; pay received at a rate fixed by law or this section, an employee in a Senior (8) Supervisory differentials under 5 administrative action for the position Executive Service position paid under 5 U.S.C. 5755; held by an employee, before any U.S.C. 5383 and an employee in a

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations 70361

senior-level or scientific or professional payment is authorized but not required part of the employee’s aggregate position paid under 5 U.S.C. 5376 may to be paid in the current calendar year, compensation for the new calendar year. not receive any allowance, differential, an agency official’s decision to set the (3) To the extent that any excess bonus, award, or other similar cash payment date in the next calendar year amount is attributable to retention payment under title 5, United States is not considered a deferral under this allowances that the agency Code, in any calendar year which, in paragraph. inadvertently did not reduce or combination with the employee’s basic (e) An agency may not defer or terminate under 5 CFR 575.307(a), the pay, would cause the employee’s discontinue nondiscretionary payments employee will become indebted to the aggregate compensation to exceed the for any period of time to make a Federal Government for any amount rate of pay for level I of the Executive discretionary payment that would attributable to retention allowance Schedule. otherwise cause an employee’s pay to payments that were paid in excess of the (2) An employee covered by a exceed the applicable aggregate applicable aggregate limitation. The performance appraisal system that has limitation. An agency may not defer or head of the agency may waive the debt been certified under 5 CFR part 430, discontinue basic pay under any under 5 U.S.C. 5584, if warranted. subpart D, may not receive any circumstance. (h) If an agency determines that it allowance, differential, bonus, award, or (f) If, after an agency defers overestimated an employee’s aggregate other similar cash payment under title discretionary payments as required by compensation at an earlier date in the 5, United States Code, in any calendar paragraph (d) of this section, the calendar year, which caused the agency year which, in combination with the estimated aggregate compensation to to defer payments unnecessarily under employee’s basic pay, would cause the which an employee is entitled exceeds this section, or the aggregate limitation employee’s aggregate compensation to the applicable aggregate limitation, the applicable to the employee is increased exceed the total annual compensation agency must defer all nondiscretionary during the calendar year, the agency payable to the Vice President under 3 payments (other than basic pay) as may make appropriate corrective U.S.C. 104 on the last day of that necessary to avoid payments in excess payments to the employee during the calendar year (i.e., the aggregate of that limitation. An agency must defer calendar year, notwithstanding limitation). all nondiscretionary payments at the § 530.204. (3) An agency must make corrective time when otherwise continuing to pay actions as provided in paragraphs (g) § 530.204 Payment of excess amounts. such payments would cause an and (h) of this section if the agency (a) An agency must pay the amounts employee’s estimated aggregate underestimated or overestimated an that were deferred because they were in compensation for that calendar year to employee’s aggregate compensation in a excess of the aggregate limitation (as exceed the applicable aggregate calendar year as a result of receiving or described in § 530.203) as a lump-sum losing certification of its applicable limitation. An agency must pay any payment at the beginning of the performance appraisal system under 5 portion of a nondiscretionary payment following calendar year, except as CFR part 430, subpart D. deferred under this paragraph at a later otherwise provided in this section. This (c) The aggregate limitations date, as provided in § 530.204. payment is part of the employee’s described in paragraphs (a) and (b) of (g)(1) If an agency determines that it aggregate compensation for the new this section apply to the aggregate underestimated an employee’s aggregate calendar year. compensation an employee actually compensation at an earlier date in the (b) If a lump-sum payment under received during the calendar year calendar year, or the aggregate paragraph (a) of this section causes an without regard to when the limitation applicable to the employee is employee’s estimated aggregate compensation was earned. reduced during the calendar year, the compensation to exceed the aggregate (d) When an agency authorizes a sum of the employee’s remaining limitation in the current calendar year, discretionary payment for an employee, payments of basic pay may exceed the an agency must consider only the the agency must defer any portion of difference between the aggregate employee’s basic pay that is expected to such payment that, when added to the compensation the employee has actually be paid in the current year in estimated aggregate compensation the received to date in that calendar year determining the extent to which the employee is projected to receive, would and the applicable aggregate limitation. lump-sum payment may be paid. An cause the employee’s aggregate In such cases, the employee will become agency must defer all other payments, as compensation during the calendar year indebted to the Federal Government for provided in § 530.203, in order to pay as to exceed the applicable aggregate any amount paid in excess of the much of the lump-sum excess amount limitation. Any portion of a applicable aggregate limitation. The as possible. Any payments deferred discretionary payment deferred under head of the agency may waive the debt under this paragraph, including any this paragraph must be available for under 5 U.S.C. 5584, if warranted. portion of the lump-sum excess amount payment as provided in § 530.204. (2) To the extent that any excess that was not payable, are payable at the Special rules apply to the authorization amount is attributable to amounts that beginning of the next calendar year, as and payment of a retention allowance, should have been deferred and would provided in paragraph (a) of this which may not be deferred. (See 5 CFR have been payable at the beginning of section. 575.306(b) and 575.307(a).) A retention the next calendar year, an agency must (c) If an employee transfers to another allowance must be reduced or extinguish the excess amount on agency, the gaining agency is terminated before deferring any other January 1 of the next calendar year. As responsible for making any lump-sum type of discretionary payment, as long part of the correction of the error, the payment required by paragraph (a) of as the other discretionary payment is agency must deem the excess amount to this section. The previous employing required to be paid within the current have been paid on January 1 of the next agency must provide the gaining agency calendar year under a mandatory calendar year (when the debt was with documentation regarding the personnel policy or has been officially extinguished) as if it were a deferred employee’s excess amount, as provided approved by an authorized agency excess payment, as described in in § 530.205. The previous employing official for payment within the current § 530.204, and must consider this agency must provide a fund transfer calendar year. When a discretionary deemed deferred excess payment to be equal to the total cost of the lump-sum

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 70362 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations

payment to the gaining agency through § 534.303 Basic pay for executive level Inspector General, consistent with the the Department of the Treasury’s Intra- positions. requirements in section 3(a) of the Governmental Payment and Collection Rates of basic pay for executive level Inspector General Act of 1978. System. If an employee leaves Federal positions of temporary organizations Outstanding performance means service, the employing agency is may not exceed the rate for level III of performance that substantially exceeds responsible for making the lump-sum the Executive Schedule. the normally high performance expected payment to the employee as provided in I 11. Section 534.304(c) is revised to of any senior executive, as evidenced by paragraph (d) of this section. read as follows: exceptional accomplishments or contributions to the agency’s (d) An agency must pay any excess § 534.304 Basic pay for staff positions. amount regardless of the calendar year performance. Performance expectations means the limitation under the following * * * * * critical and other performance elements conditions: (c) Notwithstanding the limitations in paragraphs (a) and (b) of this section, and performance requirements that (1) If an employee dies, the employing the rate of basic pay and locality- constitute the senior executive agency must pay the entire excess adjusted rate of basic pay for a senior performance plans (as defined in amount as part of the settlement of staff position of a temporary § 430.303). accounts, in accordance with 5 U.S.C. organization may, in a case determined PRB means Performance Review 5582. by the head of a temporary organization Board, as described in § 430.310. (2) If an employee separates from to be exceptional, exceed the maximum Rate of basic pay means the rate of Federal service, the employing agency rates established under those pay fixed by law or administrative must pay the entire excess amount paragraphs. However, the higher action for the senior executive, within following a 30-day break in service. If payable rates may not exceed the rate the established SES rate range or, in the the individual is reemployed in the for level III of the Executive Schedule. case of a senior executive entitled to pay Federal service within the same retention, the employee’s retained rate calendar year as the separation, any Subpart D—Pay and Performance of pay, excluding any applicable previous payment of an excess amount Awards Under the Senior Executive locality-based comparability payments must be considered part of that year’s Service under 5 U.S.C. 5304, but before any aggregate compensation for the purpose deductions and exclusive of additional I 12. Section 534.401 is revised to read of applying the aggregate limitation for pay of any other kind. as follows: the remainder of the calendar year. Relative performance means the § 534.401 Purpose. performance of a senior executive with § 530.205 Records. respect to the performance of other This subpart contains the rules for senior executives, including their An agency must maintain appropriate setting and adjusting rates of basic pay contribution to agency performance, records to administer this subpart and and granting performance awards for where appropriate, as determined by the must transfer such records to any members of the Senior Executive application of a certified performance agency to which an employee may Service (SES), as provided by 5 U.S.C. appraisal system under 5 CFR part 430, transfer. An agency must make such 5382, 5383, and 5384. An agency must subpart D. records available to any agency that may set and adjust the rate of basic pay for Senior executive means a member of employ the employee later during the an SES member on the basis of the the Senior Executive Service (SES) paid same calendar year. An agency’s records employee’s performance and/or under 5 U.S.C. 5383. must document the source of any contribution to the agency’s SES rate means a rate of basic pay deferred excess amount remaining to the performance, as determined by the within the SES rate range assigned to a employee’s credit at the time of agency through the administration of its member of the SES under § 534.403(a). separation from the agency. In the case performance management system(s) for SES rate range means the range of of an employee who separates from senior executives. These regulations rates of basic pay established for the Federal service for at least 30 days, the must be read in combination with SES under 5 U.S.C. 5382 and agency records also must document any applicable statutes and with the § 534.403(a). payment of a deferred excess amount regulations for the approval of an SES made by the agency after separation. performance management system under §§ 534.403 and 534.405 [Redesignated as 5 CFR part 430, subpart C, and §§ 534.405 and 534.408] PART 534—PAY UNDER OTHER certification of an SES performance I 14. Redesignate §§ 534.403 and SYSTEMS appraisal system under 5 CFR part 430, 534.405 as §§ 534.405 and 534.408, subpart D. respectively. I 8–9. The authority citation for part 534 I 13. Section 534.402 is revised to read I 15. Add new § 534.403 to read as is revised to read as follows: as follows: follows: Authority: 5 U.S.C. 1104, 3161(d), 5307, § 534.402 Definitions. § 534.403 SES rate range. 5351, 5352, 5353, 5376, 5382, 5383, 5384, 5385, 5541, 5550a, and sec. 1125 of the In this subpart— (a) SES rate range. (1) On the first day National Defense Authorization Act for FY Agency means an executive agency or of the first applicable pay period 2004, Public Law 108–136, 117 Stat. 1638 (5 military department, as defined by 5 beginning on or after January 1, 2004, U.S.C. 5304, 5382, 5383, 7302; 18 U.S.C. U.S.C. 105 and 102. the minimum rate of basic pay of the 207). Authorized agency official means the SES rate range is set at an amount equal head of an agency or an official who is to the minimum rate of basic pay under Subpart C—Basic Pay for Employees authorized to act for the head of the 5 U.S.C. 5376 for senior-level positions of Temporary Organizations agency in the matter concerned. The (excluding any locality-based agency’s Inspector General is the comparability payment under 5 U.S.C. I 10. Section 534.303 is revised to read authorized agency official for senior 5304). The minimum rate of basic pay as follows: executive positions in the Office of the for the SES rate range will increase

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations 70363

consistent with any increase in the certification of the employing agency’s senior executive’s current minimum rate of basic pay for senior- applicable performance appraisal responsibilities. Senior executives who level positions under 5 U.S.C. 5376. An system is reinstated under 5 CFR part demonstrate the highest levels of SES member may not receive less than 430, subpart D. The SES rate of pay is individual performance and/or make the the minimum rate of the SES rate range. not considered a retained rate of pay for greatest contributions to the agency’s Except as provided in paragraph (a)(2) the purpose of applying 5 U.S.C. 3594 performance, as determined by the of this section, the maximum rate of and 5 CFR part 359, subpart G, or 5 agency through the administration of its basic pay of the SES rate range is set at U.S.C. 5363 and 5 CFR 536.104. performance appraisal system, or, in the the rate for level III of the Executive I 16. Section 534.404 is revised to read case of newly-appointed senior Schedule. An SES member’s rate of as follows: executives, those who possess superior basic pay must be set at one of the rates leadership or other competencies, as within the SES rate range based on the § 534.404 Setting and adjusting pay for determined by the agency as part of its senior executive’s performance and/or senior executives. strategic human capital plan, must contribution to the agency’s (a) Setting pay upon initial receive the highest rates of basic pay or performance. appointment to the SES. An authorized pay adjustments. (2) The maximum rate of basic pay of agency official may set the rate of basic (4)(i) On the effective date of an the SES rate range is set at the rate for pay of an individual at any rate within increase in the minimum or maximum level II of the Executive Schedule for the SES rate range upon initial rate of basic pay of the SES rate range senior executives in an agency who are appointment to the SES, subject to the under § 534.403(a)(1) or (2), an covered by a performance appraisal limitation on the maximum rate of basic authorized agency official may increase system that makes meaningful pay in § 534.403(a). Rates of basic pay the rate of basic pay of a senior distinctions based on relative above the rate for level III of the executive who meets or exceeds his or performance, as certified by the Office Executive Schedule but less than or her performance expectations by an of Personnel Management (OPM), with equal to the rate for level II of the amount that does not exceed the amount concurrence by the Office of Executive Schedule generally are necessary to maintain the senior Management and Budget (OMB), under reserved for those newly appointed executive’s relative position in the SES 5 U.S.C. 5307(d) and 5 CFR part 430, senior executives who possess superior rate range, except as provided in subpart D. A senior executive’s rate of leadership or other competencies, as paragraph (b)(4)(ii) and (b)(4)(iii) of this basic pay may not exceed the maximum determined by the agency as part of its section. A pay increase made under this rate of the applicable SES rate range, strategic human capital plan. In setting paragraph is not considered a pay except as provided in § 534.404(h)(2). a new senior executive’s rate of basic adjustment for the purpose of applying The applicable maximum rate of basic pay, an agency must consider the nature § 534.404(c). pay for the SES rate range will increase and quality of the individual’s (ii) A pay increase under paragraph with any increase in the rate for levels experience, qualifications, and (b)(4)(i) of this section may not be II or III of the Executive Schedule under accomplishments as they relate to the provided to a senior executive whose 5 U.S.C. 5318. requirements of the SES position, as rate of basic pay is at or below the rate (3) Rates of basic pay higher than the well as the individual’s current for level III of the Executive Schedule if rate for level III of the Executive responsibilities. such an increase would cause the senior Schedule but less than or equal to the (b) Adjusting the pay of SES members. executive’s rate of basic pay to exceed rate for level II of the Executive (1) An authorized agency official may the rate for level III of the Executive Schedule generally are reserved for adjust (increase or reduce) the rate of Schedule unless the senior executive those senior executives who have basic pay of a senior executive has received an annual summary rating demonstrated the highest levels of consistent with the agency’s plan for of outstanding for the most recently individual performance and/or made setting and adjusting SES rates of basic completed appraisal period and the the greatest contributions to the pay under paragraph (g) of this section. agency head or designee who performs agency’s performance, as determined by (2) A senior executive who receives the functions described in 5 CFR the agency through the administration an annual summary rating of 430.404(a)(5) or (6) (including the of its performance appraisal system for outstanding performance must be Inspector General, where applicable) senior executives, or, in the case of considered for an annual pay increase, has approved the increase in pay. newly-appointed senior executives, subject to the limitation on the (iii) A pay increase under paragraph those who possess superior leadership maximum rate of basic pay in (b)(4)(i) of this section may not be or other competencies, consistent with § 534.403(a). provided to a senior executive whose the agency’s strategic human capital (3) An agency may provide a pay rate of basic pay is above the rate for plan. increase to allow a senior executive to level III of the Executive Schedule (b) Suspension of certification of advance his or her relative position unless the senior executive has received performance appraisal system. A senior within the SES rate range only upon a an annual summary rating of executive whose rate of basic pay is determination by the authorized agency outstanding for the most recently higher than the rate for level III of the official that the senior executive’s completed appraisal period and the Executive Schedule may not suffer a individual performance and/or agency head or designee who performs reduction in pay because his or her contributions to agency performance so the functions described in 5 CFR agency’s applicable performance warrant. In assessing a senior 430.404(a)(5) or (6) (including the appraisal system certification is executive’s performance and/or Inspector General, where applicable) suspended under 5 CFR 430.405(h). The contribution to the agency’s has approved the increase in pay. senior executive will continue to receive performance, the authorized agency However, in the case of a senior his or her current SES rate and is not official may consider such things as executive whose rate of basic pay is eligible for a pay adjustment until the unique skills, qualifications, or above the rate for level III of the senior executive is assigned to a competencies that the individual Executive Schedule and who has been position that would allow the employee possesses, and their significance to the rated below outstanding, but above fully to receive a pay adjustment or until agency’s performance, as well as the successful, for the most recently

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 70364 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations

completed appraisal period, the agency 5304(g)(2) for a senior executive who rate of basic pay converted under head or designee who performs the was granted an increase in his or her § 534.406 on the first day of the first functions described in 5 CFR rate of basic pay that did not result in applicable pay period beginning on or 430.404(a)(5) or (6) (including the an actual increase in pay; after January 1, 2004, or on any date Inspector General, where applicable) (iv) A determination to provide an thereafter prior to obtaining certification may approve such a pay increase in additional pay increase under paragraph under 5 CFR part 430, subpart D, but limited circumstances, such as for an (f) of this section when there is an only up to the rate for level III of the exceptionally meritorious increase in Executive Schedule rates of Executive Schedule. The authorized accomplishment. pay; agency official may provide an increase (5) A senior executive who receives a (v) A determination to provide a pay in pay if warranted under the conditions summary rating of less than fully increase under paragraph (b)(4) of this prescribed in paragraph (b) of this successful may not receive an increase section to allow a senior executive to section and the senior executive is in pay for the current appraisal period. maintain his or her relative position in otherwise eligible for such an increase (6) An authorized agency official may the SES rate range; and (i.e., he or she did not receive a pay reduce the rate of basic pay of a senior (vi) An increase in pay equivalent to adjustment under § 534.404(c) during executive for performance and/or the minimum amount necessary to the previous 12-month period). An disciplinary reasons, consistent with the ensure that a senior executive’s rate of adjustment in pay made under this restrictions on reducing the rate of basic basic pay does not fall below the paragraph is considered a pay pay of a career senior executive in minimum rate of the SES rate range. adjustment for the purpose of applying paragraph (j) of this section and in (4) An authorized agency official may § 534.404(c). § 534.406(b). approve increases in a senior (e) Adjustments in pay after (c) 12-month rule. (1) An authorized executive’s rate of basic pay more than certification of applicable performance agency official may adjust (i.e., increase once during a 12-month period if the appraisal system. In the case of an or reduce) the rate of basic pay of a agency head or designee who performs agency that obtains certification of a senior executive not more than once the functions described in 5 CFR performance appraisal system for senior during any 12-month period. However, 430.404(a)(5) or (6) (including the executives under 5 CFR part 430, an agency may make a determination to Inspector General, where applicable) subpart D, an authorized agency official provide an additional pay increase determines that— may increase a covered senior under certain conditions as prescribed (i) The senior executive’s executive’s rate of basic pay up to the in paragraph (c)(3) and (4) of this exceptionally meritorious rate for level II of the Executive section without regard to whether the accomplishment significantly Schedule, consistent with the limitation senior executive has received a pay contributes to the agency’s performance; on increasing pay above the rate for adjustment during the previous 12- (ii) A pay increase is necessary to level III of the Executive Schedule in month period. reassign a senior executive to a position § 534.403(a)(2). The authorized agency (2) The following pay actions are with substantially greater scope and official may provide an increase in pay considered pay adjustments for the responsibility or to recruit a senior if warranted under the conditions purpose of applying this paragraph: executive with superior leadership or prescribed in paragraph (b) of this (i) The setting of an individual’s rate other competencies from a position in section and the senior executive is of basic pay upon initial appointment or another agency; otherwise eligible for such an increase reappointment to the SES under (iii) The retention of the senior (i.e., he or she did not receive a pay paragraphs (a) and (i)(1) of this section executive is critical to the mission of the adjustment under § 534.404(c) during and upon reinstatement to the SES agency and the senior executive would the previous 12-month period). An under paragraph (i)(2)(ii) of this section; be likely to leave the agency in the adjustment in pay made under this and absence of a pay increase; or paragraph is considered a pay (ii) Any adjustment (increase or (iv) Such action conforms to an adjustment for the purpose of applying reduction) in an SES rate of basic pay otherwise applicable executive § 534.404(c). granted to a senior executive, except as appraisal and pay adjustment cycle (e.g., (f) Effect of increase in Executive provided in paragraph (c)(3) of this in the case of a senior executive who Schedule rates of pay. (1) If there is an section. was appointed to an SES position additional increase in the rates for the (3) The following pay actions are not within the past 12 months or a senior Executive Schedule in a calendar year, considered pay adjustments for the executive who was transferred to an SES and if that increase becomes effective on purpose of applying this paragraph: position from an agency with a different the first day of the first pay period (i) The conversion of senior senior executive appraisal and pay beginning on or after January 1 (i.e., the executives to the new SES pay system adjustment cycle within the past 12 date prescribed in 5 U.S.C. 5318), an under § 534.406 and the conversion of months). agency may review any previous other employees to equivalent senior (5) An authorized agency official must determination to adjust the pay of a executive positions; provide written documentation senior executive that was made effective (ii) A determination by an authorized approving an exception under on or after the effective date of the first agency official to make a zero paragraph (c)(4) of this section. Any pay increase in the rates for the Executive adjustment in pay after reviewing a adjustment made as a result of a Schedule to determine whether, and to senior executive’s annual summary determination under paragraph (c)(4) of what extent, an additional pay increase rating; this section is considered a pay may be warranted for senior executives (iii) A zero adjustment in pay made adjustment for the purpose of applying based on the same criteria used for the during the 12-month period preceding § 534.404(c) and begins a new 12-month previous determination. If the agency the first day of the first applicable pay period. determines that an additional pay period beginning on or after January 1, (d) Adjustments in pay prior to increase is warranted, that increase 2004, caused by the former limitation on certification of applicable performance must be made effective as of the basic pay plus locality-based appraisal system. An authorized agency effective date of the previous pay comparability payments under 5 U.S.C. official may adjust a senior executive’s increase and is not considered a pay

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations 70365

adjustment for the purpose of applying basic pay at a rate that exceeds the rate the purpose of applying 5 U.S.C. 3594 § 534.404(c). for level III of the Executive Schedule if and 5 CFR part 359, subpart G, or 5 (2) If there is an increase in the rates the applicable agency performance U.S.C. 5363 and 5 CFR 536.104. of pay for the Executive Schedule under appraisal system has been certified (i) Setting pay following a break in 5 U.S.C. 5318 after an agency has under 5 CFR part 430, subpart D; SES service. (1) General. Upon already granted pay increases to its (3) The designation of the authorized reappointment to the SES, an authorized senior executives following the agency official who has authority to set agency official may set the rate of basic applicable performance appraisal and adjust SES rates of pay for pay of a former senior executive at any period, an agency may review any individual senior executives, subject to rate within the SES rate range, subject previous determination to increase the the requirement that the agency head or to the limitations in § 534.403(a), if pay of a senior executive whose rate of designee who performs the functions there has been a break in SES service of basic pay is equivalent to the rate for described in 5 CFR 430.404(a)(5) and (6) more than 30 days. If there has been a level II (if covered under a performance (including the Inspector General, where break in SES service of 30 days or less, appraisal system that is certified) or applicable) must approve any the senior executive’s rate of basic pay level III (if covered under a performance determination to set a senior executive’s may be set at any rate within the SES appraisal system that is not certified) rate of basic pay higher than the rate for rate range (without regard to whether when the applicable maximum rate is level III of the Executive Schedule and the employee received a pay adjustment increased to determine whether, and to must approve any determination to during the previous 12-month period), what extent, an additional pay increase increase a senior executive’s rate of but not higher than the senior may be warranted for the senior basic pay more than once in any 12- executive’s former SES rate of basic pay. executive based on the same criteria month period; and Where there has been a break in service used for the previous determination. (4) The administrative and of 30 days or less, the agency head or The determination to provide an management controls that will be designee who performs the functions additional pay increase must be applied to ensure compliance with described in 5 CFR 430.404(a)(5) and (6) approved and made effective as of the applicable statutes, OPM’s regulations, (including the Inspector General, where effective date of increases in the the agency’s plan, and, where applicable) may approve a higher rate Executive Schedule under 5 U.S.C. 5318 applicable, the certification than the senior executive’s former rate (i.e., the first day of the first pay period requirements set forth in 5 CFR 430, of basic pay, if warranted. Setting a rate beginning on or after January 1). An subpart D, and the limitation on the of basic pay upon reappointment to the additional pay increase under this maximum rate of basic pay in SES is considered a pay adjustment paragraph is not considered a pay § 534.403(a). under § 534.404(c). adjustment for the purpose of applying (h) Setting pay upon transfer. (1) An (2) Reinstatement from a Presidential § 534.404(c). authorized agency official may set the appointment requiring Senate (g) Agency plan for setting and pay of a senior executive transferring confirmation. The following provisions adjusting SES rate of basic pay. Each from another agency at any rate within apply to a former career senior agency must establish a plan for setting the SES rate range, subject to the executive who is reinstated under 5 CFR and adjusting the rates of basic pay for limitation on the maximum rate of basic 317.703: SES members. Agencies must provide pay in § 534.403(a) and the restrictions (i) If the individual elected to remain for transparency in the processes for on reducing the pay of career senior subject to the SES pay provisions while making pay decisions, while assuring executives in paragraph (h)(2) of this serving under a Presidential confidentiality. In developing its plan section (upon transfer to an agency appointment, his or her SES rate may be for setting and adjusting SES rates, an whose applicable performance appraisal adjusted upon reinstatement to the SES, agency may consider the senior system is not certified) and in whether in the agency where the executive’s broad scope of authority and § 534.406(b) (for 12 months following individual held the Presidential level of responsibility and his or her the effective date of the new SES pay appointment or in another agency, if at personal accountability for the success system). If pay is set at the same SES least 12 months have elapsed since the (or failure) of an agency’s programs. The rate the senior executive received in his employee’s last SES pay adjustment. If agency’s plan must require that any or her former agency, the action is not fewer than 12 months have elapsed decisions to adjust pay must reflect considered a pay adjustment for the since the employee’s last SES pay meaningful distinctions among senior purpose of applying § 534.404(c). adjustment, an authorized agency executives based on individual (2) A senior executive whose rate of official may approve an additional pay performance and/or contribution to basic pay is higher than the rate for level increase under § 534.404(c)(4) if the agency performance and must include— III of the Executive Schedule may not additional pay increase is warranted. (1) The criteria that will be used to set suffer a reduction in pay as a result of Any pay adjustment must be made in and adjust a senior executive’s rate of transferring to an agency where the accordance with paragraphs (b), (d), and basic pay to ensure that individual pay maximum rate of basic pay for the (e) of this section and the agency’s plan rates or pay adjustments, as well as their applicable SES rate range is equal to the for adjusting SES rates of pay in overall distribution within the SES rate rate for level III of the Executive paragraph (g) of this section. range, reflect meaningful distinctions Schedule. The senior executive will (ii) If the individual did not elect to within a single performance rating level continue to receive his or her current remain subject to the SES pay (e.g., the higher the employee’s relative SES rate and is not eligible for a pay provisions while serving under a performance within a rating level, the adjustment until the senior executive is Presidential appointment, his or her higher the pay adjustment) and/or assigned to a position that would allow SES rate may be set upon reinstatement between performance rating levels (e.g., the employee to receive a pay to the SES at any rate within the SES the higher the rating level, the higher adjustment or the employing agency’s rate range, subject to the limitations in the pay adjustment); applicable performance appraisal § 534.403(a). (2) The criteria that will be used to set system is certified under 5 CFR part (iii) Setting a rate of basic pay upon and adjust a senior executive’s rate of 430, subpart D. The SES rate of pay is reinstatement to the SES under not considered a retained rate of pay for paragraphs (i)(2)(i) and (ii) of this

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 70366 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations

section is considered a pay adjustment 5 CFR part 317, subpart H. If the rate of § 534.406 Conversion to the SES pay for the purpose of applying § 534.404(c). basic pay of the individual is higher system. (j) Restrictions on reducing the pay of than the maximum rate of basic pay for (a) On the first day of the first career senior executives. the applicable SES rate range, the applicable pay period beginning on or (1) An authorized agency official may maximum rate of that SES rate range is after January 1, 2004, agencies must reduce a career senior executive’s SES used for crediting the agency award convert an existing SES rate of basic pay rate of basic pay by not more than 10 pool under paragraph (b) of this section for a senior executive to an SES rate of percent for performance or disciplinary and the amount the individual may basic pay that is equal to the employee’s reasons, subject to the restriction on receive under paragraph (c) of this rate of basic pay, plus any applicable reducing the pay of career senior section. locality-based comparability payment executives in § 534.406(b) or setting pay * * * * * under 5 U.S.C. 5304 which the senior below the minimum rate of the SES rate executive was receiving immediately (b)(1) The total amount of range in § 534.403(a). before that date, except as provided in (2) The SES rate of basic pay of a performance awards paid during a fiscal paragraph (b) of this section. The newly career senior executive may be reduced year by an agency may not exceed the converted rate is the senior executive’s without the employee’s consent by the greater of— SES rate of basic pay. An agency’s senior executive’s agency or upon (i) Ten percent of the aggregate career establishment of an SES rate of basic transfer of function to another agency SES rates of basic pay for the agency as pay for a senior executive under this only— of the end of the fiscal year prior to the paragraph is not considered a pay (i) If the senior executive has received fiscal year in which the award payments adjustment for the purpose of applying a less than fully successful annual are made; or § 534.404(c). summary rating under 5 CFR part 430, (ii) Twenty percent of the average (b) An SES member’s rate of basic subpart C, or has otherwise failed to annual rates of basic pay for career SES pay, plus any applicable locality-based meet the performance requirements for appointees of the agency as of the end comparability payment under 5 U.S.C. a critical element as defined in 5 CFR of the fiscal year prior to the fiscal year 5304 to which the employee was 430.303; or in which the award payments are made. entitled on November 24, 2003, may not be reduced for 1 year after the first day (ii) As a disciplinary or adverse action (2) In determining the aggregate career of the first applicable pay period resulting from conduct-related activity, SES rates of basic pay and the average beginning on or after January 1, 2004. If including, but not limited to, annual rate of basic pay as of the end misconduct, neglect of duty, or an SES member’s rate of basic pay, plus of FY 2003 for the purpose of applying any applicable locality-based malfeasance. paragraph (b) of this section, agencies (3) Prior to reducing a career senior comparability payment under 5 U.S.C. must use the annual rate of basic pay, 5304 to which the employee was executive’s rate of basic pay, the agency plus any applicable locality-based must provide the senior executive with entitled on November 23, 2003, is comparability payment under 5 U.S.C. higher than the rate in effect the following: 5304 or special geographic pay (i) Written notice of such reduction at immediately prior to the first day of the adjustment established for law least 15 days in advance of its effective first applicable pay period beginning on enforcement officers under section date; or after January 1, 2004, the agency must 404(a) of the Federal Employees Pay (ii) A reasonable period of time, but use the higher rate for the purpose of Comparability Act of 1990 (Pub. L. 101– not less than 7 days, for the senior converting SES members to the SES pay 509), which the SES appointees were executive to respond to such notice system. receiving at the end of FY 2003. orally and/or in writing and to furnish (c) An SES member who is assigned affidavits and other documentary (c) The amount of a performance to a position outside the 48 contiguous evidence in support of that response; award paid to an individual career States and the District of Columbia to a (iii) An opportunity to be represented appointee may not be less than 5 position overseas or in Alaska, Hawaii, in the matter by an attorney or other percent nor more than 20 percent of the Guam or the Commonwealth of the representative; appointee’s SES rate of basic pay as of Northern Mariana Islands, Puerto Rico, (iv) A written decision and specific the end of the performance appraisal the U.S. Virgin Islands, or other U.S. reasons for the pay reduction at the period. territories and possessions as of the first earliest practicable date after the senior * * * * * day of the first applicable pay period beginning on or after January 1, 2004, executive’s response, if any; and (f) Performance awards must be paid will be converted to a new rate of basic (v) An opportunity to request, within in a lump sum except in those instances pay that equals the senior executive’s 7 days after the date of that decision, when it is not possible to pay the full current rate of basic pay, plus the reconsideration by the head of the amount because of the applicable amount of locality pay authorized under agency, whose determination with aggregate limitation on pay during a 5 U.S.C. 5304 for the applicable locality respect to that request will be final and calendar year under 5 CFR part 530, not subject to further review. pay area upon the employee’s initial subpart B. In that case, any amount in reassignment to a position in the 48 (4) Reductions in pay under excess of the applicable aggregate paragraph (j) of this section are not contiguous States or the District of limitation must be paid at the beginning Columbia. The adjustment will be appealable under 5 U.S.C. 7543. of the following calendar year in I 17. In newly redesignated § 534.405, prospective, not retroactive, and it will accordance with 5 CFR part 530, subpart not be considered a pay adjustment for revise paragraphs (a)(2)(i), (b), (c), and (f) B. The full performance award, to read as follows: the purpose of applying § 534.404(c). If however, is charged against the agency the senior executive’s rate of basic pay § 534.405 Performance Awards. bonus pool under § 534.405(b) for the did not exceed the rate for level III of fiscal year in which the initial payment (a) * * * the Executive Schedule while assigned was made. (2) * * * to a position outside the 48 contiguous (i) A former SES career appointee who I 18. Section 534.406 is revised to read States or the District of Columbia, upon elected to retain award eligibility under as follows: initial reassignment to a locality pay

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations 70367

area the senior executive’s converted § 575.306 Payment of retention allowance. United States Department of Agriculture rate of basic pay may not exceed the rate * * * * * (USDA), STOP 0514, Room 5750–S, for level III of the Executive Schedule. (b) The head of an agency may not 1400 Independence Avenue, SW., The newly converted rate is the senior authorize a retention allowance for an Washington, DC 20250–0514. executive’s SES rate of basic pay. employee if or to the extent that such an SUPPLEMENTARY INFORMATION: (d) On the first day of the first allowance, when added to the Background applicable pay period beginning on or employee’s estimated aggregate after January 1, 2004, a law enforcement compensation, as defined in 5 CFR The Farm Service Agency (FSA) officer (LEO), as defined in 5 CFR 530.202, would cause the aggregate published in the Federal Register, on 531.301, who is a member of the SES compensation actually received by the June 22, 2004, (69 FR 34615) a proposed will have his or her rate of basic pay, employee during the calendar year to rule to rescind the price support plus any applicable special geographic exceed the applicable aggregate eligibility provision that requires flue- pay adjustment established for LEOs limitation on pay under 5 CFR part 530, cured and burley tobacco farmers to under section 404(a) of the Federal subpart B, at the end of the calendar designate the locations where they will Employees Pay Comparability Act of year. sell their tobacco. The proposed rule 1990 (Pub. L. 101–509) to which he or * * * * * requested public comments, and the she was entitled immediately before that comment period ended on July 22, 2004. I 23. In § 575.307, paragraph (a) is date, converted to a new SES rate of To the extent practicable, some revised to read as follows: basic pay. The newly converted rate is comments that were received after that the senior executive’s SES rate of basic § 575.307 Reduction or termination of date were also considered. pay, and any pay adjustments approved retention allowance. Summary of Comments on or after January 11, 2004, must be (a) The agency must reduce or computed based on the senior terminate the authorized amount of a FSA received 368 comments on the proposed rule. Two respondents asked executive’s converted rate of basic pay. retention allowance to the extent that no change be made in the current Conversion to a new SES rate of basic necessary to ensure that the employee’s designation requirement. This request pay is not considered a pay adjustment estimated aggregate compensation, as was considered, however, weighing the for the purpose of applying § 534.404(c). defined in 5 CFR 530.202, does not requests to maintain the existing I 19. Section 534.407 is added to read as exceed the applicable aggregate program against the prevalence of follows: limitation on pay under 5 CFR part 530, comments requesting elimination of the subpart B, at the end of the calendar program, as was proposed, weigh § 534.407 Pay computation and aggregate year. compensation. heavily in favor of changing the current (a) Except as provided in paragraph * * * * * requirements. (b) of this section, pay for members of [FR Doc. 04–26728 Filed 12–1–04; 5:03 pm] Eighteen respondents asked that the the SES must be computed in BILLING CODE 6325–39–P designation program be eliminated accordance with 5 U.S.C. 5504(b). entirely. Although FSA proposed (b) To determine the hourly rate of rescinding the designation program in pay for members of the SES, divide the DEPARTMENT OF AGRICULTURE June when the Agency requested input annual SES rate of basic pay by 2,087 from the public, the majority of the and round to the nearest cent, counting Commodity Credit Corporation comments on the proposed rule did not one-half cent and over as a whole cent. favor total elimination of the program. To derive the biweekly rate, multiply 7 CFR Part 1464 In deference to the majority of the the hourly rate by 80. RIN 0560–AH13 comments on the proposed rule, FSA (c) Senior executives are subject to the will not entirely eliminate the applicable aggregate limitation on pay Tobacco Loan Program—Removal of designation program. Thus, the final in 5 CFR part 530, subpart B. Requirement That Producers of Burley rule still contains a limited designation I 20. In newly redesignated § 534.408, in and Flue Cured Tobacco Designate requirement. the last sentence of paragraph (b) remove Sales Locations Three hundred and forty three the word ‘‘subject’’ and add in its place comments suggested adjustments to the AGENCY: Commodity Credit Corporation, the word ‘‘subpart.’’ timing of the designation requirements. USDA. Of these, 101 respondents asked only PART 575—RECRUITMENT AND ACTION: Final rule. that the waiting period for re- RELOCATION BONUSES; RETENTION designation be reduced to five days or SUMMARY: This rule amends the ALLOWANCES; SUPERVISORY less, 13 respondents asked that the regulations governing the tobacco price DIFFERENTIALS designation program proceed as it is support program to remove the currently outlined, 209 respondents I 21. The authority citation for part 575 requirement that flue-cured tobacco asked that both designation and continues to read as follows: farmers designate the auction subsequent re-designation requirements Authority: 5 U.S.C. 1104(a)(2), 5753, 5754, warehouses where they will sell their be made more simple. Two hundred and 5755 and 5757; Pub. L. 107–273, 116 Stat. tobacco and that burley tobacco farmers twenty two of these same commentors 1780; secs. 302 and 404 of the Federal designate all locations where they will requested that designations be made Employees Pay Comparability Act of 1990 sell their tobacco. Currently price immediately effective, and that (FEPCA) (Pub. L. 101–509), 104 Stat. 1462 support is available only at designated designations be suspended and not and 1466, respectively; E.O. 12748, 3 CFR, auction warehouses on eligible tobacco. 1992 Comp. p. 316. necessary after the first week of tobacco DATES: Effective Date: December 3, 2004. sales. These comments and suggestions Subpart C—Retention Allowances FOR FURTHER INFORMATION CONTACT: Ann are addressed below. Wortham, (202) 720–2715 or Twenty-five comments expressed I 22. In § 575.306, paragraph (b) is [email protected]. Tobacco concerns about the burley tobacco revised to read as follows: Division (TD), Farm Service Agency, designation program. These respondents

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 70368 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations

asked that designations end on August a notice of proposed rulemaking with PART 1464—TOBACCO 1 of the market year, followed by two re- respect to the subject matter of this rule. I designation periods at the beginning of 1. The authority citation for 7 CFR part Unfunded Mandates October and November, and then 1464 continues to read as follows: immediately effective re-designations This rule contains no Federal Authority: 7 U.S.C. 1421, 1423, 1441, 1445, beginning on November 25. These mandates under Title II of the Unfunded 1445–1 and 1445–2; 15 U.S.C. 714b, 714c; comments requested no other changes to Mandates Reform Act of 1995 (UMRA) Pub. L. 106–78, 113 Stat. 1135; Pub. L. 106– the current requirements. These 113, 113 Stat. 1501; Pub. L. 1087, 117 Stat. for State, local and tribal governments 11. comments were not adopted for the or the private sector. Therefore, this rule reasons discussed below. is not subject to sections 202 and 205 of Subpart A—Tobacco Loan Program The existing technology that the the UMRA. Agency uses for this program does not I 2. Amend 7 CFR 1464.2 by removing Federal Assistance Programs allow FSA to make designations paragraph (b)(2) and redesignating immediately effective. Therefore, this The title and number of the Federal paragraphs (b)(3), (b)(4) and (b)(5) as suggestion will not be adopted. Assistance Program, as found in the (b)(2), (b)(3), and (b)(4), respectively. On October 22, 2004, the Fair and Catalog of Federal Domestic Assistance Signed at Washington, DC, on November Equitable Tobacco Reform Act of 2004 to which this rule applies, are: 10.051— 19, 2004. repealed the tobacco marketing quota Commodity Loans and Loan Deficiency James R. Little, and acreage allotment and price support Payments. Executive Vice-President, Commodity Credit programs effective for the 2005 and Corporation. Environmental Evaluation subsequent crop years. The designation [FR Doc. 04–26828 Filed 12–2–04; 2:26 pm] program, part of these programs, will The environmental impacts of this BILLING CODE 3410–05–P end with the close of the 2004 rule have been considered under the marketing year. Accordingly, this rule National Environmental Policy Act of deletes the price support eligibility 1969 (NEPA), 42 U.S.C. 4321 et seq., the DEPARTMENT OF TRANSPORTATION requirement that flue-cured and burley regulations of the Council on tobacco farmers designate the locations Environmental Quality (40 CFR parts Federal Aviation Administration where they will sell their tobacco. The 1500–1508), and regulations of the Farm majority of the commentors wanted the Service Agency (FSA) of the Department 14 CFR Part 39 designation program to remain of Agriculture (USDA) for compliance unchanged through the first week of [Docket No. 2003–CE–48–AD; Amendment with NEPA, 7 CFR part 799. An 39–13886; AD 2004–24–10] tobacco sales, a time period which has environmental evaluation was ended for both flue-cured and burley completed and the action has been RIN 2120–AA64 tobaccos. Rescinding the designation determined not to have the potential to requirements effective December 3, Airworthiness Directives; Bombardier, significantly impact the quality of the Inc. Model DHC–3 Airplanes 2004, will have the effect of complying human environment and no with the majority of commentors’ environmental assessment or AGENCY: Federal Aviation requests that designation and environmental impact statement is Administration (FAA), DOT. subsequent re-designation requirements necessary. A copy of the environmental ACTION: Final rule. not be necessary after the first week of evaluation is available for inspection sales. Tobacco producers will be able to and review upon request. SUMMARY: The FAA adopts a new sell their tobacco where they wish, airworthiness directive (AD) for certain without waiting for a designation to Paperwork Reduction Act Bombardier, Inc. Model DHC–3 become effective through this final crop In accordance with the Paperwork airplanes modified with A.M. Luton’s year of the tobacco quota and price Reduction Act of 1995 (44 U.S.C. 5501 Supplemental Type Certificate (STC) support programs. et seq.), the information collection or number SA3777NM. This AD requires you to inspect the wiring for the heating Executive Order 12372 recordkeeping requirements of 7 CFR part 1464 are approved by the Office of blankets on P3 and PY pneumatic lines This final rule is not subject to the Management and Budget (OMB) under and the push-to-test function lights to provisions of Executive Order 12372, OMB control numbers 0560–0058 and ensure that they are wired to the correct which require consultation with State 0560–0217. Also, section 642(b) of schematic; replace the circuit breaker and local officials. See the notice related FETRA provides these regulations be switch as applicable; and replace the to 7 CFR part 3015, subpart V, promulgated without regard to the flight manual supplement currently in published at 48 FR 29115 (June 24, Paperwork Reduction Act, nor be use with Revision G, dated March 28, 1983). subject to the normal requirement for a 2001 (incorporates Revision I of Sheet 1 of Drawing 20075, ‘‘Electrical System Executive Order 12866 60-day public comment period. Nonetheless, this action will reduce the Schematic,’’ dated October 10, 2000). This rule has been determined to be information collected and the Agency’s This AD is the result of mandatory not significant for the purposes of currently approved burden, thus, a new continuing airworthiness information Executive Order 12866 and therefore burden estimate will be submitted to (MCAI) issued by the airworthiness was not reviewed by the Office of OMB for approval. authority for Canada. We are issuing Management and Budget. this AD to detect and correct wiring List of Subjects in 7 CFR Part 1464 installed in accordance with an Regulatory Flexibility Act incorrect drawing, which shows the Price support programs, Tobacco, The Regulatory Flexibility Act is not pneumatic heating blankets to the P Warehouses. 3 applicable to this proposed rule because and PY pneumatic lines wired in series USDA is not required by 5 U.S.C. 553 I Accordingly, 7 CFR part 1464 is with the indicator lights, rather than or any other provision of law to publish amended as follows: parallel. This can result in reduced

VerDate jul<14>2003 15:10 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations 70369

current for the heating blankets and loss reduced electrical energy going to the received no comments on the proposal of pneumatic line heating, which can heating blankets with loss of pneumatic or on the determination of the cost to lead to loss of engine power or reverse line heating, which can lead to loss of the public. propeller overspeed governing engine power or reverse propeller Conclusion protection and ultimately loss of control overspeed governing protection. of the airplane. What is the potential impact if FAA What is FAA’s final determination on DATES: This AD becomes effective on took no action? Electrical installation this issue? We have carefully reviewed January 6, 2005. using incorrect wiring configurations the available data and determined that As of January 6, 2005, the Director of could result in the electrical energy air safety and the public interest require the Federal Register approved the being absorbed by the light bulbs with adopting the AD as proposed except for incorporation by reference of certain insufficient electrical energy for the minor editorial corrections. We have publications listed in the regulation. heating blankets, which would allow ice determined that these minor to form in these lines due to corrections: ADDRESSES: You may get the service • information identified in this AD from condensation even though the Are consistent with the intent that A. M. Luton, 3025 Eldridge Avenue, indication lights show the lines being was proposed in the NPRM for heated. This could result in loss of correcting the unsafe condition; and Bellingham, WA 98225. • You may view the AD docket at FAA, engine power or reverse propeller Do not add any additional burden Central Region, Office of the Regional overspeed governing protection and upon the public than was already Counsel, Attention: Rules Docket No. lead to loss of control of the airplane. proposed in the NPRM. Has FAA taken any action to this 2003–CE–48–AD, 901 Locust, Room Changes to 14 CFR Part 39—Effect on point? We issued a proposal to amend 506, Kansas City, Missouri 64106. Office the AD hours are 8 a.m. to 4 p.m., Monday part 39 of the Federal Aviation How does the revision to 14 CFR part through Friday, except Federal holidays. Regulations (14 CFR part 39) to include an AD that would apply to certain 39 affect this AD? On July 10, 2002, the FOR FURTHER INFORMATION CONTACT: Bombardier, Inc. Model DHC–3 FAA published a new version of 14 CFR Richard Simonson, Aerospace Engineer, airplanes modified with A.M. Luton’s part 39 (67 FR 47997, July 22, 2002), Special Certification Branch; telephone: Supplemental Type Certificate (STC) which governs the FAA’s AD system. (425) 917–6507; facsimile: (425) 917– number SA3777NM. This proposal was This regulation now includes material 6590. published in the Federal Register as a that relates to altered products, special SUPPLEMENTARY INFORMATION: notice of proposed rulemaking (NPRM) flight permits, and alternative methods on May 24, 2004 (69 FR 29477). The of compliance. This material previously Discussion NPRM proposed to require you to was included in each individual AD. What events have caused this AD? inspect the wiring for the heating Since this material is included in 14 Transport Canada, which is the blankets on P3 and PY pneumatic lines CFR part 39, we will not include it in airworthiness authority for Canada, and the push-to-test function lights to future AD actions. recently notified FAA that an unsafe ensure that they are wired to the correct Costs of Compliance condition may exist on all Bombardier, schematic; replace the circuit breaker Inc. Model DHC–3 airplanes modified switch as applicable; and replace the How many airplanes does this AD with an A.M. Luton Supplemental Type flight manual supplement currently in impact? We estimate that this AD affects Certificate (STC) number SA3777NM. use with Revision G, dated March 28, 32 airplanes in the U.S. registry. Transport Canada reports a drawing 2001 (incorporates Revision I of Sheet 1 What is the cost impact of this AD on error on Revisions G and H of Sheet 1 of Drawing 20075, ‘‘Electrical System owners/operators of the affected of the Electrical System Schematic Schematic,’’ dated October 10, 2000). airplanes? We have no way of Drawing 20075, which shows the determining the number of airplanes Comments pneumatic heating blankets to the P3 that may need the rewiring or circuit and PY pneumatic lines wired in series Was the public invited to comment? breaker switch replacement. We with the indicator lights, rather than We provided the public the opportunity estimate the following costs to parallel. This can result in severely to participate in developing this AD. We accomplish the inspection:

Total cost per Total cost on Labor cost Parts cost airplane U.S. operators

1 workhour est. $65 per hour = $65 ...... $100 $165 $5,280

Regulatory Findings Will this AD involve a significant rule We prepared a summary of the costs or regulatory action? For the reasons to comply with this AD and placed it in Will this AD impact various entities? discussed above, I certify that this AD: the AD Docket. You may get a copy of We have determined that this AD will 1. Is not a ‘‘significant regulatory this summary by sending a request to us not have federalism implications under action’’ under Executive Order 12866; at the address listed under ADDRESSES. Executive Order 13132. This AD will Include ‘‘AD Docket No. 2003–CE–48– not have a substantial direct effect on 2. Is not a ‘‘significant rule’’ under the DOT Regulatory Policies and Procedures AD’’ in your request. the States, on the relationship between (44 FR 11034, February 26, 1979); and This rulemaking is promulgated the national government and the States, under the authority in Subtitle VII, Part or on the distribution of power and 3. Will not have a significant A, Subpart III, Section 44701, General responsibilities among the various economic impact, positive or negative, requirements. Under that section, the levels of government. on a substantial number of small entities under the criteria of the Regulatory FAA is charged with prescribing Flexibility Act. minimum standards required in the

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 70370 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations

interest of safety for the design of PART 39—AIRWORTHINESS (2) Certificated in any category. aircraft. This regulation is within the DIRECTIVES What Is the Unsafe Condition Presented in scope of that authority since it corrects This AD? an unsafe condition in the design of the I 1. The authority citation for part 39 aircraft caused by incorrect wiring continues to read as follows: (d) This AD is the result of a drawing error on Revisions G and H of Sheet 1 of Drawing configurations that could result in the Authority: 49 U.S.C. 106(g), 40113, 44701. electrical energy being absorbed by the 20075, Electrical System Schematic. The light bulbs with insufficient electrical § 39.13 [Amended] actions specified in this AD are intended to detect and correct wiring installed according energy for the heating blankets, which I 2. FAA amends § 39.13 by adding a to an incorrect drawing, which shows the would allow ice to form in these lines new AD to read as follows: due to condensation even though the pneumatic heating blankets to the P3 and PY indication lights show the lines being 2004–24–10 Bombardier, Inc.: Amendment pneumatic lines wired in series with the 39–13886; Docket No. 2003–CE–48–AD. heated. indicator lights, rather than parallel. This can When Does This AD Become Effective? result in insufficient electrical energy for the List of Subjects in 14 CFR Part 39 heating blankets and loss of pneumatic (a) This AD becomes effective on January heating, which can lead to loss of engine Air transportation, Aircraft, Aviation 6, 2005. safety, Incorporation by reference, power or reverse propeller overspeed Safety. What Other ADs Are Affected by This governing protection and ultimately loss of Action? control of the airplane. Adoption of the Amendment (b) None. What Must I Do To Address This Problem? I Accordingly, under the authority What Airplanes Are Affected by This AD? (e) To address this problem, you must do delegated to me by the Administrator, (c) This AD affects the Model DHC–3 the following: the Federal Aviation Administration airplanes, all serial numbers, that are: amends part 39 of the Federal Aviation (1) Modified with STC number Regulations (14 CFR part 39) as follows: SA3777NM; and

Actions Compliance Procedures

(1) Inspect the electrical wiring to the P3 and Inspect within 4 months after January 6, 2005 Follow the procedures in the A.M. Luton Serv- PY engine pneumatic line heating blankets (the effective date of this AD) or 300 hours ice Information Letter SIL–00–10–10, revi- and the P3 heater warning light to determine time in service (TIS) after January 6, 2005 sion dated, March 22, 2001. if they are wired in a parallel configuration. If (the effective date of this AD), whichever they are not wired in a parallel configuration, occurs first. Rewire prior to further flight they must be rewired. after the inspection. (2) Replace Flight Manual Supplement currently Replace within 4 months after January 6, Follow the procedures in the A.M. Luton Serv- in use with Revision G, dated March 28, 2005 (the effective date of this AD) or 300 ice Information Letter SIL–00–10–10, revi- 2001. This flight manual revision corrects the hours TIS after January 6, 2005 (the effec- sion dated, March 22, 2001. drawing error on Revisions G and H of Sheet tive date of this AD), whichever occurs first. 1 of the Electrical System Schematic Drawing 20075 by incorporating Revision I of Sheet 1 of Drawing 20075, ‘‘Electrical System Sche- matic,’’ dated October 10, 2000. (i) The owner/operator holding at least a private pilot certificate as authorized by section 43.7 of the Federal Aviation Reg- ulations (14 CFR 43.7) may accomplish the flight manual replacement requirement of this AD. (ii) Make an entry into the aircraft records showing compliance with this portion of the AD in accordance with section 43.9 of the Federal Aviation Regulations (14 CFR 43.9). (3) Inspect circuit breaker switch for heated en- Inspect within 4 months after January 6, 2005 Follow the procedures in the A.M. Luton Serv- gine pneumatic lines circuit. If an engine is (the effective date of this AD), or 300 hours ice Information Letter SIL–00–10–10, revi- installed that uses both P3 and PY heated TIS after January 6, 2005 (the effective sion dated, March 22, 2001. pneumatic lines, circuit breaker switch, Part date of this AD), whichever occurs first. Re- Number (P/N) 20075–3 (5 amp), must be replace prior to further flight after the inspec- placed with circuit breaker switch P/N 20075– tion. 59 (7.5 amp).

May I Request an Alternative Method of Transport Airplane Directorate, FAA. For Does This AD Incorporate Any Material by Compliance? information on any already approved Reference? (f) You may request a different method of alternative methods of compliance, contact (g) You must do the actions required by compliance or a different compliance time Richard Simonson, Aerospace Engineer, this AD following the instructions in A.M. for this AD by following the procedures in 14 Special Certifications Branch, Transport Luton Service Information Letter SIL–00–10– CFR 39.19. Unless FAA authorizes otherwise, Airplane Directorate, 1601 Lind Avenue, 10, revision dated March 22, 2001. The send your request to your principal SW., Renton, WA 98055; telephone: 425– Director of the Federal Register approved the inspector. The principal inspector may add 917–6507; facsimile: 816–917–6590. incorporation by reference of this service comments and will send your request to the bulletin in accordance with 5 U.S.C. 552(a) Manager, Special Certifications Branch, and 1 CFR part 51. You may get a copy from

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations 70371

A.M. Luton, 3025 Eldridge Ave., Bellingham, (telephone 1–800–647–5527) is located published in the Federal Register, and WA 98225. You may review copies at FAA, on the plaza level of the department of a notice of proposed rulemaking may be Central Region, Office of the Regional Transportation NASSIF Building at the published with a new comment period. Counsel, 901 Locust, Room 506, Kansas City, street address stated above. Missouri 64106; or at the National Archives Comments Invited An informal docket may also be and Records Administration (NARA). For information on the availability of this examined during normal business hours Although this action is in the form of material at NARA, call (202) 741–6030, or go at the office of the Eastern Flight Service a direct final rule, and was not preceded to: http://www.archives.gov/federal_register/ Area, New England Region Office, by a notice of proposed rulemaking, code_of_federal_regulations/ Federal Aviation Administration, 12 interested persons are invited to ibr_locations.html. New England Executive Park, comment on this rule by submitting Is There Other Information That Relates to Burlington, MA 01803–5299. Call the such written data, views, or arguments This Subject? Manager, Operations Support Branch, as they may desire. Communications ANE–530, telephone (781) 238–7530; (h) Airworthiness Directive CF–2002–38, must identify both docket numbers. All dated August 29, 2002, and Service fax (781) 238–7596, to make prior communications received on or before Information Letter SIL–00–10–10, revision arrangements for your visit. the closing date for comments will be dated March 22, 2001, also pertain to the FOR FURTHER INFORMATION CONTACT: Jon considered, and this rule may be subject of this AD. T. Harris, Eastern Flight Service Area, amended or withdrawn in light of the Issued in Kansas City, Missouri, on Operations Support Branch, ANE–530, comments received. Factual information November 23, 2004. Federal Aviation Administration, 12 that support the commenter’s ideas and David A. Downey, New England Executive Park, suggestions is extremely helpful in Acting Manager, Small Airplane Directorate, Burlington, MA 01803–5299; telephone evaluating the effectiveness of this Aircraft Certification Service. (781) 238–7530 fax (781) 238–7596. action and determining whether [FR Doc. 04–26421 Filed 12–3–04; 8:45 am] SUPPLEMENTARY INFORMATION: Westover additional rulemaking action would be needed. BILLING CODE 4910–13–P AFB has competed a new airport survey and established a new Airport Reference Comments are specifically invited on Point (ARP). In addition, this action the overall regulatory, economic, DEPARTMENT OF TRANSPORTATION increases the class D airspace radius to environmental, and energy aspects of provide additional controlled airspace the rule that might suggest a need to Federal Aviation Administration for those aircraft using category E modify the rule. All comments circling minima for instrument submitted will be available, both before 14 CFR Part 71 procedures. Class D airspace and after the closing date for comments, in the Rules Docket for examination by [Docket No. FAA–2004–19601] designations for airspace areas extending upward from the surface are interested persons. A report that Amendment to Class D Airspace; published in paragraph 5000 of FAA summarizes each FAA-public contact Springfield/Chicopee, MA Order 7400.9M, dated August 30, 2004, concerned with the substance of this and effective September 16, 2004, which action will be filed in the Rules Docket. AGENCY: Federal Aviation is incorporated by reference in 14 CFR Agency Findings Administration (FAA), DOT. 71.1. The Class D airspace designation ACTION: Direct final rule; request for listed in this document will be This rule does not have federalism comments. published subsequently in this Order. implications, as defined in Executive Order No. 13132, because it does not SUMMARY: This action revises the Class The Direct Final Rule Procedure have a substantial direct effect on the D airspace area at Springfield/Chicopee, The FAA anticipates that this States, on the relationship between the Westover AFB, MA (KCEF) to revise the regulation will not result in adverse or national government and the States, or Airport Reference Point (ARP) and negative comment, and, therefore, issues on the distribution of power and provide for adequate controlled airspace it as a direct final rule. The FAA has responsibilities among the various for those aircraft circling to land. determined that this regulation only levels of government. Accordingly, the DATES: Effective 0901 UTC, January 20, involves an established body of FAA has not consulted with State 2005. technical regulations for which frequent authorities prior to publication of this Comments for inclusion in the Rules and routine amendments are necessary rule. Docket must be received on or before to keep them operationally current. The FAA has determined that this January 5, 2005. Unless a written adverse or negative regulation is noncontroversial and ADDRESSES: Send comments on the rule comment or a written notice of intent to unlikely to result in adverse or negative to the Docket Management System, U.S. submit an adverse or negative comment comments. For the reasons discussed in Department of Transportation, Room is received within the comment period, the preamble, I certify that this Plaza 401, 400 Seventh Street, SW., the regulation will become effective on regulation (1) is not a ‘‘significant Washington, DC 20590–0001. You must the date specified above. After the close regulatory action’’ under Executive identify the docket number, FAA–2004– of the comment period, the FAA will Order 12866; (2) is not a ‘‘significant 19601/Airspace Docket No. 04–ANE–33, publish a document in the Federal rule’’ under Department of at the beginning of your comments. You Register indicating that no adverse or Transportation (DOT) Regulatory may also submit comments on the negative comments were received and Policies and Procedures (44 FR 11034, Internet at http://dms.dot.gov. You may confirming the date on which the final February 26, 1979); and (3) does not review the public docket containing the rule will become effective. If the FAA warrant preparation of a Regulatory proposal, any comments received, and does receive, within the comment Evaluation as these routine matters will any final disposition in person at the period, an adverse or negative comment, only affect air traffic procedures and air Dockets Office between 9 a.m. and 5 or written notice of intent to submit navigation. It is certified that these p.m., Monday through Friday, except such a comment, a document proposed rules will not have significant Federal holidays. The Docket Office withdrawing the direct final rule will be economic impact on a substantial

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 70372 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations

number of small entities under the Issued in Burlington, MA, on November to participate in this rulemaking criteria of the Regulatory Flexibility Act. 18, 2004. proceeding by submitting written William C. Yuknewicz, comments on this proposal to the FAA. Authority for This Rulemaking Director of Operations, Eastern Flight Service No comments were received in response The FAA’s authority to issue rules Area. to the proposal. regarding aviation safety is found in title [FR Doc. 04–26750 Filed 12–3–04; 8:45 am] The Rule 49 of the United States Code. Subtitle I, BILLING CODE 4910–13–M section 106 describes the authority of The FAA is amending Title 14 Code the FAA Administrator. Subtitle VII, of Federal Regulations (14 CFR) part 71 DEPARTMENT OF TRANSPORTATION Aviation Programs, describes in more (part 71) by establishing J–187, and detail the scope of the agency’s Federal Aviation Administration revising J–180 and J–181 in the St. authority. Louis, MO area. Specifically, this action This rulemaking is promulgated 14 CFR Part 71 establishes J–187 from the Memphis, under the authority described in subtitle TN, VORTAC to the Foristell, MO, VII, part A, subpart I, section 40103, [Docket No. FAA–2004–16091; Airspace VORTAC. This action also revises J–180 Docket No. 03–ACE–74] Sovereignty and use of airspace. Under by extending it from the Little Rock, AR, that section, the FAA is charged with RIN 2120–AA66 VORTAC to the Foristell VORTAC and issuing regulations to ensure the safety J–181 by realigning the segments of aircraft and the efficient use of Establishment of Jet Route 187, and between the Neosho VOR/DME and the airspace. This regulation is within the Revision of Jet Routes 180 and 181; BAYLI intersection. The FAA believes scope of that authority since it defines MO that this action will enhance the controlled airspace in the vicinity of the AGENCY: Federal Aviation management of aircraft operations over Westover AFB to ensure the safety of Administration (FAA), DOT. the St. Louis, MO area. aircraft operating near that airport and ACTION: the efficient use of that airspace. Final rule. Jet routes are published in paragraph 2004 of FAA Order 7400.9L dated List of Subjects in 14 CFR Part 71 SUMMARY: This action establishes Jet September 2, 2003, and effective Route 187 (J–187) from the Memphis, September 16, 2003, which is Airspace, Incorporation by reference, TN, Very High Frequency Omni- incorporated by reference in 14 CFR Navigation (air). directional Range/Tactical Air 71.1. The jet routes listed in this Adoption of the Amendment Navigation (VORTAC) to the Foristell, document will be published MO, VORTAC. This action also extends subsequently in the order. I Accordingly, pursuant to the authority J–180 from the Little Rock, AR, The FAA has determined that this delegated to me, the Federal Aviation VORTAC to the Foristell VORTAC, and regulation only involves an established Administration amends part 71 of the realigns J–181 between the Neosho Very body of technical regulations for which Federal Aviation Regulations (14 CFR High Frequency Omni-directional frequent and routine amendments are part 71) as follows: Range/Distance Measuring Equipment (VOR/DME) and the BAYLI intersection. necessary to keep them operationally PART 71—[AMENDED] The FAA is taking this action to current. Therefore, this regulation: (1) Is enhance the management of aircraft not a ‘‘significant regulatory action’’ I 1. The authority citation for part 71 operations over the St. Louis, MO area. under Executive Order 12866; (2) is not continues to read as follows: EFFECTIVE DATE: 0901 UTC, March 17, a ‘‘significant rule’’ under DOT Authority: 49 U.S.C. 106(g), 40103, 40113, 2005. Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– FOR FURTHER INFORMATION CONTACT: does not warrant preparation of a 1963 Comp., p. 389. Steve Rohring, Airspace and Rules, regulatory evaluation as the anticipated Office of System Operations and Safety, I 2. The incorporation by reference in 14 impact is so minimal. Since this is a Federal Aviation Administration, 800 CFR 71.1 of Federal Aviation routine matter that will only affect air Independence Avenue, SW., Administration Order 7400.9M, traffic procedures and air navigation, it Airspace Designations and Reporting Washington, DC 20591; telephone: (202) 267–8783. is certified that this rule, when Points, dated August 30, 2004, and promulgated, will not have a significant SUPPLEMENTARY INFORMATION: effective September 16, 2004, is economic impact on a substantial amended as follows: History number of small entities under the Paragraph 5000 Class D Airspace. On April 15, 2004, the FAA published criteria of the Regulatory Flexibility Act. * * * * * in the Federal Register a notice Environmental Review ANE MA D Springfield/Chicopee, MA proposing to establish J–187, and revise [Revised] J–180 and J–181 (69 FR 19963). As part The FAA has determined that this of the National Airspace Redesign action qualifies for categorical exclusion Springfield/Chicopee, Westover AFB, MA under the National Environmental (Lat. 42°11′38″ N, long. 72°32′05″ W) project, a review of aircraft operations has identified a need to revise the jet Policy Act in accordance with That airspace extending upward from the Paragraph 311(a) of FAA Order 1050.1E, surface to and including 2,700 feet MSL route structure over the St. Louis, MO within 5.7-mile radius of Westover AFB. This area. The FAA believes that establishing Policies and Procedures for Considering Class D airspace is effective during the J–187 and revising the existing J–180 Environmental Impacts. This airspace specific dates and times established in and J–181 will enhance the management action is not expected to cause any advance by a Notice to Airman. The effective of aircraft operations destined for the potentially significant impacts, and no date and time will thereafter be continuously Lambert-St. Louis International Airport extraordinary circumstances exist that published in the Airport/Facility Directory. and the Chicago O’Hare International warrant preparation of an * * * * * Airport. Interested parties were invited environmental assessment.

VerDate jul<14>2003 16:32 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations 70373

List of Subjects in 14 CFR Part 71 Methylenedianiline (MDA) Standard for PART 1926—[CORRECTED] Airspace, Incorporation by Reference, Construction to correct a cross reference Subpart D—Occupational Health and Navigation (air). to OSHA’s standard on emergency action plans and fire prevention plans. Environmental Controls The Adoption of the Amendment DATES: This final rule becomes effective I 1. The authority citation for part 1926 I In consideration of the foregoing, the January 5, 2005. subpart D is revised to read as follows: Federal Aviation Administration Authority: Sec. 107, Contract Work Hours amends 14 CFR part 71 as follows: FOR FURTHER INFORMATION CONTACT: George Shaw, Acting Director, OSHA and Safety Standards Act (40 U.S.C. 333); PART 71—DESIGNATION OF CLASS A, secs. 4, 6, and 8, Occupational Safety and Office of Communication, Room N– Health Act of 1970 (29 U.S.C. 653, 655, 657; B, C, D, AND E AIRSPACE AREAS; AIR 3647, U.S. Department of Labor, 200 Secretary of Labor’s Order No. 12–71 (36 FR TRAFFIC SERVICE ROUTES; AND Constitution Avenue, NW., Washington, 8754), 8–76 (41 FR 25059), 9–83 (48 FR REPORTING POINTS DC 20210; Telephone: (202) 693–1999. 35736), 6–96 (62 FR 111), or 5–2002 (67 FR 65008), as applicable, and 29 CFR part 1911. I 1. The authority citation for part 71 SUPPLEMENTARY INFORMATION: On continues to read as follows: November 2002, the Agency published I 2. In § 1926.60, paragraph (e)(1)(iii) is Authority: 49 U.S.C. 106(g), 40103, 40113, a final rule entitled ‘‘Exit Routes, revised to read as follows: 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– Emergency Action Plans, and Fire 1963 Comp., p. 389. Prevention Plans (67 FR 67949).’’ This § 1926.60 Methylenedianiline action was taken in part to clarify and (e) * * * § 71.1 [Amended] make consistent provisions regrading (1) * * * I 2. The incorporation by reference in 14 emergency action plans and fire (iii) The plan shall specifically CFR 71.1 of FAA Order 7400.9L, prevention plans in several general include provisions for alerting and Airspace Designations and Reporting industry standards. In that final rule, evacuating affected employees as well Points, dated September 2, 2003, and OSHA separated the requirements for as the applicable elements prescribed in effective September 16, 2003, is emergency action plans and fire 29 CFR 1910.38 and 29 CFR 1910.39, amended as follows: protection plans into two separate ‘‘Emergency action plans’’ and ‘‘Fire prevention plans,’’ respectively. Paragraph 2004 Jet Routes sections, 1910.38 and 1910.39, * * * * * respectively. * * * * * J–180 [Revised] Several general industry health Authority and Signature standards were revised at that time to John L. Henshaw, Assistant Secretary From Humble, TX; Daisetta, TX; Sawmill, reflect this change. The general industry LA; Little Rock, AR; Foristell, MO. of Labor for Occupational Safety and standard for MDA (29 CFR 1910. Health, U.S. Department of Labor, 200 J–181 [Revised] 1050(d)(1)(iii)) was revised to read as Constitution Ave., NW., Washington, From Ranger, TX; Okmulgee, OK; Neosho, follows: ‘‘The plan shall specifically DC 20210, directed the preparation of MO; Hallsville, MO; INT Hallsville 053° and include provisions for alerting and Bradford, IL, 219° radials; to Bradford. this notice under the authority granted evacuating affected employees as well by: Sections 4, 6(b), 8(c), and 8(g) of the * * * * * as elements prescribed in 29 CFR Occupational Safety and Health Act of J–187 [New] 1910.38 and 29 CFR 1910.39, 1970 (29 U.S.C. 653, 655, 657); section ‘Emergency actions plans’ and ‘Fire From Memphis, TN; Foristell, MO. 107 of the Contract Work Hours and prevention plans,’ respectively.’’ The * * * * * Safety Standards Act (the Construction same provision in the MDA Standard for Safety Act) (40 U.S.C. 333); section 41, Issued in Washington, DC, on November Construction (29 CFR 1926.60) was not 29, 2004. the Longshore and Harbor Worker’s similarly revised at that time. Since the Compensation Act (33 U.S.C. 941); Reginald Matthews, Agency intended to revise all health Secretary of Labor’s Order No. 5–2002 Manager, Airspace and Rules. standards to reflect this change, OSHA (67 FR 65008); and 29 CFR part 1911. [FR Doc. 04–26749 Filed 12–3–04; 8:45 am] is accordingly correcting the MDA Signed at Washington, DC, this 18 day of BILLING CODE 4910–13–P Construction Standard to make it consistent with the revised language in November 2004. the other health standards. In making John L. Henshaw, DEPARTMENT OF LABOR this correction, OSHA maintains the Assistant Secretary of Labor. safety and health protection provided to [FR Doc. 04–26739 Filed 12–3–04; 8:45 am] Occupational Safety and Health employees without increasing the BILLING CODE 4510–26–M Administration regulatory burden on employers.

29 CFR Part 1926 List of Subjects in 29 CFR Part 1926 DEPARTMENT OF HOMELAND [Docket No. H040] Chemicals, Construction industry, SECURITY Diving, Electric power, Fire prevention, RIN 1218–0184 Gases, Government Contracts, Coast Guard Methylenedianiline in Construction; Hazardous substances. Health records, Correction Lead, Motor vehicle safety, Noise 33 CFR Part 117 control, Occupational safety and health, AGENCY: Occupational Safety and Health Radiation protection. Reporting and [CGD01–04–142] Administration (OSHA), Labor. recordkeeping requirements, Signs and ACTION: Final rule; correction. symbols. Drawbridge Operation Regulations: Connecticut River, CT SUMMARY: OSHA is revising the I Therefore, OSHA amends 29 CFR part regulatory text of the 1926 as follows: AGENCY: Coast Guard, DHS.

VerDate jul<14>2003 16:45 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 70374 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations

ACTION: Notice of temporary deviation DEPARTMENT OF HOMELAND safety hazard to vessel and vehicle from regulations. SECURITY traffic transiting the area. Therefore, publishing an NPRM and delaying its SUMMARY: The Commander, First Coast Coast Guard effective date would be contrary to the Guard District, has issued a temporary public interest because immediate deviation from the drawbridge operation 33 CFR Part 165 action is needed to minimize the risk of regulations for the Amtrak Old [CGD07–04–146] potential bridge allisions by vessels Saybrook-Old Lyme Bridge, mile 3.4, utilizing the main channel under span RIN 1625–AA11 ‘‘A’’ (bascule portion) of the bridge and across the Connecticut River, to enhance the safety of vessels Connecticut. This deviation from the Regulated Navigation Area; San Carlos transiting the area and vehicles crossing regulations allows the bridge owner to Bay, FL over the bridge. The Coast Guard will require a twelve-hour advance notice for AGENCY: issue a broadcast notice to mariners to bridge openings between 6 p.m. and 6 Coast Guard, DHS. ACTION: Temporary final rule; request for advise mariners of the restrictions. a.m. from 10 p.m. on January 14, 2005 For the same reasons, under 5 U.S.C. comments. through 10 a.m. on February 14, 2005. 553(d)(3), the Coast Guard finds that This deviation is necessary in order to SUMMARY: The Coast Guard is good cause exists for making this rule facilitate necessary inspection and establishing a temporary regulated effective less than 30 days after repairs at the bridge. navigation area on the waters of San publication in the Federal Register. We do not now plan to hold a public DATES: This deviation is effective from Carlos Bay, Florida. The regulated navigation area is needed to minimize meeting. But you may submit a request January 14, 2005 through February 14, for a meeting by writing to Marine 2005. the risk of potential bridge allisions by vessels utilizing the main channel under Safety Division, Seventh Coast Guard FOR FURTHER INFORMATION CONTACT: Judy span ‘‘A’’ (bascule portion) of the District, at the address under ADDRESSES Leung-Yee, Project Officer, First Coast Sanibel Island Causeway Bridge and explaining why one would be Guard District, at (212) 668–7195. enhance the safety of vessels transiting beneficial. If we determine that one the area and vehicles crossing over the would aid this rulemaking, we will hold SUPPLEMENTARY INFORMATION: The Old bridge. Vessels transiting the regulated one at a time and place announced by Saybrook-Old Lyme Bridge, at mile 3.4, navigation area must comply with all a later notice in the Federal Register. across the Connecticut River has a the regulations of the temporary section; We encourage you to participate in vertical clearance in the closed position however the Coast Guard may change this rulemaking by submitting of 19 feet at mean high water and 22 feet this rule based on comments received. comments and related material. If you do so, please include your name and at mean low water. The existing DATES: This rule is effective from 11:59 address, identify the docket number for drawbridge operating regulations are p.m. on November 28, 2004 until 8 a.m. listed at 33 CFR 117.205(b). this rulemaking (CGD07–04–146), on November 28, 2005. Comments must indicate the specific section of this The owner of the bridge, National be received by January 29, 2005. document to which each comment Railroad Passenger Corporation ADDRESSES: Documents indicated in this applies, and give the reason for each (Amtrak), requested a temporary preamble as being available in the comment. Please submit all comments deviation from the drawbridge operating docket are part of docket CGD07–04– and related material in an unbound 146 and are available for inspection or 1 regulations to facilitate electrical format, no larger than 8 ⁄2 by 11 inches, maintenance repairs at the bridge. copying at the Seventh Coast Guard suitable for copying. If you would like This deviation to the operating District Marine Safety Division, 8th to know they reached us, please enclose Floor, 909 SE., 1st Ave., Miami, FL regulations allows the bridge owner to a stamped, self-addressed postcard or 33131–3050 between 7:30 a.m. and 4 require at least a twelve-hour advance envelope. We will consider all p.m., Monday through Friday, except notice for bridge openings at the Old comments and material received during Federal holidays. Saybrook-Old Lyme Bridge between 6 the comment period. We may change You may send comments and related this rule in view of them. p.m. and 6 a.m. from 10 p.m. on January materials to Commander (M) Seventh 14, 2005 through 10 a.m. on February Coast Guard District Marine Safety Background and Purpose 14, 2005. Division, 8th Floor, 909 SE. 1st Ave., On November 18, 2003, the Lee In accordance with 33 CFR 117.35(c), Miami, FL 33131–3050. County Board of Commissioners issued this work will be performed with all due FOR FURTHER INFORMATION CONTACT: an emergency declaration that present speed in order to return the bridge to Lieutenant Commander Steven Lang, conditions of the Sanibel Island normal operation as soon as possible. Project Officer, Seventh Coast Guard Causeway Bridge pose an immediate This deviation from the operating District, Marine Safety Branch at 305– threat to the safety of the traveling regulations is authorized under 33 CFR 415–6865. public. Immediate initial action was 117.35. SUPPLEMENTARY INFORMATION: required to minimize the risk of potential bridge allisions of vessels Dated: November 22, 2004. Regulatory Information utilizing the main channel under span David P. Pekoske, We did not publish a notice of ‘‘A’’ (bascule portion) and enhance the Rear Admiral, U.S. Coast Guard, Commander, proposed rulemaking (NPRM) for this safety of vessels transiting the area and First Coast Guard District. regulation. Under 5 U.S.C. 553(b)(B), the vehicles crossing over the bridge. The [FR Doc. 04–26747 Filed 12–3–04; 8:45 am] Coast Guard finds that good cause exists Coast Guard established an RNA (68 FR BILLING CODE 4910–15–P for not publishing an NPRM. 68518) in the vicinity of the bridge from Information concerning the unchanged November 29, 2003, through November condition of the Sanibel Island Bridge 28, 2004. was not received until November 2, On November 2, 2004, Sanibel County 2004. The Bridge continues to pose a engineers reevaluated the Sanibel Island

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations 70375

Bridge. The condition of the bridge Regulatory Evaluation could better evaluate its effects on them continues to pose a threat to the safety This rule is not a ‘‘significant and participate in the rulemaking of the traveling public. The structural regulatory action’’ under section 3(f) of process. Small entities may contact the portions of the bridge have not been Executive Order 12866, Regulatory person listed under FOR FURTHER fully repaired due to mitigating Planning and Review, and does not INFORMATION CONTACT for assistance in circumstances. With recent hurricane require an assessment of potential costs understanding and participating in this storm activities the bridge fender system and benefits under section 6(a)(3) of that rulemaking. We also have a point of suffered severe damage delaying the Order. The Office of Management and contact for commenting on actions by project further. Budget has not reviewed it under that employees of the Coast Guard. Small The need for this regulated navigation Order. It is not ‘‘significant’’ under the businesses may send comments on the area (RNA) is further demonstrated by regulatory policies and procedures of actions of Federal employees who the recent actions of a tug and barge unit the Department of Homeland Security enforce, or otherwise determine that failed to comply with the then (DHS). The Coast Guard expects the compliance with, Federal regulations to existing RNA (68 FR 68518) on economic impact of this regulation to be the Small Business and Agriculture November 13, 2004. In violation of the so minimal that a full Regulatory Regulatory Enforcement Ombudsman RNA, the tug and barge attempted to Evaluation under the regulatory policies and the Regional Small Business pass under the bridge during a strong and procedures of DHS is unnecessary. Regulatory Fairness Boards. The outgoing current and allided with the The Coast Guard bases this finding on Ombudsman evaluates these actions bridge. This allision demonstrates the the following: Vessels may still transit annually and rates each agency’s need for the RNA to ensure the safety of the area, the waterway is not a major responsiveness to small business. If you vessels and vehicles transiting the area. commercial route, and the Coast Guard wish to comment on actions by employees of the Coast Guard, call 1– Discussion of Rule expects only modest delays due to the nature of the marine traffic that 888–REG–FAIR (1–888–734–3247). The regulated navigation area will traditionally uses this waterway. Collection of Information encompass the main channel under the Additionally, the Coast Guard is ‘‘A’’ span (bascule portion) of the This rule calls for no new collection soliciting comments to determine the of information under the Paperwork Sanibel Island Causeway Bridge out to impact on the boating public, and may 100 feet on either side of the bridge Reduction Act of 1995 (44 U.S.C. 3501– make adjustments based on comments 3520). inclusive of the main shipping channel. we receive. All vessels are required to transit the Federalism area at no-wake speed. However, Small Entities A rule has implications for federalism nothing in this rule negates the Under the Regulatory Flexibility Act under Executive Order 13132, requirement to operate at a safe speed as (5 U.S.C. 601–612), we have considered Federalism, if it has a substantial direct provided in the Navigation Rules and whether this rule would have a effect on State or local governments and Regulations. A one-way traffic scheme is significant economic impact on a would either preempt State law or imposed within the regulated navigation substantial number of small entities. impose a substantial direct cost of area. Overtaking is prohibited. Tugs The term ‘‘small entities’’ comprises compliance on them. We have analyzed with barges must be arranged in a push- small businesses, not-for-profit this rule under that Order and have ahead configuration with barges made organizations that are independently determined that it does not have up in tandem. Tugs must be of adequate owned and operated and are not implications for federalism. horsepower to fully maneuver the dominant in their fields, and barges. Tug and barge traffic may transit governmental jurisdictions with Unfunded Mandates Reform Act the regulated navigation area at slack populations of less than 50,000. The Unfunded Mandates Reform Act water only. Stern towing is prohibited The Coast Guard certifies under 5 of 1995 (2 U.S.C. 1531–1538) requires except by assistance towing vessels, U.S.C. 605(b) that this rule will not have Federal agencies to assess the effects of subject to certain conditions. Side a significant economic impact on a their discretionary regulatory actions. In towing is permitted. Assistance towing substantial number of small entities. particular, the Act addresses actions vessels may conduct stern tows when This rule may affect the following that may result in the expenditure by a the disabled vessel being towed is less entities, some of which might be small State, local, or tribal government, in the than or equal to 30 feet in length. For entities: The owners or operators of aggregate, or by the private sector of disabled vessels greater than 30 feet in vessels intending to transit a portion of $100,000,000 or more in any one year. length, assistance towing vessels may San Carlos Bay. This regulated Though this rule will not result in such use a towing arrangement in which one navigation area will not have a an expenditure, we do discuss the assistance towing vessel is in the lead, significant economic impact on a effects of this rule elsewhere in this towing the disabled vessel, and another substantial number of small entities for preamble. assistance towing vessel is astern of the the following reasons: Vessels may still disabled vessel. Assistance towing transit the area; the waterway is not a Taking of Private Property vessels must be of adequate horsepower major commercial route, and the Coast This rule will not effect a taking of to maneuver the vessel under tow and Guard expects only modest delays due private property or otherwise have may transit the RNA at slack water only. to the nature of the marine traffic that taking implications under Executive These regulations are going into effect to traditionally uses the waterway. Order 12630, Governmental Actions and minimize the risk of potential bridge Assistance for Small Entities Interference with Constitutionally allisions by vessels utilizing the main Protected Property Rights. channel under span ‘‘A’’ (bascule Under section 213(a) of the Small portion) of the Sanibel Island Causeway Business Regulatory Enforcement Civil Justice Reform Bridge and enhance the safety of vessels Fairness Act of 1996 (Public Law 104– This rule meets applicable standards transiting the area and vehicles crossing 121), we offer to assist small entities in in sections 3(a) and 3(b)(2) of Executive over the bridge. understanding the rule so that they Order 12988, Civil Justice Reform, to

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 70376 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations

minimize litigation, eliminate Environment the barges. Tug and barge traffic may ambiguity, and reduce burden. We have analyzed this rule under transit the RNA at slack water only. Protection of Children Commandant Instruction M16475.lD, (4) Stern tows are prohibited except which guides the Coast Guard in for assistance towing vessels, subject to We have analyzed this rule under complying with the National conditions. Side tows are authorized. Executive Order 13045, Protection of Environmental Policy Act of 1969 Assistance towing vessels may conduct Children from Environmental Health (NEPA)(42 U.S.C. 4321–4370f), and stern tows of disabled vessels that are Risks and Safety Risks. This rule is not have concluded that there are no factors less than or equal to 30 feet in length. an economically significant rule and in this case that would limit the use of For vessels that are greater than 30 feet does not create an environmental risk to a categorical exclusion under section in length, assistance towing vessels may health or risk to safety that may 2.B.2 of the Instruction. Therefore, this use a towing arrangement in which one disproportionately affect children. rule is categorically excluded, under assistance towing vessel is in the lead, Indian Tribal Governments figure 2–1, paragraph (34)(g), of the towing the disabled vessel, and another Instruction, from further environmental assistance towing vessel is astern of the This rule does not have tribal documentation. This rule fits in disabled vessel. All assistance towing implications under Executive Order paragraph (34)(g) because it is a vessels operating within the regulated 13175, Consultation and Coordination regulated navigation area. Under figure navigation area must be of adequate with Indian Tribal Governments, 2–1, paragraph (34)(g), of the horsepower to maneuver the vessel because it does not have a substantial Instruction, an ‘‘Environmental Analysis under tow and the transit must be at direct effect on one or more Indian Check List’’ and a ‘‘Categorical slack water only. tribes, on the relationship between the Exclusion Determination’’ are not (c) Definitions. The following Federal Government and Indian tribes, required for this rule. definitions apply to this section: or on the distribution of power and responsibilities between the Federal List of Subjects in 33 CFR Part 165 Assistance towing means assistance provided to disabled vessels. Government and Indian tribes. Harbors, Marine safety, Navigation Assistance towing vessels means Energy Effects (water), Reporting and recordkeeping requirements, Waterways. commercially registered or documented We have analyzed this rule under I For the reasons discussed in the vessels that have been specially Executive Order 13211, Actions preamble, the Coast Guard amends 33 equipped to provide commercial Concerning Regulations That CFR part 165 as follows: services in the marine assistance Significantly Affect Energy Supply, industry. Distribution, or Use. We have PART 165—REGULATED NAVIGATION Disabled vessel means a vessel, which determined that it is not a ‘‘significant AREAS AND LIMITED ACCESS AREAS while being operated, has been rendered energy action’’ under that order because incapable of proceeding under its own I 1. The authority citation for part 165 it is not a ‘‘significant regulatory action’’ power and is in need of assistance. continues to read as follows: under Executive Order 12866 and is not Overtaking means a vessel shall be likely to have a significant adverse effect Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. deemed to be overtaking when coming on the supply, distribution, or use of Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05–1(g), 6.04–1, 6.04–6, and 160.5; Pub. L. up with another vessel from a direction energy. The Administrator of the Office more than 22.5 degrees abaft her beam, of Information and Regulatory Affairs 107–295, 116 Stat. 2064 Department of Homeland Security Delegation No. 0170.1. that is, in such a position with reference has not designated it as a significant to the vessel she is overtaking, that at I 2. Temporarily add new section energy action. Therefore, it does not night she would be able to see only the 165.T07–146 to read as follows: require a Statement of Energy Effects stern light of the vessel but neither of under Executive Order 13211. § 165.T07–146 Regulated Navigation Area, her sidelights. Technical Standards San Carlos Bay, Florida Slack water means the state of a tidal (a) Regulated Area. The following area current when its speed is near zero, The National Technology Transfer is a regulated navigation area (RNA): the especially the moment when a reversing and Advancement Act (NTTAA) (15 waters bounded by the following points: current changes direction and its speed U.S.C. 272 note) directs agencies to use NW Corner: 26°28′59″ N, 082°00′54″ W; is zero. The term also is applied to the voluntary consensus standards in their NE Corner: 26°28′59″ N, 082°00′52″ W; entire period of low speed near the time regulatory activities unless the agency SE Corner: 26°28′57″ N, 082°00′51″ W; of turning of the current when it is too provides Congress, through the Office of SW Corner: 26°28′57″ N, 082°00′53″ W. weak to be of any practical importance Management and Budget, with an (b) Regulations. in navigation. explanation of why using these (1) A vessel in the RNA established Vessel means every description of standards would be inconsistent with under paragraph (a) of this section will applicable law or otherwise impractical. watercraft, including non-displacement operate at no-wake speed. Nothing in craft and seaplanes, used or capable of Voluntary consensus standards are this rule is to be construed as to negate technical standards (e.g., specifications being used as a means of transportation the requirement to at all times operate on the water. of materials, performance, design, or at a safe speed as provided in the operation; test methods; sampling Navigation Rules and Regulations. (d) Violations. Persons in violation of procedures; and related management (2) A one-way traffic scheme is these regulations will be subject to civil systems practices) that are developed or established. Vessel traffic may proceed penalty under 33 U.S.C. 1232 of this adopted by voluntary consensus in one direction at a time through the part, to include a maximum civil standards bodies. RNA. Overtaking is prohibited. penalty of $32,500 per violation. This rule does not use technical (3) Tugs with barges must be arranged (e) Effective period. This section is standards. Therefore, we did not in a push-ahead configuration with the effective from 11:59 p.m. on November consider the use of voluntary consensus barges made up in tandem. Tugs must 28, 2004, until 8 a.m. on November 28, standards. be of adequate horsepower to maneuver 2005.

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations 70377

Dated: November 24, 2004. PART 201–GENERAL PROVISIONS construction from future flooding. David B. Peterman, Section 1315 of the National Flood I 1. The authority citation for Part 201 Rear Admiral, U.S. Coast Guard, Commander, Insurance Act of 1968, as amended, 42 Seventh Coast Guard District. continues to read as follows: U.S.C. 4022, prohibits flood insurance [FR Doc. 04–26748 Filed 12–3–04; 8:45 am] Authority: 17 U.S.C. 702 coverage as authorized under the National Flood Insurance Program, 42 BILLING CODE 4910–15–P I 2. Section 201.2(b)(2) is amended by U.S.C. 4001 et seq.; unless an removing ‘‘8:30 a.m. to 5:00,’’. appropriate public body adopts Dated: December 1, 2004 LIBRARY OF CONGRESS adequate floodplain management Marilyn J. Kretsinger, measures with effective enforcement Copyright Office Associate General Counsel. measures. The communities listed in [FR Doc. 04–26740 Filed 12–3–04; 8:45 am] this document no longer meet that 37 CFR Part 201 BILLING CODE 1410–30–S statutory requirement for compliance with program regulations, 44 CFR part [PA 2004-2] 59 et seq. Accordingly, the communities Inspection and Copying of Records DEPARTMENT OF HOMELAND will be suspended on the effective date SECURITY in the third column. As of that date, AGENCY: Copyright Office, Library of flood insurance will no longer be Congress. Federal Emergency Management available in the community. However, ACTION: Final rule; technical Agency some of these communities may adopt amendment. and submit the required documentation 44 CFR Part 64 of legally enforceable floodplain SUMMARY: This document makes a non- management measures after this rule is substantive, technical amendment to a [Docket No. FEMA–7857] published but prior to the actual Copyright Office regulation. suspension date. These communities Suspension of Community Eligibility DATES: This rule is effective January 5, will not be suspended and will continue 2005. AGENCY: Federal Emergency their eligibility for the sale of insurance. FOR FURTHER INFORMATION CONTACT: Management Agency, Emergency A notice withdrawing the suspension of Sandra L. Jones, Writer–Editor, or Preparedness and Response Directorate, the communities will be published in Marilyn J. Kretsinger, Associate General Department of Homeland Security. the Federal Register. In addition, the Federal Emergency Counsel, Copyright GC/I&R, PO Box ACTION: Final rule. Management Agency has identified the 70400, Southwest Station, Washington, SUMMARY: This rule identifies special flood hazard areas in these DC 20024. Telephone: (202) 707–8380. communities, where the sale of flood communities by publishing a Flood Telefax: (202) 707–8366. insurance has been authorized under Insurance Rate Map (FIRM). The date of SUPPLEMENTARY INFORMATION: This rule the National Flood Insurance Program the FIRM if one has been published, is makes a technical amendment to 37 CFR (NFIP), that are suspended on the indicated in the fourth column of the 201 to remove the hours of direct public effective dates listed within this rule table. No direct Federal financial use of computers intended to access the because of noncompliance with the assistance (except assistance pursuant to automated equivalent of portions of the floodplain management requirements of the Robert T. Stafford Disaster Relief in–process files in the Records the program. If the Federal Emergency and Emergency Assistance Act not in Maintenance Unit of the Copyright Management Agency (FEMA) receives connection with a flood) may legally be Office. New hours of 9:00 a.m. to 4:30 documentation that the community has provided for construction or acquisition p.m. are being implemented; but for adopted the required floodplain of buildings in the identified special administrative reasons, the Office management measures prior to the flood hazard area of communities not decided not to include the time effective suspension date given in this participating in the NFIP and identified schedule as part of the regulation. rule, the suspension will be withdrawn for more than a year, on the Federal The reason for the change is current by publication in the Federal Register. Emergency Management Agency’s staff resources. A very small staff, EFFECTIVE DATES: The effective date of initial flood insurance map of the working on a fixed schedule of 8:30 a.m. each community’s suspension is the community as having flood-prone areas to 5:00 p.m., covers this public area. third date (‘‘Susp.’’) listed in the third (section 202(a) of the Flood Disaster Reducing the hours of public access, column of the following tables. Protection Act of 1973, 42 U.S.C. gives the staff needed time at the 4106(a), as amended). This prohibition ADDRESSES: If you wish to determine beginning and end of the day to open up against certain types of Federal whether a particular community was and close down the area for the public. assistance becomes effective for the suspended on the suspension date, The new hours will both provide the communities listed on the date shown contact the appropriate FEMA Regional staff with the time necessary to in the last column. The Administrator complete these tasks without working Office or the NFIP servicing contractor. finds that notice and public comment beyond their normal duty schedule and FOR FURTHER INFORMATION CONTACT: under 5 U.S.C. 553(b) are impracticable afford the public a sufficient amount of Michael M. Grimm, Mitigation Division, and unnecessary because communities time to use the files. 500 C Street, SW., Room 412, listed in this final rule have been Washington, DC 20472, (202) 646–2878. List of Subjects in 37 CFR Part 201 adequately notified. SUPPLEMENTARY INFORMATION: The NFIP Each community receives a 6-month, Copyright. enables property owners to purchase 90-day, and 30-day notification Final Rule flood insurance which is generally not addressed to the Chief Executive Officer otherwise available. In return, that the community will be suspended I For the reasons set forth in the communities agree to adopt and unless the required floodplain preamble, 37 CFR part 201 is amended administer local floodplain management management measures are met prior to as follows: aimed at protecting lives and new the effective suspension date. Since

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 70378 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations

these notifications have been made, this requirements, and after the effective standards of section 2(b)(2) of Executive final rule may take effect within less date, flood insurance will no longer be Order 12778, October 25, 1991, 56 FR than 30 days. available in the communities unless 55195, 3 CFR, 1991 Comp.; p. 309. they take remedial action. National Environmental Policy Act. List of Subjects in 44 CFR Part 64 This rule is categorically excluded from Regulatory Classification. This final the requirements of 44 CFR part 10, rule is not a significant regulatory action Flood insurance, Floodplains. Environmental Considerations. No under the criteria of section 3(f) of I Accordingly, 44 CFR part 64 is environmental impact assessment has Executive Order 12866 of September 30, amended as follows: been prepared. 1993, Regulatory Planning and Review, 58 FR 51735. PART 64—[AMENDED] Regulatory Flexibility Act. The Paperwork Reduction Act. This rule Administrator has determined that this does not involve any collection of I 1. The authority citation for part 64 rule is exempt from the requirements of information for purposes of the continues to read as follows: the Regulatory Flexibility Act because Paperwork Reduction Act, 44 U.S.C. Authority: 42 U.S.C. 4001 et seq.; the National Flood Insurance Act of 3501 et seq. Reorganization Plan No. 3 of 1978, 3 CFR, 1968, as amended, 42 U.S.C. 4022, Executive Order 12612, Federalism. 1978 Comp.; p. 329; E.O. 12127, 44 FR 19367, prohibits flood insurance coverage This rule involves no policies that have 3 CFR, 1979 Comp.; p. 376. unless an appropriate public body federalism implications under Executive § 64.6 [Amended] adopts adequate floodplain management Order 12612, Federalism, October 26, measures with effective enforcement 1987, 3 CFR, 1987 Comp.; p. 252. I 2. The tables published under the measures. The communities listed no Executive Order 12778, Civil Justice authority of § 64.6 are amended as longer comply with the statutory Reform. This rule meets the applicable follows:

Date certain Federal assist- Community Effective date authorization/cancellation of Current effective ance no longer State and location No. sale of flood insurance in community map date available in special flood hazard areas

Region I Maine: Kenduskeag, Town of, Penobscot 230108 March 15, 1976, Emerg; September 18, 9/18/1985 ...... 12/02/2004. County 1985, Reg; December 2, 2004, Susp. Region IV Alabama: Randolph County, Unincorporated 010182 November 5, 2003, Emerg; November 5, ...... do ...... do. Areas 2003, Reg; December 2, 2004, Susp. Roanoke, City of, Randolph County ...... 010348 May 3, 1995, Emerg; May 3, 1995, Reg; ...... do ...... do. December 2, 2004, Susp. Wadley, Town of, Randolph County ..... 010183 July 15, 1975, Emerg; August 19, 1985, ...... do ...... do Reg; December 2, 2004, Susp. Wedowee, Town of, Randolph County 010401 October 29, 1998, Emerg; October 29, ...... do ...... do. 1998, Reg; December 2, 2004, Susp. Code for reading third column: Emerg.—Emergency; Reg.—Regular; Susp.—Suspension.

David I. Maurstad, ACTION: Final rule; correction. Background Acting Mitigation Division Director, The FCC published a document in the Emergency Preparedness and Response SUMMARY: The Federal Communications Directorate. Federal Register of April 6, 2004, (69 FR Commission published in the Federal 17946) regarding the adoption of [FR Doc. 04–26695 Filed 12–3–04; 8:45 am] Register of April 6, 2004, (69 FR 17946), changes to rules relating to areas known BILLING CODE 9110–12–P a document in the Quiet Zones as ‘‘Quiet Zones.’’ In FR Doc. 04–7799, proceeding, WT Docket No. 01–319, the document provided that the which incorrectly indicated in its DATES effective date of the document was June FEDERAL COMMUNICATIONS section that 47 CFR 1.924(a)(2) and 7, 2004, except for 47 CFR 1.924(a)(2) COMMISSION 1.924(d)(2) contained information and 1.924(d)(2) which were incorrectly collection modifications that have not identified as containing a new or 47 CFR Parts 1, 27, 74, 90, and 101 been approved by the Office of modified information collection that Management Budget (OMB). This required approval by OMB prior to [DA 04–2591; WT Docket No. 01–319; FCC document corrects the DATES section of becoming effective. Because 47 CFR 04–23] the April 6, 2004 document as set forth 1.924(a)(2) and 1.924(d)(2) are not in below. Practice and Procedure, Miscellaneous fact subject to approval by OMB, the Wireless Communications Services, DATES: Effective June 7, 2004. effective date of the April 6, 2004 document became effective, in its Experimental Radio, Auxiliary, Special FOR FURTHER INFORMATION CONTACT: entirety, on June 7, 2004. This Broadcast and Other Program Linda C. Chang, Federal document corrects the document Distributional Services, Private Land Communications Commission, Wireless published in the Federal Register of Mobile Radio Services, Fixed Telecommunications Bureau, 445 12th April 6, 2004 (69 FR 17946) and Microwave Services St., Washington, DC 20554, (202) 418– September 23, 2004 (69 FR 56956) in the 0620. AGENCY: Federal Communications Quiet Zones proceeding, WT Docket No. Commission. SUPPLEMENTARY INFORMATION: 01–319 by correcting the DATES section.

VerDate jul<14>2003 16:32 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations 70379

Federal Communications Commission. and considering public comments. Congress to designate the port of Linda C. Chang, Public hearings were conducted in Houston. However, the designation of Associate Division Chief, Mobility Division. Houston on June 10, 2004, in Memphis Houston has been under discussion for [FR Doc. 04–26742 Filed 12–3–04; 8:45 am] on July 1, 2004, and in Louisville on some time. At present, the Service has July 8, 2004. We published a proposed three wildlife inspectors on duty in BILLING CODE 6712–01–P rule to designate the ports of Houston, Houston, which fulfills the staffing Louisville, and Memphis, with a 30-day requirement that the Service has comment period, on April 22, 2004 (69 established for a designated port in DEPARTMENT OF THE INTERIOR FR 21806). funding and staffing models. Therefore, The Service selects designated ports Fish and Wildlife Service the designation of Houston would based upon numerous criteria, such as amount to changing the status of an volume of wildlife shipments, 50 CFR Part 14 existing Service port and would not geographic diversity, frequency of require start-up costs as would be the RIN 1018–AT59 requests for designated port exception case in Louisville and Memphis. permits, and the proximity to existing Houston is one of the fastest growing Conferring Designated Port Status on ports of entry. The Service presently has ports of entry in the nation in both Houston, TX; Louisville, KY; and 14 designated ports of entry for the international airfreight and shipping. Memphis, TN importation and exportation of wildlife The three airports comprising the AGENCY: Fish and Wildlife Service, and wildlife products: Anchorage, Houston Airport System handled Interior. Alaska; Atlanta, Georgia; Baltimore, 42,016,609 passengers and 330,701 tons Maryland; Boston, Massachusetts; of cargo in 2002. International air cargo ACTION: Final rule. Chicago, Illinois; Dallas/Fort Worth, tonnage at George Bush Intercontinental SUMMARY: We, the U.S. Fish and Texas; Honolulu, Hawaii; Los Angeles, increased by more than 62 percent in Wildlife Service, make Houston, Texas; California; Miami, Florida; New the past 10 years with a 10 percent per Louisville, Kentucky; and Memphis, Orleans, Louisiana; New York, New year increase in the past 5 years. Tennessee, designated ports under York; Portland, Oregon; San Francisco, Houston is the primary air cargo section 9(f) of the Endangered Species California; and Seattle, Washington. The gateway to and from Mexico, and the Act of 1973 (ESA). This action will Service maintains a staff of wildlife Houston sea port handles 81 steamship allow the direct importation and inspectors at each designated port to lines with 6,414 vessel calls, hauling exportation of wildlife and wildlife inspect and clear wildlife shipments. 175,000,000 tons of cargo between products through these growing Regulatory exceptions allow certain Houston and 200 countries worldwide international ports. We are changing the types of wildlife shipments to enter or in 2002. The Port of Houston ranks first regulations in 50 CFR part 14 to reflect leave the country through ports that are in the United States in tonnage this designation. not designated. Under certain imported, and third in tonnage conditions, importers and exporters can exported. Houston also has an extensive DATES: This rule is effective January 5, obtain a permit from the Service, called 2005. designated Foreign Trade Zone. a designated port exception permit, that Service records indicate that a wide ADDRESSES: Comments and materials allows their use of non-designated ports. variety of wildlife and wildlife products received, as well as supporting The importer or exporter will be are imported and exported through documentation used in the preparation responsible for additional fees Houston under designated port of this final rule, are available for public associated with the designated port exception permits. These wildlife and inspection, by appointment, during exception permit ($25) and the wildlife products include game regular business hours at the Branch of inspection of their wildlife shipment at trophies, reptile leather goods, scientific Investigations, U.S. Fish and Wildlife a non-designated port. and museum specimens, live tropical Service, Office of Law Enforcement, fish, and curios. The number of 4501 North Fairfax Drive, Suite 3000, Need for This Rulemaking designated port exception permits Arlington, Virginia 22203. Existing and projected increases in air issued for the port of Houston suggests FOR FURTHER INFORMATION CONTACT: and express cargo, along with that demand for the use of this port is Gregory Jackson, Special Agent in substantial growth in the number of high. In addition, the number of import/ Charge, Branch of Investigations, U.S. airline passengers, international visitors, export licenses issued to companies in Fish and Wildlife Service, Office of Law and hunters seeking clearance of the State of Texas has nearly doubled Enforcement, at (703) 358–1949. wildlife imports and exports, justify the since 2001. Doubtless, many of these SUPPLEMENTARY INFORMATION: designation of the ports of Houston, companies are doing business in or near Louisville, and Memphis. The the Houston area and will benefit from Background designation of these ports will improve the designation of this port. The ESA requires that all fish and service, while reducing costs, for Before this designation, the wildlife, with only limited exceptions, international air and ocean cargo and designated ports of entry for wildlife be imported and exported through mail carriers, small businesses, and the and wildlife products nearest to designated ports. Designated ports public, while maintaining effective Houston were Dallas/Fort Worth, Texas facilitate U.S. efforts to monitor wildlife monitoring and regulation of the U.S. (approximately 239 miles), and New trade and enforce wildlife protection wildlife trade. Orleans, Louisiana (approximately 347 laws and regulations by funneling In the Fiscal Year 2004 budget miles). In the 2003 Fiscal Year, 4,434 wildlife shipments through a limited appropriation for the Service’s Office of wildlife shipments were processed in number of locations. The Secretary of Law Enforcement, monies were Dallas/Forth Worth, and 659 wildlife the Interior, with the approval of the appropriated by Congress in the amount shipments were processed in New Secretary of the Department of of $700,000 each for the purpose of Orleans. We estimate that a significant Homeland Security, designates ports for establishing the designated ports of fraction of this volume will be shipped wildlife trade by regulation after Louisville and Memphis. The Service directly to Houston for Service holding a public hearing and collecting has not received an appropriation from inspection and clearance with its

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 70380 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations

designation, resulting in considerable and Superhub makes Memphis species into the nation. Prior to savings in shipping time and costs. International Airport the world’s largest September 11, 2001, CBP inspectors in Before this designation, importations or processor of international airfreight, Memphis initiated about 156 wildlife- exportations of wildlife or wildlife handling 2.63 million metric tons in related seizures per year, mostly products arriving in Houston without 2001, more than Los Angeles or Hong consisting of reptile leather goods. The Service clearance had to be either Kong. FedEx’s global network spans single Service agent stationed in shipped in-bond, under U.S. Bureau of over 210 countries, and 121,000 Memphis is responsible for criminal Customs and Border Protection (CBP) international shipments pass through investigations in all of West Tennessee authority, to designated ports of entry the Memphis hub each day. More than and, therefore, has had very little time for Service inspection and clearance, or 130 foreign-owned firms from 22 to devote to import/export matters. had to be accompanied by a designated countries employing over 17,000 However, by spending minimal time at port exception permit that authorized workers have relocated to Memphis in the FedEx air facility, he has routinely Service inspection and clearance in the past 20 years. In addition, Memphis made about 40 seizures of illegally Houston. Designated port exception is home to both rail and waterborne imported wildlife or wildlife products permits for Houston have been issued freight imports and exports, with a CBP annually. Designated port status for on a regular basis since the Service does port of entry for such cargo. In 2001, the Memphis will expedite the processing have three wildlife inspectors on duty at International Port of Memphis handled of wildlife shipments, which is that location. However, either 16,907,000 tons of cargo. Memphis is financially advantageous for Memphis’ alternative creates delays and increased served by five Class 1 railroads, which and the region’s carriers, importers, and costs to businesses. operate approximately 220 freight trains exporters, while interdicting the illegal In Louisville, the presence of the daily through the city. international import and export trade in United Parcel Service (UPS) hub at the Before this designation, the wildlife and wildlife products. Louisville International Airport makes designated ports of entry for wildlife In summary, the Service makes Louisville the 6th largest handler of air and wildlife products nearest to Houston, Louisville, and Memphis cargo in the world. In 2002, UPS at Memphis were New Orleans, Louisiana designated ports under section 9(f) of Louisville handled 3,360,155,981 lbs. of (approximately 402 miles), Dallas, Texas the ESA. The justification for this air cargo in 3.5 million shipments, (approximately 452 miles), and Atlanta, designation is based primarily on past including approximately 665,000 CBP Georgia (approximately 463 miles). In and projected increases in the import import entries. In addition, the port of and export of wildlife or wildlife Louisville had 34,354 CBP entries for the 2003 Fiscal Year, 659 wildlife shipments were processed in New products through these ports. The result other importations and waterborne of this designation will be to ease the cargo at the Louisville Container Freight Orleans, 4,434 wildlife shipments were processed in Dallas, and 2,020 wildlife financial and administrative burden on Port separate from the UPS facility. companies and individuals seeking to Before this designation, the shipments were processed in Atlanta. In addition, 11,800 wildlife shipments import or export wildlife or wildlife designated ports of entry for wildlife products through the ports of Houston, and wildlife products nearest to were processed in Anchorage, which is Louisville, and Memphis. With this Louisville were Chicago, Illinois the Pacific rim first port of landing for final rule, the list of designated ports is (approximately 297 miles), and Atlanta, FedEx. We estimate that a significant now alphabetized by city name. Georgia (approximately 421 miles). In percentage of this volume will be the 2003 Fiscal Year, 5,434 wildlife shipped directly to Memphis for Service Summary of Public Comments Received shipments were processed in Chicago, inspection and clearance with its designation, resulting in considerable In response to our proposed rule to and 2,020 wildlife shipments were designate the ports of Houston, processed in Atlanta. In addition, savings in shipping time and costs. Before this designation, importations or Louisville, and Memphis, published on 11,800 wildlife shipments were April 22, 2004 (69 FR 21806), we processed in Anchorage, which is the exportations of wildlife or wildlife products arriving in Memphis without received a total of 35 comments. All of Pacific rim first port of landing for UPS. these comments supported the We estimate that a significant fraction of Service clearance had to be shipped in- bond, under CBP authority, to designation of Houston, Louisville, and this volume will be shipped directly to Memphis. In addition, we received three Louisville for Service inspection and designated ports of entry for Service written comments at our hearing in clearance with its designation, resulting inspection and clearance, thereby Houston, and one written comment at in considerable savings in shipping time creating delays and increased costs to our hearing in Louisville. All of these and costs. Before this designation, businesses. Designated port exception comments supported the designation of importations or exportations of wildlife permits for Memphis have been issued these ports. or wildlife products arriving in on an extremely limited basis since the Louisville without Service clearance Service has only one special agent at Required Determinations had to be shipped in-bond, under CBP that location whose responsibilities Executive Order 12866 (Regulatory authority, to designated ports of entry extend far beyond the port. While there Planning and Review) for Service inspection and clearance, are 18 CBP inspectors and 10 U.S. thereby creating delays and increased Department of Agriculture Inspectors in This rule has not been reviewed by costs to businesses. Designated port Memphis, the absence of Service the Office of Management and Budget exception permits for Louisville have inspectors has increased the likelihood (OMB) under Executive Order 12866. been issued on an extremely limited that illegal wildlife shipments have Under the criteria in Executive Order basis since the Service does not been imported or exported through 12866, this rule is not a significant currently have staff at that location, and Memphis, impacting both the United regulatory action. issuing these permits can only be done States’ ability to fulfill treaty obligations a. This rule will not have an annual subject to the availability of Service staff under the Convention on International economic effect of $100 million or from other ports to conduct inspections. Trade in Endangered Species (CITES) adversely affect an economic sector, In Memphis, the presence of the and creating an avenue for the productivity, jobs, the environment, or Federal Express (FedEx) headquarters introduction of injurious or invasive other units of government. A cost-

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations 70381

benefit and economic analysis is not establish Houston, Louisville, and Houston, Louisville, and Memphis, the required. Memphis as designated ports, all elimination of costs associated with The purpose of this rule is to confer importers and exporters will save the shipping under CBP bond to a designated port status on Houston, $25 designated port exception permit designated port will amount to a Louisville, and Memphis. Changing the fee. substantial savings for importers and status of these ports will have very little d. This rule will not raise novel legal exporters of wildlife or wildlife or no adverse effect on the economic or policy issues. products. In addition, the designation of sector, productivity, jobs, or the This rule will not raise novel legal or these ports will provide small entities environment, or other units of policy issues because it is based upon with opportunities for additional government. This rule is intended to specific language in the ESA and the brokerage, freight forwarding, and decrease the administrative and Code of Federal Regulations, which has related services to accommodate the financial burden on wildlife importers been applied numerous times to various increased volume of imports and and exporters by allowing them to use ports around the country. exports of wildlife and wildlife products the ports of Houston, Louisville, and Regulatory Flexibility Act (5 U.S.C. 601 through these ports. Memphis for all varieties of wildlife et seq.) b. This rule will not cause a major shipments. This rule provides a increase in costs or prices for significant benefit to those businesses The Department of the Interior has consumers, individual industries, that import or export wildlife or wildlife determined that this rule will not have Federal, State, or local government products by allowing the inspection of a significant economic effect on a agencies, or geographic regions. shipments in Houston, Louisville, and substantial number of small entities This rule is intended to ease the Memphis, and will result in a savings under the Regulatory Flexibility Act (5 financial and administrative burden on for the importer or exporter in both time U.S.C. 601 et seq.). An initial regulatory companies and individuals seeking to and the expense of shipping to a flexibility analysis is not required. In import or export wildlife or wildlife designated port for Service inspection addition, a Small Entity Compliance products through the ports of Houston, and clearance. Guide is not required. Louisville, and Memphis, thereby b. This rule will not create Most of the businesses that engage in decreasing costs or prices for consumers inconsistencies with other agencies’ commerce by importing or exporting or individual businesses. actions. wildlife or wildlife products would be The Service is the lead agency considered small businesses as defined c. This rule does not have significant regulating wildlife trade through the under the Regulatory Flexibility Act. negative effects on competition, declaration process, the issuance of This rule is intended to ease the employment, investment, productivity, permits to conduct activities affecting financial and administrative burden on innovation, or the ability of U.S.-based wildlife and their habitats, and carrying companies and individuals seeking to companies to compete with foreign- out the United States’ obligations under import or export wildlife or wildlife based companies. CITES. Therefore, this rule has no effect products through the ports of Houston, This rule is intended to ease the on other agencies’ responsibilities and Louisville, and Memphis. This burden financial and administrative burden on will not create inconsistencies with will be eased through the reduction or companies and individuals seeking to other agencies’ actions. elimination of user fees, and the import or export wildlife or wildlife c. This rule will not materially affect elimination of the need for designated products through the ports of Houston, entitlements, grants, user fees, loan port exception permits. In addition, the Louisville, and Memphis, thereby programs, or the rights and obligations designation of these ports will provide promoting competition, employment, of their recipients. small entities with opportunities for and investment, and increasing the This rule will not materially affect additional brokerage, freight forwarding, ability of U.S.-based enterprises to entitlements, grants, loan programs, or and related services to accommodate the compete with foreign-based enterprises. the rights and obligations of their increased volume of imports and Unfunded Mandates Reform Act (2 recipients. This rule will, however, exports of wildlife and wildlife products U.S.C. 1501 et seq.) affect user fees. User fees will be through these ports. These businesses Under the Unfunded Mandates decreased or cancelled depending on would be considered by the Small Reform Act (2 U.S.C. 1501 et seq.), this whether the import or export of wildlife Business Administration (SBA) as ‘‘All rule, as proposed, will not ‘‘significantly or wildlife products is for commercial Other Support Activities for or uniquely’’ affect small governments. purposes. For example, when we Transportation,’’ with an SBA size establish Houston, which is currently standard of $6 million in average annual a. This rule will not significantly or staffed with three wildlife inspectors, as receipts. uniquely affect small governments. A a designated port, commercial importers Small Government Agency Plan is not and exporters will save a minimum of Small Business Regulatory Enforcement required. $40 per shipment and noncommercial Fairness Act (5 U.S.C. 804(2)) We are the lead agency for carrying importers and exporters will save a This rule is not a major rule under 5 out regulations that govern and monitor minimum of $95 per shipment. When U.S.C. 804(2), the Small Business the importation and exportation of we establish Memphis and Louisville, Regulatory Enforcement Fairness Act. wildlife and wildlife products. which are not currently staffed with a. This rule does not have an annual Therefore this rule has no effect on wildlife inspectors, as designated ports, effect on the economy of $100 million small government’s responsibilities. commercial importers and exporters or more. b. This rule will not produce a will save all costs associated with This rule will not increase costs for Federal requirement that may result in inspections and clearance, such as small entities. Before this designation, a the combined expenditure by State, travel, salary, and per diem, and shipper who requested Service local, or tribal governments of $100 noncommercial importers and exporters clearance at Houston, Louisville, or million or greater in any year, so it is will save the $55 administrative fee plus Memphis had to have the shipment not a ‘‘significant regulatory action’’ all costs associated with inspections and continue under CBP bond to a under the Unfunded Mandates Reform clearance. In addition, when we designated port. With the designation of Act.

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 70382 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations

This rule will not result in any major Federal action significantly 1, title 50 of the Code of Federal combined expenditure by State, local, or affecting the quality of the human Regulations as set forth below. tribal governments. environment. An environmental impact statement/evaluation is not required. PART 14—IMPORTATION, Executive Order 12630 (Takings) This rule is categorically excluded from EXPORTATION, AND Under Executive Order 12630, this further National Environmental Policy TRANSPORTATION OF WILDLIFE rule does not have significant takings Act requirements, under part 516 of the I 1. The authority citation for part 14 implications. Under Executive Order Departmental Manual, Chapter 2, continues to read as follows: 12630, this rule does not affect any Appendix 1.10. constitutionally protected property Authority: 16 U.S.C. 668, 704, 712, 1382, rights. This rule will not result in the Executive Order 13175 (Tribal 1538(d)–(f), 1540(f), 3371–3378, 4223–4244, physical occupancy of property, the Consultation) and 512 DM 2 and 4901–4916; 18 U.S.C. 42; 31 U.S.C. 9701. (Government-to-Government physical invasion of property, or the I 2. Revise § 14.12 to read as follows: regulatory taking of any property. A Relationship With Tribes) takings implication assessment is not Under the President’s memorandum § 14.12 Designated ports. required. The purpose of this rule is to of April 29, 1994, ‘‘Government-to- The following ports of entry are confer designated port status on the Government Relations with Native designated for the importation and ports of Houston, Louisville, and American Tribal Governments’’ (59 FR exportation of wildlife and wildlife Memphis. The result will be easing the 22951), Executive Order 13175, and 512 products and are referred to hereafter as financial and administrative burden on DM 2, we have evaluated possible ‘‘designated ports’’: the public by eliminating the need for effects on Federally recognized Indian (a) Anchorage, Alaska. non-designated port permits, and tribes and have determined that there decreasing or eliminating the are no effects. Individual tribal members (b) Atlanta, Georgia. administrative fees associated with are subject to the same regulatory (c) Baltimore, Maryland. shipment inspections. Therefore, this requirements as other individuals who (d) Boston, Massachusetts. rule does not have significant takings engage in the import and export of (e) Chicago, Illinois. implications. wildlife or wildlife products. (f) Dallas/Fort Worth, Texas. Executive Order 13132 (Federalism) Executive Order 13211 (Energy Supply, (g) Honolulu, Hawaii. Under Executive Order 13132, this Distribution, or Use) (h) Houston, Texas. rule does not have significant On May 18, 2001, the President issued (i) Los Angeles, California. Federalism effects. A Federalism Executive Order 13211 on regulations (j) Louisville, Kentucky. evaluation is not required. This rule will that significantly affect energy supply, (k) Memphis, Tennessee. not have a substantial direct effect on distribution, and use. Executive Order the States, on the relationship between 13211 requires agencies to prepare (l) Miami, Florida. the Federal Government and the States, Statements of Energy Effects when (m) New Orleans, Louisiana. or on the distribution of power and undertaking certain actions. The (n) New York, New York. responsibilities among the various purpose of this rule is to confer (o) Portland, Oregon. levels of government. designated port status on the ports of (p) San Francisco, California. Houston, Louisville, and Memphis. This Executive Order 12988 (Civil Justice rule is not a significant regulatory action (q) Seattle, Washington. Reform) under Executive Order 12866 and it is Dated: November 29, 2004. Under Executive Order 12988, the not expected to significantly affect David P. Smith, Office of the Solicitor has determined energy supplies, distribution, and use. Deputy Assistant Secretary for Fish and that this rule does not overly burden the Therefore, this action is a not a Wildlife and Parks. judicial system and meets the significant energy action and no [FR Doc. 04–26717 Filed 12–3–04; 8:45 am] requirements of sections 3(a) and 3(b)(2) Statement of Energy Effects is required. BILLING CODE 4310–55–P of the Order. Specifically, this rule has been reviewed to eliminate errors and Endangered Species Act ensure clarity, has been written to A determination has been made under DEPARTMENT OF THE INTERIOR minimize lawsuits, provides a clear section 7 of the ESA that the revision of legal standard for affected actions, and part 14 will not affect federally listed Fish and Wildlife Service specifies in clear language the effect on species. existing Federal law or regulation. 50 CFR Part 17 Author Paperwork Reduction Act of 1995 (44 The originator of this rule is Mark RIN 1018–AT65 U.S.C. 3501 et seq.) Phillips, Office of Law Enforcement, Endangered and Threatened Wildlife This rule does not contain any U.S. Fish and Wildlife Service, and Plants; Establishment of an information collection requirements that Washington, DC. Additional Manatee Protection Area in require approval by the Office of List of Subjects in 50 CFR Part 14 Lee County, FL Management and Budget under the Paperwork Reduction Act, 44 U.S.C. Animal welfare, Exports, Fish, AGENCY: Fish and Wildlife Service, 3501 et seq. Imports, Labeling, Reporting and Interior. recordkeeping requirements, ACTION: Emergency rule. National Environmental Policy Act Transportation, Wildlife. This rule has been analyzed under the SUMMARY: We, the Fish and Wildlife Regulation Promulgation criteria of the National Environmental Service (Service), as required by Policy Act and 318 DM 2.2(g) and I For the reasons described above, we regulation, hereby provide notice of the 6.3(D). This rule does not amount to a amend part 14, subchapter B of chapter termination of the emergency

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations 70383

establishment of the Pine Island-Estero appointment, during normal business limited to, breeding, feeding, or Bay Refuge, which was effective upon hours at the South Florida ES Field sheltering (50 CFR 17.3). publication of a rule in the Federal Office, U.S. Fish and Wildlife Service, The MMPA sets a general Register on August 6, 2004, until 1339 20th Street, Vero Beach, Florida moratorium, with certain exceptions, on December 6, 2004. We also published a 32960. the take and importation of marine mammals and marine mammal products proposed rule to establish these areas as FOR FURTHER INFORMATION CONTACT: Jay and makes it unlawful for any person to the Pine Island-Estero Bay Manatee Slack (see ADDRESSES section), take, possess, transport, purchase, sell, Refuge by standard rulemaking telephone (772) 562–3909. procedures on August 6, 2004. Due to export, or offer to purchase, sell, or SUPPLEMENTARY INFORMATION: delays caused by recent hurricanes in export, any marine mammal or marine Florida (i.e., Charley, Frances, and Background mammal product unless authorized. Take, as defined by section 3(13) of the Jeanne) and in order to provide for The West Indian manatee (Trichecus MMPA, means to harass, hunt, capture, continued protection of this area during manatus) is federally listed as an or kill, or attempt to harass, hunt, the rulemaking process, while allowing endangered species under the ESA (16 adequate time for public hearings and capture, or kill any marine mammal. U.S.C. 1531 et seq.) (32 FR 4001) and is comments on the proposed designation, Harassment is defined by section 3(18) further protected under the MMPA (16 we are hereby using our emergency of the MMPA as any act of pursuit, U.S.C. 1361–1407). Manatees reside in authority to re-establish the temporary torment, or annoyance which—(i) has freshwater, brackish, and marine Pine Island-Estero Bay Refuge, effective the potential to injure a marine mammal habitats in coastal and inland December 6, 2004. The area established or marine mammal stock in the wild; or waterways of the southeastern United by this rule will be a manatee refuge, (ii) has the potential to disturb a marine States. The majority of the population and watercraft will be required to mammal or marine mammal stock in the can be found in waters of the State of proceed at either ‘‘slow speed’’ or at not wild by causing disruption of behavioral Florida throughout the year, and nearly more than 25 miles per hour, on an patterns, including, but not limited to, annual or seasonal basis, as marked. all manatees winter in peninsular migration, breathing, nursing, breeding, While adjacent property owners must Florida during the winter months. The feeding, or sheltering. comply with the speed restrictions, the manatee is a cold-intolerant species and Human use of the waters of the requires warm water temperatures southeastern United States has designation will not preclude ingress ° generally above 20 Celsius (68 increased as a function of residential and egress to private property. This ° action is authorized under the Fahrenheit) to survive during periods growth and increased visitation. This Endangered Species Act of 1973, as of cold weather. During the winter increased use is particularly evident in amended (ESA), and the Marine months, most manatees rely on warm the State of Florida. The population of Mammal Protection Act of 1972, as water from natural springs and Florida has grown by 124 percent since amended (MMPA), based on our industrial discharges for warmth. In 1970 (6.8 million to 15.2 million, U.S. determination that there is substantial warmer months, they expand their range Census Bureau) and is expected to evidence of imminent danger of taking and are occasionally seen as far north as exceed 18 million by 2010, and 20 one or more manatees and the Rhode Island on the Atlantic Coast and million by the year 2020. According to emergency designation of a manatee as far west as Texas on the Gulf Coast. a report by the Florida Office of refuge is necessary to prevent such Recent information indicates that the Economic and Demographic Research taking. In evaluating the need for overall manatee population has grown (2000), it is expected that, by the year emergency designation of this manatee since the species was listed (Service 2010, 13.7 million people will reside in protection area, we considered the 2001). However, in order for us to the 35 coastal counties of Florida. In a biological needs of the manatee, the determine that an endangered species parallel fashion to residential growth, level of take at these sites, and the has recovered to a point that it warrants visitation to Florida has also increased. likelihood of additional take of removal from the List of Endangered It is expected that Florida will have 83 manatees due to human activity. We and Threatened Wildlife and Plants, the million visitors annually by the year anticipate making a final determination species must have improved in status to 2020, up from 48.7 million visitors in on these sites in a final rule within the the point at which listing is no longer 1998. In concert with this increase of 120-day effective period of this appropriate under the criteria set out in human population growth and visitation emergency designation, unless State or section 4(a)(1) of the ESA. is the increase in the number of local governments implement measures Human activities, and particularly watercraft that travel Florida waters. In at these sites that would, in our view, waterborne activities, can result in the 2003, 743,243 vessels were registered in make such establishment unnecessary to take of manatees. Take, as defined by the State of Florida. This represents an prevent the taking of one or more the ESA, means to harass, harm, pursue, increase of 26 percent since 1993. manatees. hunt, shoot, wound, kill, trap, capture, The large increase in human use of collect, or to attempt to engage in any manatee habitat has had direct and DATES: In accordance with 50 CFR such conduct. Harm means an act which indirect impacts on this endangered 17.106, the effective date for this action kills or injures wildlife (50 CFR 17.3). species. Direct impacts include injuries will be December 6, 2004, which will Such an act may include significant and deaths from watercraft collisions, also be the date of publication in the habitat modification or degradation that deaths and injuries from water control following newspapers: Fort Myers kills or injures wildlife by significantly structure operations, lethal and News-Press; Cape Coral Daily Breeze; impairing essential behavioral patterns, sublethal entanglements with and, Naples Daily News. This including breeding, feeding, or commercial and recreational fishing emergency action will remain in effect sheltering. Harass includes intentional gear, and alterations of behavior due to for 120 days after publication in the or negligent acts or omissions that create harassment. Indirect impacts include Federal Register (through April 5, the likelihood of injury to wildlife by habitat destruction and alteration, 2005). annoying it to such an extent as to including decreases in water quality ADDRESSES: The complete file for this significantly disrupt normal behavioral throughout some aquatic habitats, rule is available for inspection, by patterns, which include, but are not decreases in the quantity of warm water

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 70384 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations

in natural spring areas, the spread of has been determined that manatees Without this emergency Federal marine debris, and general disturbance inhabit the area on a regular, periodic, designation, watercraft can be expected from human activities. or continuous basis; and (2) when the to travel at high speeds in areas Federal authority to establish FFWCC adopts rules, it must consider frequented by manatees, which would protection areas for the Florida manatee the rights of boaters, fishermen, and result in the take of one or more is provided by the ESA and the MMPA water-skiers, and the restrictions manatees. In fact, boat operators could and is codified in 50 CFR, part 17, adopted by the FFWCC must not unduly inadvertently be encouraged to travel at subpart J. We have discretion, by interfere with those rights. In this high speeds. While the State court regulation, to establish manatee instance the court found that the Rule invalidated speed limits in the areas protection areas whenever there is for four of the regulated areas did not adjacent to navigation channels, it did substantial evidence showing such meet the State standard for the not invalidate the 25-mile-per-hour establishment is necessary to prevent frequency of sightings and the rule speed limit in the navigation channels the taking of one or more manatees. In unduly interfered with the rights of that traverse the affected area. accordance with 50 CFR 17.106, areas voters. Thus, the designated manatee Therefore, the speed limit in the may be established on an emergency protection zones were invalidated, and navigation channel is now lower than basis when such takings are imminent. the citations were dismissed. that of the surrounding, shallower areas. We may establish two types of The legal basis for the action to be As a result, shallow-draft high-speed manatee protection areas—manatee taken by the Service differs markedly boats capable of traveling outside the refuges and manatee sanctuaries. A from that in the FFWCC v. Wilkinson navigation channels can be expected to manatee refuge, as defined in 50 CFR case. The Service’s action is not based be operated at high speeds (greater than 17.102, is an area in which we have on State law but rather is based upon a 25 miles per hour) in the areas more determined that certain waterborne Federal regulation, 50 CFR 17.106(a), likely to be frequented by manatees. activities would result in the taking of which provides the standard for an There is a history of manatee one or more manatees, or that certain emergency designation of a protected mortalities in the area as a result of waterborne activities must be restricted area. Specifically, this regulation collisions with watercraft. At least 18 to prevent the taking of one or more provides that a manatee protection area carcasses of manatees killed in manatees, including but not limited to, may be established ‘‘* * * at any time collisions with watercraft have been taking by harassment. A manatee [the Director] determines there is recovered in or immediately adjacent to sanctuary, as defined in 50 CFR 17.102, substantial evidence that there is the designated areas since 1999 is an area in which we have determined imminent danger of a taking of one or (http://www.floridamarine.org, 2004), that any waterborne activity would more manatees, and that such with 4 carcasses recently recovered in result in the taking of one or more establishment is necessary to prevent close proximity to the sites following manatees, including but not limited to, such a taking.’’ the State court action. Necropsies taking by harassment. A waterborne We also reviewed the best available revealed that these animals died of activity is defined as including, but not information to evaluate manatee and wounds received from boat collisions. limited to, swimming, diving (including human interactions in these areas. On August 6, 2004, we published a skin and scuba diving), snorkeling, Manatees are especially vulnerable to proposed rule to establish the Pine water skiing, surfing, fishing, the use of fast-moving power boats. The slower a Island-Estero Bay Manatee Refuge as a water vehicles, and dredge and fill boat is traveling, the more time a permanent manatee protection area by activities. manatee has to avoid the vessel and the normal rulemaking procedures (69 FR more time the boat operator has to Reasons for Emergency Determination 48102). Three hurricanes that occurred detect and avoid the manatee. Nowacek over this region of peninsular Florida In deciding to implement this et al. (2000) documented manatee during August through October have emergency rule, we assessed the effects avoidance of approaching boats. Wells resulted in the need for us to reschedule of a recent State court ruling et al. (1999) confirmed that, at a the public hearing and extend the overturning critically important, State- response distance of 20 meters, a public comment period for the proposed designated manatee protection zones in manatee’s time to respond to an rule (appearing in a separate FR notice). Lee County. In this case, (State of oncoming vessel increased by at least 5 However, the current emergency refuge Florida Fish and Wildlife Conservation seconds if the vessel was traveling at is temporary and will expire on Commission (FFWCC) v. William D. slow speed. Therefore, the potential for December 6, 2004, prior to the closing Wilkinson, Robert W. Watson, David K. take of manatees can be greatly reduced of the public review and comment Taylor, James L. Frock (2 Cases), Jason if boats are required to travel at slow period on the proposed rule. Without L. Fluharty, Kenneth L. Kretsh, Harold speed in areas where manatees can be the emergency designation, these areas Stevens, Richard L. Eyler, and John D. expected to occur. would not receive the needed protection Mills), boaters, who were issued The waterbodies encompassed in this because of the time necessary to citations for alleged different violations emergency designation receive complete the normal rulemaking of Rule 68C–22.005 (Rule), challenged extensive manatee use either on a process in light of the recent natural the Rule adopted by the FFWCC seasonal or year-round basis as disasters. regulating the operation and speed of documented in radio telemetry and For these reasons, we believe that motorboat traffic in Lee County waters aerial survey data (FWC, also there is imminent danger of take of one to protect manatees. In its ruling the abbreviated as FFWCC, 2003). The areas or more manatees in these areas and court determined that under Florida law contain feeding habitats and serve as emergency designation of a manatee the FFWCC can regulate the operation travel corridors for manatees (FWC refuge is necessary to prevent such and speed of motorboats in order to 2003). They have also been regulated at taking. Manatees utilize these areas, protect manatees from harmful either slow speed or with a 25-mile-per- there is a history of take at these sites, collisions with motorboats, however: (1) hour speed limit by State government future take is imminent, protection In the area to be regulated, manatee since 1999, prior to the State court measures are insufficient, and we do not sightings must be frequent and, based ruling in FFWCC v. William D. anticipate any alternative protection upon available scientific information, it Wilkinson et al. in December, 2003. measures being enacted by State or local

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations 70385

government in sufficient time to reduce Definitions Clarity of the Rule the likelihood of take occurring. ‘‘Planing’’ means riding on or near the Executive Order 12866 requires each Effective Date water’s surface as a result of the agency to write regulations/notices that hydrodynamic forces on a watercraft’s are easy to understand. We invite your We are making this rule effective comments on how to make this upon publication. In accordance with hull, sponsons (projections from the side of a ship), foils, or other surfaces. emergency rule easier to understand, the Administrative Procedure Act, we including answers to questions such as find good cause as required by 5 U.S.C. A watercraft is considered on plane when it is being operated at or above the the following: (1) Are the requirements 553(d)(3) to make this rule effective in the emergency rule clearly stated? (2) sooner than 30 days after publication in speed necessary to keep the vessel planing. Does the emergency rule contain the Federal Register. As discussed unnecessary technical language or under ‘‘Reasons for Emergency ‘‘Slow speed’’ means the speed at jargon that interferes with the clarity? Determination,’’ the emergency manatee which a watercraft proceeds when it is (3) Does the format of the emergency refuge established August 6, 2004, is fully off plane and completely settled in rule (grouping and order of sections, use temporary, lasting only through the water. Due to the different speeds at of headings, paragraphing, etc.) aid or December 6, 2004. Since the standard which watercraft of different sizes and reduce its clarity? (4) Is the description rulemaking process for creating a configurations may travel while in of the emergency rule in the permanent refuge here could not be compliance with this definition, no ‘‘Supplementary Information’’ section of completed before expiration of the specific speed is assigned to slow speed. the preamble helpful in understanding emergency refuge, re-establishment of A watercraft is not proceeding at slow the proposed rule? (5) What else could the emergency manatee protection area speed if it is: (1) On a plane, (2) in the we do to make the emergency rule easier must be effective December 6, 2004, in process of coming up on or coming off to understand? order to prevent a lapse in protection. of plane, or (3) creating an excessive Send a copy of any comments that Any further delay in making this wake. A watercraft is proceeding at slow affect how we could make this manatee refuge effective would result in speed if it is fully off plane and emergency rule easier to understand to: further risks of manatee mortality, completely settled in the water, not Office of Regulatory Affairs; Department injury, and harassment during the creating an excessive wake. of the Interior, Room 7229, 1849 C period of delay. In view of the finding ‘‘Wake’’ means all changes in the Street, NW., Washington, DC 20240. of substantial evidence that taking of vertical height of the water’s surface Required Determinations manatees is imminent and in fact has caused by the passage of a watercraft, already occurred in or in close including a vessel’s bow wave, stern Regulatory Planning and Review proximity to the site, we believe good wave, and propeller wash, or a In accordance with the criteria in cause exists to make this rule effective combination of these. Executive Order 12866, this rule is not December 6, 2004. For the same reasons, ‘‘Water vehicle, watercraft,’’ and a significant regulatory action. The we also believe that we have good cause ‘‘vessel’’ include, but are not limited to, Office of Management and Budget under 5 U.S.C. 553(b)(3)(B) to issue this boats (whether powered by engine, makes the final determination under rule without prior notice and public wind, or other means), ships (whether Executive Order 12866. procedure. We believe such emergency powered by engine, wind, or other a. Based on experience with similar action is in the public interest because means), barges, surfboards, personal rulemakings in this area, this rule will of the imminent threat to manatees and watercraft, water skis, or any other not have an annual economic impact of the additional time required to complete device or mechanism the primary or an over $100 million or adversely affect an the standard rulemaking process, as the incidental purpose of which is economic sector, productivity, jobs, the result of the hurricanes that recently hit locomotion on, across, or underneath environment, or other units of Florida. The lack of emergency action the surface of the water. government. It is not expected that any would probably result in additional take significant economic impacts would of manatees. This rule does not Area Designated as a Manatee Refuge result from the establishment of a supersede any more stringent State or by Emergency Rule manatee refuge (approximately 30 river local regulations. Pine Island-Estero Bay Manatee Refuge miles) in Lee County in the State of Future Federal Actions Florida. The Pine Island-Estero Bay Manatee The purpose of this rule is to establish Once this emergency rule is in effect, Refuge encompasses water bodies in Lee an emergency manatee refuge in Lee the emergency designation is temporary County including portions of Matlacha County, Florida. We are preventing the and applies to these areas for only 120 Pass and San Carlos Bay south of Green take of manatees by controlling certain days. We believe the danger to manatees Channel Marker ‘‘77’’ and north of the human activity in this County. For the due to watercraft collisions in the Pine Intracoastal Waterway, portions of Pine manatee refuge, the areas are year-round Island-Estero Bay area is not only Island Sound in the vicinity of York and or seasonal slow speed, or year-round or imminent, but also ongoing and year- Chino Islands, portions of Punta Rassa seasonal speed limits of 25 miles per round. Accordingly, we are proceeding Cove and Shell Creek in San Carlos Bay hour. Affected waterborne activities with the normal rulemaking process to and the mouth of the Caloosahatchee include, but are not limited to, establish an additional manatee River, and portions of Estero Bay and transiting, cruising, water skiing, protection area in Lee County, Florida, associated water bodies. These water fishing, marine construction, and the in accordance with 50 CFR 17.103. As bodies are designated, as posted, as use of all water vehicles. This rule will part of this process, we published a either slow speed or with a speed limit impact recreational boaters, commercial proposed rule in the Federal Register on of 25 miles per hour, on either a charter boats, and commercial August 6, 2004 (69 FR 48102). We seasonal or annual basis. Legal fishermen, primarily in the form of anticipate publishing a final rule prior descriptions and maps are provided in restrictions on boat speeds in specific to the date that this emergency rule the ‘‘Regulation Promulgation’’ section areas. We will experience increased expires. of this notice. administrative costs due to this rule.

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 70386 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations

Conversely, the rule may also produce Potential economic costs are related to reduce onsite fishing time and could economic benefits for some parties as a increased administrative activities result in lower consumer surplus for the result of increased manatee protection related to implementing the rule and trip. Other impacts of the rule may be and decreased boat speeds in the affected waterborne activities. Economic felt by commercial charter boat outfits, manatee refuge areas. costs are measured primarily by the commercial fishermen, and agencies Regulatory impact analysis requires number of recreationists who use that perform administrative activities the comparison of expected costs and alternative sites for their activity or have related to implementing the rule. benefits of the rule against a ‘‘baseline,’’ a reduced quality of the waterborne Affected Recreational Activities which typically reflects the regulatory activity experience at the designated requirements in existence prior to the sites. In addition, the rule may have For some boating recreationists, the rulemaking. For purposes of this some impact on commercial fishing inconvenience and extra time required analysis, the baseline assumes that the because of the need to maintain slower to cross additional slow speed areas Pine Island-Estero Bay area has no speeds in some areas. The extension of may reduce the quality of the regulating speed limits other than the 25 slower speed zones in this rule is not waterborne activity or cause them to miles per hour in the navigation expected to affect enough waterborne forgo the activity. This will manifest in channels. The State-designated speed activity to create a significant economic a loss of consumer surplus to these zones, other than in the navigation impact (i.e., an annual impact of over recreationists. In addition, to the extent channels, have been lifted by a State $100 million). that recreationists forgo recreational Court decision. However, residents and activities, this could result in some other water users have lived with speed Economic Benefits regional economic impact. In this restrictions in this area for many years We believe that the designation of the section, we examine the waterborne and have established business and Pine Island-Estero Bay Manatee Refuge activities taking place in each area and recreational patterns on the water to in this rule will increase the level of the extent to which they may be affected accommodate their needs and desires manatee protection in these areas. A by designation of the manatee refuges. for water-based recreation. Even though potential economic benefit is increased The resulting potential economic the baseline is set at no speed zones, the tourism resulting from an increase in impacts are discussed below. These actual economic effects may very well manatee protection. To the extent that impacts cannot be quantified because be insignificant for this 120-day some portion of Florida’s tourism is due the number of recreationists and anglers emergency rule because almost all users to the existence of the manatee in using the designated sites is not known. have been previously subject to these Florida waters, the protection provided Recreationists engaging in cruising, restrictions via State regulations and by this rule may result in an economic fishing, and waterskiing may experience two previous Federal emergency rules. benefit to the tourism industry. We are some inconvenience by having to go Thus, the rule is expected to have only not able to make an estimate of this slower or use undesignated areas; an incremental effect. As discussed benefit given available information. however, the extension of slow speed below, the net economic impact is not In addition, due to reductions in boat zones is not likely to result in a expected to be significant, but cannot be wake associated with speed zones, significant economic impact. monetized given available information. property owners may experience some Currently, not enough data are The economic impacts of this rule economic benefits related to decreased available to estimate the loss in would be due to the changes in speed expenditures for maintenance and consumer surplus that water skiers will zone restrictions in the manatee refuge repair of shoreline stabilization experience. While some may use areas. These speed zone changes are structures (i.e., seawalls along the substitute sites, others may forgo the summarized in the emergency rule. water’s edge). Speed reductions may activity. The economic impact In addition to speed zone changes, the also result in increased boater safety. associated with these changes on rule no longer allows for the speed zone Another potential benefit of slower demand for goods and services is not exemption process in place under State speeds is that fisheries in these areas known. However, given the number of regulations. Florida’s Manatee may be more productive because of recreationists potentially affected, and Sanctuary Act allows the State to reduced disturbance. These types of the fact that alternative sites are provide exemptions from speed zone benefits cannot be quantified with available, it is not expected to amount requirements for certain commercial available information. to a significant economic impact. Until activities, including fishing and events Based on previous studies, we believe recently, speed zones were in place in such as high-speed boat races. Under that this rule produces some economic this area and recreationists have State law, commercial fishermen and benefits. However, given the lack of adjusted their activities to accommodate professional fishing guides can apply for information available for estimating them. It is not expected that, for a 120- permits granting exemption from speed these benefits, the magnitude of these day emergency rule, there would be a zone requirements in certain counties. benefits is unknown. significant loss in consumer surplus Speed zone exemptions were issued to from this activity. 27 permit holders in the former State Economic Costs zones that comprise the proposed The economic impact from the Affected Commercial Charter Boat manatee refuge area. One permit holder designation of a manatee protection area Activities from previous years did not renew at the affects boaters in these areas, in that Various types of charter boats use the last opportunity. boats are required to go slower than waterways in the affected counties, In order to gauge the economic effect under current conditions. Some impacts primarily for fishing and nature tours. of this rule, both benefits and costs must may be felt by recreationists who have The number of charter boats using the be considered. Potential economic to use alternative sites for their activity Pine Island-Estero Bay areas is currently benefits related to this rule include or who have a reduced quality of the unknown. For nature tours, the increased manatee protection and waterborne activity experience at the extension of slow speed zones is tourism related to manatee viewing, designated sites because of the rule. For unlikely to cause a significant impact, increased fisheries health, and example, the extra time required for because these boats are likely traveling decreased seawall maintenance costs. anglers to reach fishing grounds could at slow speeds. The extra time required

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations 70387

for commercial charter boats to reach be accurately estimated at this time. The d. This rule does not raise novel legal fishing grounds could reduce onsite costs of enforcement may include hiring or policy issues. We have previously fishing time and could result in fewer and training new law enforcement established other manatee protection trips. The fishing activity is likely agents and special agents, and the areas. occurring at a slow speed and will not associated training, equipment, upkeep, Regulatory Flexibility Act be affected. Added travel time may and clerical support (Service 2003b). affect the length of a trip, which could Finally, there are some costs for We certify that this rule will not have result in fewer trips overall, creating an education and outreach to inform the a significant economic effect on a economic impact. public about this manatee refuge area. substantial number of small entities as While the State of Florida has 12,000 defined under the Regulatory Flexibility Affected Commercial Fishing Activities miles of rivers and 3 million acres of Act (5 U.S.C. 601 et seq.). An initial/ Several commercial fisheries will lakes, this rule will affect approximately final Regulatory Flexibility Analysis is experience some impact due to the 30 river miles. The speed restrictions in not required. Accordingly, a Small regulation. To the extent that the this rule will cause inconvenience due Entity Compliance Guide is not regulation establishes additional speed to added travel time for recreationists required. zones in commercial fishing areas, this and commercial charter boats and In order to determine whether the rule will increase the time spent on the fishermen. As a result, the rule will will have a significant economic effect fishing activity, affecting the efficiency impact the quality of waterborne on a substantial number of small of commercial fishing. While limited activity experiences for some entities, we utilize available information data are available to address the size of recreationists, and may lead some on the industries most likely to be the commercial fishing industry in the recreationists to forgo the activity. This affected by the designation of the manatee refuges, county-level data rule does not prohibit recreationists manatee refuge. Currently, no generally provide an upper bound from participating in any activities. information is available on the specific estimate of the size of the industry and Alternative sites are available for all number of small entities that are potential economic impact. waterborne activities that may be potentially affected. However, 27 active Given available data, the impact on affected by this rule. The distance that permit holders were exempt from the the commercial fishing industry of recreationists may have to travel to speed limits in the proposed refuge area. extending slow speed zones in the Pine reach an undesignated area varies. The Because these zones have been in place Island-Estero Bay area cannot be regulation will likely impact some since 1999 and people have adjusted quantified. The designation will likely portion of the charter boat and and there were no other permit holders, affect commercial fishermen by way of commercial fishing industries in these it is reasonable to expect that the added travel time, which can result in areas as well. The inconvenience of emergency rule will impact only the 27 an economic impact. Some of the 27 having to go somewhat slower in some permit holders in the former State speed active permit holders with speed limit areas may result in changes to zones. They are primarily commercial exemptions are commercial fishermen. commercial and recreational behavior, fishing boats and fishing guides. Both However, because the manatee refuge resulting in some regional economic would be considered small businesses. designation will not prohibit any impacts. Given available information, The 27 permit holders had State commercial fishing activity, and the net economic impact of designating exemptions from the speed restrictions because there is a channel available for the manatee refuge is not expected to be based on an application that stated they boats to travel up to 25 miles per hour significant (i.e., an annual economic would suffer at least a 25 percent in the affected areas, the Service impact of over $100 million). While the income loss without the permit. The believes that it is unlikely that the rule level of economic benefits that may be usual income level for these businesses will result in a significant economic attributable to the manatee refuge is is not known, however a 25 percent loss impact on the commercial fishing unknown, these benefits would cause a of business income is significant industry. It is important to note that, in reduction in the economic impact of the regardless of the level of business 2001, the total annual value of rule. income. We acknowledge that there potentially affected fisheries was b. The precedent to establish manatee could be a significant loss of income to approximately $8.3 million (2001$); this protection areas has been established those permit holders that rely on speed figure represents the economic impact primarily by State and local to carry out their business activities, on commercial fisheries in these governments in Florida. We recognize however, the Service believes that the counties in the unlikely event that the the important role of State and local 27 permit holders do not constitute a fisheries would be entirely shut down, partners and continue to support and substantial number. which is not the situation associated encourage State and local measures to This rule will add to travel time for with this rule. improve manatee protection. We are recreational boating and commercial designating the Pine Island-Estero Bay activities resulting from extension of Agency Administrative Costs area, where previously existing State existing speed zones. Because the only The cost of implementing the rule has designations have been eliminated, to restrictions on recreational activity been estimated based on historical protect the manatee population in that result from added travel time, and expenditures by the Service for manatee area. alternative sites are available for all refuges and sanctuaries established c. This rule will not materially affect waterborne activities, we believe that previously. Since temporary signage is entitlements, grants, user fees, loan the economic effect on small entities still in place from the previous programs, or the rights and obligations resulting from changes in recreational emergency refuge in this location, and is of their recipients. Minimal restriction use patterns will not be significant. The still appropriate, we anticipate little or to existing human uses of the sites economic effects on most small no additional costs for re-establishment would result from this rule. No businesses resulting from this rule are of a 120-day manatee refuge here. The entitlements, grants, user fees, loan likely to be indirect effects related to a Service will likely spend additional programs, or effects on the rights and reduced demand for goods and services funds for enforcement at the manatee obligations of their recipients are if recreationists choose to reduce their refuge for 120 days. These costs cannot expected to occur. level of participation in waterborne

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 70388 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations

activities. Similarly, because the only small businesses that may result from affected by the designation of a manatee restrictions on commercial activity reduced demand for goods and services refuge: result from the inconvenience of added from commercial entities is likely to be • Fishing, hunting, trapping (SIC 09) travel time, and boats can continue to insignificant. • Water transportation (SIC 44) travel up to 25 mph in the navigation The employment characteristics of • channels, we believe that any economic Lee County are shown in Table 1 for the Miscellaneous retail (SIC 59) effect on small commercial fishing or year 1997. We included the following • Amusement and recreation services charter boat entities (other than the 27 SIC (Standard Industrial Classification) (SIC 79) permit holders) will not be significant. categories, because they include • Non-classifiable establishments Also, the indirect economic impact on businesses most likely to be directly (NCE)

TABLE 1.—EMPLOYMENT CHARACTERISTICS OF LEE COUNTY IN FLORIDA—1997 [Includes SIC Codes 09, 44, 59, 79, and NCE a]

Select SIC Codes (includes SIC Codes 09, 44, 59, 79, and NCE a Total mid- Mid-March Total March b Number of Number of Number of Number of b employment establish- County employment (select SIC ments (all in- Total establish- establish- establish- establish- (all indus- codes) dustries) establishments ments ments ments tries) ments (1–4 employ- (5–9 employ- (10–19 em- (20+ employees) ees) ployees) ees)

Lee ...... 135,300 7,734 11,386 974 602 193 92 87 Source: U.S. Census County Business Patterns (http://www.census.gov/epcd/cbp/view/cbpview.html). a Descriptions of the SIC codes included in this table as follows: SIC 09—Fishing, hunting, and trapping SIC 44—Water transportation SIC 59—Miscellaneous retail service division SIC 79—Amusement and recreation services NCE—non-classifiable establishments division b Table provides the high-end estimate whenever the Census provides a range of mid-March employment figures for select counties and SIC codes.

As shown in Table 1, the majority to some small businesses. The number impact on small entities resulting from (over 80 percent) of these business of recreationists that will change their changes in recreational use patterns will establishments in Lee County have behavior, and how their behavior will not be significant. The economic fewer than ten employees, with the change, is unknown; therefore, the impacts on small business resulting largest number of establishments impact on potentially affected small from this rule are likely to be indirect employing fewer than four employees. business entities cannot be quantified. effects related to a reduced demand for Any economic impacts associated with However, because boaters will goods and services if recreationists this rule will affect some proportion of experience only minimal added travel choose to reduce their level of these small entities. time in most affected areas and the fact participation in waterborne activities. Since the emergency designation is that speed zones have been in place for Similarly, because the only restrictions for a manatee refuge, which only some time now, we believe that this on commercial activity result from the requires a reduction in speed, we do not designation will not cause a significant inconvenience of added travel time, and believe the designation would cause economic impact on a substantial boats can continue to travel up to 25 significant economic effect on a number of small entities. miles per hour in the navigational channels, we believe that any economic substantial number of small businesses. Small Business Regulatory Enforcement impact on most small commercial Currently available information does not Fairness Act allow us to quantify the number of small fishing or charter boat entities will not business entities, such as charter boats This rule is not a major rule under 5 be significant. Also, the indirect or commercial fishing entities, that may U.S.C. 804 (2). This rule: economic impact on small businesses incur direct economic impacts due to a. Does not have an annual effect on that may result from reduced demand the inconvenience of added travel times the economy of $100 million or more. for goods and services from commercial resulting from the rule, but it is safe to As shown above, this rule may cause entities is likely to be insignificant. assume that the current 27 permit some inconvenience in the form of b. Will not cause a major increase in holders may constitute the affected added travel time for recreationists and costs or prices for consumers, parties for a 120-day rule. The Service commercial fishing and charter boat individual industries, Federal, State, or does not believe the 27 permit holders businesses because of speed restrictions local government agencies, or constitute a substantial number. Prior to in manatee refuge areas, but this should geographic regions. It is unlikely that establishing the Pine Island-Estero Bay not translate into any significant there are unforeseen changes in costs or as a permanent manatee refuge, public business reductions for the many small prices for consumers stemming from comments on our proposed rule (69 FR businesses in the affected county. An this rule. The recreational charter boat 48102, August 6, 2004) will be used for unknown portion of the establishments and commercial fishing industries may further refinement of the impact on shown in Table 1 could be affected by be affected by lower speed limits for small entities and the general public. In this rule. Because the only restrictions some areas when traveling to and from addition, the inconvenience of slow on recreational activity result from fishing grounds. However, because of speed zones may cause some added travel time, and alternative sites the availability of 25-miles-per-hour recreationists to change their behavior, are available for all waterborne navigational channels, this impact is which may cause some loss of income activities, we believe that the economic likely to be limited. Further, only 27

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations 70389

active permit holders were exempt from unduly burden the judicial system and Author the former State speed zones. The meets the requirements of sections 3(a) The primary author of this document impact will most likely stem from only and 3(b)(2) of the Order. is Kalani Cairns (see ADDRESSES these permit holders. section). c. Does not have significant adverse Paperwork Reduction Act effects on competition, employment, This regulation does not contain any Authority investment, productivity, innovation, or collections of information that require The authority to establish manatee the ability of U.S.-based enterprises to approval by the Office of Management protection areas is provided by the compete with foreign-based enterprises. and Budget (OMB) under the Paperwork Endangered Species Act of 1973, as As stated above, this rule may generate Reduction Act of 1995 (44 U.S.C. 3501 amended (16 U.S.C. 1531 et seq.), and some level of inconvenience to et seq.). A Federal agency may not the Marine Mammal Protection Act of recreationists and commercial users due conduct or sponsor, and a person is not 1972 (16 U.S.C. 1361–1407), as to added travel time, but the resulting required to respond to, a collection of amended. economic impacts are believed to be information unless it displays a minor and will not interfere with the currently valid OMB control number. List of Subjects in 50 CFR Part 17 normal operation of businesses in the National Environmental Policy Act Endangered and threatened species, affected counties. Added travel time to Exports, Imports, Reporting and traverse some areas is not expected to be We have analyzed this rule in recordkeeping requirements, a major factor that will impact business accordance with criteria of the National Transportation. activity. Environmental Policy Act. This rule does not constitute a major Federal Regulation Promulgation Unfunded Mandates Reform Act action significantly affecting the quality I Accordingly, we amend part 17, In accordance with the Unfunded of the human environment. An subchapter B of chapter I, title 50 of the Mandates Reform Act (2 U.S.C. 1501 et Environmental Assessment has been Code of Federal Regulations, as follows: seq.): prepared and is available for review by a. This rule will not ‘‘significantly or written request to the Field Supervisor PART 17—[AMENDED] uniquely’’ affect small governments. A (see ADDRESSES section). I 1. The authority citation for part 17 Small Government Agency Plan is not Government-to-Government continues to read as follows: required. The designation of manatee Relationship With Tribes refuges and sanctuaries, while imposing Authority: 16 U.S.C. 1361–1407; 16 U.S.C. regulations for at least a limited period, In accordance with the President’s 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– will not impose obligations on State or memorandum of April 29, 1994, 625, 100 Stat. 3500; unless otherwise noted. local governments that have not ‘‘Government-to-Government Relations I 2. Amend § 17.108 by adding previously existed. with Native American Tribal paragraph (c)(13) as follows: b. This rule will not produce a Governments’’ (59 FR 22951), Executive Federal mandate of $100 million or Order 13175 and the Department of the § 17.108 List of designated manatee greater in any year. As such, it is not a Interior’s manual at 512 DM 2, we protection areas. ‘‘significant regulatory action’’ under readily acknowledge our responsibility * * * * * the Unfunded Mandates Reform Act. to communicate meaningfully with (c) * * * federally recognized Tribes on a (13) The Pine Island-Estero Bay Takings Government-to-Government basis. We Manatee Refuge. (i) Watercraft are In accordance with Executive Order have evaluated possible effects on required to proceed at slow speed all 12630, this rule does not have federally recognized Indian tribes and year in all waters of Matlacha Pass, significant takings implications. A have determined that there are no south of a line that bears 90° and 270° takings implication assessment is not effects. from Matlacha Pass Green Channel required. The manatee protection areas Marker ‘‘77’’ (approximate latitude Energy Supply, Distribution or Use are located over publicly-owned 26°40′00″ North, approximate longitude submerged water bottoms. On May 18, 2001, the President issued 82°06′00″ West), and north of Pine Executive Order 13211 on regulations Island Road (State Road No. 78), Federalism that significantly affect energy supply, excluding: In accordance with Executive Order distribution, and use. Executive Order (A) The portion of the marked 13132, this rule does not have 13211 requires agencies to prepare channel otherwise designated in significant Federalism effects. A Statements of Energy Effects when paragraph (c)(13)(iii) of this section; Federalism assessment is not required. undertaking certain actions. Because (B) All waters of Buzzard Bay east and This rule will not have substantial this rule is not a significant regulatory northeast of a line beginning at a point direct effects on the State, in the action under Executive Order 12866 and (approximate latitude 26°40′00″ North, relationship between the Federal it only requires vessels to continue their approximate longitude 82°05′20″ West) Government and the State, or on the operation as they have in the past, it is on the southwest shoreline of an distribution of power and not expected to significantly affect unnamed mangrove island east of responsibilities among the various energy supplies, distribution, and use. Matlacha Pass Green Channel Marker levels of government. We coordinated Therefore, this action is a not a ‘‘77’’ and bearing 219(to the with the State of Florida to the extent significant energy action and no northeasternmost point (approximate possible on the development of this Statement of Energy Effects is required. latitude 26°39′58″ North, approximate rule. longitude 82°05′23″ West) of another References Cited unnamed mangrove island, then Civil Justice Reform A complete list of all references cited running along the eastern shoreline of In accordance with Executive Order in this final rule is available upon said island to its southeasternmost point 12988, the Office of the Solicitor has request from the Vero Beach Field (approximate latitude 26°39′36″ North, determined that this rule does not Office (see ADDRESSES section). approximate longitude 81°05′09″ West),

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 70390 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations

then bearing 115° to the westernmost longitude 82°05′46″ West), then bearing (approximate latitude 26°36′55″ North, point (approximate latitude 26°39′34″ 85° to the westernmost point approximate longitude 82°04′02″ West), North, approximate longitude 82°05′05″ (approximate latitude 26°38′45″ North, then bearing 163° to the line’s terminus West) of the unnamed mangrove island approximate longitude 82°05′32″ West) at a point (approximate latitude to the southeast, then running along the of Deer Key, then running along the 26°36′44″ North, approximate longitude western shoreline of said island to its northern shoreline of Deer Key to its 82°03°58″ West) on the eastern southwesternmost point (approximate easternmost point (approximate latitude shoreline of Little Pine Island; latitude 26°39′22″ North, approximate 26°38′46″ North, approximate longitude (C) All waters of Matlacha Pass, longitude 82°04′53″ West), then bearing 82°05′22″ West), then bearing 103° to Pontoon Bay, and associated 123° to the northwesternmost point the northwesternmost point embayments south of Pine Island Road (approximate latitude 26°39′21″ North, (approximate latitude 26°38′45″ North, (State Road No. 78) and east of a line approximate longitude 82°04′52″ West) approximate longitude 82°05′17″ West) beginning at a point (approximate of an unnamed mangrove island, then of the unnamed mangrove island to the latitude 26°38′12″ North, approximate running along the western shoreline of east, then running along the western longitude 82°03′46″ West) on the said island to its southeasternmost point shoreline of said island to its northwestern shoreline of the (approximate latitude 26°39′09″ North, southernmost point (approximate embayment on the east side of Matlacha approximate longitude 82°04′44″ West), latitude 26°38′30″ North, approximate Pass, immediately south of Pine Island then bearing 103° to the longitude 82°05′04″ West), then bearing Road and then running along the eastern northwesternmost point (approximate 106° to the westernmost point shoreline of the unnamed island to the latitude 26°39′08″ North, approximate (approximate latitude 26°38′30″ North, south to its southeasternmost point ° ′ ″ longitude 82°04′41″ West) of a approximate longitude 82°04′57″ West) (approximate latitude 26 37 30 North, ° ′ ″ peninsula on the unnamed mangrove of the unnamed island to the southeast, approximate longitude 82 03 22 West), ° island to the southeast, then running then running along the northern and then bearing 163 to the along the southwestern shoreline of said eastern shorelines of said island to a northwesternmost point of the unnamed ° ′ ″ island to its southeasternmost point point (approximate latitude 26 38 23 island to the south, then running along ° ′ ″ (approximate latitude 26°38′51″ North, North, approximate longitude 82 04 51 the western shoreline of said island to approximate longitude 82°04′18″ West), West) on its eastern shoreline, then its southernmost point (approximate ° bearing 113° to the northernmost point latitude 26°37′15″ North, approximate then bearing 99 to the southernmost ° ′ ″ point (approximate latitude 26°38′50″ of West Island (approximate latitude longitude 82 03 15 West), then bearing ° ′ ″ ° North, approximate longitude 82°04′03″ 26 38 21 North, approximate longitude 186 to the line’s terminus at a point 82°04′37″ West), then running along the (approximate latitude 26°37′10″ North, West) of the unnamed mangrove island ° ′ ″ to the east, then bearing 90° to the line’s western shoreline of West Island to the approximate longitude 82 03 16 West) terminus at a point (approximate point where the line intersects Pine on the eastern shoreline of Matlacha latitude 26°38′50″ North, approximate Island Road (State Road No. 78). Pass; (D) All waters of Pine Island Creek longitude 82°03′55″ West) on the eastern (ii) Watercraft are required to proceed south of Pine Island Road (State Road shoreline of Matlacha Pass; and at slow speed all year in all waters of Matlacha Pass, St. James Creek, and San No. 78); and all waters of Matlacha Pass, (C) All waters of Pine Island Creek Carlos Bay, south of Pine Island Road Rock Creek, and the Mud Hole, west of and Matlacha Pass north of Pine Island (State Road No. 78), north of a line 500 a line beginning at a point (approximate Road (State Road No. 78) and west and feet northwest of and parallel to the latitude 26°33′52″ North, approximate southwest of a line beginning at a point longitude 82°04′53″ West) on the ° ′ ″ main marked channel of the Intracoastal (approximate latitude 26 39 29 North, Waterway, west of a line that bears 302° western shoreline of Matlacha Pass and ° ′ ″ approximate longitude 82 06 29 West) from Intracoastal Waterway Green bearing 22° to a point (approximate on the western shoreline of Matlacha Channel Marker ‘‘99’’ (approximate latitude 26°34′09″ North, approximate ° Pass and bearing 160 to the latitude 26°31′00″ North, approximate longitude 82°04′45″ West) on the westernmost point (approximate longitude 82°00′52″ West), and east of a southern shoreline of the unnamed ° ′ ″ latitude 26 39 25 North, approximate line that bears 360° from Intracoastal island to the northeast, then running ° ′ ″ longitude 82 06 28 West) of an Waterway Red Channel Marker ‘‘10’’ along the southern and eastern unnamed island, then running along the (approximate latitude 26°29′16″ North, shorelines of said island to a point western shoreline of said island to its approximate longitude 82°03′35″ West), (approximate latitude 26°34′15″ North, southernmost point (approximate excluding: approximate longitude 82°04′39″ West) latitude 26°39′18″ North, approximate (A) The portions of the marked on its northeastern shoreline, then longitude 82°06′24″ West), then bearing channels otherwise designated in bearing 24° to a point (approximate 128° to the northernmost point paragraphs (c)(13 )(iv) and (v) of this latitude 26°34′21″ North, approximate (approximate latitude 26°39′12″ North, section; longitude 82°04′36″ West) on the approximate longitude 82°06′17″ West) (B) All waters of Matlacha Pass south southern shoreline of the large unnamed of an unnamed mangrove island to the of Pine Island Road (State Road No. 78) island to the north, then running along south, then running along the eastern and west of the western shoreline of the southern and eastern shorelines of shoreline of said island to its West Island and a line beginning at the said island to a point (approximate southeasternmost point (approximate southernmost point (approximate latitude 26°34′31″ North, approximate latitude 26°39′00″ North, approximate latitude 26°37′25″ North, approximate longitude 82°04′29″ West) on its eastern longitude 82°06′09″ West), then bearing longitude 82°04′17″ West) of West shoreline, then bearing 41° to the 138° to a point (approximate latitude Island and bearing 149° to the southernmost point (approximate 26°38′45″ North, approximate longitude northernmost point (approximate latitude 26°34′39″ North, approximate 82°05′53″ West) on the northern latitude 26°37′18″ North, approximate longitude 82°04′22″ West) of another shoreline of Bear Key, then running longitude 82°04′12″ West) of the unnamed island to the northeast, then along the northern shoreline of Bear Key unnamed mangrove island to the south, running along the eastern shoreline of to its easternmost point (approximate then running along the eastern shoreline said island to its northwesternmost latitude 26°38′44″ North, approximate of said island to its southernmost point point (approximate latitude 26°35′22″

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations 70391

North, approximate longitude 82°04′07″ southeasternmost point (approximate channel that runs north of the power West), then bearing 2° to the latitude 26°31′32″ North, approximate lines from the Cherry Estates area of St. southernmost point (approximate longitude 82°06′25″ West) of another James City into Pine Island Sound, east latitude 26°35′32″ North, approximate mangrove peninsula, then running along of the western boundary of the zone longitude 82°04′07″ West) of the the southern shoreline of said peninsula designated in paragraph (c)(13)(vi) of unnamed island to the north, then to its southwesternmost point this section, and west of a line running along the eastern shoreline of (approximate latitude 26°31′40″ North, perpendicular to the power lines that said island to its northernmost point approximate longitude 82°06′38″ West), begins at the easternmost point (approximate latitude 26°35′51″ North, then bearing 248° to a point (approximate latitude 26°30′25″ North, approximate longitude 82°03′59″ West), (approximate latitude 26°31′40″ North, approximate longitude 82°06′15″ West) then bearing 353° to the line’s terminus approximate longitude 82°06′39″ West) of the mangrove island on the north side at a point (approximate latitude on the eastern shoreline of an unnamed of the power lines approximately 1,800 26°36′08″ North, approximate longitude mangrove island, then running along the feet southwest of the Galt Island 82°04′01″ West) on the eastern shoreline southern shoreline of said island to its Causeway. of Little Pine Island; and southwesternmost point (approximate (viii) Watercraft are required to (E) All waters of Punta Blanca Bay latitude 26°31′39″ North, approximate proceed at slow speed all year in all and Punta Blanca Creek, east of the longitude 82°06′44″ West), then bearing waters of San Carlos Bay and Punta ° eastern shoreline of Matlacha Pass and 206° to the line’s terminus at the Rassa Cove east of a line that bears 352 east and north of the eastern and northernmost point of the MacKeever from the northernmost tip of the northern shorelines of San Carlos Bay. Keys (approximate latitude 26°31′09″ northern peninsula on Punta Rassa ° ′ ″ (iii) Watercraft may not exceed 25 North, approximate longitude 82°07′09″ (approximate latitude 26 29 44 North, ° ′ ″ miles per hour, all year, in all waters West), east of a line beginning at said approximate longitude 82 00 33 West), ° within the main marked channel in northernmost point of the MacKeever and south of a line that bears 122 from Matlacha Pass south of Green Channel Keys and running along and between Intracoastal Waterway Green Channel Marker ‘‘77’’ (approximate latitude the general contour of the western Marker ‘‘99’’ (approximate latitude 26°40′00″ North, approximate longitude 26°31′00″ North, approximate longitude ° ′ ″ shorelines of said keys to a point ° ′ ″ 82 06 00 West) and north of a line (approximate latitude 26°30′27″ North, 82 00 52 West), including all waters of perpendicular to the channel at a point ° ′ ″ Shell Creek and associated waterways. 1 approximate longitude 82 07 08 West) in the channel ⁄4 mile northwest of the on the southernmost of the MacKeever (ix) Watercraft are required to proceed Pine Island Road Bridge (State Road No. Keys, then bearing 201° to a point at slow speed all year in all waters of 78). (approximate latitude 26°30′01″ North, San Carlos Bay and the Caloosahatchee (iv) Watercraft may not exceed 25 approximate longitude 82°07′19″ West) River, including the residential canals of miles per hour, all year, in all waters Cape Coral, northeast of a line that bears approximately 150 feet due east of the within the main marked channel in 302° and 122° from Intracoastal southeasternmost point of Chino Island, Matlacha Pass south of a line Waterway Green Channel Marker ‘‘99’’ then bearing approximately 162° to Red perpendicular to the channel at a point (approximate latitude 26°31′00″ North, Intracoastal Waterway Channel Marker in the channel 1⁄4 mile southeast of the approximate longitude 82°00′52″ West), ‘‘22’’ (approximate latitude 26°28′57″ Pine Island Road Bridge (State Road No. west of a line that bears 346° from North, approximate longitude 82°06′55″ 78), and north of a line 500 feet Intracoastal Waterway Green Channel West), then bearing approximately 117° northwest of and parallel to the main Marker ‘‘93’’ (approximate latitude to the line’s terminus at Red Intracoastal marked channel of the Intracoastal 26°31′37″ North, approximate longitude Waterway Channel Marker ‘‘20’’ Waterway (just north of Green Channel 81°59′46″ West), and north and (approximate latitude 26°28′45″ North, Marker ‘‘1’’). ° ′ ″ northwest of the general contour of the (v) Watercraft may not exceed 25 approximate longitude 82 06 38 West), northwestern shoreline of Shell Point miles per hour, all year, in all waters north of a line beginning at said Red and a line that bears approximately 74° within the marked channel in Matlacha Intracoastal Waterway Channel Marker ° from the northernmost tip (approximate Pass that intersects the main Matlacha ‘‘20’’ and bearing 86 to a point ° ′ ″ ° ′ ″ latitude 26 31 31 North, approximate Pass channel near Green Channel (approximate latitude 26 28 50 North, ° ′ ″ ° ′ ″ longitude 81 59 57 West) of Shell Point Marker ‘‘15’’ (approximate latitude approximate longitude 82 05 48 West) to said Intracoastal Waterway Green 1 26°31′57″ North, approximate longitude ⁄4 mile south of York Island, then Channel Marker ‘‘93,’’ excluding the 1 82°03′38″ West) and intersects the main running parallel to and ⁄4 mile south of Intracoastal Waterway between markers marked channel of the Intracoastal the general contour of the southern ‘‘93’’ and ‘‘99’’ (which is already Waterway near Green Channel Marker shorelines of York Island and Pine designated as a Federal manatee ‘‘101’’ (approximate latitude 26°30′39″ Island to the line’s terminus at a point ° protection area, requiring watercraft to North, approximate longitude 82°01′00″ on a line bearing 360 from Red proceed at slow speed, and is not West). Intracoastal Waterway Channel Marker impacted by this rulemaking). ° ′ ″ (vi) Watercraft are required to proceed ‘‘10’’ (approximate latitude 26 29 16 (x) Watercraft are required to proceed at slow speed from April 1 through North, approximate longitude 82°03′35″ at slow speed from April 1 through November 15 in all canals and boat West), and west and southwest of the November 15 and at not more than 25 basins of St. James City and the waters general contour of the western and miles per hour the remainder of the year known as Long Cut and Short Cut; and southern shorelines of Pine Island and in all waters of Hell Peckney Bay all waters of Pine Island Sound and San a line that bears 360° from said Red southeast of Hurricane Bay, northeast of Carlos Bay south of a line beginning at Intracoastal Waterway Channel Marker the northern shorelines of Julies Island the southernmost tip (approximate ‘‘10,’’ excluding the portion of the and the unnamed island immediately latitude 26°31′28″ North, approximate marked channel otherwise designated in northwest of Julies Island and a line that longitude 82°06′19″ West) of a mangrove paragraph (c)(13 )(vii) of this section. bears 312° from the northwesternmost peninsula on the western shore of Pine (vii) Watercraft may not exceed 25 point of Julies Island (approximate Island approximately 2,200 feet north of miles per hour from April 1 through latitude 26°26″37″ North, approximate Galt Island and bearing 309° to the November 15 in all waters of the marked longitude 81°54′57″ West), northwest of

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 70392 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations

Estero Bay, and southwest of a line southern shoreline of Coon Key, south West) of the unnamed mangrove island beginning at the southernmost point of a line beginning at a point south of Broadway Channel, and east of (approximate latitude 26°27′23″ North, (approximate latitude 26°24′36″ North, the eastern shoreline of said mangrove approximate longitude 81°55′11″ West) approximate longitude 81°52′30″ West) island and a line beginning at the of an unnamed mangrove peninsula in on the eastern shoreline of Coon Key southernmost point of said island northwest Hell Peckney Bay and bearing and bearing 106° to a point (approximate latitude 26°21′07″ North, 191° to the northernmost point (approximate latitude 26°24′39″ North, approximate longitude 81°50′58″ West) (approximate latitude 26°27′19″ North, approximate longitude 81°52′34″ West) and bearing 167° to a point on Little approximate longitude 81°55′11″ West) on the southwestern shoreline of the Hickory Island (approximate latitude of an unnamed mangrove island, then unnamed mangrove island north of 26°21′03″ North, approximate longitude running along the northern shoreline of Black Island, and west of a line 81°50′57″ West); said island to its southeasternmost point beginning at a point (approximate (B) All waters of the main marked (approximate latitude 26°27′11″ North, latitude 26°24′36″ North, approximate North-South channel in northern Estero approximate longitude 81°55′05″ West), longitude 81°52′30″ West) on the Bay from Green Channel Marker ‘‘37’’ then bearing 115° to a point southern shoreline of said unnamed (approximate latitude 26°26′02″ North, (approximate latitude 26°27′03″ North, mangrove island north of Black Island approximate longitude 81°54′29″ West) approximate longitude 81°54′47″ West) and bearing 192° to the northernmost to Green Channel Marker ‘‘57’’ on the northwest shoreline of an point (approximate latitude 26°24′22″ (approximate latitude 26°25′08″ North, unnamed mangrove island, then North, approximate longitude 81°52′34″ approximate longitude 81°53′29″ West); running along the northern shoreline of West) of Black Island. (C) All waters of the main marked said island to its northeasternmost point (xii) Watercraft are required to North-South channel in southern Estero (approximate latitude 26°27′02″ North, proceed at slow speed from April 1 Bay south of a line beginning at a point approximate longitude 81°54′33″ West), through November 15 and at not more (approximate latitude 26°24′36″ North, and then bearing 37° to the line’s than 25 miles per hour the remainder of approximate longitude 81°52′30″ West) terminus at the westernmost point of an the year in all waters of Estero Bay and on the southern shoreline of the unnamed mangrove peninsula in Big Hickory Bay south of a line that unnamed mangrove island north of eastern Hell Peckney Bay. bears 72° from the northernmost point Black Island and bearing 192° to the (xi) Watercraft are required to proceed (approximate latitude 26°24′22″ North, northernmost point (approximate at slow speed from April 1 through approximate longitude 81°52′34″ West) latitude 26°24′22″ North, approximate November 15 and at not more than 25 of Black Island, east of the centerline of longitude 81°52′34″ West) of Black miles per hour the remainder of the year State Road No. 865 (including the Island, and north and east of Red in all waters of Hendry Creek south of waters of the embayment on the eastern Channel Marker ‘‘62’’ (approximate a line that bears 270° from a point side of Black Island and the waters latitude 26°21′31″ North, approximate (approximate latitude 26°28′40″ North, inshore of the mouth of Big Hickory longitude 81°51′20″ West) in Broadway approximate longitude 81°52′56″ West) Pass that are west of State Road No. Channel; on the eastern shoreline of Hendry 865), and north of a line that bears 90° (D) All waters within the portion of Creek; and all waters of Estero Bay from a point (approximate latitude the marked channel leading to the Gulf southeast and east of Hell Peckney Bay, 26°20′51″ North, approximate longitude of Mexico through New Pass, west of the a line that bears 340° from a point 81°50′33″ West) on the eastern shoreline North-South channel and east of State (approximate latitude 26°25′56″ North, of Little Hickory Island, excluding Road No. 865; all waters of the marked approximate longitude 81°54′25″ West) Spring Creek and the portions of the channel leading to Mullock Creek north on the northern tip of an unnamed marked channels otherwise designated of a line beginning at a point mangrove peninsula on the northeastern under paragraph (c)(13)(xiii) of this (approximate latitude 26°24′36″ North, shoreline of Estero Island, and the section and the portion of Hickory Bay approximate longitude 81°52′30″ West) northern shoreline of Estero Island, designated in paragraph (c)(13)(xiii) of on the eastern shoreline of Coon Key south of Hendry Creek and a line that this section. and bearing 106° to a point bears 135° and 315° from Red Channel (xiii) Watercraft may not exceed 25 (approximate latitude 26°24′39″ North, Marker ‘‘18’’ (approximate latitude miles per hour all year in: approximate longitude 81°52′34″ West) 26°27′46″ North, approximate longitude (A) All waters of Big Hickory Bay on the southwestern shoreline of the 81°52′00″ West) in Mullock Creek, and north of a line that bears 90° from a unnamed mangrove island north of north of a line that bears 72° from the point (approximate latitude 26°20′51″ Black Island, and south of Red Channel northernmost point (approximate North, approximate longitude 81°50′33″ Marker ‘‘18’’ (approximate latitude latitude 26°24′22″ North, approximate West) on the eastern shoreline of Little 26°27′46″ North, approximate longitude longitude 81°52′34″ West) of Black Hickory Island, west of a line beginning 81°52′00″ West); Island, including the waters of at a point (approximate latitude (E) All waters of the marked channel Buccaneer Lagoon at the southern end 26°20′48″ North, approximate longitude leading from the Mullock Creek Channel of Estero Island, but excluding: 81°50′24″ West) on the southern to the Estero River, west of the mouth (A) The portions of the marked shoreline of Big Hickory Bay and of the Estero River. (This designation channels otherwise designated in bearing 338° to a point (approximate only applies if a channel is marked in paragraph (c)(13)(xiii) of this section; latitude 26°21′39″ North, approximate accordance with permits issued by all (B) The Estero River; and longitude 81°50′48″ West) on the water applicable State and Federal authorities. (C) To waters of Big Carlos Pass east in the northwestern end of Big Hickory In the absence of a properly permitted of a line beginning at a point Bay near the eastern end of Broadway channel, this area is as designated under (approximate latitude 26°24′34″ North, Channel, south of a line beginning at paragraph (c)(13)(xi) of this section.); approximate longitude 81°53′05″ West) said point on the water in the (F) All waters of the marked channel on the eastern shoreline of Estero Island northwestern end of Big Hickory Bay commonly known as Alternate Route and bearing 36° to a point (approximate and bearing 242° to the northernmost Channel, with said channel generally latitude 26°24′40″ North, approximate point (approximate latitude 26°21′39″ running between Channel Marker ‘‘1’’ longitude 81°53′00″ West) on the North, approximate longitude 81°50′50″ (approximate latitude 26°24′29″ North,

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations 70393

approximate longitude 81°51′53″ West) and Channel Marker ‘‘23’’ (approximate latitude 26°23′27″ North, approximate and Channel Marker ‘‘10’’ (approximate latitude 26°24′00″ North, approximate longitude 81°50′46″ West); and ° ′ ″ ° ′ ″ latitude 26 24 00 North, approximate longitude 81 50 30 West); (I) All waters of the marked channel ° ′ ″ (H) All waters of the marked channel longitude 81 51 09 West); leading from the Southern Passage (G) All waters of the marked channel commonly known as Southern Passage Channel to Spring Creek, west of the commonly known as Coconut Channel, Channel, with said channel generally mouth of Spring Creek. with said channel generally running running between Channel Marker ‘‘1’’ between Channel Marker ‘‘1’’ (approximate latitude 26°22′58″ North, (xiv) Maps of the Pine Island-Estero (approximate latitude 26°23′44″ North, approximate longitude 81°51′57″ West) Bay Manatee Refuge follow: approximate longitude 81°50′55″ West) and Channel Marker ‘‘22’’ (approximate BILLING CODE 4310–55–P

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 70394 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00040 Fmt 4700 Sfmt 4725 E:\FR\FM\06DER1.SGM 06DER1 ER06DE04.015 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations 70395

Dated: November 26, 2004. Craig Manson, Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 04–26705 Filed 12–3–04; 8:45 am] BILLING CODE 4310–SS–C

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 ER06DE04.016 70396 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations

DEPARTMENT OF COMMERCE 1801 et seq., and the Atlantic Tunas November 20, 2002 (67 FR 70023), for Convention Act (ATCA), 16 U.S.C. 971 BET from Belize and St. Vincent and the National Oceanic and Atmospheric et seq. The ATCA authorizes the Grenadines; August 21, 1997 (62 FR Administration promulgation of regulations as 44422), for BFT from Belize and necessary and appropriate to carry out Honduras; and December 12, 2000 (65 50 CFR Part 635 ICCAT recommendations. The trade- FR 77523), for SWO from Belize and [Docket No. 040421127–4322–02; I.D. related ICCAT recommendations for Honduras. Additionally, this final rule 051403A] calendar years 2002 and 2003 that are does not impose restrictions on implemented by this final rule include, Honduras regarding BET imports. RIN 0648–AR10 but are not limited to: 02–16, 02–17, 02– Vessel Chartering 18, 02–19, 02–20, 02–21, 02–22, 02–23, Atlantic Highly Migratory Species; 03–16, 03–17, and 03–18. At its 2002 meeting, ICCAT addressed Atlantic Trade Restrictive Measures the practice of charter or chartering Trade Measures AGENCY: National Marine Fisheries arrangements, which are defined as an Service (NMFS), National Oceanic and In order to conserve and better agreement between a vessel and a Atmospheric Administration (NOAA), manage bigeye tuna (BET), bluefin tuna foreign entity (e.g., country, business, Commerce. (BFT), and swordfish (SWO) in the government, person) to fish in foreign Atlantic Ocean, ICCAT adopted several waters without reflagging the vessel. ACTION: Final rule. recommendations at its 2002 and 2003 ICCAT recommended that chartering SUMMARY: NMFS is adjusting the meetings regarding prohibitions or the and flag Contracting Parties adopt regulations governing the trade of lifting of prohibitions on the import of several requirements to ensure their species regulated by the International these species. Based on available compliance with relevant ICCAT Commission for the Conservation of information, ICCAT concluded that conservation and management Atlantic Tunas (ICCAT) in the North Sierra Leone, Bolivia, and Georgia were measures. The recommendation states and South Atlantic Ocean to implement engaged in fishing activities that that at the time of the chartering recommendations adopted at the 2002 diminish the effectiveness of ICCAT arrangement, the chartering and flag and 2003 meetings of ICCAT. This final conservation and management Contracting Parties shall provide rule lifts or implements import measures. Thus, ICCAT recommended specific information concerning the prohibitions for bigeye tuna, bluefin that Contracting Parties (i.e., any charter to the ICCAT Executive tuna, and swordfish on Honduras, St. member of the United Nations or any Secretary, including vessel details, Vincent and the Grenadines, Belize, specialized agency of the United target species, duration, and consent of Sierra Leone, Bolivia, and Georgia. This Nations that has signed on to the the flag Contracting Party or rule also prohibits imports from vessels International Convention for the Cooperating non-Contracting Party, on the ICCAT illegal, unreported, and Conservation of Atlantic Tunas) prohibit Entity or Fishing Entity. A Cooperating unregulated fishing list and from vessels the import of Atlantic BET, BFT, and non-Contracting Party, Entity or Fishing that are not listed on ICCAT’s record of SWO from Sierra Leone and Atlantic Entity is a special status that ICCAT vessels that are authorized to fish in the BET from Bolivia and Georgia. In this created; Chinese Taipei participates in Convention Area. Additionally, this rule action, NMFS prohibits such imports ICCAT under this status. The ICCAT requires issuance of a chartering permit from Sierra Leone, Bolivia, and Georgia. Executive Secretary should also be before a vessel begins fishing under a Upon determination by ICCAT that notified upon termination of the charter. chartering arrangement. Sierra Leone, Bolivia, or Georgia has The recommendation also states that, brought its fishing practices into unless specifically provided in the DATES: This final rule will be effective on January 5, 2005. consistency with ICCAT conservation chartering arrangement and consistent and management measures, NMFS will with relevant domestic law and ADDRESSES: Copies of the Final take action to remove the appropriate regulation, catches taken pursuant to the Environmental Assessment/Regulatory import restrictions. arrangement shall be unloaded Impact Review/Final Regulatory At its 2002 meeting, ICCAT also exclusively in the ports of the chartering Flexibility Analysis (EA/RIR/FRFA) recommended that several import Contracting Party/foreign entity or may be obtained from Christopher prohibitions be lifted. One of these under its direct supervision. NMFS uses Rogers, Chief, Highly Migratory Species recommendations included removing the term ‘‘offload’’ in its regulations to Management Division F/SF1, 1315 East- the import prohibition of Atlantic BET, refer to the activity of unloading or West Highway, Silver Spring, MD BFT, and SWO from Honduras. NMFS removing fish from a vessel. Such 20910. Copies of the EA/RIR/FRFA are did not finalize the 2000 ICCAT catches should be counted against the also available from the Highly Migratory recommendation regarding BET imports quota of the chartering Contracting Party Species Management Division website from Honduras because ICCAT did not but both the chartering and flag at www.nmfs.noaa.gov/sfa/hms. reach consensus in 2001 regarding countries shall record the catch amounts FOR FURTHER INFORMATION CONTACT: whether Honduras had brought its separately from catches taken by other Karyl Brewster-Geisz or Michael Clark fishing practices into conformity with vessels. by phone: 301–713–2347 or by fax: 301– ICCAT conservation and management In order to implement the chartering 713–1917. measures (67 FR 70023, November 20, recommendations of ICCAT, NMFS SUPPLEMENTARY INFORMATION: The U.S. 2002). Another 2002 recommendation requires that U.S. vessel owners with Atlantic swordfish and tuna fisheries would lift the import prohibitions HMS permits apply for and obtain a are managed under the Fishery regarding Atlantic BET, BFT, and SWO chartering permit before fishing under a Management Plan for Atlantic Tunas, from Belize and Atlantic BET from St. chartering arrangement. Under this final Swordfish, and Sharks (HMS FMP) and Vincent and the Grenadines. Consistent rule and consistent with the ICCAT regulations at 50 CFR part 635 under the with these recommendations, and as recommendations, vessels issued a authority of the Magnuson-Stevens stated in the proposed rule on May 6, chartering permit shall not be Fishery Conservation and Management 2004 (69 FR 25357), this final rule authorized to use the quota or Act (Magnuson-Stevens Act), 16 U.S.C. relieves the restrictions imposed on entitlement of the United States until

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations 70397

the chartering permit expires or is in length that are authorized to fish for interested members of the public, terminated. Having a chartering permit ICCAT regulated species in the including those with physical will not obviate the need to obtain a Convention Area (also referred to as disabilities and the hearing impaired, fishing license, permits, or other ‘‘positive list’’). To create this record, not just those directly involved in the authorizations issued by the chartering Contracting Parties shall submit a list to fishery. nation in order to fish in foreign waters, the ICCAT Executive Secretary Comment 3: The penalties for or obtain other authorizations such as a containing information relating to its violation of chartering permits should High Seas Fishing Compliance Act approved vessels. ICCAT recommended be severe, including permit sanctions, Permit, 50 CFR 300.10 et seq. that the Contracting Parties take and be detailed in the regulatory text. Additionally, incidental takes of, or measures to prohibit the fishing for, Response: NMFS agrees that interactions with, protected resources retaining on board, transshipment, and submitting false charter permit will be included against the authorized landing of ICCAT regulated species by information should be met with stiff take levels specified in any relevant vessels which are not listed on the penalties. Penalties are often based, Biological Opinions. A U.S. vessel shall positive list. among other things, on past convictions, not be authorized to fish under more This final rule implements the severity of offense, and propensity to than one chartering arrangement at the measures associated with both these commit the offense again. same time. NMFS will issue chartering lists. The United States submitted a Comment 4: The terms and conditions permits only if it determines that the positive list to ICCAT on June 23, 2004, of chartering permits should include chartering arrangement is in and plans to update this list annually, specifics about when the VMS should conformance with ICCAT’s conservation or as requested by ICCAT. Because the be turned off and on if they are required and management programs. United States does not know of any to use an equivalent system while ICCAT also recommended that domestic vessels that participate in IUU fishing in foreign waters. In addition, in observers be aboard at least 10 percent fishing, the United States did not submit situations where the chartering of the chartered vessels or during 10 a negative list to ICCAT but will in the countries quota has been exceeded and percent of the fishing time. NMFS has future, as appropriate. a no dead discard provision is in place, the authority to place observers onboard ICCAT also recommended at its 2003 the United States should stipulate that a chartered vessel pursuant to 50 CFR meeting that Contracting Parties permit holders will be required to seek 635.7. Vessels participating in prohibit landings from fishing vessels, an exemption from the chartering chartering arrangements may be placing in cages for farming and/or the country before entering into a chartering required to use vessel monitoring transshipment within their jurisdiction arrangement. systems (VMS) for the duration of the of tunas or tuna-like species caught by Response: The terms and conditions arrangement, including when vessels IUU fishing activities (Recommendation of chartering permits will describe the are traveling to and from the locale of 03–16). This final rule also implements specific requirements and allowances of fishing, dependent on the terms and this additional measure to prevent and individual chartering permits, conditions of the chartering permit. deter IUU fishing. including: use of VMS, reporting requirements, target species and size, Illegal, Unreported, and Unregulated Response to Comments (IUU) Fishing quantity of fish landed, gear employed, NMFS received several public protected species interactions, and so In an effort to prevent and deter IUU comments from two individuals prior to forth. Restrictions in place by both flag fishing, ICCAT adopted three the closing date of the comment period and chartering nations must be adhered recommendations (02–23, 02–22, and for the proposed rulemaking which to for the entire duration of the 03–16). Recommendations 02–23 and ended on June 21, 2004. The individuals agreement and would be considered 02–22 outline processes for identifying expressed concern about numerous before permit issuance. vessel lists, ICCAT adoption of the lists, aspects of Highly Migratory Species and revisions via the submission of management, both directly and Changes From the Proposed Rule provisional lists to ICCAT for further indirectly related to this rulemaking. This rule modifies the regulatory text consideration. Recommendation 02–23 These comments are summarized below of the proposed rule that published on establishes a list of vessels presumed to with the responses. May 6, 2004, (69 FR 25357) to clarify the have carried out IUU fishing activities Comment 1: Object to lifting country reporting requirements (submission in the ICCAT convention area (also specific tuna import prohibitions. dates, etc.) for chartering permits. referred to as ‘‘negative list’’). Each year, Response: ICCAT adopted the Contracting Parties shall transmit to the recommendations to lift certain import Classification ICCAT Executive Secretary a list of restrictions because these countries had This final rule is published under the vessels suspected of IUU fishing, come into compliance with the authority of the Magnuson-Stevens Act accompanied by supporting evidence. conservation and management goals of and ATCA. The Assistant Administrator Upon adoption of the list of IUU vessels, the commission. Concurrently, ICCAT for Fisheries has determined that the Contracting Parties shall enact measures adopted other recommendations that regulations contained in this rule are to prevent vessels flying their flag from ban imports from certain countries that necessary to implement the transshipping with a vessel on the are not complying with the goals of the recommendations of ICCAT and to negative list, prevent vessels on the convention. Thus, this final rule manage the domestic Atlantic highly negative list from landing or implements all the ICCAT migratory species fisheries. transhipping in their ports, prohibit the recommendations from 2002 and 2003 Based on the management measures chartering of an IUU vessel, refuse to that lift or ban imports of ICCAT in several proposed rules, including the grant their flag to an IUU vessel, and species. proposed rule for these regulations, a prohibit imports, landing, or Comment 2: NMFS excludes citizens new Biological Opinion (BiOp) on the transshipment of ICCAT regulated that are not directly involved with Atlantic pelagic longline (PLL) fishery species from IUU vessels. fisheries from their public hearings. was issued on June 1, 2004. The 2004 Recommendation 02–22 establishes a Response: Public hearings conducted BiOp found that the continued record of vessels larger than 24 meters by NMFS are open to any and all operation of the fishery was not likely

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 70398 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations

to jeopardize the continued existence of and 2003 ICCAT recommendations prohibiting the import of BET, BFT, and loggerhead, green, hawksbill, Kemp’s regarding trade measures consistent SWO from Sierra Leone and BET from ridley, or olive ridley sea turtles, but with the HMS FMP, the Magnuson- Bolivia and Georgia, NMFS could was likely to jeopardize the continued Stevens Act, ATCA, and other domestic reduce the economic benefits to existence of leatherback sea turtles. The regulations. NMFS is authorized to importers and dealers. Conversely, by 2004 BiOp identified Reasonable and implement ICCAT recommendations lifting the trade restrictions on imports Prudent Alternatives (RPAs) necessary under ATCA. ICCAT recommendations of BFT and SWO from Honduras and to avoid jeopardizing leatherbacks, and are part of an international cooperative lifting the prohibition of imports of BET listed the Reasonable and Prudent effort to rebuild, conserve, and manage from Belize and St. Vincent and the Measures (RPMs) and terms and tuna and tuna-like species. The Grenadines and BFT and SWO from conditions necessary to authorize preferred alternative outlined in this Belize, NMFS could provide economic continued take as part of the revised final rule would satisfy the purpose of benefits to importers and dealers. incidental take statement. On July 6, this rule, to implement the United However, because current and past 2004, NMFS published a final rule (69 States’ obligation to implement the import levels of these fish species from FR 40734) implementing additional sea binding conservation and management these countries are either low or turtle bycatch and bycatch mortality measures that have been adopted by nonexistent, NMFS does not anticipate mitigation measures for all Atlantic ICCAT. The preferred alternative is major positive or negative economic vessels with PLL gear onboard. NMFS is consistent with the ICCAT trade related impacts as a result of implementing this implementing the other RPMs in recommendations, the ATCA, the measure. compliance with the BiOp. On August Magnuson-Stevens Act, and the HMS The chartering permit is not expected 12, 2004, NMFS published an Advance FMP. A summary of the public to significantly increase the Notice of Proposed Rulemaking (69 FR comments received and NMFS’ administrative burden to the vessel 49858) to request comments on responses thereto is included in the owners or result in significant economic potential regulatory changes to further preamble. No comments were received impacts. The application process reduce bycatch and bycatch mortality of regarding the economic impact of this requires the provision, through mail or sea turtles, as well as comments on the rule or the initial regulatory flexibility facsimile, of information, including, but feasibility of framework mechanisms to analysis. not limited to: name and registration address unanticipated increases in sea As this final rule impacts the trade number of the vessel, name and address turtle interactions and mortalities, and importation of HMS (e.g., ICCAT of the owner, description of the vessel, should they occur. NMFS will regulated species) in the United States targeted species, quota allocated to the undertake additional rulemaking and and chartering arrangements with chartering party, and the duration of the non-regulatory actions, as required, to foreign entities, the regulations will not chartering arrangement. Additional implement any management measures directly impact a specific domestic information such as copies of fishing that are required under the 2004 BiOp. fishery. However, these measures could licenses, permits, other authorizations The actions in this final rule are not impact HMS dealers and vessels that (e.g., High Seas Fishing Compliance Act expected to change the takes of, or participate in chartering arrangements, Permit, 50 CFR 300.10), and interactions with, protected species. all of which NMFS considers to be small documentation regarding the legal Incidental takes of, or interactions with, entities. In December 2003, there were establishment of the chartering protected species that are listed as approximately 516 and 302 dealer company will be requested. A vessel threatened or endangered under the permits issued for tuna and SWO, shall not be authorized to fish under Endangered Species Act taking place respectively. NMFS estimates that less more than one chartering arrangement at under the auspices of a chartering than 10 domestic vessels may the same time and all interactions with permit arrangement will be included participate in chartering arrangements protected species outside the United against the authorized take levels in any given calender year. States EEZ will be included against the specified in relevant Biological To address the 2002 and 2003 ICCAT authorized take levels of the relevant Opinions. recommendations regarding trade BiOps. NMFS will issue permits only if NMFS has determined that the measures, two alternatives were it is determined that the chartering regulations selected in this final rule prepared: a preferred alternative to arrangement is in conformance with will be implemented in a manner implement the ICCAT recommendations ICCAT’s conservation and management consistent, to the maximum extent regarding trade measures and a no programs. NMFS does not anticipate practicable, with the enforceable action alternative that would not major economic impacts to domestic policies of those Atlantic, Gulf of implement the recommendations. The vessels as a result of a permit denial, Mexico, and Caribbean coastal states no action alternative of not given that these vessels will continue to that have approved coastal zone implementing the ICCAT trade be able to fish in domestic waters for management programs. The proposed recommendations was not selected HMS and may decide to sell HMS regulations were submitted to the because it is not consistent with ATCA. domestically or export product to other responsible state agencies for their As with the preferred alternative the no countries depending upon which review under Section 307 of the Coastal action alternative would have few, if market has the higher product price. Zone Management Act. All of the states any, economic impacts on small Given that only one exempted fishing that responded found NMFS’ proposed entities. permit exempting vessels from U.S. actions to be consistent with their The preferred alternative in this final regulations for chartering arrangements coastal zone management programs. rule (imposing or lifting trade has been issued under current Concurrence is presumed for those restrictions, establishing chartering requirements in the fishery, NMFS does states that did not respond. notification and permit requirements, not anticipate any significant economic NMFS has prepared a final regulatory and implementing measures designed to impacts to a substantial number of flexibility analysis that examined the prevent IUU fishing and fishing by domestic vessels as a result of taking economic impacts of this action on unauthorized large scale fishing vessels) this action. small entities. The purpose of this is not expected to have significant NMFS does not anticipate any rulemaking is to implement the 2002 economic or social impacts. By significant impacts to U.S. entities by

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations 70399

prohibiting the import of ICCAT List of Subjects in 50 CFR Part 635 Contracting Party to which the regulated species from vessels known to Fisheries, Fishing, Fishing Vessels, chartering foreign entity is a member be IUU fishing or from unauthorized Foreign relations, Imports, Penalties, and, unless otherwise provided in the large scale fishing vessels. Currently, Reporting and recordkeeping chartering permit, must be offloaded in NMFS does not have specific requirements, Treaties. the ports of the chartering foreign entity information concerning the amount of or offloaded under the direct Dated: November 23, 2004. HMS imported from such vessels. supervision of the chartering foreign However, NMFS believes that the John Oliver, entity. amount of HMS imported from these Deputy Assistant Administrator for (iii) If the chartering arrangement types of vessels is insignificant, and Operations, National Marine Fisheries terminates before the expiration of the Service. therefore does not expect any major charter permit, the vessel owner must I economic impacts associated with For the reasons set out in the preamble, notify NMFS immediately and in implementation of the management 50 CFR part 635 is amended as follows: writing, upon termination of the chartering arrangement. Such measure or with no action. PART 635—ATLANTIC HIGHLY notification requirements shall also NMFS considers all HMS vessel and MIGRATORY SPECIES apply to situations where the chartering dealer permit holders to be small I arrangement is temporarily suspended entities, and thus, in order to meet the 1. The authority citation for part 635 continues to read as follows: and during intermittent periods where objectives of this final rule and address the vessel may be fishing under U.S. the management concerns at hand, Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. quotas for Atlantic HMS. 1801 et seq. NMFS cannot exempt small entities or * * * * * I 2. In § 635.2 the definition of ‘‘Tuna or change the reporting requirements for I 4. In § 635.32, paragraphs (e) and (f) are tuna-like’’ is added in alphabetical order small entities. NMFS is implementing redesignated as paragraphs (f) and (g), to read as follows: these measures to comply with ICCAT respectively, and revised; paragraph (a) recommendations which are negotiated § 635.2 Definitions. is revised; and a new paragraph (e) is between many countries and are * * * * * added to read as follows: therefore not easily adjusted or Tuna or tuna-like means the § 635.32 Specifically authorized activities. modified. As such, the use of Scombriformes (with the exception of performance rather than design (a) General. (1) Consistent with the families Trichiuridae and Gempylidae provisions of § 600.745 of this chapter, standards and the simplification of and the genus Scomber) and such other compliance and reporting requirements except as indicated in this section, species of fishes that are regulated by NMFS may authorize activities under this rule are not practicable. ICCAT in the Atlantic Ocean. Furthermore, this action does not otherwise prohibited by the regulations * * * * * duplicate, overlap, or conflict with any contained in this part for the conduct of I other relevant Federal rules. 3. In § 635.5, paragraph (a)(6) is added scientific research, the acquisition of to read as follows: information and data, the enhancement This final rule contains new of safety at sea, the purpose of collecting collection-of-information requirements § 635.5 Recordkeeping and reporting. animals for public education or display, subject to review and approval by the * * * * * the investigation of bycatch, economic Office of Management and Budget (a) * * * discard and regulatory discard, or for (OMB) under the Paperwork Reduction (6) Chartering Arrangements. (i) For chartering arrangements. Act (PRA). The chartering application the purposes of this section, a chartering (2) Activities subject to the provisions and notification requirements for arrangement means any contract, of this section include, but are not vessels entering a chartering agreement, or commitment between a limited to, scientific research resulting arrangement has been cleared by OMB U.S. vessel owner and a foreign entity in, or likely to result in, the take, harvest under control number 0648–0495. (e.g., government, company, person) by or incidental mortality of Atlantic HMS; Public reporting burden for this which the control, use, possession, or exempted fishing and educational collection of information is estimated to services of a vessel are secured, for a activities; programs under which average 40 minutes per application and period of time for fishing targeting regulated species retained in 5 minutes per notification upon Atlantic HMS. Chartering arrangements contravention to otherwise applicable termination of the chartering under this part do not include bareboat regulations may be donated through arrangement. This burden estimate charters under which a vessel enters approved food bank networks; or includes the time for reviewing into a fishing agreement with a foreign chartering arrangements. Such activities instructions, searching existing data entity, changes registration to fish under must be authorized in writing and are sources, gathering and maintaining the another country’s registration then, once subject to all conditions specified in any data needed, and completing and the agreed-upon fishing is completed, letter of acknowledgment, exempted reviewing the collection of information. reverts back to the vessel’s original fishing permit, scientific research registration. Notwithstanding any other provision permit, display permit, or chartering (ii) Before fishing under a chartering permit issued in response to requests for of the law, no person is required to arrangement, the owner of a fishing authorization under this section. respond to, nor shall any person be vessel subject to U.S. jurisdiction must (3) For the purposes of all regulated subject to a penalty for failure to comply apply for, and obtain, a chartering species covered under this part, NMFS with, a collection of information subject permit as specified in § 635.32 (e) and has the sole authority to issue permits, to the requirements of the PRA, unless (f). If a chartering permit is obtained, the authorizations, and acknowledgments. If that collection of information displays a vessel owner must submit catch a regulated species landed or retained currently valid OMB Control Number. information as specified in the terms under the authority of this section is This final rule has been determined to and conditions of that permit. All subject to a quota, the fish shall be be not significant for purposes of catches will be recorded and counted counted against the quota category as Executive Order 12866. against the applicable quota of the specified in the written authorization.

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 70400 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations

(4) Inspection requirements specified § 635.5. NMFS will provide specific terms and conditions of each chartering in § 635.5(e) apply to the owner or conditions and requirements in the permit. operator of a fishing vessel that has been chartering permit, so as to ensure (3) An annual written summary report issued a exempted fishing permit, consistency, to the extent possible, with of all fishing activities and disposition scientific research permit, display laws of foreign countries, the Fishery of all fish captured under the permit permit, or chartering permit. Management Plan for Atlantic Tunas, must be submitted to NMFS for all the * * * * * Swordfish, and Sharks, as well as permits (EFP, SRP, Display, and (e) Chartering permits. (1) For ICCAT recommendations. Chartering Permits) listed in this section activities consistent with the purposes (4) Observers may be placed on board within 30 days after the expiration date of this section, § 635.5(a), and vessels issued chartering permits as of the permit. § 600.745(b)(1) of this chapter, NMFS specified under § 635.7. (5) NMFS will issue a chartering I 5. Section 635.45 is revised to read as may issue chartering permits for record permit only if it determines that the follows: keeping and reporting purposes. An chartering arrangement is in application for a chartering permit must § 635.45 Products denied entry. conformance with ICCAT’s conservation include all information required under and management programs. (a) All shipments of Atlantic § 600.745(b)(2) of this chapter and, in (6) A vessel shall be authorized to fish swordfish, or its products, in any form, addition, written notification of: the under only one chartering arrangement harvested by a vessel under the species of fish covered by the chartering at a time. jurisdiction of Sierra Leone will be arrangement and quota allocated to the (7) All chartering permits are subject denied entry into the United States. Contracting Party of which the to sanctions and denials as indicated chartering foreign entity is a member; (b) All shipments of Atlantic bluefin under § 635.4(a)(6). tuna, or its products, in any form, duration of the arrangement; measures (f) Applications and renewals. adopted by the chartering Contracting harvested by a vessel under the Application procedures shall be as jurisdiction of Equatorial Guinea or Party of which the foreign entity is a indicated under § 600.745(b)(2) of this member to implement ICCAT chartering Sierra Leone will be denied entry into chapter, except that NMFS may the United States. provisions; copies of fishing licenses, consolidate requests for the purpose of permits, and/or other authorizations obtaining public comment. In such (c) All shipments of Atlantic bigeye issued by the chartering Contracting cases, NMFS may file with the Office of tuna, or its products, in any form, Party of which the foreign entity is a the Federal Register, on an annual or harvested by a vessel under the member for the vessel to fish under the more frequent basis as necessary, jurisdiction of Bolivia, Cambodia, arrangement; a copy of the High Seas notification of previously authorized Equatorial Guinea, Sierra Leone, or Fishing Compliance Act Permit exempted fishing, scientific research, Georgia will be denied entry into the pursuant to 50 CFR 300.10; public display, or chartering activities United States. documentation regarding interactions and to solicit public comment on (d) All shipments of tuna or tuna-like with protected resources; and anticipated EFP, SRP, LOA, public species, or their products, in any form, documentation regarding the legal display, or chartering permit requests. harvested in the ICCAT convention area establishment of the chartering Applications for EFP, SRP, public by a fishing vessel that is required to be company. To be considered complete, display, or chartering permit renewals listed, but not listed on the ICCAT an application for a chartering permit are required to include all reports record of authorized vessels will be for a vessel must include all information specified in the applicant’s previous denied entry into the United States. specified in § 600.745(b)(2) of this permit including the year-end report, all (e) All shipments of tuna or tuna-like chapter and in § 635.32(e) and (f). delinquent reports for permits issued in species, or their products, in any form, (2) Notwithstanding the provisions of prior years, and all other specified harvested in the ICCAT convention area § 600.745 of this chapter and other information. In situations of delinquent by a fishing vessel listed on the ICCAT provisions of this part, a valid reports, renewal applications will be record as engaged in illegal, unreported, chartering permit is required to fish for, deemed incomplete and a permit will and unregulated fishing will be denied take, retain, or possess ICCAT- regulated not be issued under this section. entry into the United States. species under chartering arrangements (g) Terms and conditions. (1) For (f) All shipments of tuna or tuna-like as specified in § 635.5(a)(6). A valid EFPs, SRPs, and public display permits: species, placed in cages for farming and/ chartering permit must be on board the Written reports on fishing activities and or transshipment, harvested in the harvesting vessel, must be available disposition released under a permit ICCAT convention area and caught by a when ICCAT-regulated species are issued under this section, must be fishing vessel included on the ICCAT landed, and must be presented for submitted to NMFS, within 5 days of list as engaged in illegal, unreported, inspection upon request of an return to port. NMFS will provide and unregulated fishing will be denied authorized officer. A chartering permit specific conditions and requirements as entry into the United States. is valid for the duration of the needed, consistent with the Fishery (g) For the purposes of this section, it chartering arrangement or until the Management Plan for Atlantic Tunas, is a rebuttable presumption that any expiration date specified on the permit, Swordfish and Sharks, in the permit. If shipment containing swordfish, bluefin whichever comes first. Vessels issued a an individual issued a Federal permit tuna, bigeye tuna, or their products chartering permit shall not be under this section captures no HMS in offered for entry into the United States authorized to fish under applicable any given month, either in or outside has been harvested by a vessel or vessels Atlantic Highly Migratory Species the EEZ, a ‘‘no-catch’’ report must be of the exporting nation. quotas or entitlements of the United submitted to NMFS within 5 days of the States until the chartering permit last day of that month. I 6. In § 635.71, paragraphs (a)(2), (a)(6), expires or is terminated. (2) For chartering permits, written and (b)(26) are revised; and paragraphs (3) Charter permit holders must reports of fishing activities must be (a)(41) through (a)(47) and paragraphs submit logbooks and comply with submitted to NMFS by a date specified, (b)(30) and (e)(16) are added to read as reporting requirements as specified in and to an address designated, in the follows:

VerDate jul<14>2003 15:10 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00046 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Rules and Regulations 70401

§ 635.71 Prohibitions. defined as the Contracting Party of (47) Import or attempt to import tuna * * * * * which the chartering foreign entity is a or tuna-like species, placed in cages for (a) * * * member as specified in § 635.5(a)(6). farming and/or transshipment, (2) Fish for, catch, possess, retain, or (43) Fail to submit catch information harvested in the ICCAT convention area land an Atlantic HMS without the regarding fishing activities conducted and caught by a fishing vessel included appropriate valid vessel permit, LAP, under a chartering arrangement with a on the ICCAT list as engaged in illegal, EFP, SRP, display permit, or chartering foreign entity, as specified in unreported, and unregulated fishing as permit on board the vessel, as specified § 635.5(a)(6). specified in § 635.45(f). in §§ 635.4 and 635.32. (44) Offload chartering arrangement (b)* * * * * * * * catch in ports other than ports of the (26) Import a bluefin tuna or bluefin (6) Falsify or fail to record, report, or chartering Contracting Party of which tuna product into the United States from maintain information required to be the foreign entity is a member or offload Equatorial Guinea or Sierra Leone as recorded, reported, or maintained, as catch without the direct supervision of specified in § 635.45. specified in §§ 635.5 and 635.32 or in the chartering foreign entity as specified * * * * * the terms and conditions of a permit in § 635.5(a)(6). (30) Import a bigeye tuna or bigeye issued under § 635.4 or an exempted (45) Import or attempt to import tuna tuna product into the United States from fishing permit, scientific research or tuna-like species harvested from the Bolivia, Cambodia, Equatorial Guinea, permit, display permit, or chartering ICCAT convention area by a fishing Sierra Leone, or Georgia as specified in permit issued under § 635.32. vessel that is not listed in the ICCAT § 635.45. * * * * * record of authorized vessels as specified * * * * * (41) Fail to immediately notify NMFS in § 635.45(d). (e)* * * upon the termination of a chartering (46) Import or attempt to import tuna (16) Import a swordfish or swordfish arrangement as specified in or tuna-like species harvested by a product into the United States from § 635.5(a)(6). fishing vessel on the ICCAT illegal, Sierra Leone as specified in § 635.45. (42) Count chartering arrangement unreported, and unregulated fishing list [FR Doc. 04–26719 Filed 12–3–04; 8:45 am] catches against quotas other than those as specified in § 635.45(e). BILLING CODE 3510–22–S

VerDate jul<14>2003 14:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 E:\FR\FM\06DER1.SGM 06DER1 70402

Proposed Rules Federal Register Vol. 69, No. 233

Monday, December 6, 2004

This section of the FEDERAL REGISTER • Fax: 202–772–5036 (This is not a collects, maintains, uses and contains notices to the public of the proposed toll-free number). disseminates personally identifiable issuance of rules and regulations. The • Mail: Department of Homeland information. The Privacy Act applies to purpose of these notices is to give interested Security, Attn: Privacy Office/Nuala information that is maintained in a persons an opportunity to participate in the O’Connor Kelly, Chief Privacy Officer/ ‘‘system of records.’’ A ‘‘system of rule making prior to the adoption of the final rules. 202–772–9848, Washington, DC 20528. records’’ is a group of any records under • Hand Delivery / Courier: the control of an agency from which Department of Homeland Security, Attn: information is retrieved by the name of DEPARTMENT OF HOMELAND Privacy Office/Nuala O’Connor Kelly, the individual or by some identifying SECURITY Chief Privacy Officer/202–772–9848, number, symbol, or other identifying Anacostia Navel Annex, 245 Murray particular assigned to the individual. Office of the Secretary Lane, SW, Building 410, Washington, Individuals may request their own DC 20528, 7:30 a.m. to 4 p.m. records that are maintained in a system 6 CFR Part 5 Instructions: All submissions received of records in the possession or under the must include the agency name and control of DHS by complying with DHS DHS–2004–0016 docket number for this rulemaking. All Privacy Act regulations, 6 CFR part 5. comments received will be posted The Homeland Security Act of 2002 Privacy Act of 1974: Implementation of without change to http://www.epa.gov/ requires the Secretary of DHS to appoint Exemptions feddocket, including any personal a senior official to oversee information provided. implementation of the Privacy Act and AGENCY: Privacy Office, DHS. Docket: For access to the docket to to undertake other privacy-related ACTION: Notice of proposed rulemaking. read background documents or activities. Pub. L. 107–296, § 222, 116 comments received, go to http:// SUMMARY: Stat. 2135, 2155 (Nov. 25, 2002) (HSA). The Department of Homeland www.epa.gov/feddocket. You may also Security is concurrently establishing The systems of records being published access the Federal eRulemaking Portal today help to carry out the DHS Chief three new systems of records pursuant at http://www.regulations.gov. to the Privacy Act of 1974. In this Privacy Officer’s statutory activities. proposed rulemaking, DHS proposes to FOR FURTHER INFORMATION CONTACT: The Privacy Act requires each agency exempt portions of two of those systems Nuala O’Connor Kelly, DHS Chief to publish in the Federal Register a of records from one or more provisions Privacy Officer, Department of description of the type and character of of the Privacy Act because of criminal, Homeland Security, Washington, DC each system of records that the agency civil and administrative enforcement 20528 by phone 202–772–9848 or maintains, and the routine uses that are requirements. facsimile 202–772–5036. contained in each system in order to SUPPLEMENTARY INFORMATION: make agency recordkeeping practices DATES: Comments must be received on transparent, to notify individuals or before January 5, 2005. Background regarding the uses to which personally ADDRESSES: You may submit comments, Concurrently with the publication of identifiable information is put, and to identified by docket number DHS– this notice of proposed rulemaking, the assist individuals to more easily find 2004–0016, by one of the following Department of Homeland Security such files within the agency. methods: (DHS) is publishing a Notice The Privacy Act allows government • EPA Federal Partner EDOCKET establishing three new systems of agencies to exempt certain records from Web site: http://www.epa.gov/ records that are subject to the Privacy the access and amendment provisions. If feddocket. Follow instructions for Act of 1974, 5 U.S.C. 552a. DHS is an agency claims an exemption, submitting comments on the Web site. proposing to exempt two of those however, it must issue a Notice of • DHS has joined the Environmental systems, in part, from certain provisions Proposed Rulemaking to make clear to Protection Agency (EPA) online public of the Privacy Act. Those systems are the public the reasons why a particular docket and comment system on its the DHS Freedom of Information Act exemption is claimed. DHS is claiming Partner Electronic Docket System and Privacy Act Records System (DHS/ exemption from certain requirements of (Partner EDOCKET). DHS and its ALL 001), which will contain records the Privacy Act. In the case of DHS/All components (excluding the United related to requests and appeals made 001, which consists of Freedom of States Coast Guard (USCG) and under the Freedom of Information Act, Information Act and Privacy Act Transportation Security Administration 5 U.S.C. 552, and the Privacy Act; and request, appeals and litigation records, (TSA)) will use the EPA Federal Partner the Civil Rights and Civil Liberties it is possible that the information in the EDOCKET system. The USCG and TSA Matters System (DHS–CRCL–001), record system may be copied from (which are legacy Department of which will cover allegations of abuses of record systems that pertain to national Transportation (DOT) agencies) will civil rights and civil liberties that are security or law enforcement matters. In continue to use the DOT Docket submitted to and investigated by the such cases, allowing access to the Management System until full migration DHS Officer for Civil Rights and Civil information that is derived from these to the electronic rulemaking federal Liberties. files could alert the subject of the docket management system in 2005. The Privacy Act embodies fair information to an investigation of an • Federal eRulemaking Portal: http:// information principles in a statutory actual or potential criminal, civil, or www.regulations.gov. Follow the framework governing the means by regulatory violation and reveal instructions for submitting comments. which the United States Government investigative interest on the part of DHS

VerDate jul<14>2003 15:33 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 E:\FR\FM\06DEP1.SGM 06DEP1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Proposed Rules 70403

or another agency. Disclosure of the information under each statute. Pursuant to on a case by case basis to be determined at information would therefore present a exemptions (j)(2), (k)(1), (k)(2) and (k)(5) of the time a request is made, for the following serious impediment to law enforcement the Privacy Act, portions of this system are reasons: efforts and/or efforts to preserve exempt from 5 U.S.C. 552a(c)(3); (d); (e)(1); (a) From subsection (c)(3) (Accounting for (e)(4)(G), (H) and (I). Exemptions from the Disclosures) because release of the national security. Disclosure of the particular subsections are justified, on a case accounting of disclosures could alert the information would also permit the by case basis to be determined at the time a individual who is the subject of a record request is made, for the following reasons: subject of an investigation of an actual or to impede the investigation and avoid (a) From subsection (c)(3) (Accounting for potential criminal, civil, or regulatory detection or apprehension, which Disclosures) because release of the violation to the existence of the investigation undermines the entire system. This accounting of disclosures could alert the and reveal investigative interest on the part exemption is a standard law subject of an investigation of an actual or of DHS or another agency. Disclosure of the enforcement and national security potential criminal, civil, or regulatory accounting would therefore present a serious violation to the existence of the investigation impediment to law enforcement efforts and exemption utilized by numerous law and reveal investigative interest on the part enforcement and intelligence agencies. efforts to preserve national security. of DHS as well as the recipient agency. Disclosure of the accounting would also Similarly, the records in the Civil Rights Disclosure of the accounting would therefore permit the individual who is the subject of and Civil Liberties System of Records present a serious impediment to law may reflect sensitive law enforcement or enforcement efforts and/or efforts to preserve a record to impede the investigation and national security matters, the disclosure national security. Disclosure of the avoid detection or apprehension, which of which would result in comparable accounting would also permit the individual undermines the entire system. (b) From subsection (d) (Access to Records) harms. who is the subject of a record to impede the investigation and avoid detection or because access to the records contained in List of Subjects in 6 CFR Part 5 apprehension, which undermines the entire this system of records could inform the system. subject of an investigation of an actual or Classified information; Courts; (b) From subsection (d) (Access to Records) Freedom of information; Government potential criminal, civil, or regulatory because access to the records contained in violation to the existence of the investigation employees; Privacy. this system of records could inform the and reveal investigative interest on the part subject of an investigation of an actual or For the reasons stated in the of DHS as well as the recipient agency. potential criminal, civil, or regulatory preamble, DHS proposes to amend Access to the records would permit the Chapter I of Title 6, Code of Federal violation to the existence of the investigation and reveal investigative interest on the part individual who is the subject of a record to Regulations, as follows: of DHS or another agency. Access to the impede the investigation and avoid detection or apprehension. Amendment of the records PART 5—DISCLOSURE OF RECORDS records would permit the individual who is the subject of a record to impede the would interfere with ongoing investigations AND INFORMATION investigation and avoid detection or and law enforcement activities and impose 1. The authority citation for Part 5 apprehension. Amendment of the records an impossible administrative burden by would interfere with ongoing investigations continues to read as follows: requiring investigations to be continuously and law enforcement activities and impose reinvestigated. The information contained in Authority: Pub. L. 107–296, 116 Stat. 2135, an impossible administrative burden by the system may also include properly 6 U.S.C. 101 et seq.; 5 U.S.C. 301. Subpart A requiring investigations to be continuously classified information, the release of which also issued under 5 U.S.C. 552. Subpart B reinvestigated. The information contained in also issued under 5 U.S.C. 552a. the system may also include properly would pose a threat to national defense and/ classified information, the release of which or foreign policy. In addition, permitting 2. Add Appendix C to Part 5 to read would pose a threat to national defense and/ access and amendment to such information as follows: or foreign policy. In addition, permitting also could disclose security-sensitive Appendix C to Part 5—DHS Systems of access and amendment to such information information that could be detrimental to Records Exempt from the Privacy Act also could disclose security-sensitive homeland security. information that could be detrimental to (c) From subsection (e)(1) (Relevancy and This Appendix implements provisions of homeland security. Necessity of Information) because in the the Privacy Act of 1974 that permit the (c) From subsection (e)(1) (Relevancy and course of investigations into potential Department of Homeland Security (DHS) to Necessity of Information) because in the violations of federal law, the accuracy of exempt its systems of records from course of investigations into potential information obtained or introduced, provisions of the Act. During the course of violations of federal law, the accuracy of normal agency operations, exempt materials information obtained or introduced, occasionally may be unclear or the from other systems of records may become occasionally may be unclear or the information may not be strictly relevant or part of the records in these and other DHS information may not be strictly relevant or necessary to a specific investigation. In the systems. To the extent that copies of records necessary to a specific investigation. In the interests of effective enforcement of federal from other exempt systems of records are interests of effective enforcement of federal laws, it is appropriate to retain all entered into any DHS system, DHS hereby laws, it is appropriate to retain all information that may aid in establishing claims the same exemptions for those records information that may aid in establishing patterns of unlawful activity. that are claimed for the original primary patterns of unlawful activity. (d) From subsections (e)(4)(G), (H) and (I) systems of records from which they (d) From subsections (e)(4)(G), (H) and (I) (Agency Requirements), and (f) (Agency originated and claims any additional (Agency Requirements), and (f) (Agency Rules), because this system is exempt from exemptions in accordance with this rule. Rules), because portions of this system are the access provisions of subsection (d). Portions of the following DHS systems of exempt from the access provisions of records are exempt from certain provisions of subsection (d). Dated: December 1, 2004. the Privacy Act pursuant to 5 U.S.C. 552(j) 2. DHS–CRCL–001, Civil Rights and Civil Nuala O’Connor Kelly, and (k): Liberties Matters, which will cover Chief Privacy Officer. 1. DHS/ALL 001, Department of Homeland allegations of abuses of civil rights and civil Security (DHS) Freedom of Information Act liberties that are submitted to the Office of [FR Doc. 04–26743 Filed 12–3–04; 8:45 am] (FOIA) and Privacy Act (PA) Record System CRCL. Pursuant to exemptions (k)(1), (k)(2) BILLING CODE 4410–10–P allows the DHS and its components to and (k)(5) of the Privacy Act, portions of this maintain and retrieve FOIA and Privacy Act system are exempt from 5 U.S.C. 552a(c)(3); files by personal identifiers associated with (d); (e)(1); (e)(4)(G), (H) and (I). Exemptions the persons submitting requests for from the particular subsections are justified,

VerDate jul<14>2003 15:33 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 E:\FR\FM\06DEP1.SGM 06DEP1 70404 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Proposed Rules

DEPARTMENT OF THE TREASURY ENVIRONMENTAL PROTECTION the on-line instructions for submitting AGENCY comments. Internal Revenue Service • E-mail: [email protected]. 40 CFR Part 721 • Mail: Document Control Office 26 CFR Part 26 [OPPT–2004–0085; FRL–7688–1] (DCO) (7407M), Office of Pollution Prevention and Toxics (OPPT), RIN 2070–AJ02 [REG–145988–03] Environmental Protection Agency, 1200 Certain Polybrominated Pennsylvania Ave., NW., Washington, DC 20460–0001. RIN 1545–BC60 Diphenylethers; Proposed Significant • New Use Rule Hand Delivery: OPPT Document Predeceased Parent Rule Control Office, EPA East Bldg., Rm. AGENCY: Environmental Protection 6428, 1201 Constitution Ave., NW., AGENCY: Internal Revenue Service (IRS), Agency (EPA). Washington, DC. Attention: Docket ID Treasury. ACTION: Proposed rule. number OPPT–2004–0085. The DCO is open from 8 a.m. to 4 p.m., Monday ACTION: Cancellation of notice of public SUMMARY: EPA is proposing a significant through Friday, excluding legal hearing on proposed rulemaking. new use rule (SNUR) under section holidays. The telephone number for the 5(a)(2) of the Toxic Substances Control DCO is (202) 564–8930. Such deliveries SUMMARY: This document provides Act (TSCA) for tetrabromodiphenyl are only accepted during the Docket’s notice of cancellation of a public ether (CAS No. 40088–47–9; Benzene, normal hours of operation, and special hearing on proposed rulemaking 1,1′-oxybis-, tetrabromo deriv.), arrangements should be made for relating to the predeceased parent rule. pentabromodiphenyl ether (CAS No. deliveries of boxed information. ′ 32534–81–9; Benzene, 1,1 -oxybis-, Instructions: Direct your comments to DATES: The public hearing originally pentabromo deriv.), hexabromodiphenyl docket ID number OPPT–2004–0085. scheduled for Tuesday, December 14, ether (CAS No. 36483–60–0; Benzene, EPA’s policy is that all comments ′ 2004, at 10 a.m. is cancelled. 1,1 -oxybis-, hexabromo deriv.), received will be included in the public FOR FURTHER INFORMATION CONTACT: heptabromodiphenyl ether (CAS No. docket without change and may be Guy ′ R. Traynor, Procedures and 68928–80–3; Benzene, 1,1 -oxybis-, made available on-line at http:// Administration, Publications & heptabromo deriv.), octabromodiphenyl www.epa.gov/edocket/, including any ether (CAS No. 32536–52–0; Benzene, Regulations Branch, at (202) 622–3693 personal information provided, unless 1,1′-oxybis-, octabromo deriv.), or (not a toll-free number). the comment includes information nonabromodiphenyl ether (CAS No. claimed to be Confidential Business SUPPLEMENTARY INFORMATION: A notice 63936–56–1; Benzene, Information (CBI) or other information of proposed rulemaking and notice of pentabromo(tetrabromophenoxy)-), and whose disclosure is restricted by statute. public hearing that appeared in the any combination of these substances Do not submit information that you Federal Register on Friday, September resulting from a chemical reaction. This consider to be CBI or otherwise 3, 2004 (69 FR 53862), announced that proposed rule would require protected through EDOCKET, a public hearing was scheduled for manufacturers and importers to notify regulations.gov, or e-mail. The EPA December 14, 2004 at 10 a.m., in the EPA at least 90 days before commencing EDOCKET and the regulations.gov auditorium of the Internal Revenue the manufacture or import of any one or websites are ‘‘anonymous access’’ Service building, 1111 Constitution more of these chemical substances on or systems, which means EPA will not Avenue NW., Washington, DC. The after January 1, 2005 for any use. EPA know your identity or contact subject of the public hearing is proposed believes that this action is necessary information unless you provide it in the because these chemical substances may regulations under section 2651 of the body of your comment. If you send an be hazardous to human health and the Internal Revenue Code. e-mail comment directly to EPA without environment. The required notice going through EDOCKET or The notice of proposed rulemaking would provide EPA with the regulations.gov, your e-mail address and notice of public hearing, instructed opportunity to evaluate an intended will be automatically captured and those interested in testifying at the new use and associated activities and, if included as part of the comment that is public hearing to submit a request to necessary, to prohibit or limit that placed in the public docket and made speak and an outline of topics to be activity before it occurs. available on the Internet. If you submit addressed by November 23, 2004. As of DATES: Comments, identified by docket an electronic comment, EPA November 29, 2004, no one has identification (ID) number OPPT–2004– recommends that you include your requested to speak. Therefore, the 0085, must be received on or before name and other contact information in public hearing scheduled for December February 4, 2005. the body of your comment and with any 14, 2004 is cancelled. ADDRESSES: Submit your comments, disk or CD ROM you submit. If EPA identified by docket (ID) number OPPT– cannot read your comment due to Guy R. Traynor, 2004–0085, by one of the following technical difficulties and cannot contact Federal Register Liaison, Publications & methods: you for clarification, EPA may not be Regulations Branch, Legal Processing • Federal eRulemaking Portal: http:// able to consider your comment. Division, Associate Chief Counsel, www.regulations.gov/. Follow the on- Electronic files should avoid the use of (Procedures & Administration). line instructions for submitting special characters, any form of [FR Doc. 04–26746 Filed 12–3–04; 8:45 am] comments. encryption, and be free of any defects or BILLING CODE 4830–01–P • Agency Website: http:// viruses. For additional information www.epa.gov/edocket/. EDOCKET, about EPA’s public docket, visit EPA’s electronic public docket and EDOCKET on-line or see the Federal comment system, is EPA’s preferred Register of May 31, 2002 (67 FR 38102) method for receiving comments. Follow (FRL–7181–7).

VerDate jul<14>2003 15:33 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 E:\FR\FM\06DEP1.SGM 06DEP1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Proposed Rules 70405

Docket: All documents in the docket deriv.), or nonabromodiphenyl ether C. How Do I Submit Confidential are listed in the EDOCKET index at (‘‘nonaBDE’’) (CAS No. 63936–56–1; Business Information? http://www.epa.gov/edocket/. Although Benzene, 1. Submitting CBI. Do not submit this listed in the index, some information is pentabromo(tetrabromophenoxy)-), and information to EPA through EDOCKET, not publicly available, i.e., CBI or other any combination of these substances regulations.gov, or e-mail. Clearly mark information whose disclosure is resulting from a chemical reaction. the part or all of the information that restricted by statute. Certain other Persons who intend to import any you claim to be CBI. For CBI material, such as copyrighted material, chemical substance governed by a final information in a disk or CD ROM that is not placed on the Internet and will be SNUR are subject to the TSCA section you mail to EPA, mark the outside of the publicly available only in hard copy 13 (15 U.S.C. 2612) import certification disk or CD ROM as CBI and then form. Publicly available docket requirements, and to the regulations identify electronically within the disk or codified at 19 CFR 12.118 through materials are available either CD ROM the specific information that is electronically in EDOCKET or in hard 12.127 and 127.28. Those persons must claimed as CBI. In addition to one copy at the OPPT Docket, EPA Docket certify that they are in compliance with complete version of the comment that Center, EPA West, Rm. B102, 1301 the SNUR requirements (see TSCA includes information claimed as CBI, a Constitution Ave., NW., Washington, section 13 (15 U.S.C. 2612) and 19 CFR copy of the comment that does not DC. The Public Reading Room is open 12.118 through 12.127 and 127.28). The contain the information claimed as CBI from 8:30 a.m. to 4:30 p.m., Monday EPA policy in support of import must be submitted for inclusion in the through Friday, excluding legal certification appears at 40 CFR part 707, public docket. Information so marked holidays. The EPA Docket Center subpart B. In addition, any persons who will not be disclosed except in Reading Room telephone number is export or intend to export a chemical accordance with procedures set forth in (202) 566–1744, and the telephone substance that is the subject of this number for the OPPT Docket, which is proposed rule on or after January 5, 40 CFR part 2. 2. Tips for preparing your comments. located in the EPA Docket Center, is 2005 are subject to the export When submitting comments, remember (202) 566–0280. notification provisions of TSCA section to: 12(b) (15 U.S.C. 2611(b)) (see 40 CFR FOR FURTHER INFORMATION CONTACT: For i. Identify the rulemaking by docket 721.20), and must comply with the general information contact: Colby ID number and other identifying export notification requirements in 40 Lintner, Regulatory Coordinator, information (subject heading, Federal CFR part 707, subpart D. Potentially Environmental Assistance Division Register date, and page number). (7408M), Office of Pollution Prevention affected entities may include, but are ii. Follow directions. The Agency may not limited to: and Toxics, Environmental Protection ask you to respond to specific questions • Manufacturers (defined by statute to Agency, 1200 Pennsylvania Ave., NW., or organize comments by referencing a include importers) of PBDEs (NAICS Washington, DC 20460–0001; telephone Code of Federal Regulations (CFR) part number: (202) 554–1404; e-mail address: 325 and 324110), e.g. chemical manufacturing and petroleum refineries. or section number. [email protected]. iii. Explain why you agree or disagree; For technical information contact: This listing is not intended to be exhaustive, but rather provides a guide suggest alternatives and substitute Kenneth Moss, Chemical Control language for your requested changes. Division (7405M), Office of Pollution for readers regarding entities likely to be affected by this action. Other types of iv. Describe any assumptions and Prevention and Toxics, Environmental provide any technical information and/ Protection Agency, 1200 Pennsylvania entities not listed in this unit could also be affected. The North American or data that you used. Ave., NW., Washington, DC 20460– v. If you estimate potential costs or 0001; telephone number: (303) 312– Industrial Classification System (NAICS) codes have been provided to burdens, explain how you arrived at 6700; e-mail address: your estimate in sufficient detail to [email protected]. assist you and others in determining whether this action might apply to allow for it to be reproduced. SUPPLEMENTARY INFORMATION: vi. Provide specific examples to certain entities. To determine whether illustrate your concerns, and suggest I. General Information you or your business may be affected by alternatives. this action, you should carefully A. Does this Action Apply to Me? vii. Explain your views as clearly as examine the applicability provisions at possible, avoiding the use of profanity You may be potentially affected by 40 CFR 721.5 for SNUR-related this action if you manufacture (defined or personal threats. obligations. If you have any questions viii. Make sure to submit your by statute to include import) one or regarding the applicability of this action more of the following polybrominated comments by the comment period to a particular entity, consult the deadline identified. diphenyl ethers (PBDEs): technical person listed under FOR tetrabromodiphenyl ether (‘‘tetraBDE’’) FURTHER INFORMATION CONTACT. II. Background (CAS No. 40088–47–9; Benzene, 1,1′- oxybis-, tetrabromo deriv.), B. How Can I Access Electronic Copies A. What Action is the Agency Taking? pentabromodiphenyl ether of this Document and Other Related This proposed rule, when finalized, (‘‘pentaBDE’’) (CAS No. 32534–81–9; Information? would require persons to notify EPA at Benzene, 1,1′-oxybis-, pentabromo In addition to using EDOCKET (http:/ least 90 days before commencing the deriv.), hexabromodiphenyl ether /www.epa.gov/edocket), you may access manufacture (including importation) of (‘‘hexaBDE’’) (CAS No. 36483–60–0; this Federal Register document tetrabromodiphenyl ether (‘‘tetraBDE’’) Benzene, 1,1′-oxybis-, hexabromo electronically through the EPA Internet (CAS No. 40088–47–9; Benzene, 1,1′- deriv.), heptabromodiphenyl ether under the ‘‘Federal Register’’ listings at oxybis-, tetrabromo deriv.), (‘‘heptaBDE’’) (CAS No. 68928–80–3; http://www.epa.gov/fedrgstr/. A pentabromodiphenyl ether Benzene, 1,1′-oxybis-, heptabromo frequently updated electronic version of (‘‘pentaBDE’’) (CAS No. 32534–81–9; deriv.), octabromodiphenyl ether 40 CFR part 721 is available on E-CFR Benzene, 1,1′-oxybis-, pentabromo (‘‘octaBDE’’) (CAS No. 32536–52–0; Beta Site Two at http:// deriv.), hexabromodiphenyl ether Benzene, 1,1′-oxybis-, octabromo www.gpoaccess.gov/ecfr/. (‘‘hexaBDE’’) (CAS No. 36483–60–0;

VerDate jul<14>2003 15:33 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 E:\FR\FM\06DEP1.SGM 06DEP1 70406 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Proposed Rules

Benzene, 1,1′-oxybis-, hexabromo proposed or final SNUR are subject to EPA believes that the commercial deriv.), heptabromodiphenyl ether the export notification provisions of products pentaBDE and octaBDE are (‘‘heptaBDE’’) (CAS No. 68928–80–3; TSCA section 12(b). The regulations that manufactured in the United States (U.S.) Benzene, 1,1′-oxybis-, heptabromo interpret TSCA section 12(b) appear at only by Great Lakes Chemical deriv.), octabromodiphenyl ether 40 CFR part 707, subpart D. Persons Corporation. Great Lakes has committed (‘‘octaBDE’’) (CAS No. 32536–52–0; who intend to import a chemical to phase-out these chemicals voluntarily Benzene, 1,1′-oxybis-, octabromo substance identified in a final SNUR are by discontinuing their manufacture by deriv.), or nonabromodiphenyl ether subject to the TSCA section 13 import the end of 2004 (Ref. 1). EPA is aware (‘‘nonaBDE’’) (CAS No. 63936–56–1; certification requirements, which of no ongoing production of tetra-, hexa- Benzene, appear at 19 CFR 12.118 through 12.127 , hepta- or nonaBDE except as pentabromo(tetrabromophenoxy)-), and and 127.28. Such persons must certify components of the commercial any combination of these substances that they are in compliance with SNUR pentaBDE and octaBDE commercial resulting from a chemical reaction, for requirements. The EPA policy in products. EPA believes that any any use on or after January 1, 2005. support of import certification appears manufacture or import of these at 40 CFR part 707, subpart B. chemicals occurring after Great Lakes’ B. What is the Agency’s Authority for phase-out dates would increase the Taking this Action? III. Summary of the Proposed Rule magnitude and duration of exposure to Section 5(a)(2) of TSCA (15 U.S.C. PBDEs are members of a broader class these chemicals. Therefore, EPA is 2604(a)(2)) authorizes EPA to determine of brominated chemicals used as flame proposing to designate as a significant that a use of a chemical substance is a retardants; these are called brominated new use any manufacture or import of ‘‘significant new use.’’ EPA must make flame retardants, or BFRs. There are the chemical substances listed in Unit this determination by rule after commercial PBDE products with II.A. for any use on or after January 1, considering all relevant factors, different average amounts of 2005. Because decaBDE is not included including those listed in TSCA section bromination: penta-, octa-, and in the voluntary phase-out and therefore 5(a)(2). Once EPA determines that a use decaBDE. These chemicals are major remains in commerce after January 1, of a chemical substance is a significant components of commercial products 2005, it would not be subject to this new use, TSCA section 5(a)(1)(B) often used as fire retardants in furniture proposed rule. requires persons to submit a notice to foam (pentaBDE), plastics for personal Given that, based on information EPA at least 90 days before they computers and small appliances available to EPA, no companies other manufacture, import, or process the (octaBDE), and plastics for TV cabinets, than Great Lakes Chemical Corporation chemical substance for that use (15 consumer electronics, wire insulation, are currently manufacturing or U.S.C. 2604 (a)(1)(B). The mechanism and backcoatings for draperies and importing the commercial pentaBDE or for reporting under this requirement is upholstery (decabromodiphenylether, or octaBDE products, or the PBDE established under 40 CFR 721.5. decaBDE). The value of these chemicals congeners that comprise these products, is their ability to slow ignition and rate C. Applicability of General Provisions and given the negative commercial and of fire growth, and as a result increase regulatory environment associated with General provisions for SNURs appear available escape time in the event of a these chemicals, EPA believes it is under subpart A of 40 CFR part 721. fire involving the above products. unlikely that companies would incur These provisions describe persons Although use of these chemicals is the costs associated with establishing subject to the rule, recordkeeping intended to save lives and property, new manufacturing capacity for these requirements, exemptions to reporting there have been unintended chemicals in order to enter this market. requirements, and applicability of the consequences, such as, releases to and This proposed rule, when finalized, rule to uses occurring before the accumulation in the environment. would require persons who intend to effective date of the final rule. Environmental monitoring programs in manufacture or import the chemical Provisions relating to user fees appear at Europe, Asia, North America, and the substances listed in Unit II.A. to submit 40 CFR part 700. Persons subject to this Arctic have detected several PBDEs in a SNUN at least 90 days before SNUR, when finalized, would be human breast milk, fish, aquatic birds, commencing the manufacture or required to comply with the same notice and elsewhere in the environment. The importation of any of these chemicals requirements and EPA regulatory human health toxicological endpoints of for any use on or after January 1, 2005. procedures as submitters of concern for these chemical substances The required notice would provide EPA Premanufacture Notices (PMNs) under are liver toxicity, thyroid toxicity, and with the opportunity to evaluate the TSCA section 5(a)(1)(A). In particular, neurodevelopmental toxicity. More intended use, and, if necessary, to these requirements include the needs to be understood about the prohibit or limit that use before it information submission requirements of environmental fate and the exposure occurs. In the event that the phase-out TSCA section 5(b) and 5(d)(1); the pathways that lead to PBDE presence in of these chemicals does not progress as exemptions authorized by TSCA section wildlife and people. The lower described in this proposed rule, EPA 5 (h)(1), (h)(2), (h)(3), and (h)(5); and the brominated PBDEs (tetraBDE, pentaBDE, may pursue additional regulatory action regulations at 40 CFR part 720. Once and hexaBDE) found in the commercial as appropriate under TSCA sections 4, EPA receives a SNUR notice, EPA may pentaBDE and octaBDE products are the 6, and 8. take regulatory action under TSCA congeners most often detected in the sections 5(e), 5(f), 6, or 7, if appropriate, environment and for which human IV. Overview of PBDEs to control the activities on which it has health and environmental concerns are See Unit XI. for selected primary received the SNUR notice. If EPA does greater (see Unit IV.B. and C.). These references for the information not take action, EPA is required under factors, taken together, raise concerns summarized in this unit. For a more TSCA section 5(g) to explain in the for potential adverse effects in people complete treatment of PBDEs and Federal Register its reasons for not and wildlife over time if these comprehensive lists of relevant articles, taking action. substances should continue to be see the risk assessments developed Persons who intend to export a produced, released, and built up in the under EPA’s Voluntary Children’s chemical substance identified in a environment. Chemical Evaluation Program (VCCEP)

VerDate jul<14>2003 15:33 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 E:\FR\FM\06DEP1.SGM 06DEP1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Proposed Rules 70407

and the reports from the VCCEP Peer that there is a need for specific measures environment and humans are not Consultation meetings held for these to limit risks. This conclusion is known yet, they could include direct chemicals (Refs. 2–7), in addition to the reached because of ‘‘concerns for effects releases from manufacturing or overview articles (Refs. 8 and 9). on the local aquatic (sediment) and processing of the chemicals into terrestrial environment as a products like plastics or textiles, aging A. Defining the PBDEs Subject to this consequence of exposure arising from and wear of these consumer products Proposed SNUR polyurethane foam production [and] (Ref. 20), photolytic breakdown of The chemical substances that are concerns for secondary poisoning to the higher brominated congeners (Ref. 21), subject to this proposed rule are listed environmental spheres mentioned in and direct exposure during use or via on the TSCA Inventory. Each individual Unit IV.B. both locally and regionally as indoor air or house dust (Refs. 22 and chemical substance is actually a a consequence of exposure arising from 23), as well as bioaccumulation up the reaction product of diphenyl ether with production and/or use of polyurethane food chain (Ref. 24). The small amount a brominating agent. The different foams.’’ (Ref. 11). For octaBDE, the EU of environmental information on products, each having different numbers concluded that there is a risk of octaBDE shows it does not readily of bromines depending on reaction ‘‘secondary poisoning via the degrade, although an exception is in stoichiometry, are a normal distribution earthworm route for the fish, where there is evidence that of possible polybrominated diphenyl hexabromodiphenyl ether component in octaBDE could have the potential to be ethers. For example, the commercially the commercial octabromodiphenyl metabolized to pentaBDE (Ref. 25). available ‘‘pentaBDE’’ product, sold ether product from the use in polymer D. Use Information under the single CAS No. (32534–81–9), applications.’’ There was a need is predominantly an almost equal identified for further monitoring to The chemical substances subject to mixture of tetraBDE and pentaBDE determine whether findings in top this proposed rule, listed in Unit II.A., congeners, along with smaller amounts predators (including birds’ eggs) is a are the commercial products pentaBDE of the higher brominated congeners. It is widespread or localized phenomenon, and octaBDE, and other PBDE congeners a reaction product combination of and for avian reproduction tests (Ref. that comprise these products and are aromatic brominated compounds in 12). separately listed on the TSCA Inventory. which 4–6 hydrogen atoms in the PentaBDE (often formulated with diphenyl oxide structure are replaced by C. Exposure and Environmental Fate nonhalogenated organophosphates) has bromine atoms (Refs. 2 and 10). The Data been widely used in formulations for ‘‘octaBDE’’ product (CAS No. 32536– Current information suggests strongly flexible polyurethane foams used in 52–0) consists predominantly of that PBDEs as a class are persistent and upholstered products ranging from heptaBDE and octaBDE congeners with may bioaccumulate. Environmental home furniture to seats in airplanes and small amounts of hexa- and nonaBDE. It monitoring programs in Europe, Asia, automobiles. OctaBDE has been is a reaction product combination of North America, and the Arctic have primarily used as an additive to a type aromatic brominated compounds in detected many PBDE congeners in of plastic known as acrylonitrile- which 6–9 hydrogen atoms in the human blood and breast milk, fish, butadiene-styrene (ABS), used in diphenyl oxide structure are replaced by aquatic birds, and elsewhere in the housings for office and medical bromine atoms (Refs. 3 and 10). In order environment (Refs. 9, 13, 14, 15, 16, 17, electronics, the interior and exterior to insure that the PBDEs listed in Unit and 18). This widespread presence, trim of automobiles, telephone II.A. would be subject to review before combined with persistence, handsets, and other products. It is also manufacture or import for commercial bioaccumulative potential, and toxicity incorporated into resins (polyamide and purposes, this proposed rule would from low level exposures, raises polybutylene terephthalate) in the require the reporting for any concerns for potential adverse effects to manufacture of electrical connectors manufacture or importation of these people and wildlife over time should and components and automotive chemical substances. the chemical substances that are subject interior parts. to this proposed rule continue to be World-wide demand for pentaBDE B. Health and Environmental Effects produced, released, and accumulated in and octaBDE in 2001 was estimated to Existing health hazard information on the environment. be 7,500,000 and 3,790,000 kilograms the subject chemical substances is Of the congeners found in the (kg), respectively; demand for these incomplete (Ref. 8). The currently commercial products, tetraBDE, chemicals in the Americas was available toxicity test data indicate the pentaBDE, and hexaBDE are the PBDEs 7,100,000 kg for pentaBDE and potential for adverse effects in humans, most frequently detected in wildlife and 1,500,000 kg for octaBDE (Ref. 26). On especially for lower brominated humans (Refs. 8 and 9). The octanol- November 3, 2003, Great Lakes congeners (Refs. 8 and 9). The major water partition coefficient, which is an Chemical Corporation, the only U.S. findings from subchronic and chronic important property in determining the manufacturer of pentaBDE and octaBDE, pentaBDE toxicity studies in rodents are environmental fate of hydrophobic announced a voluntary phase-out of induction of hepatic enzymes and organic chemicals, particularly in biota, both those commercial products by the effects on thyroid homeostasis. The has been measured for a number of end of 2004. According to the effects on thyroid homeostasis have PBDEs, and shown to be in the range of information currently available to EPA, raised concerns for the potential for optimum bioaccumulation potential Great Lakes is the sole U.S. developmental neurotoxicity (Ref. 5). (Ref. 19). With the present data, the manufacturer of commercial pentaBDE The toxicity database for octaBDE is Agency can only speculate on and octaBDE and EPA also understands similar to that of pentaBDE, but less environmental transport and that currently there is no import of these complete (Ref. 6). partitioning of PBDEs in general and commercial products into the U.S. With regards to environmental specifically regarding the chemical Furthermore, based on available hazards of the subject chemical substances that are subject to this information, none of the other PBDE substances, the European Union (EU) proposed rule. While the exact congeners subject to this proposed rule risk assessment for pentaBDE concludes mechanisms or pathways by which the are currently manufactured or imported for aquatic and terrestrial ecosystems various PBDE congeners end up in the into the U.S.

VerDate jul<14>2003 15:33 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 E:\FR\FM\06DEP1.SGM 06DEP1 70408 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Proposed Rules

V. Objectives and Rationale of the Rule new use, the Agency must consider all manufacture, import or process the As summarized in Unit IV., EPA has relevant factors, including those listed chemical substances listed in Unit II.A. concerns regarding the environmental in section 5(a)(2) of TSCA. Those factors However, the use of TSCA section 8(a) fate and the exposure pathways that are: rather than the SNUR authority, would • The projected volume of lead to PBDE presence in wildlife and not provide the opportunity for EPA to manufacturing and processing of the people, and the persistence, review human and environmental chemical substance. bioaccumulation, and toxicity (PBT) hazards and exposures associated with • The extent to which the use the new uses of these substances and, if potential of pentaBDE and octaBDE. changes the type or form of exposure to necessary, to take immediate regulatory Great Lakes Chemical Corporation, the human beings or the environment to a action under TSCA section 5(e) or sole manufacturer of these chemicals in chemical substance. section 5(f) to prohibit or limit the the U.S., has chosen voluntarily to • The extent to which the use activity before it begins. In addition, discontinue their manufacture for all changes the magnitude and duration of EPA may not receive important uses by December 31, 2004. With Great exposure to human beings or the information from small businesses, Lakes Chemical Corporation’s exit from environment to a chemical substance. because those firms generally are the market, EPA believes that all U.S. • The reasonably anticipated manner exempt from TSCA section 8(a) manufacture and import of these and methods of manufacturing, reporting requirements. In view of chemicals likely will cease. However, processing, distribution in commerce, EPA’s concerns about the chemical EPA is concerned that manufacture or and disposal of a chemical substance. substances and its interest in having the import could be reinitiated in the future, Given that no companies other than opportunity to review these substances and wants the opportunity to evaluate Great Lakes Chemical Corporation are and regulate them as appropriate, and control, if appropriate, exposures currently manufacturing or importing pending the development of exposure associated with those activities. Based commercial pentaBDE or octaBDE in the and/or hazard information should a on the current situation, including U.S., the negative commercial and significant new use be initiated, the substantial production volume, number regulatory environment associated with Agency believes that a TSCA section of uses, potential for widespread release these chemicals (including the EU ban 8(a) rule for certain PBDEs would not and exposure, as well as the PBT nature on marketing and use of pentaBDE and meet all of EPA’s regulatory objectives. of the chemical substances, any new octaBDE (Ref. 27) and similar 2. Regulate the chemical substances manufacture or import after January 1, restrictions enacted by certain States in subject to this proposed rule under 2005 is expected to significantly the U.S. (Ref. 28)), and the expectation TSCA section 6. EPA must regulate increase exposures after manufacture that viable substitutes will be available under TSCA section 6 if there is a and import are discontinued, over that including those being considered in the reasonable basis to conclude that the which could otherwise exist. The notice Design for Environment Furniture manufacture, import, processing, that would be required by this proposed Flame Retardancy Partnership (Ref. 29), distribution in commerce, use, or SNUR would provide EPA with the EPA believes it is unlikely that disposal of a chemical substance or opportunity to evaluate activities companies would incur the costs mixture ‘‘presents or will present’’ an associated with a significant new use as associated with establishing new unreasonable risk of injury to human proposed herein and an opportunity to manufacturing capacity for these health or the environment. Based on protect against unreasonable risks, if chemicals in order to enter this market. EPA’s findings that after December 31, any, from exposure to the substances. With Great Lakes Chemical 2004 there would be no manufacture or Based on these considerations, EPA Corporation’s exit from the market, EPA import of the chemical substances wants to achieve the following believes that all U.S. manufacture and subject to this proposed rule, EPA objectives with regard to the significant import of these chemicals likely will concluded that risk management action new uses that are designated in this cease and that any new manufacture or under TSCA section 6 is not necessary proposed rule. EPA wants to ensure import, for any use, subsequent to Great at this time. This proposed SNUR would that: Lakes Chemical Corporation’s December allow the Agency to address the 1. EPA would receive notice of any 31, 2004 phase-out date would result in potential risks associated with any person’s intent to manufacture or import a significant increase in the magnitude intended significant new use of these the chemical substances subject to this and duration of exposures to humans chemical substances. proposed rule for a designated and the environment over that which 3. Require persons that import certain significant new use before that activity would otherwise exist. Based on these PBDEs as part of articles to comply with begins. considerations, EPA has determined the requirements of this proposed 2. EPA would have an opportunity to that any manufacture or import of the SNUR. Under the general SNUR review and evaluate data submitted in a chemical substances listed in Unit II.A. exemption provisions at 40 CFR 721.45, SNUN before the notice submitter for any use on or after January 1, 2005 a person that imports or processes a begins manufacturing or importing these is a significant new use. substance covered by a SNUR identified chemical substances for a significant in subpart E of part 721 is not generally new use. VII. Alternatives/Other Options subject to the notification requirements 3. EPA would be able to regulate Considered of § 721.25 for that substance, if the prospective manufacturers and Before proposing this SNUR, EPA person imports or processes the importers of these chemical substances considered the following alternative substance as part of an article. See 40 before a significant new use occurs, regulatory actions for the chemical CFR 721.45(f). EPA considered requiring provided such regulation is warranted substances that are the subject of this persons that import (processors are not pursuant to TSCA sections 5(e), 5(f), 6 proposed rule. covered by this proposed SNUR) the or 7. 1. Promulgate a TSCA section 8(a) PBDEs subject to this proposed rule as reporting rule. Under a TSCA section part of articles to comply with the VI. Significant New Use Determination 8(a) rule, EPA could generally require requirements of this proposed SNUR, In making a determination that a use any person to report information to the due to concerns that exempting articles of a chemical substance is a significant Agency when they intend to would render the SNUR less effective

VerDate jul<14>2003 15:33 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 E:\FR\FM\06DEP1.SGM 06DEP1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Proposed Rules 70409

because of the possibility that substances listed in Unit II.A. between to support the submission of a SNUN, upholstered products or plastics- the proposal and the effective date of costs could range from roughly $339,000 containing articles treated with these the final SNUR meet the conditions of to over $1.4 million per chemical, but PBDEs could be imported. The current advance compliance as codified at 40 could be substantially lower if not all import status of articles treated with CFR 721.45(h), those persons would be recommended tests are performed. EPA PBDEs, i.e., whether or not import of considered to have met the notes that, with the possible exception these articles is presently ongoing, is not requirements of the final SNUR for of export notification requirements, the known at this time. However, given the those activities. costs of submission of SNUNs will not negative commercial and regulatory be incurred by any company unless that IX. Test Data and Other Information environment associated with these company decides to pursue a significant chemicals (including the EU ban on EPA recognizes that section 5 of new use as defined in this SNUR. The marketing and use of pentaBDE and TSCA does not require the development Agency’s economic analysis is available octaBDE, the EU ban on placing on the of any particular test data before in the public docket for this proposed market articles containing these submission of a SNUN. Persons are rule (Ref. 30). substances (Ref. 27)), similar restrictions required only to submit test data in their A. SNUNs enacted by certain states in the U.S. possession or control and to describe (Ref. 28), and the expectation that viable any other data known to or reasonably The Agency has analyzed the substitutes will be available, EPA ascertainable by them (15 U.S.C. potential costs of compliance with the believes it would be unlikely that these 2604(d); 40 CFR 721.25). proposed SNUR (Ref. 30). EPA’s chemical substances will be imported as However, in view of the potential complete economic analysis is available part of articles. Based on this belief, and health or environmental risks posed by in the public docket. The Agency has the resultant low likelihood of exposure any manufacture or importation of the estimated the average cost of to pentaBDE and octaBDE imported as chemical substances listed in Unit II.A., compliance with the SNUR per part of an article, EPA is not proposing EPA would recommend in the final rule chemical (e.g., cost of submitting a to amend the general SNUR exemption that potential SNUN submitters include SNUN) to be $6,956 based on 105 provisions for the purpose of this data that would permit a reasoned burden hours or a total cost of $13,912 proposed SNUR. EPA is specifically evaluation of risks posed by these or 210 hours for both chemicals. These seeking comments on the issue of chemical substances during their estimates do not include the costs of whether persons that import the manufacture, processing, use, testing or submission of other chemical substances listed in Unit II.A. distribution in commerce, or disposal. information to permit a reasoned as part of articles should be subject to EPA encourages persons to consult with evaluation of potential risks (see Unit the reporting requirements of this the Agency before submitting a SNUN IX.). proposed SNUR. for these substances, and, for commercial pentaBDE and octaBDE, to B. Export Notification VIII. Applicability of Rule to Uses take advantage of the data needs As noted in Unit II.C. of this Occurring Before Effective Date of the assessments as reviewed under the document, persons who intend to export Final Rule Agency’s VCCEP (see VCCEP Peer a chemical substance identified in a As discussed in the Federal Register Consultation meeting reports - Refs. 5 proposed or final SNUR are subject to of April 24, 1990 (55 FR 17376), EPA and 6 - and any forthcoming Agency the export notification provisions of believes that the intent of section decision under the VCCEP process). As TSCA section 12(b) (15 U.S.C. 2611(b)). 5(a)(1)(B) of TSCA is best served by part of this optional pre-notice These provisions require that, for designating a use as a significant new consultation, EPA would discuss chemicals subject to a proposed or final use as of the proposal date of the SNUR, specific data it believes are necessary to SNUR, a company notify EPA of the first rather than as of the effective date of the evaluate a significant new use. EPA also shipment to a particular country in a final rule. If uses begun after publication encourages SNUN submitters to provide calendar year of an affected chemical of the proposed SNUR were considered all available information that is relevant substance. EPA estimated that the one- to be ongoing, rather than new, it would to assessing the potential for time cost of preparing and submitting an be difficult for EPA to establish environmental or consumer exposure, as export notification to be $89.29. The notification requirements, because any well as information on risks posed by total costs of export notification will person could defeat the SNUR by these substances compared to risks vary per chemical, depending on the initiating the proposed significant new posed by possible substitutes. A SNUN number of required notifications (i.e., use before the proposed rule became submitted without sufficient data to number of countries to which the final, and then argue that the use was reasonably evaluate risks posed by a chemical is exported). ongoing as of the effective date of the significant new use of the chemical EPA is unable to estimate the total final rule. substances listed in Unit II.A. may number of TSCA section 12(b) Any person who, after publication of increase the likelihood that EPA will notifications that will be received as a this proposed SNUR, begins commercial take action under TSCA section 5(e) to result of this proposed SNUR, or the manufacture or import of the chemical prohibit or limit activities associated total number of companies that will file substances listed in Unit II.A. must stop with these chemicals. these notices. However, EPA expects such activity before the effective date of that the total cost of complying with the the final rule. Persons who cease those X. Economic Considerations export notification provisions of TSCA activities will have to meet all SNUR EPA has evaluated the potential costs section 12(b) will be limited based on notice requirements and wait until the of establishing a SNUR for the chemical historical experience with TSCA section end of the notice review period, substances listed in Unit II.A. These 12(b) notifications and the fact that no including all extensions, before potential costs are related to the companies have currently been engaging in any activities designated as submission of SNUNs, the export identified that currently market any of significant new uses. If, however, notification requirements of TSCA the chemical substances that are the persons who begin commercial section 12(b) and the development of subject of this proposed rule manufacture or import of the chemical test data. If the firm undertakes testing commercially. If companies were to

VerDate jul<14>2003 15:33 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 E:\FR\FM\06DEP1.SGM 06DEP1 70410 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Proposed Rules

manufacture for export only any of the 9. CA de Wit; An overview of octanol-water partition coefficients of chemical substances covered by this brominated flame retardants in the some environmentally relevant proposed SNUR, such companies would environment. 2002. Chemosphere 46: brominated diphenyl ether congeners. incur the minimal costs associated with 583–624. Chemosphere 51:563–567. export notification despite the fact they 10. National Toxicology Program 20. Hale, RC, MJ La Guardia, E would not be subject to the SNUR Nomination Background Document: Harvey, TM Mainor. 2002. Potential role notification requirements. See TSCA Technical Pentabromodiphenyl Ether, of fire retardant-treated polyurethane section 12(a) and 40 CFR 721.45(g). EPA Technical Octabromodiphenyl Ether, foam as a source of brominated is not aware of any companies in this 2,2′,4,4′-Tetrabromodiphenyl Ether, diphenyl ethers to the US environment. situation. 2,2′,4,4′,5-Pentabromodiphenyl Ether, Chemosphere 46:729–735. 2,2′,4,4′,5,5′-Hexabromodiphenyl Ether; ¨ XI. References 21. Soderstrom, G, U Sellstrom, C de Review of Toxicological Literature. Wit, M Tysklind. 2004. Photolytic These references have been placed in March 2001. Prepared for National debromination of the public docket that was established Institute of Environmental Health decabromodiphenylether (deBDE). under docket ID number OPPTS–2004– Sciences. Environ. Science Technol. 38 (1): 127– 0085 for this rulemaking. 11. Risk-Assessment Report Vol. 05, 132. 1. Noonan, Anne P. Phase-Out Plan August 2000 on: diphenyl ether, 22. Rudel RA, DE Camann, JD for Pentabromodiphenyl-oxide and pentabromo derivative, CAS No.: Spengler, LR Korn, JG Brody. 2003. Octabromodiphenyl-oxide Products. 32534–81–9, EINECS #: 251–084–2. Phthalates, alkylphenols, pesticides, Great Lakes Chemical Corporation. West Publication: EUR 19730 EN. See http:/ polybrominated diphenyl ethers, and Lafayette, IN. April 8, 2004. /ecb.jrc.it/existing-chemicals/, other endocrine-disrupting compounds _ 2. Voluntary Children’s Chemical ‘‘penta bdereport015.’’ in indoor air and dust. Environ. Science Evaluation Program (VCCEP) Tier 1 12. Risk-Assessment Report Vol. 16, Technol. 37 (20): 4543–4553. Assessment of the Potential Health 2003 on: diphenyl ether, octabromo 23. Butt CM, ML Diamond, J Truong, Risks to Children Associated with derivativeCAS No.: 32536–52–0, MG Ikonomou, AFH ter Schure. 2004. Exposure to Commercial for EINECS #: 251–087–9. Publication: EUR Spatial distribution of polybrominated Pentabromodiphenyl ether (CAS No. 20403 EN. See http://ecb.jrc.it/existing- diphenyl ethers in southern Ontario as 32534–81–9), April 21, 2003; Great chemicals/, ‘‘octareport014.’’ measured in indoor and outdoor Lakes Chemical Corporation. 13. Rayne S, MG Ikonomou. 2002. window organic films. Environ. Science 3. Voluntary Children’s Chemical Reconstructing source polybrominated Technol. 38 (3):724–731. Evaluation Program (VCCEP) Tier 1 diphenyl ether congener patterns from 24. Tomy GT, VP Palace, T Assessment of the Potential Health semipermeable membrane devices in Halldorson, E Braekevelt, R Danell, K Risks to Children Associated with the Fraser River, British Columbia, Wautier, B Evans, L Brinkworth, AT Exposure to Commercial for Canada: Comparison to commercial Fisk. 2004. Bioaccumulation, Octabromodiphenyl ether (CAS No. mixtures. Environ. Toxicol. Chem. biotransformation, and biochemical 32536–52–0), April 21, 2003; Great 21:2292–2300. effects of brominated diphenyl ethers in 14. Rice CP, Chernyak SM, Begnoche Lakes Chemical Corporation. juvenile lake trout (Salvelinus L, Quintal R, Hickey J. 2002. 4. Voluntary Children’s Chemical namaycush). Environ. Science Technol. Comparisons of PBDE composition and Evaluation Program (VCCEP) Data 38(5): 1496–1504. concentration in fish collected from the Summary, Decabromodiphenyl ether 25. Stapleton, H.M, R.J. Letcher, and Detroit River, MI and Des Plaines River, (CAS No. 1163–19–5), December 17, J.E. Baker. 2004. Debromination of IL. Chemosphere 49:731–737. 2002; American Chemistry Council’s 15. Lindberg P, Sellstrom U, Haggberg polybrominated diphenyl Ether Brominated Flame Retardant Industry L, deWit CA. 2004. Higher brominated Congeners BDE99 and BDE183 in the Panel. diphenyl ethers and intestinal tract of the common carp 5. Report of the Peer Consultation hexabromocyclododecane found in eggs (Cyprinus carpio). Environmental Meeting (June 3 and 4, 2003) on of peregrine falcons (Falco peregrinus) Science and Technology, 38(4): 1054– Pentabromodiphenyl ether; Great Lakes breeding in Sweden. Environ. Sci. 1061. Chemical Corporation for the Voluntary 26. http://www.bsef-site.com/docs/ Technol. 38:93–96. _ _ Children’s Chemical Evaluation 16. Hale RC, M Alaee, JB Manchester- BFR vols 2001.doc. Major Brominated Program (VCCEP); January 22, 2004. Neesvig, HM Stapleton, MG Ikonomou. Flame Retardants Volume Estimates, 6. Report of the Peer Consultation 2003. Polybrominated diphenyl ether Total Market Demand by Region in Meeting (June 3 and 4, 2003) on flame retardants in the North American 2001. 21 January 2003. Octabromodiphenyl ether; Great Lakes environment. Environment International 27. European Union. Directive 2003/ Chemical Corporation for the Voluntary 29:771–779. 11/EC of the European Parliament and Children’s Chemical Evaluation 17. Hites RA. 2004. Polybrominated of the Council of 6 February 2003 Program (VCCEP); January 22, 2004. diphenyl ethers in the environment and amending for the 24th time Council 7. Report of the Peer Consultation in people: a meta-analysis of Directive 76/769/EEC relating to Meeting (April 2 and 3, 2003) on concentrations. Environ. Science restrictions on the marketing and use of Decabromodiphenyl ether; American Technol. 38 (4): 945–956. certain dangerous substances and Chemistry Council’s Brominated Flame 18. Law RJ, M Alaee, CR Allchin, JP preparations (pentabromodiphenyl Retardant Industry Panel for the Boon, M Lebeuf, P Lepom, GA Stern. ether, octabromodiphenyl ether). Voluntary Children’s Chemical 2003. Levels and trends of 28. California Bill AB 302, bill text. Evaluation Program (VCCEP); polybrominated diphenylethers and ‘‘An act to add Chapter 10 (commencing September 30, 2003. other brominated flame retardants in with Section 108920) to Part 3 of 8. Birnbaum, LS and DF Staskal. 2004. wildlife. Environment International 29: Division 104 of the Health and Safety Brominated Flame Retardants: Cause for 757–770. Code, relating to toxic substances.’’ Concern?; Environmental Health 19. Braekevelt E, SA Tittlemier, GT Signed by the California Governor on Perspectives 112:9–17. Tomy. 2003. Direct measurement of August 9, 2003.

VerDate jul<14>2003 15:33 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 E:\FR\FM\06DEP1.SGM 06DEP1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Proposed Rules 70411

29. Design for the Environment include the OMB control number in any contain any unfunded mandate, or Program, USEPA. September 2004. correspondence, but do not submit any otherwise have any affect on small Environmentally Preferable Approaches completed forms to this address. governments subject to the requirements for Achieving Fire Furniture Safety of sections 202, 203, 204, or 205 of the C. Regulatory Flexibility Act Standards. Unfunded Mandates Reform Act of 1995 30. Lehman, T., USEPA. June 18, Pursuant to section 605(b) of the (UMRA) (Public Law 104–4). 2004. Economic Analysis for Certain Regulatory Flexibility Act (RFA) (5 E. Executive Order 13132: Federalism Polybrominated Diphenylethers; U.S.C. 601 et seq.), the Agency hereby Proposed Significant New Use Rule. certifies that promulgation of this This action will not have a substantial proposed SNUR will not have a direct effect on States, on the XII. Statutory and Executive Order significant adverse economic impact on relationship between the national Reviews a substantial number of small entities. government and the States, or on the A. Executive Order 12866: Regulatory The rationale supporting this distribution of power and Planning and Review conclusion is as follows. A SNUR responsibilities among the various applies to any person (including small levels of government, as specified in Under Executive Order 12866, or large entities) who intends to engage Executive Order 13132, entitled entitled Regulatory Planning and in any activity described in the rule as Federalism (64 FR 43255, August 10, Review (58 FR 51735, October 4, 1993), a ‘‘significant new use.’’ By definition of 1999). the Office of Management and Budget the word ‘‘new,’’ and based on all (OMB) has determined that proposed or information currently available to EPA, F. Executive Order 13175: Consultation final SNURs are not a ‘‘significant it appears that no small or large entities and Coordination with Indian Tribal regulatory action’’ subject to review by will be engaged in such activity on or Governments OMB, because they do not meet the after January 1, 2005. Since a SNUR This proposed rule does not have criteria in section 3(f) of the Executive only requires that any person who Tribal implications because it is not Order. intends to engage in such activity in the expected to have substantial direct B. Paperwork Reduction Act future must first notify EPA by effects on Indian Tribes. This does not submitting a SNUN, no economic significantly or uniquely affect the According to the Paperwork impact will even occur until someone communities of Indian Tribal Reduction Act (PRA), 44 U.S.C. 3501 et decides to engage in those activities. governments, nor does it involve or seq., an Agency may not conduct or Although some small entities may impose any requirements that affect sponsor, and a person is not required to decide to conduct such activities in the Indian Tribes. Accordingly, the respond to a collection of information future, EPA cannot presently determine requirements of Executive Order 13175, that requires OMB approval under the how many, if any, there may be. entitled Consultation and Coordination PRA, unless it has been approved by However, EPA’s experience to date is with Indian Tribal Governments (65 FR OMB and displays a currently valid that, in response to the promulgation of 67249, November 6, 2000), do not apply OMB control number. The OMB control over 1,000 SNURs, the Agency receives to this proposed rule. numbers for EPA’s regulations in title 40 on average only 10 notices per year. Of of the CFR, after appearing in the those SNUNs submitted, none appear to G. Executive Order 13045: Protection of Federal Register, are listed in 40 CFR be from small entities in response to any Children from Environmental Health part 9, and included on the related SNUR. In addition, the estimated Risks and Safety Risks collection instrument or form, if reporting cost for submission of a SNUN This action is not subject to Executive applicable. (see Unit X.), are minimal regardless of Order 13045, entitled Protection of The information collection the size of the firm. Therefore, EPA Children from Environmental Health requirements related to this action have believes that the potential economic Risks and Safety Risks (62 FR 19885, already been approved by OMB impact of complying with this SNUR are April 23, 1997), because this is not an pursuant to the PRA under OMB control not expected to be significant or economically significant regulatory number 2070–0038 (EPA ICR No. adversely impact a substantial number action as defined by Executive Order 1188.07). This action does not impose of small entities. In a SNUR that 12866, and this action does not address any burden requiring additional OMB published on June 2, 1997 (62 FR 29684) environmental health or safety risks approval. If an entity were to submit a (FRL–5597–1), the Agency presented it’s disproportionately affecting children. SNUN to the Agency, the annual burden general determination that proposed Although the chemicals that are is estimated to average between 30 and and final SNURs are not expected to addressed in this significant new use 170 hours per response. This burden have a significant economic impact on rule might present such risks to estimate includes the time needed to a substantial number of small entities, children, significant new use rules are review instructions, search existing data which was provided to the Chief administrative actions that require sources, gather and maintain the data Counsel for Advocacy of the Small chemical manufacturers to submit a needed, and complete, review, and Business Administration. significant new use notice to EPA before submit the required SNUN. a chemical may be manufactured or D. Unfunded Mandates Reform Act Send any comments about the imported. Therefore, this action does accuracy of the burden estimate, and Based on EPA’s experience with not in and of itself affect children’s any suggested methods for minimizing proposing and finalizing SNURs, State, health. respondent burden, including through local, and Tribal governments have not the use of automated collection been impacted by these rulemakings, H. Executive Order 13211: Actions that techniques, to the Director, Collection and EPA does not have any reasons to Significantly Affect Energy Supply, Strategies Division, Office of believe that any State, local, or Tribal Distribution, or Use Environmental Information (2822T), government will be impacted by this This proposed rule is not subject to Environmental Protection Agency, 1200 rulemaking. As such, EPA has Executive Order 13211, entitled Actions Pennsylvania Ave., NW., Washington, determined that this regulatory action Concerning Regulations That DC 20460–0001. Please remember to does not impose any enforceable duty, Significantly Affect Energy Supply,

VerDate jul<14>2003 15:33 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 E:\FR\FM\06DEP1.SGM 06DEP1 70412 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Proposed Rules

Distribution, or Use (66 FR 28355, May PART 721—[AMENDED] DEPARTMENT OF THE INTERIOR 22, 2001), because this action is not expected to affect energy supply, 1. The authority citation for part 721 Fish and Wildlife Service distribution, or use. would continue to read as follows: 50 CFR Part 17 I. National Technology Transfer Authority: 15 U.S.C. 2604, 2607, and Advancement Act 2625(c). RIN 1018–AT65 2. By adding new § 721.10000 to In addition, since this action does not Endangered and Threatened Wildlife involve any technical standards, section subpart E to read as follows: and Plants; Establishment of an 12(d) of the National Technology § 721.10000 Certain polybrominated Additional Manatee Protection Area in Transfer and Advancement Act of 1995 diphenylethers. Lee County, FL (NTTAA), Public Law 104–113, section 12(d) (15 U.S.C. 272 note), does not (a) Chemical substances and AGENCY: Fish and Wildlife Service, apply to this action. significant new uses subject to reporting. Interior. (1) The chemical substances identified ACTION: Proposed rule; notice of public J. Executive Order 12898: Federal as tetrabromodiphenyl ether (CAS No. hearing and reopening of public Actions to Address Environmental 40088–47–9; Benzene, 1,1′-oxybis-, comment period. Justice in Minority Populations and Low-Income Populations tetrabromo deriv.), pentabromodiphenyl ether (CAS No. 32534–81–9; Benzene, SUMMARY: We, the Fish and Wildlife This action does not entail special 1,1′-oxybis-, pentabromo deriv.), Service (Service), provide notice that considerations of environmental justice hexabromodiphenyl ether (CAS No. the public comment period for the proposed rule to establish the Pine related issues as delineated by 36483–60–0; Benzene, 1,1′-oxybis-, Island-Estero Bay Manatee Refuge in Lee Executive Order 12898, entitled Federal hexabromo deriv.), heptabromodiphenyl Actions to Address Environmental County, Florida, is reopened to allow all ether (CAS No. 68928–80–3; Benzene, interested parties to submit written Justice in Minority Populations and 1,1′-oxybis-, heptabromo deriv.), Low-Income Populations (59 FR 7629, comments on the proposed rule. We are octabromodiphenyl ether (CAS No. reopening the public comment period to February 16, 1994). ′ 32536–52–0; Benzene, 1,1 -oxybis-, accommodate those individuals and K. Executive Order 12630: octabromo deriv.), and communities that are continuing to Governmental Actions and Interference nonabromodiphenyl ether (CAS No. recover from the effects of both with Constitutionally Protected Property 63936–56–1; Benzene, Hurricane Charley and Hurricane Rights (Takings) pentabromo(tetrabromophenoxy)-), and Frances. Comments previously EPA has complied with Executive any combination of these substances submitted during the initial comment Order 12630, entitled Governmental resulting from a chemical reaction are period need not be resubmitted as they Actions and Interference with subject to reporting under this section will be incorporated into the public Constitutionally Protected Property for the significant new uses described in record and will be fully considered in Rights (53 FR 8859, March 15, 1988), by paragraph (a)(2) of this section. the final determination on the proposal. examining the takings implications of (2) The significant new use is DATES: The original comment period this proposed rule in accordance with manufacture or import for any use on or closed on October 5, 2004. The the ‘‘Attorney General’s Supplemental after January 1, 2005. comment period is hereby reopened Guidelines for the Evaluation of Risk until February 2, 2005. Comments from (b) Specific requirements. The and Avoidance of Unanticipated all interested parties must be received provisions of subpart A of this part Takings’’ issued under the Executive by the closing date. Any comments apply to this section except as modified Order. received after the closing date may not by this paragraph. be considered in the final decision on L. Executive Order 12988: Civil Justice (1) Persons who must report. Section this proposal. Furthermore, the public Reform 721.5 applies to this section except for hearing that was originally scheduled In issuing this proposed rule, EPA has section 721.5(a)(2). A person who for Wednesday, September 8, 2004, has taken the necessary steps to eliminate intends to manufacture or import for been rescheduled for Wednesday, drafting errors and ambiguity, minimize commercial purposes the substances January 12, 2005, from 6:30 p.m. to 9:30 potential litigation, and provide a clear identified in paragraph (a)(1) of this p.m. in Fort Myers, Florida. See legal standard for affected conduct, as section and intends to distribute the additional information on the public required by section 3 of Executive Order substance in commerce must submit a comment process in the SUPPLEMENTARY 12988, entitled Civil Justice Reform (61 significant new use notice. INFORMATION section. FR 4729, February 7, 1996). ADDRESSES: (2) [Reserved] A formal public hearing List of Subjects in 40 CFR Part 721 will be held on Wednesday, January 12, [FR Doc. 04–26731 Filed 12–1–04; 2:54 pm] 2005, from 6:30 p.m. to 9:30 p.m. at the Environmental protection, Chemicals, BILLING CODE 6560–50–S Harborside Convention Hall, 1375 Hazardous substances, Premanufacture Monroe Street, Fort Myers, Florida. notification, Reporting and If you wish to comment, you may recordkeeping requirements. submit your comments by any one of several methods: Dated: November 30, 2004. 1. You may submit written comments Charles M. Auer, and information by mail to the Field Director, Office of Pollution Prevention and Supervisor, South Florida Field Office, Toxics. U.S. Fish and Wildlife Service, Attn: Therefore, it is proposed that 40 CFR Proposed Manatee Refuge, 1339 20th part 721 be amended as follows: Street, Vero Beach, Florida 32960.

VerDate jul<14>2003 15:33 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 E:\FR\FM\06DEP1.SGM 06DEP1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Proposed Rules 70413

2. You may hand-deliver written the draft environmental assessment ruled that five State-designated manatee comments to our South Florida Field from the above address or by calling protection zones were invalid because Office, at the above address, or fax your (772) 562–3909 or from our Web site at the rule for four regulated areas did not comments to (772) 562–4288. http://verobeach.fws.gov. meet the State standard for frequency of 3. You may send comments by Comments submitted electronically sightings and unduly interfered with the electronic mail (e-mail) to should be embedded in the body of the rights of voters. Since January 2004, the [email protected]. For directions on e-mail message itself or attached as a Florida Fish and Wildlife Conservation how to submit electronic comment files, text-file (ASCII) and should not use Commission have recovered four see the ‘‘Public Comments Solicited’’ special characters and encryption. manatee carcasses in the affected areas. section. Please also include ‘‘Attn: RIN 1018– Subsequent necropsies reveal these AT65,’’ your full name, and return We request that you identify whether animals died of wounds suffered from a address in your e-mail message. you are commenting on the proposed boat collision. There have been at least rule or draft environmental assessment. Comments submitted to [email protected] will receive an 18 boat-related manatee deaths in these Comments and materials received, as five areas since 1999. well as supporting documentation used automated response confirming receipt in the preparation of this proposed rule, of your message. If you do not receive For these reasons, we believe that will be available for public inspection, a confirmation from the system that we there is imminent danger of take of one by appointment, during normal business have received your e-mail message, or more manatees in these areas and the hours from 8 a.m. to 4:30 p.m. at the contact us directly by calling our South designation of a manatee refuge is above address. Florida Field Office (see ADDRESSES necessary to prevent such taking. FOR FURTHER INFORMATION CONTACT: Jay section). Manatees utilize these areas, there is a Our practice is to make all comments, Slack or Kalani Cairns (see ADDRESSES history of take at these sites, future take including names and home addresses of section), telephone (772) 562–3909; or is imminent, protection measures are respondents, available for public review visit our Web site at http:// insufficient, and we do not anticipate during regular business hours. verobeach.fws.gov. any alternative protection measures Individual respondents may request that being enacted by State or local SUPPLEMENTARY INFORMATION: we withhold their home address from government in sufficient time to reduce the rulemaking record, which we will Public Comments Solicited the likelihood of take occurring. honor to the extent allowable by law. In We solicit comments or suggestions some circumstances, we would On April 7, 2004 we published an from the public, other concerned withhold also from the rulemaking emergency designation of this area. This governmental agencies, the scientific record a respondent’s identity, as designation expired on August 5, 2004. community, industry, or any other allowable by law. If you wish for us to The second emergency designation will interested party concerning this withhold your name and/or address, be in effect until December 4, 2004. At proposed rule. We particularly seek you must state this prominently at the that time, we plan to publish a third comments concerning: beginning of your comments. However, emergency designation in order to have 1. The reasons why this area, we will not consider anonymous adequate time to complete the normal particularly the waters known as Long comments. We will make all rulemaking process (currently Cut and Short Cut as well as any submissions from organizations or underway). Due to recent hurricanes in shallow water embayments within the businesses, and from individuals the area of Lee County, we are proposed area, should or should not be identifying themselves as reopening the public comment period to designated as manatee refuges, representatives or officials of allow all interested parties to provide including data in support of these organizations or businesses, available comments. reasons; for public inspection in their entirety. 2. Current or planned activities in the Our final determination on the Federal authority to establish subject areas and their possible effects proposed rule will take into protection areas for the Florida manatee on manatees; consideration comments and any is provided by the ESA and the MMPA 3. Any foreseeable economic or other additional information received by the and is codified in 50 CFR, part 17, impacts resulting from the proposed date specified above. Previous subpart J. We have discretion, by designations; comments and information submitted regulation, to establish manatee 4. Potential adverse effects to the during the original comment period protection areas whenever there is manatee associated with designating need not be resubmitted. The comment substantial evidence showing such manatee protection areas for the species; period is reopened until February 2, establishment is necessary to prevent and 2005. the taking of one or more manatees. 5. Any actions that could be considered in lieu of, or in conjunction Background Author with, the proposed designations that Manatees are a federally protected The primary author of this document would provide comparable or improved under both the Endangered Species Act is Kalani Cairns (see ADDRESSES manatee protection. (ESA) and Marine Mammal Protection section). We request that you identify whether Act (MMPA). Currently, collisions with you are commenting on the proposed watercraft probably constitute the Authority rule or draft environmental assessment. greatest human-caused threat to the Comments and materials received, as species. Historically, these collisions are The authority to establish manatee well as supporting documentation used responsible for about 25 percent of all protection areas is provided by the in the preparation of this proposed rule, manatee deaths and about 80 percent of Endangered Species Act of 1973, as will be available for public inspection, all human-caused mortality in amended (16 U.S.C. 1531 et seq.), and by appointment, during normal business manatees. the Marine Mammal Protection Act of hours from 8 a.m. to 4:30 p.m. at the In November 2002, a judge in 1972 (16 U.S.C. 1361–1407), as above address. You may obtain copies of Florida’s 20th Judicial Circuit Court amended.

VerDate jul<14>2003 15:33 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 E:\FR\FM\06DEP1.SGM 06DEP1 70414 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Proposed Rules

Dated: November 4, 2004. response to the approved Research Set- Implementing regulations for these Cynthia K. Dohner, Aside (RSA) projects would be fisheries are found at 50 CFR part 648, Acting Regional Director. consistent with the goals and objectives subparts A, G (summer flounder), H [FR Doc. 04–26709 Filed 12–3–04; 8:45 am] of the FMP. However, further review (scup), and I (black sea bass). The regulations outline the process BILLING CODE 4310–55–P and consultation may be necessary before a final determination is made to for specifying annually the catch limits issue any EFP. for the summer flounder, scup, and black sea bass commercial and DEPARTMENT OF COMMERCE DATES: Comments must be received on or before December 21, 2004. recreational fisheries, as well as other National Oceanic and Atmospheric ADDRESSES: Copies of the specifications management measures (e.g., mesh Administration document, including the Environmental requirements, minimum fish sizes, gear Assessment, Regulatory Impact Review, restrictions, possession restrictions, and [Docket No. I.D. 041110317–4317; I.D. area restrictions) for these fisheries. The 110404B] and Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) and other measures are intended to achieve the RIN 0648–AR51 supporting documents for the annual targets set forth for each species specifications are available from Daniel in the FMP, specified either as an F or 50 CFR Part 648 Furlong, Executive Director, Mid- exploitation rate (the proportion of fish Atlantic Fishery Management Council, available at the beginning of the year Fisheries of the Northeastern United Room 2115, Federal Building, 300 South that are removed by fishing during the States; Summer Flounder, Scup, and Street, Dover, DE 19901–6790. The year). Once the catch limits are Black Sea Bass Fisheries; 2005 and specifications document is also established, they are divided into quotas 2006 Summer Flounder Specifications; accessible via the Internet at http:// based on formulas contained in the 2005 Scup and Black Sea Bass www.nero.nmfs.gov. Written comments FMP. Specifications; 2005 Research Set- on the proposed rule should be sent to As required by the FMP, a Monitoring Aside Projects Patricia A. Kurkul, Regional Committee for each species, made up of Administrator, NMFS, Northeast members from NMFS, the Commission, AGENCY: National Marine Fisheries and both the Mid-Atlantic and New Service (NMFS), National Oceanic and Regional Office, One Blackburn Drive, Gloucester, MA 01930. Mark the outside England Fishery Management Councils, Atmospheric Administration (NOAA), is required to review the best available Commerce. of the envelope ‘‘Comments—Summer Flounder, Scup, and Black Sea Bass scientific information and to ACTION: Proposed rule; request for Specifications.’’ Comments may also be recommend catch limits and other comments. sent via facsimile (fax) to 978–281– management measures that will achieve the target F or exploitation rate for each SUMMARY: NMFS proposes specifications 9135, or via e-mail to the following address: [email protected]. Include in fishery. Consistent with the for the 2005 and 2006 summer flounder implementation of Framework fisheries, and for the 2005 scup and the subject line of the e-mail comment the following document identifier: Adjustment 5 to the FMP (69 FR 62818, black sea bass fisheries. The October 28, 2004), each Monitoring implementing regulations for the ‘‘Comments on Summer Flounder, Scup, and Black Sea Bass Committee meets annually to Fishery Management Plan for the recommend the Total Allowable Summer Flounder, Scup, and Black Sea Specifications.’’ Comments may also be submitted electronically through the Landings (TAL), unless the TAL has Bass Fisheries (FMP) require NMFS to already been established for the publish specifications for the upcoming Federal e-Rulemaking portal: http:// www.regulations.gov. upcoming calendar year as part of a fishing year for each of the species and multiple-year specification process, to provide an opportunity for public FOR FURTHER INFORMATION CONTACT: provided that new information does not comment. This proposed rule also Sarah McLaughlin, Fishery Policy require a modification to the multiple- would make changes to the regulations Analyst, (978) 281–9279, fax (978) 281– year quotas. regarding the commercial scup fishery. 9135. The Council’s Demersal Species The intent of this action is to establish SUPPLEMENTARY INFORMATION: Committee and the Commission’s harvest levels and other measures to Summer Flounder, Scup, and Black Sea Background attain the target fishing mortality rates Bass Management Board (Board) then (F) or exploitation rates specified for The summer flounder, scup, and consider the Monitoring Committees’ these species in the FMP, and to black sea bass fisheries are managed recommendations and any public reducing bycatch and improve the cooperatively by the Atlantic States comment and make their own efficiency of the commercial scup Marine Fisheries Commission recommendations. While the Board fishery. NMFS has conditionally (Commission) and the Council, in action is final, the Council’s approved three research projects for the consultation with the New England and recommendations must be reviewed by harvest of the portion of the quota that South Atlantic Fishery Management NMFS to assure that they comply with has been recommended by the Mid- Councils. The management units FMP objectives. The Council and Board Atlantic Fishery Management Council specified in the FMP include summer made their recommendations at a joint (Council) to be set aside for research flounder (Paralichthys dentatus) in U.S. meeting held August 11, 2004. purposes. In anticipation of receiving waters of the Atlantic Ocean from the applications for Experimental Fishing southern border of North Carolina (NC) Explanation of RSA Permits (EFPs) to conduct this research, northward to the U.S./Canada border, In 2001, regulations were the Assistant Regional Administrator for and scup (Stenotomus chrysops) and implemented under Framework Sustainable Fisheries, Northeast Region, black sea bass (Centropristis striata) in Adjustment 1 to the FMP to allow up to NMFS (Assistant Regional U.S. waters of the Atlantic Ocean from 3 percent of the TAL for each of the Administrator), has made a preliminary 35°13.3′ N. lat. (the latitude of Cape species to be set aside each year for determination that the activities Hatteras Lighthouse, Buxton, NC) scientific research purposes. For the authorized under the EFPs issued in northward to the U.S./Canada border. 2005 fishing year, a Request for

VerDate jul<14>2003 16:48 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 E:\FR\FM\06DEP1.SGM 06DEP1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Proposed Rules 70415

Proposals was published to solicit conduct survey work in the Mid- formulas in the FMP. Likewise, if new research proposals based upon the Atlantic along six offshore transects information indicates that overages have research priorities that were identified near Alvin, Hudson, Wilmington, occurred and deductions are necessary, by the Council (69 FR 10990, March 9, Baltimore, and Washington Canyons. NMFS will publish notice of the 2004). The deadline for submission of Up to 15, 1–nautical mile tows would be adjusted quotas in the Federal Register. proposals was April 8, 2004. Three conducted along each transect at depths NMFS anticipates that the information applicants were notified in June 2004 from 40 to 250 fathoms (73 to 457 m). necessary to determine whether overage that their research proposals had Four transects would be sampled in deductions are necessary will be received favorable preliminary review. both January and March, and two available by the time the final rule to For informational purposes, this transects would be sampled in both May implement these specifications is proposed rule includes a statement and November. Two additional transects published. The commercial quotas indicating the amount of quota that has may be conducted pending vessel contained in this proposed rule for been preliminarily set aside for research availability, weather, and funding. Up to summer flounder, scup, and black sea purposes, as recommended by the 25 vessels would participate in bass do not reflect any deductions for Council and Board, and a brief harvesting the RSA during the period overages. The final rule, however, will description of the RSA projects. The January 1 through December 31, 2005. contain quotas that have been adjusted RSA amounts may be adjusted in the The RSA allocated for the project is consistent with the procedures final rule establishing the annual 192,177 lb (87 mt) of summer flounder; described above and contained in the specifications for the summer flounder, 120,000 lb (54 mt) of scup; 281,350 lb regulatory amendment. scup, and black sea bass fisheries or, if (128 mt) of Loligo squid; 61,500 lb (28 Summer Flounder the total amount of the quota set-aside mt) of black sea bass; and 279,750 lb is not awarded, NMFS will publish a (127 mt) of bluefish. The FMP specifies a target F of Fmax, notice in the Federal Register to restore NFI and Rutgers University also that is, the level of fishing that produces the unused RSA amount to the submitted a proposal to conduct a maximum yield per recruit. The best applicable TAL. second year of work to study finfish available scientific information For 2005, three RSA projects have discarded in Loligo squid-targeted tows. indicates that, for 2005 and 2006, Fmax been conditionally approved by NMFS The project would test different mesh for summer flounder is 0.26 (equal to an and are currently awaiting notice of sizes, including the legal-sized mesh exploitation rate of about 22 percent award. The total RSA quotas, approved size of 1.875 inches (4.8 cm) and larger from fishing). by the Council and Board, allocated for mesh sizes up to 3.0 inches (7.6 cm). The most recent stock assessment, all three projects are: 353,917 lb (161 The project is designed to give insights updated by the Northeast Fisheries mt) of summer flounder; 303,675 lb (138 to bycatch of finfish species when Science Center (NEFSC) Southern mt) of scup; 109,500 lb (50 mt) of black different mesh sizes are used in the Demersal Working Group in June 2004, sea bass; 562,350 lb (255 mt) of Loligo Loligo squid fishery. Up to two vessels indicated that the summer flounder squid; and 297,750 lb (135 mt) of would conduct the project in February stock is not overfished but that bluefish. or March near Hudson Canyon. A total overfishing is occurring, according to The University of Rhode Island of 80 to 100 tows would be performed the definitions in the FMP. These submitted a proposal to conduct a with vessels fishing in parallel, where conclusions were derived from the fact second year of work in a fishery- possible. The RSA allocated for the that, for 2003, the estimated total stock independent scup survey that would project is 30,000 lb (14 mt) of black sea biomass of 149 million lb (67,585 mt) is utilize unvented fish traps fished on bass; 120,000 lb (54 mt) of scup; 281,000 27 percent above the minimum biomass hard bottom areas in southern New lb (127 mt) of Loligo squid; and 161,740 threshold of 117 million lb (53,070 mt) England waters to characterize the size lb (73 mt) of summer flounder. below which the stock is considered composition of the scup population. Regulations under the Magnuson- overfished (1/2 Bmsy), and the estimated Survey activities would be conducted Stevens Fishery Conservation and F of 0.29 was slightly above the FMP from May 1 through November 8, 2005, Management Act (Magnuson-Stevens overfishing definition of F=Fmax=0.26. In at six rocky bottom study sites located Act) require publication of this addition, spawning stock biomass (SSB) offshore, where there is a minimal scup notification to provide interested parties has increased steadily from 20.5 million pot fishery and no active trawl fishery. the opportunity to comment on lb (9,303 mt) in 1993 to 109 million lb Up to two vessels would conduct the applications for proposed EFPs. (49,442 mt) in 2003, the highest value in survey. Sampling would occur off the the time series. Explanation of Quota Adjustments Due coasts of Rhode Island and southern Although the summer flounder stock to Quota Overages Massachusetts. The RSA allocated for is no longer considered overfished, this project is 18,000 lb (8 mt) of black This rule proposes commercial quotas additional rebuilding is necessary sea bass and 63,675 lb (29 mt) of scup. based on the proposed TALs and Total because the Magnuson-Stevens Act The National Fisheries Institute (NFI) Allowable Catches (TACs) and the requires that stocks be rebuilt to the and Rutgers University submitted a formulas for allocation contained in the level that produces maximum proposal to conduct a third year of work FMP. In 2002, NMFS published final sustainable yield on a continuing basis, on a commercial vessel-based trawl regulations to implement a regulatory i.e., 234.6 million lb (106,400 mt) for survey program in the Mid-Atlantic amendment (67 FR 6877, February 14, summer flounder. Long-term projections region that would track the migratory 2002) that revised the way in which the indicate that the stock can reach this behavior of selected recreationally and commercial quotas for summer biomass target by 2010 through the commercially important species. flounder, scup, and black sea bass are implementation of TALs associated with Information gathered during this project adjusted if landings in any fishing year a 75–percent probability of reaching the would supplement the NMFS finfish exceed the quota allocated (thus target F in 2005 through 2009. Based on survey databases and improve methods resulting in a quota overage). If NMFS the latest stock assessment update, a to evaluate how seasonal migration of approves a different TAL or TAC at the TAL of 30.3 million lb (13,744 mt) has fish in the Mid-Atlantic influences stock final rule stage, the commercial quotas a 75–percent probability of achieving an abundance estimates. One vessel would will be recalculated based on the F of 0.26 if the TAL and assumed

VerDate jul<14>2003 15:33 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 E:\FR\FM\06DEP1.SGM 06DEP1 70416 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Proposed Rules

discard level in 2004 are not exceeded. research activities. For 2006, because included in any tables in this document The TAL associated with a 75–percent information pertaining to the potential because NMFS does not have authority probability level in 2006 is 33.0 million amount of RSA is unknown, RSA is to establish such subcategories. lb (14,969 mt). conservatively estimated as 3 percent of NMFS proposes to implement the The Council and the Board adopted the TAL, i.e., 990,000 lb (449 mt). After 30.3–million lb (13,744–mt) TAL with a the Summer Flounder Monitoring deducting the RSA, the TAL for 2005 353,917–lb (160.5–mt) RSA for 2005, Committee’s recommendation of a would be divided into a commercial and the 33.0–million lb (14,969–mt) summer flounder TAL of 30.3 million lb quota of 17.97 million lb (8,151 mt) and TAL with an estimated 990,000–lb (13,744 mt) for 2005 and 33.0 million lb a recreational harvest limit of 11.98 (449–mt) RSA for 2006, as (14,969 mt) for 2006. These TALs would million lb (5,434 mt), and the TAL for recommended by the Council and represent a 7–percent increase and a 17– 2006 would be divided into a Board. The 11.98–million lb (5,434–mt) percent increase for 2005 and 2006, commercial quota of 19.21 million lb and 12.80–million lb (5,806–mt) respectively, from the 2004 TAL of 28.2 (8,714 mt) and a recreational harvest recreational harvest limits for 2005 and million lb (12,791 mt). The initial TALs limit of 12.80 million lb (5,806 mt). 2006, respectively, would be allocated would be allocated 60 percent to the In addition, the Commission is on a coastwide basis. The commercial commercial sector and 40 percent to the expected to maintain the voluntary quotas for 2005 and 2006 would be recreational sector, i.e., the initial TAL measures currently in place to reduce allocated to the states as shown in for 2005 would be allocated 18.18 regulatory discards that occur as a result Tables 1 and 2, respectively, which million lb (8,246 mt) to the commercial of landing limits established by the present the allocations by state, with sector and 12.12 million lb (5,498 mt) to states. The Commission established a and without the commercial portion of the recreational sector, and the initial system whereby 15 percent of each the RSA deduction. These state quota TAL for 2006 would be allocated 19.8 state’s quota would be voluntarily set allocations are preliminary and are million lb (8,981 mt) to the commercial aside each year to enable vessels to land subject to a reduction if there are sector and 13.2 million lb (5,987 mt) to an incidental catch allowance after the overages of a state’s quota for the the recreational sector. The commercial directed fishery has been closed. The previous fishing year (using the quota for each year then would be intent of the incidental catch set-aside is landings information and procedures allocated to the coastal states based to reduce discards by allowing described earlier). Any commercial upon percentage shares specified in the fishermen to land summer flounder quota adjustments to account for FMP. caught incidentally in other fisheries overages will be published in the For 2005, the Council and Board also during the year, while also ensuring that Federal Register in the final rule agreed to set aside 353,917 lb (160.5 mt) the state’s overall quota is not exceeded. implementing these specifications. of the summer flounder TAL for These Commission set-asides are not BILLING CODE 3510–22–S

VerDate jul<14>2003 15:33 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 E:\FR\FM\06DEP1.SGM 06DEP1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Proposed Rules 70417

BILLING CODE 3510–22–C

VerDate jul<14>2003 15:33 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 E:\FR\FM\06DEP1.SGM 06DEP1 EP06DE04.013 70418 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Proposed Rules

Scup believes that the risks associated with Pursuant to an industry request, and Scup was last assessed in June 2002 the disapproved rebuilding plan are not to reduce scup discards, the Council at the 35th Northeast Regional Stock applicable to the proposed and Board recommended an increase in Assessment Workshop (SAW). The specifications since they apply only for the commercial scup Winter I Federal Stock Assessment Review Committee one fishing year and will be reviewed, possession limit to 30,000 lb (13.6 mt) (SARC 35) indicated that the species is and modified as appropriate, by the per trip for 2005. Because scup are a no longer overfished, but that stock Council and NMFS annually. The scup schooling species, otter trawl vessels status with respect to overfishing cannot stock has shown signs of significant operating where scup occur currently be evaluated. The NEFSC rebuilding and is no longer overfished. occasionally make very large hauls that spring survey 3–year average (2002 It is, therefore, not necessary to deviate consist almost entirely of scup. Under through 2004) for scup SSB was 3.74 kg/ from the specified exploitation rate in the current system, when one of these tow, which is about 35 percent higher 2005. Furthermore, setting the scup hauls is brought up, the possession limit than the threshold that defines the stock specifications using an exploitation rate may be kept by the hauling vessel while as overfished (2.77 kg/tow). of 21 percent is a more risk-averse the remaining catch must be discarded SARC 35 indicated that relative approach to managing the resource than or transferred to another vessel. exploitation rates on scup have declined not setting any specifications until the Increasing the Winter I possession limit in recent years, although the absolute Council submits, and NMFS approves, a would convert potential regulatory value of F cannot be determined. revised rebuilding plan that complies discards of scup into landings, thus Overall, most recent scup survey with all Magnuson-Stevens Act reducing bycatch and improving the observations indicate strong recruitment requirements. efficiency of the commercial scup and some rebuilding of age structure. Because of uncertainty associated fishery. Allowing the commercial sector SARC 35 noted that the stock can likely with the spring survey and the pending to fulfil the Winter I quota should also sustain modest increases in catch, but stock assessment that will be presented reduce the incentive for vessels to catch that such increases should be taken with to the SARC this December, the scup at the end of the Winter I period. due consideration of the uncertainties Monitoring Committee recommended, States have indicated to the Commission associated with the stock status and the Council and Board adopted the and NMFS that they would implement determination. recommendation to set specifications for a 30,000–lb (13.6–mt) landing limit per The target exploitation rate for scup 2005 only, and to maintain the current 2–week period (Sunday through for 2005 is 21 percent. The FMP TAC/TAL. Based on the increase in the Saturday). Because the current specifies that the TAC associated with a spring survey index in 2004, possession limit is 15,000 lb (6.8 mt), given exploitation rate be allocated 78 maintaining the 16.5–million lb (7,484– this measure would allow the same percent to the commercial sector and 22 mt) TAL is likely to achieve the target amount of scup to be landed in a 2– percent to the recreational sector. Scup exploitation rate for 2005. The level of week period in 2005 as in 2004. In cases discard estimates are deducted from discards used in 2004 (2.15 million lb where state regulations regarding trip both sectors’ TACs to establish TALs for (975 mt) continues to be used for 2005, limits are more restrictive than the each sector (TAC less discards = TAL). so the TAC would be 18.65 million lb proposed 30,000–lb (13.6–mt) trip limit, The commercial TAL is then allocated (8,460 mt). NMFS is proposing to the state regulations would apply. That on a percentage basis to three quota implement the Council’s and Board’s is, vessels landing scup in states with periods, as specified in the FMP: Winter TAC/TAL recommendation because it is more restrictive possession limits may I (January-April)—45.11 percent; considered likely to achieve the 21– need to make more than one trip to Summer (May-October)—38.95 percent; percent exploitation rate required by the reach the 2–week limit, if that state is and Winter II (November-December)— FMP. enforcing a 30,000–lb (13.6–mt) 2–week 15.94 percent. Using the sector allocation specified The proposed scup specifications for in the FMP (commercial 78 percent; landing limit. The Winter I possession 2005 are based on an exploitation rate recreational--22 percent), the Council’s limit would be reduced to 1,000 lb (454 in the rebuilding schedule that was recommendation would result in a kg) when 80 percent of the quota is approved when scup was added to the commercial TAC of 14.55 million lb projected to be reached. NMFS is FMP in 1996, prior to passage of the (6,600 mt) and a recreational TAC of proposing to implement the Council’s Sustainable Fisheries Act (SFA). 4.10 million lb (1,860 mt). Using the and Board’s scup Winter I Federal Subsequently, to comply with the SFA same commercial and recreational possession limit recommendation amendments to the Magnuson-Stevens discard estimates used for the 2004 because it would allow for the Act, the Council prepared Amendment specifications (i.e., 2.08 million lb (943 achievement of the Scup Winter I quota 12 to the FMP, which proposed to mt) for the commercial sector, and while reducing scup discards. NMFS is maintain the existing rebuilding 70,000 lb (32 mt) for the recreational proposing to retain the current initial schedule for scup established by sector), the Scup Monitoring Committee possession limit of 1,500 lb (680 kg) for Amendment 8 to the FMP. On April 28, recommendation would result in an Winter II (November-December). 1999, NMFS disapproved the proposed initial commercial TAL of 12.47 million Table 3 presents the 2005 commercial rebuilding plan for scup because the lb (5,656 mt) and recreational harvest allocation recommended by the Council, rebuilding schedule did not appear to be limit of 4.03 million lb (1,828 mt). The with and without the 303,675–lb (138– sufficiently risk-averse. Later, however, Council and Board also agreed to set mt) RSA deduction. These 2005 NMFS advised the Council that use of aside 303,675 lb (138 mt) of the scup allocations are preliminary and may be the exploitation rate as a proxy for F TAL for research activities. Deducting subject to downward adjustment in the would be acceptable and risk-averse. this RSA from the TAL would result in final rule implementing these Therefore, the proposed scup a commercial quota of 12.23 million lb specifications due to 2004 overages, specifications for 2005 are based on an (5,547 mt) and a recreational harvest based on the procedures for calculating exploitation rate of 21 percent. NMFS limit of 3.96 million lb (1,796 mt). overages described earlier.

VerDate jul<14>2003 15:33 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 E:\FR\FM\06DEP1.SGM 06DEP1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Proposed Rules 70419

TABLE 3. 2005 PROPOSED INITIAL TAC, COMMERCIAL SCUP QUOTA, AND POSSESSION LIMITS, IN LB (KG)

Commercial Period Percent TAC Discards Commercial Quota less Possession Quota RSA Limits

Winter I 45.11 6,563,505 938,288 5,625,217 5,518,367 30,0001 (2,977,186) (425,605) (2,551,582) (2,503,089) (13,607) Summer 38.95 5,667,225 810,160 4,857,065 4,764,806 n/a* (2,570,636) (367,486) (2,203,150) (2,161,280) Winter II 15.94 2,319,270 331,522 1,987,718 1,949,962 1,500 (1,052,014) (150,391) (901,623) (884,487) (680) Total2 100.00 14,550,000 2,080,000 12,470,000 12,233,134 (6,599,837) (943,482) (5,656,355) (5,548,856) 1The Winter I landing limit would drop to 1,000 lb (454 kg) upon attainment of 80 percent of the seasonal allocation. 2Totals subject to rounding error. *n/a-Not applicable

The final rule to implement landings of scup during Winter I are less the Winter II possession limits that Framework 3 to the FMP (68 FR 62250, than the Winter I quota for that year, result from potential rollover of quota November 3, 2003) implemented a NMFS will, through notification in the from the Winter I period for the 2005 process, for years in which the full Federal Register, increase the Winter II fishing year . Therefore, NMFS proposes Winter I commercial scup quota is not quota for that year by the amount of the to maintain the Winter II possession harvested, to allow unused quota from Winter I underharvest, and adjust the limit-to-rollover amount ratios specified the Winter I period to be rolled over to Winter II possession limits consistent for 2004, as presented in Table 4. the quota for the Winter II period. In any with the amount of the quota increase. year that NMFS determines that the The Council recommended no change in

TABLE 4. POTENTIAL INCREASE IN WINTER II POSSESSION LIMITS BASED ON THE AMOUNT OF SCUP ROLLED OVER FROM WINTER I TO WINTER II PERIOD

Initial Winter II Possession Limit Rollover from Winter I to Winter II Increase in Initial Winter II Final Winter II Possession Possession Limit Limit after Rollover from Winter I to Winter II lb kg lb mt lb kg lb kg

1,500 680 0–499,999 0–227 0 0 1,500 680 1,500 680 500,000–999,999 227–454 500 227 2,000 907 1,500 680 1,000,000– 454–680 1,000 454 2,500 1,134 1,499,999 1,500 680 1,500,000– 680–907 1,500 680 3,000 1,361 1,999,999 1,500 680 2,000,000– 907–1,134 2,000 907 3,500 1,587 2,500,000

Other Scup Management Measures These requirements have been in effect costs associated with the proposed Under the current regulations for the since February 2002 (66 FR 58097, change in minimum mesh size for scup. directed trawl fishery at § 648.123(a)(1), November 20, 2001). In consideration of The change to the minimum mesh size no owner or operator of an otter trawl the increasing abundance of scup and of regulations also would apply in the vessel that is issued a scup moratorium recent studies that indicate that discards Scup Gear Restricted Areas (GRAs). may have increased in 2004, the Council permit may possess 500 lb (227 kg) or Scup GRAs more of scup from November 1 through and Board have recommended an April 30, or 100 lb (45 kg) or more of increase in the minimum mesh size In 2000, the 31st Stock Assessment scup from May 1 through October 31, from 4.5 inches (11.4 cm) to 5 inches Review Committee (SARC 31) unless fishing with nets that have a (12.7 cm), and an increase in the emphasized the need to reduce scup minimum mesh size of 4.5–inch (11.4– threshold level to trigger the mesh mortality resulting from discards in the cm) diamond mesh for no more than 25 requirement from 100 lb (45 kg) to 200 scup fishery and in other fisheries. In continuous meshes forward of the lb (90 kg) for the Scup Summer period response to that recommendation, GRAs terminus of the codend, and with at (May 1 through October 31). The were established during the 2000 fishing least 100 continuous meshes of 5.0–inch recommendation was to increase the year (65 FR 33486, May 24, 2000, and (12.7–cm) mesh forward of the 4.5–inch minimum mesh size to 5 inches (12.7 65 FR 81761, Dec. 27, 2000) and (11.4–cm) mesh, and all other nets are cm) for the 75 meshes from the terminus modified for the 2001 fishing year (66 stowed in accordance with of the net; and for codends constructed FR 12902, March 1, 2001). The GRAs § 648.23(b)(1). For trawl nets with with fewer than 75 meshes, a minimum prohibit trawl vessels from fishing for, codends (including an extension) of less mesh size of 5 inches (12.7 cm) or possessing, certain non-exempt than 125 meshes, the entire trawl net throughout the net. Through this species (Loligo squid, black sea bass, must have a minimum mesh size of 4.5 proposed rule, NMFS seeks comments and silver hake (whiting)) when fishing inches (11.4 cm) throughout the net. on the likely effectiveness of and/or with mesh smaller than that required to

VerDate jul<14>2003 15:33 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 E:\FR\FM\06DEP1.SGM 06DEP1 70420 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Proposed Rules

fish for scup during the effective periods this value, the stock is no longer Classification (January 1 through March 15 for the overfished. This proposed rule has been Southern GRA, and November 1 through The target exploitation rate for 2005 is December 31 for the Northern GRA). determined to be not significant for 25 percent, which is based on the purposes of Executive Order 12866. For 2003, the Council recommended current estimate of F or 0.32. Given max An IRFA was prepared that describes allowing vessels to fish for non-exempt the uncertainty in the spring survey the economic impact this proposed rule, species with small mesh in the GRAs, estimates for the 2002–2004 period, and provided they use specially modified if adopted, would have on small the potential underestimation of the trawl nets and carry observers, entities. 2003 exploitation rate, the Black Sea consistent with Atlantic Coastal Bass Monitoring Committee A description of the action, why it is Cooperative Statistics Program observer being considered, and the legal basis for standards. Instead, NMFS implemented recommended maintaining the current TAL of 8 million lb (3,629 mt) for both this action are contained in the an alternative program (the GRA preamble to this proposed rule. This 2005 and 2006. The Council and Board Exemption Program) requiring 100– proposed rule does not duplicate, rejected the Monitoring Committee percent observer coverage for all vessels overlap, or conflict with other Federal recommendation, and instead fishing with small mesh for non-exempt rules. A copy of the complete IRFA can species in the GRAs using the modified recommended an 8.2 million-lb (3,719– be obtained from the Council (see gear. This alternative imposed mt) TAL (based on information that the ADDRESSES). A summary of the significantly fewer administrative and stock size has increased in recent years), economic analysis follows. enforcement complexities and was but for 2005 only. This TAL would be The economic analysis assessed the intended to provide more data to a 2.5–percent increase from 2004. NMFS impacts of the various management evaluate the effectiveness of the gear is proposing to implement the Council’s alternatives. The no action alternative is modifications (68 FR 60, January 2, and Board’s TAL recommendation defined as follows: (1) No proposed 2003). NMFS maintained the GRA because it is considered likely to specifications for the 2005 and 2006 Exemption Program for 2004 (69 FR achieve the 25–percent exploitation rate summer flounder fisheries and the 2005 2074, January 14,2004). To date, no that is required by the FMP. scup and black sea bass fisheries would vessels have participated in the GRA The FMP specifies that the TAL be published; (2) the indefinite Exemption Program. associated with a given exploitation rate management measures (minimum mesh For 2005, the Scup Monitoring be allocated 49 percent to the sizes, minimum sizes, possession limits, Committee recommended the commercial sector and 51 percent to the permit and reporting requirements, etc.) continuation of the GRAs with a shift of recreational sector; therefore, the initial would remain unchanged; (3) there the entire Southern GRA by 3 would be no quota set-aside allocated to longitudinal minutes to the west. The TAL would be allocated 4.02 million lb (1,823 mt) to the commercial sector and research in 2005; (4) the existing GRA recommendation to move the Southern regulations would remain in place for GRA follows an industry request and 4.18 million lb (1,896 mt) to the recreational sector. The Council and 2005; and (5) there would be no specific subsequent analysis by the NEFSC, cap on the allowable annual landings in which indicates that the shift would Board also agreed to set aside 109,500 lb (50 mt) of the black sea bass TAL for these fisheries (i.e., there would be no expose an additional 3 percent of the quotas). Implementation of the no action scup stock to small-mesh gear during research activities. After deducting the RSA, the TAL would be divided into a alternative would be inconsistent with the effective period, while allowing the goals and objectives of the FMP, its commercial quota commercial quota of access to an additional 8 percent of the implementing regulations, and the 3.96 million lb (1,796 mt) and a Loligo squid stock. Termination of the Magnuson-Stevens Act. In addition, the existing GRA Exemption Program also recreational harvest limit of 4.13 million no action alternative would was recommended. The Council and lb (1,873 mt). substantially complicate the approved Board adopted the Scup Monitoring In addition to the changes management program for these fisheries, Committee’s recommendations. NMFS recommended by the Council and the and would very likely result in proposes to implement the Council and Board, this proposed rule also would overfishing of the resources. Therefore, Board recommendations in order to remove reference to a specific date by the no action alternative is not allow for greater opportunity for trawl which the Summer Flounder, Scup, and considered to be a reasonable alternative vessels to harvest Loligo squid while Black Sea Bass Monitoring Committees to the preferred action. maintaining the protective aspects of the shall meet for the purposes of Southern GRA for scup. Alternative 1 consists of the harvest recommending annual or multi-year limits proposed by the Council and Black Sea Bass TALs. These actions are intended to Board for summer flounder, scup, and Black sea bass was last assessed in provide flexibility for the Council in black sea bass. Alternative 2 consists of June 2004 at the 39th Northeast scheduling Monitoring Committee the most restrictive quotas (i.e., lowest Regional SAW. The Stock Assessment meetings and to remove an unnecessary landings) considered by the Council and Review Committee (SARC 39) indicated restriction. NMFS previously modified the Board for all of the species. that black sea bass are no longer the text regarding Monitoring Alternative 3 consists of the least overfished and overfishing is not Committee meetings in §§ 648.100, restrictive quotas (i.e., highest landings) occurring. The biomass threshold is 648.120, and 648.140 to reflect that considered by the Council and Board for defined as the maximum value of a 3– annual review of updated information all three species. Although Alternative 3 year moving average of the NEFSC on the fisheries by the Monitoring would result in higher landings for spring survey catch-per-tow (1977–1979 Committees would not be required 2004, it would also likely exceed the average of 0.9 kg/tow). The 2003 during the period of multi-year biological targets specified in the FMP. biomass index (the 3–year average for specifications. These regulatory changes Table 5 presents the 2005 initial 2002–2004) is 1.4 kg/tow, about 55 will be effective November 29, 2004 (69 TALs, RSA, commercial quotas adjusted percent above the threshold. Based on FR 62818, October 28, 2004). for RSA, and preliminary recreational

VerDate jul<14>2003 15:33 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 E:\FR\FM\06DEP1.SGM 06DEP1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Proposed Rules 70421

harvests for the fisheries under these three quota alternatives. BILLING CODE 3510–22–S

BILLING CODE 3510–22–C for RSA) compared to the final adjusted Table 6 presents the percent change quotas for 2004. associated with each of these commercial quota alternatives (adjusted

TABLE 6. PERCENT CHANGE ASSOCIATED WITH 2005 ADJUSTED COMMERCIAL QUOTA ALTERNATIVES COMPARED TO 2004 ADJUSTED QUOTA.

Total Changes Including Overages and RSA Quota Alternative 1 Quota Alternative 2 Quota Alternative 3 (Preferred) (Most Restrictive) (Least Restrictive)

Summer Flounder

Aggregate Change (2005) +7.20% -0.31% +15.44% Aggregate Change 2006) +14.59% -2.08% +23.27%

Scup

VerDate jul<14>2003 15:33 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 E:\FR\FM\06DEP1.SGM 06DEP1 EP06DE04.014 70422 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Proposed Rules

TABLE 6. PERCENT CHANGE ASSOCIATED WITH 2005 ADJUSTED COMMERCIAL QUOTA ALTERNATIVES COMPARED TO 2004 ADJUSTED QUOTA.—Continued

Total Changes Including Overages and RSA Quota Alternative 1 Quota Alternative 2 Quota Alternative 3 (Preferred) (Most Restrictive) (Least Restrictive)

Aggregate Change -0.85%* -35.60% +33.90%

Black Sea Bass

Aggregate Change +5.32% +2.93* +11.97% *Denotes status quo management measures.

All vessels that would be impacted by the 2005 quotas in Preferred Alternative vessel prices for this species change as this proposed rulemaking are 1 would increase total summer flounder a consequence of changes in landings, considered to be small entities; and black sea bass revenues by then the associated revenue changes therefore, there would be no approximately $1.9 million and could be different than those estimated disproportionate impacts between large $165,000, respectively, and decrease above. Complete revenue analysis for and small entities. The categories of scup revenues by approximately the 2006 fishing year will be conducted small entities likely to be affected by $60,000, relative to expected 2004 as part of the proposed rule for the 2006 this action include commercial and revenues. summer flounder, scup, and black sea charter/party vessel owners holding an Assuming that the total ex-vessel bass specifications, once the Council active Federal permit for summer gross revenue associated with the recommends TAL’s for scup and black flounder, scup, or black sea bass, as well Preferred Alternative for each fishery is sea bass. as owners of vessels that fish for any of distributed equally among the vessels The Council’s analysis of the harvest these species in state waters. The that landed those species in 2003, the limits of Alternative 2 (i.e., the most Council estimates that the proposed average change in gross revenue per restrictive harvest limits) indicated that 2005 quotas (and 2006 summer flounder vessel associated with the preferred these harvest limits would produce a quota) could affect 2,114 vessels that quota would be a $2,322 increase for revenue increase for 191 commercial held a Federal summer flounder, scup, summer flounder, a $106 decrease for vessels, primarily because a large and/or black sea bass permit in 2003. scup, and a $546 increase for black sea proportion of their revenues were However, the more immediate impact of bass. The number of vessels landing derived from black sea bass, and a this rule will likely be felt by the 1,040 summer flounder, scup, and black sea revenue loss for the other 935 vessels that actively participated (i.e., bass in 2003 was 839, 566, and 702, commercial vessels expected to be landed these species) in these fisheries respectively. impacted by this proposed rule. in 2003. The overall increase in gross revenue Assuming 2003 ex-vessel prices as The Council estimated the total associated with the three species described above, the 2005 quotas in revenues derived from all species combined in 2005 compared to 2004 is Alternative 2 would increase total black landed by each vessel during calendar approximately $2.3 million (assuming sea bass revenues by approximately year 2003 to determine a vessel’s 2003 ex-vessel prices) under the $202,000, and decrease total summer dependence and revenue derived from a Preferred Alternative. If this amount is flounder and scup revenues by particular species. This estimate distributed equally among the 1,040 approximately $81,000 and $2.6 provided the base from which to vessels that landed summer flounder, million, respectively, relative to compare the effects of the proposed scup, and/or black sea bass in 2003, the expected 2004 revenues. quota changes from 2004 to 2005 (and average increase in revenue would be Assuming that the total ex-vessel 2006 for the summer flounder fishery). approximately $2,184 per vessel. gross revenue associated with The Council’s analysis of the harvest Complete revenue analysis for 2006 Alternative 2 is distributed equally limits in Alternative 1 (Preferred cannot be completed at this time among the vessels that landed those Alternative) indicated that these harvest because the Council is recommending species in 2003, the average change in levels would produce a revenue the 2006 TAL for summer flounder only. gross revenue per vessel associated with increase for 1,000 commercial vessels Based on the proposed 2006 TAL for Alternative 2 would be a $95 decrease that are expected to be impacted by this summer flounder, and assuming 2003 for summer flounder, a $4,654 decrease rule. Up to 40 vessels that derive a large ex-vessel price ($1.61 per lb), ex-vessel for scup, and a $288 increase for black proportion of their revenues from scup revenue would increase by sea bass. were projected to incur small revenue approximately $3.9 million relative to The overall reduction in gross losses (i.e., less than 5 percent) due to 2004. Assuming the increase in summer revenue associated with the three the decrease in the adjusted scup quota flounder total ex-vessel gross revenue species combined in 2005 compared to that results from the increase in scup associated with the preferred alternative 2004 is approximately $2.5 million GRA proposed for 2005. No vessels were is distributed equally among the 839 (assuming 2003 ex-vessel prices) under expected to have revenue losses of vessels that landed summer flounder in Alternative 2. If this amount is greater than 5 percent. 2003, the average increase in revenue distributed equally among the 1,040 The Council also analyzed changes in associated with the increase in summer vessels that landed summer flounder, total gross revenue that would occur as flounder TAL is $4,701 per vessel. The scup, and/or black sea bass in 2003, the a result of the quota alternatives. change in gross revenues associated average decrease in revenue would be Assuming 2003 ex-vessel prices with the potential changes in landings approximately $2,416 per vessel. (summer flounder—$1.61/lb; scup— in 2006 versus 2004 assume static prices The Council’s analysis of the harvest $0.60/lb; and black sea bass—$2.02/lb), for summer flounder. However, if ex- limits of Alternative 3 (i.e., the least

VerDate jul<14>2003 16:48 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 E:\FR\FM\06DEP1.SGM 06DEP1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Proposed Rules 70423

restrictive harvest limits) indicated that 11.14 million lb (5,053 mt) and 10.94 2003 recreational landings. The these harvest limits would produce a million lb (4,962 mt), respectively, Alternative 2 scup recreational harvest revenue increase for all 1,040 would be less than 1 percent and 3 limit of 2.74 million lb (1,242 mt) for commercial vessels. Assuming 2003 ex- percent lower, respectively, than the 2005 would be 32 percent less than the vessel prices as described above, the 2004 recreational harvest limit, and 2004 recreational harvest limit, and 71 2005 quotas in Alternative 3 would would represent a 4–percent decrease percent less than 2003 recreational increase total summer flounder, scup, and a 6–percent decrease, respectively, landings. The Alternative 3 scup and black sea bass revenues by from 2003 recreational landings. The recreational harvest limit of 5.17 million approximately $4.2 million, $2.5 2005 and 2006 summer flounder lb (2,345 mt) for 2005 would be an million, and $889,000, respectively, Alternative 3 recreational harvest limits increase of 30 percent from the 2004 relative to expected 2004 revenues. of 12.90 million lb (5,851 mt) and 13.77 recreational harvest limit and would Assuming that the total ex-vessel million lb (6,246 mt), respectively, represent a 45–percent decrease from gross revenue associated with would be a 15–percent and 23–percent 2003 recreational landings. With Alternative 3 is distributed equally increase, respectively, from the 2004 Alternative 2, and possibly Alternative among the vessels that landed those recreational harvest limit and would 1, more restrictive management species in 2003, the average increase in represent an 11–percent increase and a measures might be required to prevent gross revenue per vessel associated with 19–percent increase, respectively, from anglers from exceeding the 2004 Alternative 3 would be $4,790 for 2003 recreational landings. If recreational harvest limit, depending summer flounder, $4,442 for scup, and Alternative 1, 2, or 3 is chosen, it is largely upon the effectiveness of the $1,266 for black sea bass. possible that more restrictive 2004 recreational management The overall increase in gross revenue management measures may be required measures. As described above for the associated with the three species to prevent anglers from exceeding the summer flounder fishery, the effect of combined in 2005 compared to 2004 is 2005 and 2006 recreational harvest greater restrictions on scup party/ approximately $7.6 million (assuming limits, depending upon the effectiveness charter boats is unknown at this time. 2003 ex-vessel prices) under Alternative of the 2004 recreational management Although the proposed recreational 3. If this amount is distributed equally measures. More restrictive regulations harvest limit is approximately 30,000 lb among the 1,040 vessels that landed could affect demand for party/charter (13.6 mt) less than the adjusted limit for summer flounder, scup, and/or black boat trips. However, the market demand 2004, because it is only a marginal sea bass in 2003, the average increase in for this sector currently is stable, so the difference from the current harvesting revenue would be approximately $7,281 effects may be minimal. Currently, limit, it is not likely that more effort per vessel. neither behavioral or demand data are controls (e.g., bag limits) will be The Council also prepared an analysis available to estimate how sensitive required to constrain 2005 recreational of the alternative recreational harvest party/charter boat anglers might be to landings. Overall, positive social and limits. The 2005 recreational harvest proposed fishing regulations. Overall, it economic impacts are expected to occur limits were compared with previous years through 2003, the most recent year is expected that positive social and as a result of the scup recreational with complete recreational data. economic impacts would occur as a harvest limit for 2005 because current Landing statistics from the last several result of the proposed 6–percent (for opportunities for recreational fishing years show that recreational summer 2005) and 14–percent (for 2006) would be maintained. The Council flounder landings have generally increase in the recreational harvest intends to recommend specific exceeded the recreational harvest limits, limit, relative to 2004 because of the measures to attain the 2005 scup ranging from a 5–percent overage in increase in fishing opportunities. The recreational harvest limit in December 1993 to a 122–percent overage in 2000. Council intends to recommend specific 2004, and will provide additional In 2001, summer flounder recreational measures to attain the 2005 summer analysis of the measures upon landings were 11.64 million lb (5,280 flounder recreational harvest limit in submission of its recommendations mt), exceeding the harvest limit of 7.16 December 2004, and will provide early in 2005. million lb (3,248 mt) by 63 percent. In additional analysis of the measures Black sea bass recreational landings 2002, recreational landings were 8.01 upon submission of its increased slightly from 1991 to 1995. million lb (3,633 mt), 18 percent below recommendations in early 2005. Landings decreased considerably from the recreational harvest limit of 9.72 Similarly, the Council will recommend 1996 to 1999, and then substantially million lb (4,409 mt). In 2003, 2006 recreational management measures increased in 2000. In 2001, 2002, and recreational landings were 11.61 million in December 2005. 2003, recreational landings were 3.42 lb (5,266 mt), 4 percent above the Scup recreational landings declined million lb (1,551 mt), 4.46 million lb recreational harvest limit of 9.32 million over 89 percent for the period 1991 to (2,023 mt), and 4.26 million lb (1,932 lb (4,228 mt). 1998, then increased by 517 percent mt), respectively. For the recreational The Alternative 1 summer flounder from 1998 to 2000. In 2002, recreational fishery, the adjusted 2005 harvest limit 2005 and 2006 preferred recreational landings were 3.62 million lb (1,642 under Alternative 1 would be 4.13 harvest limits (adjusted for RSA) of mt), or 33 percent above the recreational million lb (1,873 mt), a 3–percent 11.98 million lb (5,434 mt) and 12.80 harvest limit of 2.71 million lb (1,229 increase from the 2004 recreational million lb (5,806 mt), respectively, mt). In 2003, recreational landings were harvest limit and a 3–percent decrease would be a 6–percent and 14–percent 9.33 million lb (4,232 mt), or 132 from 2003 recreational landings. Under increase, respectively, from the 2004 percent above the recreational harvest Alternative 2, the 2005 recreational recreational harvest limit of 11.21 limit of 4.01 million lb (1,819 mt). harvest limit would be 4.02 million lb million lb (5,085 mt), and would Under the Preferred Alternative, the (1,823 mt), a less than 1–percent represent a 3–percent and 10–percent adjusted scup recreational harvest limit increase from the 2004 recreational increase, respectively, from 2003 for 2005 would be 3.96 million lb (1,796 harvest limit and a 6–percent decrease landings. The 2005 and 2006 summer mt), 1 percent lower than the 2004 from 2003 recreational landings. The flounder Alternative 2 (status quo recreational harvest limit, and would 2005 recreational harvest limit under alternative) recreational harvest limits of represent a 57–percent decrease from Alternative 3 would be 4.38 million lb

VerDate jul<14>2003 15:33 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 E:\FR\FM\06DEP1.SGM 06DEP1 70424 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Proposed Rules

(1,986 mt), a 9–percent increase from information, potential price fluctuations configurations, but would also forgo the the 2004 recreational harvest limit and occur as result of irregular supply. The opportunity to increase the efficiency of a 3–percent increase from 2003 recommended possession limits for the fishery by reducing discards of small recreational landings. Each of the three Winter I would allow fishermen to scup and other species currently caught alternatives would likely result in determine the best time for them to fish in the 4.5–in (11.4–cm) mesh nets. The positive economic impacts on the and further help to avoid market gluts Council therefore determined that the recreational fishery because of an and unsafe fishing practices. The preferred scup mesh size and threshold increase in fishing opportunities. The recommended possession limit is the level minimize negative economic Council intends to recommend specific maximum possible possession limit that impacts on the industry. measures to attain the 2005 black sea fits within the landing limit constraint The costs and benefits of allowing bass recreational harvest limit in being imposed by the states under the vessels using small-mesh experimental December 2004, and will provide aegis of the Commission (a landing limit nets to fish in the GRAs under the GRA additional analysis of the measures of 30,000 lb (13.6 mt) per 2–week Exemption Program were described in upon submission of its period). Therefore, there would be no the proposed rule (67 FR 70904, recommendations early in 2005. marginal benefit associated with any November 27, 2002) and the final rule Overall, positive social and economic possession limit higher than 30,000 lb (68 FR 60, January 2, 2003) impacts are expected to occur as a result (13.6 mt) that the Council might have implementing the 2003 specifications. of the preferred black sea bass considered. And, because any Those impacts are not repeated here. recreational harvest limit for 2004 possession limit that the Council might Given that no fishing vessels have because of the increase in fishing have considered less than 30,000 lb participated in the GRA Exemption opportunities. (13.6 mt) would have imposed a Program since its implementation, its In summary, the 2005 commercial constraint on the industry, potentially elimination is not expected to result in quotas and recreational harvest limits preventing them from taking full changes to the economic and social contained in the Preferred Alternative, advantage of the states’ landing limit, aspects of the fishery compared to the after accounting for the proposed RSA the proposed Winter I possession limit status quo alternative. amounts, would result in substantially is the alternative at would result in the Under the status quo alternative for higher summer flounder and black sea most beneficial economic impacts to the the scup Southern GRA, socioeconomic bass landings and a small decrease in industry. impacts are expected to be similar to scup landings, relative to 2004. The those in previous years. Moving the proposed specifications contained in the Maintaining the current mesh size Southern GRA 3 minutes westward is Preferred Alternative were chosen and the current threshold level to trigger expected to result in positive because they allow for the maximum the mesh requirement for the scup socioeconomic impacts, relative to the level of landings, while still achieving fishery would not be expected to change status quo, due to increased availability the fishing mortality and exploitation the economic or social impacts in 2005 of Loligo to participants in the small- targets specified in the FMP. While the compared to 2004. However, the mesh trawl fishery. Trawl survey data commercial quotas and recreational proposed actions to increase the indicate that the westward shift of the harvest limits specified in Alternative 3 minimum scup mesh size from 4.5 in Southern GRA could result in a 3– would provide for even larger increases (11.4 cm) to 5.0 in (12.7 cm) and the percent increase in the capture of scup, in landings and revenues, they would related threshold trigger from 100 lb (45 a 5–percent increase in black sea bass not achieve the fishing mortality and kg) to 200 lb (90 kg) would have positive capture, and an 8–percent increase in exploitation targets specified in the socioeconomic impacts as they would Loligo capture. The Council also FMP. allow for a reduction in the discard of considered an alternative to redefine the The proposed commercial scup undersized fish, thus improving the seaward boundary of the Southern GRA possession limits for Winter I (30,000 lb efficiency of the commercial scup so that it would approximate the 50– (13.6 mt) per trip) and Winter II (1,500 fishery compared to the status quo. The fathom (91.4–m) bathymetric contour, lb (680 kg) per trip) were chosen as an cost to the industry to implement the thus making an additional 1,455–nm2 appropriate balance between the change in minimum mesh size is area available for the small-mesh trawl economic concerns of the industry (i.e., expected to be minimal due to the fishery. It is estimated that this change landing enough scup to make the trip configuration of the nets subject to this would result in a 31–percent increase in economically viable) and the need to change. The current regulations allow the capture of scup, a 40–percent ensure the equitable distribution of the for 4.5–in (11.4–cm) mesh in the codend increase in black sea bass capture, and quota over the period. The proposed of a net for no more than 25 meshes an 21–percent increase in Loligo Winter I possession limit was selected from the terminus of the net. Forward of capture. This second alternative was not specifically to coordinate with the this codend, at least 100 meshes must be selected because, as indicated by the 30,000 lb (13.6 mt) landing limits per 2– 5.0–in (12.7–cm) mesh. To implement Council, losses in estimated protection week period recommended by the the proposed change, all that would be under this alternative would likely have Commission to be implemented by most required in these nets is the removal of a diminishing effect on any positive states while satisfying concerns about the 4.5–in (11.4–cm) codend and closing impacts accumulated thus far, such that enforcement of possession limits. off the remaining 5.0–in (12.7–cm) the Southern GRA would be less likely Changes in possession limits can impact mesh. Increasing the minimum mesh to function adequately as a protective profitability in various ways. These size to something larger than 5.0 in (12.7 mechanism for scup and black sea bass. impacts would vary depending on cm) would require much more The commercial portion of the fishing practices. These possession significant changes in net configuration summer flounder RSA allocations in the limits are expected to constrain and would result in more significant Preferred Alternative, if made available commercial landings to the commercial costs to the industry. Maintaining the to the commercial fishery, could be TAL, and distribute landings equitably status quo mesh size, or decreasing the worth as much as $341,884 (for 2005) throughout the periods to avoid derby- minimum mesh to something smaller and $956,340 (for 2006) dockside, based style fishing effort and associated than 4.5 in (11.4 cm), would eliminate on a 2003 ex-vessel price of $1.61/lb. market gluts. According to anecdotal any need for the industry to alter net Assuming an equal reduction in fishing

VerDate jul<14>2003 15:33 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 E:\FR\FM\06DEP1.SGM 06DEP1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Proposed Rules 70425

opportunity among all active vessels (1,873 mt). It is unlikely that the black each year the following data, subject to (i.e., the 839 vessels that landed summer sea bass possession, size, or seasonal availability, unless a TAL has already flounder in 2003), this could result in a limits would change as the result of this been established for the upcoming per-vessel potential revenue loss of RSA allocation because the reduction in calendar year as part of a multiple-year approximately $407 (for 2005) and the harvest limit is so small. specification process, provided that new $1,140 (for 2006). Because information Overall, long-term benefits are information does not require a pertaining to RSA projects for 2006 is expected as a result of the RSA program modification to the multiple-year not yet known, the per-vessel revenue due to improved fisheries data and quotas, to determine the annual loss for 2006 is likely overestimated information. If the total amount of quota allowable levels of fishing and other because the RSA allocation assumed for set-aside is not awarded for any of the restrictions necessary to achieve, with at 2006 represents the maximum allowable three fisheries, the unused set-aside least a 50–percent probability of allocation (3 percent of the TAL). The amount will be restored to the success, a fishing mortality rate (F) that Council to date has never utilized the appropriate fishery’s TAL. It should also produces the maximum yield per recruit maximum allowable RSA allocation, so be noted that fish harvested under the (Fmax): Commercial, recreational, and it is expected that at least some of the RSAs would be sold, and the profits research catch data; current estimates of assumed RSA allocation would would be used to offset the costs of fishing mortality; stock status; recent ultimately be added back into the research. As such, total gross revenue to estimates of recruitment; virtual commercial quota for 2006. Changes in the industry would not decrease if the population analysis results; levels of the summer flounder recreational RSAs are utilized. noncompliance by fishermen or harvest limit as a result of the 353,917– There are no new reporting or individual states; impact of size/mesh lb (79–mt) RSA are not expected to be recordkeeping requirements contained regulations; sea sampling and winter significant as the deduction of RSA from in any of the alternatives considered for trawl survey data or, if sea sampling the TAL would result in a relatively this action. data are unavailable, length frequency marginal decrease in the recreational information from the winter trawl harvest limit from 12.1 million lb (5,489 List of Subjects in 50 CFR Part 648 survey and mesh selectivity analyses; mt) to 12 million lb (5,443 mt) for 2005 Fisheries, Fishing, Reporting and impact of gear other than otter trawls on and from 13.2 million lb (5,987 mt) to recordkeeping requirements. the mortality of summer flounder; and 12.8 million lb (5,805 mt) for 2006. Dated: December 1, 2004. any other relevant information. Because this is a marginal change, it is William T. Hogarth, * * * * * unlikely that the recreational 4. In § 648.120, paragraph (a) is Assistant Administrator for Fisheries, possession, size, or seasonal limits revised to read as follows: would change as the result of the RSA National Marine Fisheries Service. allocation. For the reasons set out in the § 648.120 Catch quotas and other The scup RSA allocation in the preamble, 50 CFR part 648 is proposed restrictions. Preferred Alternative, if made available to be amended as follows: (a) Review. The Scup Monitoring to the commercial fishery, could be Committee shall review each year the worth as much as $142,119 dockside, PART 648—FISHERIES OF THE following data, subject to availability, based on a 2003 ex-vessel price of NORTHEASTERN UNITED STATES unless a TAL already has been $0.60/lb. Assuming an equal reduction 1. The authority citation for part 648 established for the upcoming calendar in fishing opportunity for all active continues to read as follows: year as part of a multiple-year commercial vessels (i.e., the 566 vessels specification process, provided that new that landed scup in 2003), this could Authority: 16 U.S.C. 1801 et seq. information does not require a result in a loss of potential revenue of 2. In § 648.14, paragraph (a)(127) is modification to the multiple-year approximately $251 per vessel. The removed and reserved, and quotas: Commercial, recreational, and deduction of RSA from the TAL results paragraph(a)(122) is revised to read as research data; current estimates of in a relatively marginal decrease in the follows: fishing mortality; stock status; recent recreational harvest limit from 4.03 estimates of recruitment; virtual million lb (1,828 mt) to 3.96 million lb § 648.14 Prohibitions. population analysis results; levels of (1,796 mt). It is unlikely that scup (a) * * * noncompliance by fishermen or recreational possession, size, or seasonal (122) Fish for, catch, possess, retain or individual states; impact of size/mesh limits would change as the result of the land Loligo squid, silver hake, or black regulations; impact of gear on the RSA allocation because the reduction in sea bass in or from the areas and during mortality of scup; and any other the harvest limit is so small. the time periods described in relevant information. This review will The black sea bass RSA allocation in § 648.122(a) or (b) while in possession be conducted to determine the the Preferred Alternative, if made of any trawl nets or netting that do not allowable levels of fishing and other available to the commercial fishery, meet the minimum mesh restrictions or restrictions necessary to achieve the F could be worth as much as $108,383 that are obstructed or constricted as that produces the maximum yield per dockside, based on a 2003 ex-vessel specified in §§ 648.122 and 648.123(a), recruit (Fmax). price of $2.02/lb. Assuming an equal unless the nets or netting are stowed in * * * * * reduction in fishing opportunity for all accordance with § 648.123(b). 5. In § 648.122, paragraph (d) is active commercial vessels (i.e., the 702 * * * * * removed and reserved, and the section vessels that caught black sea bass in (127) [Reserved] heading, paragraph (a)(1), and the first 2003), this could result in a loss of 3. In § 648.100, paragraph (a) is two sentences of paragraph (b)(1) are approximately $154 per vessel. The revised to read as follows: revised to read as follows: deduction of RSA from the TAL would result in a relatively marginal decrease § 648.100 Catch quotas and other § 648.122 Season and area restrictions. in recreational harvest from black sea restrictions. (a) * * * bass recreational harvest limit from 4.18 (a) Review. The Summer Flounder (1) * * * From January 1 through million lb (1,896 mt) to 4.13 million lb Monitoring Committee shall review March 15, all trawl vessels in the

VerDate jul<14>2003 15:33 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 E:\FR\FM\06DEP1.SGM 06DEP1 70426 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Proposed Rules

Southern Gear Restricted Area that fish mesh, applied throughout the codend 7. In § 648.140, paragraph (a) is for or possess non-exempt species as for at least 75 continuous meshes revised to read as follows: specified in paragraph (a)(2) of this forward of the terminus of the net. For section must fish with nets that have a trawl nets with codends (including an § 648.140 Catch quotas and other minimum mesh size of 5.0–inch (12.7– extension) of fewer than 75 meshes, the restrictions. cm) diamond mesh, applied throughout entire trawl net must have a minimum (a) Review. The Black Sea Bass the codend for at least 75 continuous mesh size of 5.0 inches (12.7 cm) Monitoring Committee shall review meshes forward of the terminus of the throughout the net. * * * each year the following data, subject to net. For trawl nets with codends * * * * * availability, unless a TAL already has (including an extension) of fewer than (d) [Reserved] been established for the upcoming 75 meshes, the entire trawl net must * * * * * calendar year as part of a multiple-year have a minimum mesh size of 5.0 inches 6. In § 648.123, paragraph (a)(1) is specification process, provided that new (12.7 cm) throughout the net. The revised to read as follows: Southern Gear Restricted Area is an area information does not require a modification to the multiple-year bounded by straight lines connecting § 648.123 Gear restrictions. the following points in the order stated quotas, to determine the allowable (a) * * * levels of fishing and other restrictions (copies of a chart depicting the area are (1) Minimum mesh size. No owner or necessary to result in a target available from the Regional operator of an otter trawl vessel that is exploitation rate of 23 percent (based on Administrator upon request): issued a scup moratorium permit may F possess 500 lb (226.8 kg) or more of max) in 2003 and subsequent years: SOUTHERN GEAR RESTRICTED scup from November 1 through April Commercial, recreational, and research AREA 30, or 200 lb (90.7 kg) or more of scup catch data; current estimates of fishing from May 1 through October 31, unless mortality; stock status; recent estimates Point N. Lat. W. Long. fishing with nets that have a minimum of recruitment; virtual population analysis results; levels of SGA1 ...... 39° 20′ 72° 53′ mesh size of 5.0–inch (12.7–cm) SGA2 ...... 39° 20′ 72° 28′ diamond mesh, applied throughout the noncompliance by fishermen or SGA3 ...... 38° 00′ 73° 58′ codend for at least 75 continuous individual states; impact of size/mesh SGA4 ...... 37° 00′ 74° 43′ meshes forward of the terminus of the regulations; sea sampling and winter SGA5 ...... 36° 30′ 74° 43′ net, and all other nets are stowed in trawl survey data, or if sea sampling SGA6 ...... 36° 30′ 75° 03′ data are unavailable, length frequency ° ′ ° ′ accordance with § 648.23(b)(1). For SGA7 ...... 37 00 75 03 trawl nets with codends (including an information from the winter trawl SGA8 ...... 38° 00′ 74° 23′ SGA1 ...... 39° 20′ 72° 50′ extension) of fewer than 75 meshes, the survey and mesh selectivity analyses; entire trawl net must have a minimum impact of gear other than otter trawls, (b) * * * mesh size of 5.0 inches (12.7 cm) pots and traps on the mortality of black (1) * * * From November 1 through throughout the net. Scup on board these sea bass; and any other relevant December 31, all trawl vessels in the vessels must be stowed separately and information. kept readily available for inspection. Northern Gear Restricted Area I that fish * * * * * Measurement of nets will be in for or possess non-exempt species as [FR Doc. 04–26724 Filed 12–3–04; 8:45 am] specified in paragraph (b)(2) of this conformity with § 648.80(f)(2)(ii). section, 5.0–inch (12.7 cm) diamond * * * * * BILLING CODE 3510–22–S

VerDate jul<14>2003 19:28 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 E:\FR\FM\06DEP1.SGM 06DEP1 70427

Notices Federal Register Vol. 69, No. 233

Monday, December 6, 2004

This section of the FEDERAL REGISTER FOR FURTHER INFORMATION CONTACT: value of the conservation easement may contains documents other than rules or Denise Coleman, NRCS; phone: (202) be considered part of the entity’s proposed rules that are applicable to the 720–3527; fax: (202) 720–4265; or e- matching offer. For the entity, two cost- public. Notices of hearings and investigations, mail: [email protected]; share options are available when committee meetings, agency decisions and Subject: FRPP or consult the NRCS Web providing its matching offer. One option rulings, delegations of authority, filing of petitions and applications and agency site at: http://www.nrcs.usda.gov/ is for the entity to provide, in cash, at statements of organization and functions are programs/farmbill/2002/ least 25 percent of the appraised fair examples of documents appearing in this PubNotcChron.html. market value of the conservation easement. The second option is for the section. SUPPLEMENTARY INFORMATION: entity to provide, in cash, at least 50 Background percent of the purchase price of the DEPARTMENT OF AGRICULTURE Urban sprawl continues to threaten conservation easement. The second the Nation’s farm and ranch land, as option may be preferable to an entity in Commodity Credit Corporation social and economic changes over the the case of a large bargain sale by the past three decades have influenced the landowner. If the second option is Farm and Ranch Lands Protection selected, the NRCS share cannot exceed Program rate at which land is converted to nonagricultural uses. Population growth, the entity’s contribution. The following two examples illustrate AGENCY: Commodity Credit Corporation, demographic changes, preferences for how these two cost-share options may Department of Agriculture (USDA). larger lots, expansion of transportation function. Under Option 1, where 25 systems, and economic prosperity have ACTION: Notice of request for proposals. percent of the appraised fair market contributed to increases in agricultural value is selected by the entity, the total SUMMARY: land conversion rates. The amount of Section 2503 of the Farm appraised fair market value of the farm and ranch land lost to Security and Rural Investment Act of conservation easement is $1 million. development and the quality of 2002 (Pub. L. 107–171) amended the The landowner chooses to donate 40 farmland being converted are significant Food Security Act of 1985 to include the percent of the appraised fair market Farm and Ranch Lands Protection concerns. In most States, prime value, resulting in the actual easement Program (FRPP), formerly known as the farmland is being converted at two to purchase price being $600,000. In this Farmland Protection Program (FPP). four times the rate of other, less- case, the cooperating entity contributes Congress delegated authority to productive agricultural land. $250,000, and NRCS contributes administer FRPP to the Chief of the There continues to be an important $350,000. Option 2, where 50 percent of Natural Resources Conservation Service national interest in the protection of the purchase price is selected, would (NRCS). NRCS, on behalf of the farmland. Land use devoted to occur when a landowner makes a large Commodity Credit Corporation (CCC) agriculture provides an important charitable donation, where 25% of the and using its authorities, requests contribution to environmental quality, appraised fair market value exceeds 50 proposals from Federally recognized protection of the Nation’s historical and percent of the purchase price. For Indian tribes, States, units of local archaeological resources, and scenic example, the total appraised fair market government, and nongovernmental beauty. value of the conservation easement is $1 organizations to cooperate in the Availability of Funding million. The landowner chooses to acquisition of conservation easements donate 60 percent of the appraised fair Effective on the publication date of on farms and ranches. Eligible land market value, resulting in the actual this notice, NRCS announces the includes farm and ranch land that has easement purchase price being availability of up to $78 million for prime, unique, or other productive soil, $400,000. In this case, NRCS and the FRPP, until September 30, 2005. The or that contains historical or cooperating entity both contribute archaeological resources. These lands NRCS State Conservationist must $200,000. must also be subject to a pending offer receive proposals for participation from eligible entities for the purpose of within 120 days of the date of this Definitions protecting topsoil by limiting notice. State, Tribal, and local For the purposes of this notice, the conversion of that land to governmental entities and following definitions apply: nonagricultural uses. Over $78 million nongovernmental organizations may Chief means the Chief of NRCS, in FRPP funds is available to purchase apply. Selection will be based on the USDA. conservation easements in fiscal year criteria established in this notice and Commodity Credit Corporation (CCC) 2005. additional criteria developed by the is a Government-owned and operated applicable State Conservationist. entity that was created to stabilize, DATES: Proposals must be received in Pending offers by an eligible entity must support, and protect farm income and the NRCS State Office by April 5, 2005. be for acquiring an easement for prices. CCC is managed by a Board of ADDRESSES: Written proposals must be perpetuity, except where State law Directors, subject to the general sent to the appropriate NRCS State prohibits a permanent easement. supervision and direction of the Conservationist, Natural Resources Under the FRPP, NRCS may provide Secretary of Agriculture, who is an ex- Conservation Service, USDA. The up to 50 percent of the appraised fair officio director and chairperson of the telephone numbers and addresses of the market value of the conservation Board. CCC provides the funding for NRCS State Conservationists are in the easement. Landowner donations up to FRPP, and NRCS administers FRPP on appendix of this notice. 25 percent of the appraised fair market its behalf.

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00001 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70428 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

Conservation Easement means a Neither the seller nor the buyer act specified in clause (i), (ii), (iii), or (iv) voluntary, legally recorded restriction, under any compulsion to buy or sell, of section 170(h)(4)(A) of the Internal in the form of a deed, on the use of giving due consideration to all available Revenue Code of 1986; property, in order to protect resources economic uses of the property at the (2) Is an organization described in such as agricultural lands, historic time of the appraisal. In valuing section 501(c)(3) of that Code that is structures, open space, and wildlife conservation easements, the appraiser exempt from taxation under 501(a) of habitat. estimates both the fair market value of that Code; Conservation Plan is the document the whole property before the easement (3) Is described in section 509(a)(2) of that— acquisition and the fair market value of that Code; or is described in section (1) Applies to highly erodible the remainder property after the 509(a)(3) of that Code; and is controlled cropland; conservation easement has been by an organization described in section (2) Describes the conservation system imposed. The difference between these 509(a)(2) of that Code. applicable to the highly erodible two values is deemed the value of the Other productive soils are soils that cropland, and describes the decisions of conservation easement. are contained on farm or ranch land that the person with respect to location, land Field Office Technical Guide (FOTG) is identified as farmland of Statewide or use, tillage systems, and conservation is the official document for NRCS local importance and is used for the treatment measures and schedules; guidelines, criteria, and standards for production of food, feed, fiber, forage, or (3) Is approved by the local soil planning and applying conservation oilseed crops. The appropriate State or conservation district in consultation treatments and conservation local government agency determines with the local committees established management systems. The FOTG Statewide or locally important farmland under Section 8 (b)(5) of the Soil contains detailed information on the with concurrence from the State Conservation and Domestic Allotment conservation of soil, water, air, plant, Conservationist. Generally, these Act (16 U.S.C. 5909h(b)(5)) and the and animal resources applicable to the farmlands produce high yields of crops Secretary, or by the Secretary. local area for which it is prepared. when treated and managed according to Eligible entities means Federally Historical and archaeological acceptable farming methods. In some recognized Indian Tribes, States, units resources must be: States and localities, farmlands of of local government, and certain non- (1) Listed in the National Register of Statewide and local importance may governmental organizations, which have Historic Places (established under the include tracts of land that have been a farmland protection program that National Historic Preservation Act designated for agriculture by State law purchases agricultural conservation (NHPA), 16 U.S.C. 470, et seq.), or or local ordinance. 7 CFR part 657, sets easements for the purpose of protecting (2) Formally determined eligible for forth the process for designating soils as topsoil by limiting conversion to non- listing in the National Register of Statewide or locally important. agricultural uses of the land. Historic Places (by the State Historic Pending offer is a written bid, Additionally, to be eligible for FRPP, the Preservation Officer (SHPO) or Tribal contract, or option extended to a entity must have pending offers, for Historic Preservation Officer (THPO) landowner by an eligible entity to acquiring conservation easements for and the Keeper of the National Register acquire a conservation easement before the purpose of protecting agricultural in accordance with Section 106 of the the legal title to these rights has been land from conversion to non- NHPA), or conveyed for the purpose of limiting agricultural uses. (3) Formally listed in the State or non-agricultural uses of the land. Eligible land is privately owned land Tribal Register of Historic Places of the Prime and unique farmland are on a farm or ranch that has prime, SHPO (designated under Section 101 defined separately, as follows: unique, Statewide, or locally important (b)(1)(B) of the NHPA) or the THPO (1) Prime farmland is land that has the soil, or contains historical or (designated under Section 101(d)(1)(C) best combination of physical and archaeological resources, and is subject of the NHPA). chemical characteristics for producing to a pending offer by an eligible entity. Land Evaluation and Site Assessment food, feed, fiber, forage, oilseed, and Eligible land includes cropland, System (LESA) is the land evaluation other agricultural crops with minimum rangeland, grassland, and pasture land, system approved by the NRCS State inputs of fuel, fertilizer, pesticides, and as well as forest land that is an Conservationist used to rank land for labor, without intolerable soil erosion, incidental part of an agricultural farm and ranch land protection as determined by the Secretary. operation. Incidental forest land is less purposes, based on soil potential for (2) Unique farmland is land other than fifty percent of the entire area agriculture, as well as social and than prime farmland that is used for the under easement. Other incidental land economic factors, such as location, production of specific high-value food that would not otherwise be eligible, but access to markets, and adjacent land and fiber crops, as determined by the when considered as part of a pending use. (For additional information see the Secretary. It has the special combination offer, may be considered eligible, if Farmland Protection Policy Act of soil quality, location, growing season, inclusion of such land would regulation at 7 CFR part 658.) and moisture supply needed to significantly augment protection of the Landowner means a person, persons, economically produce sustained high associated farm or ranch land. estate, corporation, or other business or quality or high yields of specific crops Fair market value is ascertained nonprofit entity having fee title when treated and managed according to through standard real property appraisal ownership of farm or ranch land. acceptable farming methods. Examples methods. Fair market value is the Natural Resources Conservation of such crops include citrus, tree nuts, amount in cash, for which in all Service is an agency of the U.S. olives, cranberries, fruits, and probability the property would have Department of Agriculture. vegetables. Additional information on sold on the effective date of the Non-governmental organization is the definition of prime, unique, or other appraisal, after a reasonable exposure of defined as any organization that: productive soil can be found in 7 CFR time on the open competitive market, (1) Is organized for, and at all times part 657 and 7 CFR part 658. from a willing and reasonably since the formation of the organization, State Technical Committee means a knowledgeable seller to a willing and has been operated principally for one or committee established by the Secretary reasonably knowledgeable buyer. more of the conservation purposes of the U.S. Department of Agriculture in

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00002 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70429

a State pursuant to 16 U.S.C. 3861 and • FRPP cost per acre; for the future management of the land. 7 CFR part 610, subpart C. • Rate of land conversion; The conservation plan will be State Conservationist means the • Percentage of funding guaranteed to developed using the standards and NRCS employee authorized to direct be provided by cooperating entities; specifications of the NRCS Field Office • and supervise NRCS activities in a State, History of cooperating entities’ Technical Guide and 7 CFR part 12, the Caribbean Area (Puerto Rico and the commitments to conservation planning unless otherwise determined by the Virgin Islands), or the Pacific Basin Area and implementing conservation State Conservationist, in partnership (Guam, American Samoa, and the practices; with the eligible entity. The • Commonwealth of the Northern Participating entities’ histories of conservation plan will be implemented Marianna Islands). acquiring, managing, holding, and in a timely manner, as determined by enforcing easements (including average Overview of the Farm and Ranch Lands the State Conservationist, prior to the annual farmland protection easement easement being recorded. Protection Program expenditures over the past five years, The CCC, acting through NRCS, will accomplishments, and staff); Organization and Land Eligibility accept proposals submitted to the NRCS • Amount of FRPP funding requested; Selection Criteria State Offices from eligible entities, and To be eligible, a Federally recognized • including federally recognized Indian Participating entities’ estimated Indian tribe, State, unit of local tribes, States, units of local government, unfunded backlog of conservation government, or nongovernmental and nongovernmental organizations that easements on acres eligible for FRPP organization must have a farmland have pending offers for acquiring assistance. protection program that purchases conservation easements for the purposes The NRCS State Conservationist will conservation easements for the purpose of protecting topsoil by limiting combine the above-mentioned NRCS of protecting prime, unique, or other nonagricultural use of the land and/or National criteria with NRCS State productive soil or historical and protecting historical and archaeological ranking criteria. The following examples archaeological resources by limiting sites on farm and ranch lands. of NRCS State ranking criteria may be conversion of farm or ranch land to All proposals must be submitted to used to evaluate and rank specific nonagricultural uses. As a condition of the appropriate NRCS State parcels, including, but not limited to, receiving FRPP funds, the cooperating Conservationist within 120 days from proximity to protected clusters, viability entity shall not use FRPP funds to place the date of this notice. The NRCS State of the agricultural operations, parcel an easement on a property in which Conservationist may consult with the size, type of land use, maximum cost cooperating entity’s employee, board State Technical Committee (established expended per acre, and an entity’s member, or immediate family member pursuant to 16 U.S.C. 3861) to evaluate commitment to assuring farm and ranch of an employee or board member has a the merits of the proposals. succession and transfer to viable property interest. The NRCS State Conservationist will farming operations. State ranking review and evaluate the proposals based criteria will be developed on a State-by- Criteria for Proposal Evaluation on State, tribal, or local government or State basis and will be available to Proposals must contain the nongovernmental organization interested participating entities before information set forth below in order to eligibility, land eligibility, and the proposal submission. Interested entities receive consideration for assistance: extent to which the proposal adheres to should contact their State 1. Organization and programs: Eligible FRPP objectives. Proposals must include Conservationist for a complete listing of entities must describe their farmland adequate proof of a pending offer for the applicable National and State ranking protection program, and their record of subject land. Adequate proof includes a criteria, and program implementation acquiring and holding permanent written bid, contract, commitment, or guidelines. agricultural land protection easements option extended to a landowner. The NRCS State Conservationist will or other interests. Pending offers based upon appraisals make awards to eligible entities based Information provided in the proposal completed and signed by State-certified on available funds, prior to June 1, 2005. should: or licensed appraisers will receive Once selected, eligible entities must (a) Demonstrate a commitment to higher priority for FRPP funding. work with the appropriate NRCS State long-term conservation of agricultural Proposals submitted directly to the Conservationist to finalize and sign lands through the use of voluntary NRCS National Office will not be cooperative agreements, incorporating easements that protect farmland from accepted and will be returned to the all FRPP requirements. conversion to nonagricultural uses; submitting entity. The conveyance document (i.e., (b) Demonstrate the capability to conservation easement deed or acquire, manage, and enforce easements; National and State Ranking Criteria conservation easement deed template) (c) Demonstrate the number and Funding awards to participants will used by the eligible entity must be ability of staff that will be dedicated to be based on National and State criteria. reviewed and approved by the USDA monitoring easement stewardship; Below is a list of national criteria that Office of General Counsel before being (d) Demonstrate the availability of will be used by the NRCS State recorded. Since title to the easement is funds for the easement(s) proposed to be Conservationist to evaluate proposals: held by an entity other than the United acquired. The purchase price may not • Acreage of prime and important States, the conveyance document must exceed the appraised fair market value farm and ranch land estimated to be contain a clause that all rights conveyed of the conservation easement. If a protected; by the landowner under the document landowner donation is included in the • Acreage of prime and important will become vested in the United States entity’s match, the entity must farm and ranch land converted to should the cooperating entity abandon, demonstrate the availability of 25 nonagricultural uses; fail to enforce, or attempt to terminate percent of the appraised fair market • Number or acreage of historic and the conservation easement. value or 50 percent of the purchase archaeological sites estimated to be As a condition of participation, all price; and protected on farm or ranch lands; highly erodible land in the easement (e) Include pending offer(s). A • Total acres needing protection; shall be included in a conservation plan pending offer is a written bid, contract,

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00003 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70430 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

commitment, or option extended to a (ix) An example of the cooperating appropriate. As it relates to off-site landowner by an eligible entity to entity’s proposed easement deed used to conditions, NRCS may avoid acquiring acquire a conservation easement that prevent agricultural land conversion; land that is surrounded by a developed limits nonagricultural uses of the land (x) Indication of the accessibility to area or slated to be zoned for before the legal title to these rights has markets; development by a local government. been conveyed. The primary purpose of (xi) Indication of an existing NRCS will place a priority on the pending offers must be for the agricultural infrastructure, on- and off- acquiring easements that provide purchase of development rights in order farm, and other support system(s); to protect topsoil by limiting conversion (xii) Statement regarding the level of permanent protection from conversion to nonagricultural uses. Pending offers threat from urban development; to nonagricultural use. NRCS will place having appraisals completed and signed (xiii) A description of the eligible a higher priority on easements acquired by State-certified general appraisers will entity’s farmland protection strategy and by entities that have extensive receive higher funding priority by the how the FRPP proposal submitted by experience in managing and enforcing NRCS State Conservationist. Appraisals the entity corresponds to the entity’s easements. NRCS may place a higher completed and signed by a State- strategic plan; priority on lands and locations that help certified or licensed general appraiser (xiv) Other factors from an evaluation create a large tract of protected area for must contain a disclosure statement by and assessment system used to set viable agricultural production and that the appraiser. The disclosure statement priorities. If the eligible entity used the are under increasing urban development should include at a minimum the LESA system or a similar land pressure. NRCS may place a higher following: The appraiser accepts full evaluation system as its tool, include priority on lands and locations that responsibility for the appraisal, the the scores for the land parcels slated for correlate with the efforts of Federal, enclosed statements are true and acquisition; State, Tribal, local, or nongovernmental (xv) Other partners involved in unbiased, the value of the land is organizations’ efforts that have acquisition of the easement and their limited by stated assumptions only, the complementary farmland protection appraiser has no interest in the land, estimated financial contribution; and (xvi) Other information that may be objectives (e.g., open space or watershed and the appraisal conforms to the relevant as determined by the NRCS and wildlife habitat protection). NRCS Uniform Standards of Professional State Conservationist. may place a higher priority on lands Appraisal Practice or the Uniform that provide special social, economic, Appraisal Standards for Federal Land Ranking Considerations and environmental benefits to the Acquisitions. When the NRCS State Office has region. A higher priority may be given 2. Lands to be acquired: The proposal assessed organization eligibility and the to certain geographic regions where the must describe the lands to be acquired merits of each proposal, the NRCS State enrollment of particular lands may help with funding from FRPP. Specifically, Conservationist will determine whether achieve National, State, and regional the proposal must include the the farm or ranch land is eligible for goals and objectives, or enhance existing following: financial assistance from FRPP. NRCS (a) A map showing the proposed government or private conservation will use the National and State criteria, projects. protected area(s); which may include a LESA system or (b) The amount and source of funds other similar system, to evaluate the Cooperative Agreements currently available for each easement to land and rank the parcels. be acquired; NRCS will only consider enrolling The CCC, through NRCS, enters into (c) The criteria used to set the eligible land in the program that is of a cooperative agreement with a selected acquisition priorities; and sufficient size and has boundaries that eligible entity to document participation (d) A detailed description of the land allow for efficient management of the in FRPP. The cooperative agreement parcels, including: area. The land must have access to will address, among other subjects: (i) The priority of the offers; markets for its products and an (1) The easement type, terms, and (ii) The names of the landowners; infrastructure appropriate for conditions; (iii) The address and location maps of agricultural production. NRCS will not (2) The management and enforcement the parcels; enroll land in FRPP that is owned in fee of the rights acquired; (iv) The size of the parcels, in acres; title by an agency of the United States, (v) The acres of the prime, unique, or is publicly-owned land, or land that is (3) The role and responsibilities of State-wide and locally important soil in already subject to an easement or deed NRCS and the cooperating entity; the parcels; restriction that limits non-agricultural (4) The responsibilities of the (vi) The number or acreage of conversion of farm and ranch land. easement manager on lands acquired historical or archaeological sites, if any, NRCS will not enroll otherwise with FRPP assistance; and proposed to be protected, and a brief eligible lands if NRCS determines that description of the sites’ significance; the protection provided by the FRPP (5) Other requirements deemed (vii) A map showing the location of would not be effective because of on-site necessary by the CCC, acting through other protected parcels in relation to the or off-site conditions. For example, as it NRCS, to protect the interests of the land parcels proposed to be protected; relates to on-site conditions, a proposal United States. The cooperative (viii) Estimated cost of the may nominate a parcel that contains agreement will also include an easement(s): The consideration to be hazardous material, or it may nominate attachment listing the pending offers paid to any landowners for the a parcel that contains or may allow over accepted in FRPP, landowners’ names, conveyance of any lands or interests in two percent impervious surface addresses, location map(s), and other lands cannot be more than the fair coverage on the land under easement. relevant information. Interested entities market value of the land or interests The presence of hazardous waste or the should contact their State conveyed, as determined by an extensive impervious surface coverage Conservationist for a copy of a draft appraiser licensed in the State, in which will likely cause NRCS to determine cooperative agreement before submitting the parcel is located. that the use of FRPP funds is not an application.

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00004 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70431

Signed in Washington, DC, on November Office Box 50004, Honolulu, HI Missouri: Roger A. Hansen, Parkade 12, 2004. 96850–0002; phone: (808) 541–2600; Center, Suite 250, 601 Business Loop Bruce I. Knight, fax: (808) 541–1335; 70, West Columbia, MO 65203–2546; Vice President, Commodity Credit [email protected]. phone: (573) 876–0901; fax: (573) Corporation and Chief, Natural Resources Idaho: Richard W. Sims, Suite C, 9173 876–9439; Conservation Service. West Barnes Drive, Boise, ID 83709; [email protected]. NRCS State Conservationists phone: (208) 378–5700; fax: (208) Montana: David White, Federal 378–5735; [email protected]. Building, Room 443, 10 East Babcock Alabama: Robert N. Jones, 3381 Skyway Illinois: William J. Gradle, 2118 W. Park Street, Bozeman, MT 59715–4704; Drive, Post Office Box 311, Auburn, Court, Champaign, IL 61821; phone: phone: (406) 587–6811; fax: (406) AL 36830; phone: (334) 887–4500; (217) 353–6600; fax: (217) 353–6676; 587–6761, [email protected]. fax: (334) 887–4552; [email protected]. Nebraska: Stephen K. Chick, Federal [email protected]. Indiana: Jane E. Hardisty, 6013 Lakeside Building, Room 152, 100 Centennial Alaska: Shirley Gammon, Atrium Boulevard, Indianapolis, IN 46278– Mall, North Lincoln, NE 68508–3866; Building, Suite 100, 800 West 2933; phone: (317) 290–3200; fax: phone: (402) 437–5300; fax: (402) Evergreen, Atrium Building, Suite (317) 290–3225; 437–5327; [email protected]. 100, Palmer, AK 99645–6539; phone: [email protected]. Nevada: Livia Marques, Building F, (907) 761–7760; fax: (907) 761–7790; Iowa: Richard VanKlaveren, 693 Federal Suite 201, 5301 Longley Lane, Reno, [email protected]. Building, Suite 693, 210 Walnut NV 89511–1805; phone: (775) 784– Arizona: Michael Somerville, Suite 800, Street, Des Moines, IA 50309–2180; 5863; fax: (775) 784–5939; 3003 North Central Avenue, Phoenix, phone: (515) 284–6655; fax: (515) [email protected]. AZ 85012–2945; phone: (602) 280– 284–4394; [email protected]. New Hampshire: Theresa Chadwick, 8808; fax: (602) 280–8809 or 8805; Kansas: Harold Klaege, 760 South Federal Building, 2 Madbury Road, [email protected]. Arkansas: Kalven L. Trice, Federal Broadway, Salina, KS 67401–4642; Durham, NH 03824–2043; phone: Building, Room 3416, 700 West phone: (785) 823–4565; fax: (785) (603) 868–7581; fax: (603) 868–5301; Capitol Avenue, Little Rock, AR 823–4540; [email protected]. [email protected]. 72201–3228; phone: (501) 301–3100; Kentucky: David G. Sawyer, Suite 110, New Jersey: Anthony J. Kramer, 1370 fax: (501) 301–3194; 771 Corporate Drive, Lexington, KY Hamilton Street, Somerset, NJ 08873– [email protected]. 40503–5479; phone: (859) 224–7350; 3157; phone: (732) 246–1171; fax: California: Charles W. Bell, Suite 4164, fax: (859) 224–7399; (732) 246–2358; 430 G Street, Davis, California 95616– [email protected]. [email protected]. 4164; phone: (530) 792–5600; fax: Louisiana: Donald W. Gohmert, 3737 New Mexico: Rosendo Trevino III, Suite (530) 792–5790; Government Street, Alexandria, LA 305, 6200 Jefferson Street, NE., [email protected]. 71302; phone: (318) 473–7751; fax: Albuquerque, NM 87109–3734; Colorado: James Allen Green, Room (318) 473–7626; phone: (505) 761–4400; fax: (505) E200C, 655 Parfet Street, Lakewood, [email protected]. 761–4481; CO 80215–5521; phone: (720) 544– Maine: Joyce Swartzendruber, Suite 3, [email protected]. 2810; fax: (720) 544–2965; 967 Illinois Avenue, Bangor, ME New York: Joseph R. DelVecchio, Suite [email protected]. 04401; phone: (207) 990–9100, ext. 3; 354, 441 South Salina Street, Connecticut: Margo L. Wallace, 344 fax: (207) 990–9599; Syracuse, NY 13202–2450; phone: Merrow Road, Tolland, Connecticut [email protected]. (315) 477–6504; fax: (315) 477–6550; 06084; phone: (860) 871–4011; fax: Maryland: David P. Doss, John Hanson [email protected]. (860) 871–4054; Business Center, Suite 301, 339 North Carolina: Mary K. Combs, Suite [email protected]. Busch’s Frontage Road, Annapolis, 205, 4405 Bland Road, Raleigh, NC Delaware: Ginger Murphy, Suite 101, MD 21401–5534; phone: (410) 757– 27609–6293; phone: (919) 873–2101; 1203 College Park Drive, Suite 101, 0861; fax: (410) 757–0687; fax: (919) 873–2156; Dover, DE 19904–8713; phone: (302) [email protected]. [email protected]. 678–4160; fax: (302) 678–0843; Massachusetts: Cecil B. Currin, 451 North Dakota: J.R. Flores, Room 278, [email protected]. West Street, Amherst, MA 01002– 220 E. Rosser Avenue, Post Office Box Florida: T. Niles Glasgow, 2614 N.W. 2995; phone: (413) 253–4351; fax: 1458, Bismarck, ND 58502–1458; 43rd Street, Gainesville, FL 32606– (413) 253–4375; phone: (701) 530–2000; fax: (701) 6611, or Post Office Box 141510, [email protected]. 530–2110; [email protected]. Gainesville, FL 32606–6611; phone: Michigan: John Bricker, Suite 250, 3001 Ohio: John Wilson (Acting), Room 522, (352) 338–9500; fax: (352) 338–9574; Coolidge Road, East Lansing, MI 200 North High Street, Columbus, OH [email protected]. 48823–6350; phone: (517) 324–5270; 43215–2478; phone: (614) 255–2500; Georgia: Leonard Jordan, Federal fax: (517) 324–5171; fax: (614) 255–2548; Building, Stop 200, 355 East Hancock [email protected]. [email protected]. Avenue, Athens, GA 30601–2769; Minnesota: William Hunt, Suite 600, Oklahoma: M. Darrel Dominick, USDA phone: (706) 546–2272; fax: (706) 375 Jackson Street, St. Paul, MN Agri-Center Building, Suite 203, 100 546–2120; 55101–1854; phone: (651) 602–7900; USDA, Stillwater, OK 74074–2655; [email protected]. fax: (651) 602–7913 or 7914; phone: (405) 742–1204; fax: (405) Guam: Joan B. Perry, Director, Pacific [email protected]. 742–1126; Basin Area, Suite 301, FHB Building, Mississippi: Homer L. Wilkes, Suite [email protected]. 400 Route 8, Mongmong, G U 96910; 1321, Federal Building, 100 West Oregon: Robert Graham, Suite 1300, 101 phone: (671) 472–7490; fax: (671) Capitol Street, Jackson, MS 39269– SW. Main Street, Portland, OR 97204– 472–7288; [email protected]. 1399; phone: (601) 965–5205; fax: 3221; phone: (503) 414–3200; fax: Hawaii: Lawrence Yamamoto, Room 4– (601) 965–4940; (503) 414–3103; 118, 300 Ala Moana Boulevard, Post [email protected]. [email protected].

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00005 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70432 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

Pennsylvania: Robin E. Heard, Suite 662–4422; fax: (608) 662–4430; continues to decline due to 100 percent 340, 1 Credit Union Place, Harrisburg, [email protected]. EBT implementation. Until all of the PA 17110–2993; phone: (717) 237– Wyoming: Lincoln E. Burton, Federal paper food coupons issued are 2200; fax: (717) 237–2238; Building, Room 3124, 100 East B redeemed, the Food Coupon Deposit [email protected]. Street, Casper, WY 82601–1911; Document will remain an essential Puerto Rico: Juan A. Martinez, Director, phone: (307) 233–6750; fax: (307) document to the food stamp redemption Caribbean Area, IBM Building, Suite 233–6753; [email protected]. process. 604, 654 Munoz Rivera Avenue, Hato [FR Doc. 04–26738 Filed 12–3–04; 8:45 am] DATES: Comments on this notice must be Rey, PR 00918–4123; phone: (787) BILLING CODE 3410–16–P received by February 4, 2005, to be 766–5206; fax: (787) 766–6563; assured of consideration. [email protected]. Rhode ADDRESSES: Send comments and Island: Judith Doerner, Suite 46, 60 DEPARTMENT OF AGRICULTURE requests for copies of this information Quaker Lane, Warwick, RI 02886– collection to: Andrea Gordon, Chief, 0111; phone: (401) 828–1300; fax: Food and Nutrition Service Redemption Management Branch, (401) 828–0433; Benefit Redemption Division, Food and [email protected]. Agency Information Collection South Carolina: Walter W. Douglas, Activities: Proposed Collection; Nutrition Service, U. S. Department of Strom Thurmond Federal Building, Comment Request Food Stamp Agriculture, 3101 Park Center Drive, Room 950, 1835 Assembly Street, Program Form FNS–521, Food Coupon Room 404, Alexandria, VA 22302. Columbia, SC 29201–2489; phone: Deposit Document Comments may also be faxed to (703) (803) 253–3935; fax: (803) 253–3670; 305–1863 or e-mailed to: brdhq- AGENCY: [email protected]. Food and Nutrition Service, [email protected] South Dakota: Janet L. Oertly, Federal USDA. Comments are invited on: (a) Whether Building, Room 203, 200 Fourth ACTION: Notice and request for the proposed collection of information Street, SW., Huron, SD 57350–2475; comments. is necessary for the proper performance phone: (605) 352–1200; fax: (605) of the functions of the agency, including SUMMARY: In accordance with the 352–1288; whether the information will have Paperwork Reduction Act of 1995, the [email protected]. practical utility; (b) the accuracy of the Tennessee: James W. Ford, 675 U.S. Food and Nutrition Service is agency’s estimate of the burden of the Courthouse, 801 Broadway, Nashville, publishing for public comment a proposed collection of information, TN 37203–3878; phone: (615) 277– summary of a proposed information including the validity of the 2531; fax: (615) 277–2578; collection. The proposed collection is methodology and assumptions used; (c) [email protected]. an extension of a currently approved ways to enhance the quality, utility, and Texas: Lawrence Butler, W.R. Poage collection of the Food Stamp Program clarity of the information to be Building, 101 South Main Street, for which approval expires on December collected; and (d) ways to minimize the Temple, TX 76501–7682; phone: (254) 31, 2004. The Food Stamp Act of 1977, burden of the collection of information 742–9800; fax: (254) 742–9819; as amended, requires that all verified on those who are to respond, including [email protected]. and encoded redemption certificates the use of appropriate automated, Utah: Sylvia Gillen, W.F. Bennett accepted by insured financial electronic, mechanical, or other Federal Building, Room 4402, 125 institutions from authorized retail food technological collection techniques or South State Street, Salt Lake City, UT stores shall be forwarded with the other forms of information technology. 84111, phone: (801) 524–4550, fax: corresponding coupon deposits to the All comments will be summarized (801) 524–4403, Federal Reserve Bank along with the and included in the request for Office of [email protected]. accompanying Food Coupon Deposit Management and Budget approval of the Vermont: Francis M. Keeler, 356 Document (Form FNS–521). information collection. All comments Mountain View Drive, Suite 105, Requirements in the Food Stamp will also become a matter of public Colchester, VT 05446; phone: (802) Program regulations are the basis for the record. 951–6795; fax: (802) 951–6327; information collected on Form FNS– 521. FOR FURTHER INFORMATION CONTACT: [email protected]. Andrea Gordon, (703) 305–2456. Virginia: M. Denise Doetzer, Culpeper The Food and Nutrition Service is Building, Suite 209, 1606 Santa Rosa rapidly phasing out the use of paper SUPPLEMENTARY INFORMATION: Road, Richmond, VA 23229–5014; food coupons. Currently, 99.9 percent of Title: Food Coupon Deposit phone: (804) 287–1691; fax: (804) all food stamp benefits are issued Document. 287–1737; electronically. Forty-eight States, the OMB Number: 0584–0314. [email protected]. District of Columbia, the Virgin Islands, Expiration Date: December 31, 2004. Washington: Raymond L. ‘‘Gus’’ Guam, and Puerto Rico have online Type of Request: Extension of a Hughbanks, Rock Pointe Tower II, operating Electronic Benefit Transfer currently approved collection. Suite 450, W. 316 Boone Avenue, (EBT) systems. Two States operate Abstract: The Food and Nutrition Spokane, WA 99201–2348; phone: offline food stamp EBT systems and Service (FNS) of the U.S. Department of (509) 323–2900; fax: (509) 323–2909; issue paper food coupons to recipients Agriculture is the Federal Agency [email protected]. who move out of State and have responsible for the Food Stamp West Virginia: Lillian Woods, Room remaining food stamp benefits. Many Program. The Food Stamp Act of 1977, 301, 75 High Street, Morgantown, WV States have already closed out their as amended, (the Act) requires that FNS 26505; phone: (304) 284–7540; fax: coupon inventory completely and more provide for the redemption, through (304) 284–4839; will be doing the same in the upcoming financial institutions, of food coupons [email protected]. year. Approximately 18,140 Food accepted by retail food stores from Wisconsin: Patricia S. Leavenworth, Coupon Deposit Documents were program participants. Section 278.5 of 8030 Excelsior Drive, Suite 200, processed by financial institutions in the Food Stamp Program regulations Madison, WI 53717; phone: (608) Fiscal Year 2004 and the number governs financial institution and

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00006 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70433

Federal Reserve participation in the of Agriculture, 3101 Park Center Drive, Estimated Number of Respondents: food coupon redemption process. Room 636, Alexandria, Virginia 22302. 2,929,699 respondents. Form FNS–521, Food Coupon Deposit Comments will also be accepted via E- Average Number of Responses per Document (FCDD) is required to be used Mail submission if sent to Respondent: 2.25 responses/respondent. by all financial institutions when they [email protected]. Estimated Total Annual Burden on deposit food coupons at Federal Reserve Comments are invited on (a) whether Respondents: 5,781,262 burden hours. Banks. Without the FCDD, no vehicle the proposed collection of information Dated: November 24, 2004. would exist for financial institutions, is necessary for the proper performance Roberto Salazar, Federal Reserve Banks, and the FNS to of the functions of the agency, including Administrator, Food and Nutrition Service. track deposits of food coupons. whether the information will have Respondents: Financial institutions practical utility; (b) the accuracy of the [FR Doc. 04–26691 Filed 12–3–04; 8:45 am] and Federal Reserve Banks. agency’s estimate of the burden of the BILLING CODE 3410–30–P Number of Respondents: 10,000. proposed collection of information, Estimated Annual Number of including the validity of the DEPARTMENT OF AGRICULTURE Responses per Respondent: The number methodology and assumptions used; (c) of responses is estimated to be 1.814 ways to enhance the quality, utility and Foreign Agricultural Service responses per financial institution or clarity of the information to be Federal Reserve Bank per year. collected; and (d) ways to minimize the Notice of Request for Extension of a Estimate of Burden: Public reporting burden of the collection of information Currently Approved Information burden for this collection of information on those who are to respond, including Collection is estimated to average .0097222 hours through the use of appropriate per response. automated, electronic, mechanical, or AGENCY: Foreign Agricultural Service, Estimated Total Annual Burden: 176 other technological collection USDA. hours. techniques or other forms of information ACTION: Notice and request for Dated: November 30, 2004. technology. comments. Jerome A. Lindsay, All responses to this Notice will be SUMMARY: In accordance with the Acting Administrator, Food and Nutrition summarized and included in the request Service. for OMB approval, and will become a Paperwork Reduction Act of 1995, this notice announces that the Foreign [FR Doc. 04–26680 Filed 12–3–04; 8:45 am] matter of public record. Agricultural Service (FAS) intends to BILLING CODE 3410–30–P FOR FURTHER INFORMATION: Contact Mr. Keith Churchill, (703) 305–2590. request an extension for a currently SUPPLEMENTARY INFORMATION: approved information collection DEPARTMENT OF AGRICULTURE Title: Child and Adult Care Food procedure for entry of specialty sugars Program Regulations. into the United States as described in 7 Food and Nutrition Service OMB Number: 0584–0055. CFR part 2011. Expiration Date: June 30, 2007. DATES: Comments should be received on Agency Information Collection Type of Request: Revision of a or before February 4, 2005 to be assured Activities: Proposed Collection; currently approved collection. of consideration. Comment Request; Child and Adult Abstract: The Rule amends the Child ADDRESSES: Mail or deliver comments to Care Food Program: Increasing the and Adult Care Food Program (CACFP) Ron Lord, Deputy Director, Import Duration of Tiering Determinations for regulations to implement Section 199(b) Policies and Programs Division, Foreign Day Care Homes of the Child Nutrition and WIC Agricultural Service, U.S. Department of Reauthorization Act of 2004, Public Law AGENCY: Agriculture, Stop 1021, 1400 Food and Nutrition Service, 108–265, which amended Section USDA/FNS. Independence Ave. SW., Washington, 17(f)(3)(E)(iii) of the Richard B. Russell DC 20250–1021. ACTION: Notice. National School Lunch Act (42 U.S.C. 1766(f)(3)(E)(iii) to increase the duration FOR FURTHER INFORMATION CONTACT: Ron SUMMARY: In accordance with the Lord, at the address above, or telephone Paperwork Reduction Act of 1995, this of the tiering status determinations from three to five years for family or group at (202) 720–2916 or e-mail at notice announces the Food and [email protected]. Nutrition Service (FNS) intention to day care homes participating in CACFP. SUPPLEMENTARY INFORMATION: request Office of Management and This change, which was effective on Budget (OMB) review of the information June 30, 2004, applies to tiering status Title: Specialty Sugar Import collection related to the Child and Adult determinations for day care homes Certificates. OMB Number: 0551–0025. Care Food Program, including located in the attendance areas of elementary schools in which at least Expiration Date of Approval: February adjustments to be made as a result of the half of the enrolled children are 28, 2005. final rule, Child and Adult Care Food certified eligible to receive free or Type of Request: Extension of a Program: Increasing the Duration of reduced price school meals. The change currently approved information Tiering Determinations for Day Care also applies to tiering determinations for collection. Homes. day care homes operated by providers Abstract: The quota system DATES: To be assured of consideration, whose households meet the eligibility established by Presidential comments must be received by February guidelines for free or reduced price Proclamation 4941 of May 5, 1982, 4, 2005. school meals. Day care home providers prevented the importation of certain ADDRESSES: Send comments and receive higher reimbursement rates (tier sugars used for specialized purposes requests for copies of this information 1) for CACFP meals served to children which originated in countries which did collection to: Mr. Keith Churchill, in care in those homes. not have quota allocations. Therefore, Policy and Program Development Estimate of Burden: This change the regulation at 15 CFR part 2011 Branch, Child Nutrition Division, Food reduces the number of respondents per (Allocation of Tariff-Rate Quota on and Nutrition Service, U.S. Department year by 768. Imported Sugars, Syrups and Molasses,

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00007 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70434 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

subpart B—Specialty Sugar) established Signed at Washington, DC, on November Science and Technology Quality Review terms and conditions under which 24, 2004. Panel. The purpose of the meeting is to certificates are issued permitting U.S. A. Ellen Terpstra, allow the Air Force Scientific Advisory importers holding certificates to enter Administrator, Foreign Agricultural Service. Board to assess the quality and long- specialty sugars from specialty sugar [FR Doc. 04–26671 Filed 12–3–04; 8:45 am] term relevance of Air Force Research source countries under the sugar tariff- BILLING CODE 3410–10–P Laboratory research reviewed in Fall rate quotas (TRQ). Nothing in this 2004. Because classified and contractor- subpart affects the ability to enter proprietary information will be specialty sugars at the over-TRQ duty BROADCASTING BOARD OF discussed, this meeting will be closed to rates. Applicants for certificates for the GOVERNORS the public. import of specialty sugars must supply DATES: December 10, 2004. the information required by 15 CFR Sunshine Act Meeting ADDRESSES: 1560 Wilson Blvd, Suite 400, Arlington VA 22209–2404. 2011.205 to be eligible to receive a DATE AND TIME: December 8, 2004 specialty sugar certificate. The specific 3 p.m.–5 p.m. FOR FURTHER INFORMATION CONTACT: information required on an application PLACE: Cohen Building, Room 3321, 330 Major Kyle Gresham, Air Force must be collected from those who wish Independence Ave., SW., Washington, Scientific Advisory Board Secretariat, to participate in the program in order to DC 20237. 1180 Air Force Pentagon, Rm 5D982, grant specialty sugar certificates, ensure Washington DC 20330–1180, (703) 697– CLOSED MEETING: The members of the 4808. that imported specialty sugar does not Broadcasting Board of Governors (BBG) disrupt the current domestic sugar will meet in closed session to review Albert T. Bodnar, program, and administer the issuance of and discuss a number of issues relating Air Force Federal Register Liaison Officer. the certificates effectively. to U.S. Government-funded non- [FR Doc. 04–26694 Filed 12–3–04; 8:45 am] Estimate of Burden: Public reporting military international broadcasting. BILLING CODE 5001–05–P burden for this collection of information They will address internal procedural, is estimated to average 2 hours per budgetary, and personnel issues, as well response. as sensitive foreign policy issues DEPARTMENT OF DEFENSE relating to potential options in the U.S. Respondents: Importers. international broadcasting field. This Department of the Air Force Estimated Number of Respondents: meeting is closed because if open it 30. likely would either disclose matters that HQ USAF Scientific Advisory Board Estimated Number of Responses per would be properly classified to be kept AGENCY: Department of the Air Force, Respondent: 1. secret in the interest of foreign policy DoD. under the appropriate executive order (5 Estimated Total Annual Burden on ACTION: Notice of meeting. U.S.C. 552b. (c)(1)) or would disclose Respondents: 60 hours. information the premature disclosure of SUMMARY: Pursuant to Public Law 92– Copies of this information collection which would be likely to significantly 463, notice is hereby given of the can be obtained from Kimberly Chisley, frustrate implementation of a proposed forthcoming meeting of the Air Force the Agency Information Collection agency action. (5 U.S.C. 552b. (c)(9)(B)) Scientific Advisory Board. The purpose Coordinator, at (202) 720–2568. In addition, part of the discussion will of the meeting is to brief the Secretary Request for Comments: The public is relate solely to the internal personnel of the Air Force. This meeting will be invited to submit comments and and organizational issues of the BBG or closed to the public. suggestions to the above address the International Broadcasting Bureau. DATES: December 7, 2004. (5 U.S.C. 552b. (c)(2) and (6)) regarding the accuracy of the burden ADDRESSES: Pentagon, Washington DC. estimate, ways to minimize the burden, CONTACT PERSON FOR MORE INFORMATION: Persons interested in obtaining more FOR FURTHER INFORMATION CONTACT: Maj including the use of automated Chris Berg, Air Force Scientific collection techniques or other forms of information should contact either Brenda Hardnett or Carol Booker at Advisory Board Secretariat, 1180 Air information technology, or any other (202) 203–203–4545. Force Pentagon, Rm 5D982, aspect of this collection of information. Washington, DC 20330–1180, (703) 697– Comments on issues covered by the Dated: December 1, 2004. 4811. Paperwork Reduction Act are most Carol Booker, useful to OMB if received within 30 Legal Counsel. Albert F. Bodnar, days of publication of the Notice and [FR Doc. 04–26813 Filed 12–2–04; 8:45 am] Air Force Federal Register Liaison Officer. [FR Doc. 04–26707 Filed 12–3–04; 8:45 am] Request for Comments, but should be BILLING CODE 8230–01–M submitted no later than 60 days from the BILLING CODE 5001–05–P date of this publication to be assured of consideration. All responses to this DEPARTMENT OF DEFENSE notice will be summarized and included DEPARTMENT OF EDUCATION in the request for OMB approval. All Department of the Air Force HQ USAF Scientific Advisory Board Notice of Proposed Information comments will also be a matter of public Collection Requests record. Persons with disabilities who AGENCY: Department of the Air Force, require an alternative means for DoD. AGENCY: Department of Education. communication of information (Braille, ACTION: Notice of meeting. SUMMARY: The Leader, Information large print, audiotape, etc.) should Management Case Services Team, contact USDA’s Target Center at (202) SUMMARY: Pursuant to Public Law 92– Regulatory Information Management 720–2600 (voice and TDD). 463, notice is hereby given of the Services, Office of the Chief Information forthcoming meeting of the 2004 Officer, invites comments on the

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00008 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70435

proposed information collection Frequency: One time. DATES: Written comments or requests as required by the Paperwork Affected Public: Individuals or nonexclusive license applications are to Reduction Act of 1995. household. be received at the address listed below DATES: Interested persons are invited to Reporting and Recordkeeping Hour no later than December 21, 2004. submit comments on or before February Burden: Responses—234,700. Burden ADDRESSES: Diane Newlon, Technology 4, 2004. Hours—7,816. Transfer Manager, U.S. Department of Abstract: A Direct Loan borrower uses SUPPLEMENTARY INFORMATION: Section Energy, National Energy Technology this application to request and authorize 3506 of the Paperwork Reduction Act of Laboratory, P.O. Box 880, Morgantown, the automatic deduction of monthly 1995 (44 U.S.C. Chapter 35) requires WV 26507–0880. student loan payments from his or her that the Office of Management and FOR FURTHER INFORMATION CONTACT: checking or savings account. Budget (OMB) provide interested Requests for copies of the proposed Diane Newlon, Technology Transfer Federal agencies and the public an early information collection request may be Manager, U.S. Department of Energy, opportunity to comment on information accessed from http://edicsweb.ed.gov, National Energy Technology Laboratory, collection requests. OMB may amend or by selecting the ‘‘Browse Pending P.O. Box 880, Morgantown, WV 26507– waive the requirement for public Collections’’ link and by clicking on 0880; Telephone (304) 285–4086; E- consultation to the extent that public link number 2648. When you access the mail: [email protected]. participation in the approval process information collection, click on SUPPLEMENTARY INFORMATION: 35 U.S.C. would defeat the purpose of the ‘‘Download Attachments’’ to view. 209(c) provides the DOE with authority information collection, violate State or Written requests for information should to grant exclusive or partially exclusive Federal law, or substantially interfere be addressed to U.S. Department of licenses in Department-owned with any agency’s ability to perform its Education, 400 Maryland Avenue, SW., inventions, where a determination can statutory obligations. The Leader, Potomac Center, 9th Floor, Washington, be made, among other things, that the Information Management Case Services DC 20202–4700. Requests may also be desired practical application of the Team, Regulatory Information electronically mailed to the Internet invention has not been achieved, or is Management Services, Office of the address [email protected] or faxed to not likely expeditiously to be achieved, Chief Information Officer, publishes that (202) 245–6621. Please specify the under a nonexclusive license. The notice containing proposed information complete title of the information statute and implementing regulations collection requests prior to submission collection when making your request. (37 CFR part 404) require that the of these requests to OMB. Each Comments regarding burden and/or necessary determinations be made after proposed information collection, the collection activity requirements public notice and opportunity for filing grouped by office, contains the should be directed to Sheila Carey at her written objections. following: (1) Type of review requested, e-mail address [email protected]. Mobotecusa, a small business, located e.g. new, revision, extension, existing or Individuals who use a at Orinda, California, has applied for an reinstatement; (2) title; (3) summary of telecommunications device for the deaf exclusive or partially exclusive license the collection; (4) description of the (TDD) may call the Federal Information to practice the invention and has a plan need for, and proposed use of, the Relay Service (FIRS) at 1–800–877– for commercialization of the invention. information; (5) respondents and 8339. DOE intends to grant the license, frequency of collection; and (6) upon a final determination in reporting and/or recordkeeping burden. [FR Doc. E4–3474 Filed 12–3–04; 8:45 am] accordance with 35 U.S.C. 209(c), OMB invites public comment. BILLING CODE 4000–01–P unless within 15 days of publication of The Department of Education is this Notice the Technology Transfer especially interested in public comment Manager, Department of Energy, addressing the following issues: (1) Is DEPARTMENT OF ENERGY National Energy Technology Laboratory, this collection necessary to the proper P.O. Box 880, Morgantown, WV 26507– National Energy Technology functions of the Department; (2) will 0880, receives in writing any of the Laboratory; Notice of Intent To Grant this information be processed and used following, together with the supporting Exclusive or Partially Exclusive Patent in a timely manner; (3) is the estimate documents: of burden accurate; (4) how might the License (i) A statement from any person Department enhance the quality, utility, AGENCY: National Energy Technology setting forth reasons why it would not and clarity of the information to be Laboratory (NETL, Department of be in the best interest of the United collected; and (5) how might the Energy (DOE). States to grant the proposed license; or Department minimize the burden of this ACTION: Notice. (ii) An application for a nonexclusive collection on the respondents, including license to the invention, in which through the use of information SUMMARY: Notice is hereby given of an applicant states that it already has technology. intent to grant to Mobotecusa at Orinda, brought the invention to practical Dated: November 30, 2004. California, an exclusive or partially application or is likely to bring the Angela C. Arrington, exclusive license to practice the invention to practical application invention described in the U.S. patent expeditiously. Leader, Information Management Case Services Team, Regulatory Information number 6,521,021, ‘‘Thief Process for The proposed license will be Management Services, Office of the Chief the Removal of Mercury from Flue Gas.’’ exclusive or partially exclusive, subject Information Officer. The invention is owned by the United to a license and other rights retained by States of America, as represented by the the U.S. Government, and subject to a Federal Student Aid Department of Energy (DOE). The negotiated royalty. The Department will Type of Review: Revision. proposed license will be exclusive or review all timely written responses to Title: William D. Ford Federal Direct partially exclusive, subject to a license this notice, and will grant the license if, Loan (Direct Loan) Program Electronic and other rights retained by the U.S. after expiration of the 15-day notice Debit Account Application and Government, and other terms and period, and after consideration of any Brochure. conditions to be negotiated. written responses to this notice, a

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00009 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70436 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

determination is made, in accordance Report on Open Season in compliance revised Information Package in with 35 U.S.C. 209(c), that the license with the Commission’s order issued July accordance with Schedule F, Article I, grant is in the public interest. 27, 2001 in Neptune Regional Part B of the Must-Run Service Issued: November 23, 2004. Transmission System, LLC, 96 FERC Agreement. See Etiwanda’s Rate Schedule FERC No. 2, Must-Run Service Rita A. Bajura, ¶ 61,147 (2001). Comment Date: 5 p.m. eastern time on Agreement between Etiwanda and the Director, National Energy Technology CAISO, Original Sheet No. 175 (filed in Laboratory. December 8, 2004. Docket No. ER04–959–000, June 25, [FR Doc. 04–26713 Filed 12–3–04; 8:45 am] 4. Ameren Corp. 2004). Etiwanda requests an effective BILLING CODE 6450–01–U [Docket No. ER04–931–003] date of January 1, 2005. Take notice that on November 19, Etiwanda states that this filing has been served upon the California DEPARTMENT OF ENERGY 2004, the Midwest Independent Transmission System Operator, Inc. Independent System Operator Federal Energy Regulatory (Midwest ISO) amended its October 12, Corporation, the California Public Commission 2004 filing in Docket No. ER04–931– Utilities Commission, the California 000. Electricity Oversight Board and [Docket No. ER94–1188–034, et al.] Midwest ISO states that copies of the Southern California Edison Company. filing were served upon the service list Comment Date: 5 p.m. eastern time on LG&E Energy Marketing Inc., et al.; December 16, 2004. Electric Rate and Corporate Filings compiled by the Secretary in Docket No. ER04–931–000. 7. Ohio Valley Electric Corporation November 26, 2004. Comment Date: 5 p.m. eastern time on [Docket No. ER05–242–000] The following filings have been made December 10, 2004. Take notice that on November 19, with the Commission. The filings are 5. Reliant Energy Etiwanda, Inc. 2004, Ohio Valley Electric Corporation listed in ascending order within each (OVEC) tendered for filing revisions to docket classification. [Docket No. ER05–138–001] its Open Access Transmission Tariff to Take notice that on November 18, 1. LG&E Energy Marketing Inc., incorporate the pro forma Large 2004, Reliant Energy Etiwanda. Inc. Louisville Gas & Electric Company & Generator Interconnection Procedures (Etiwanda) tendered for filing the Kentucky Utilities Company, WKE (LGIP) and Large Generator Information Package summarizing Station Two Inc., Western Kentucky Interconnection Agreement (LGIA), information previously provided to the Energy Corporation without modification, in compliance California Independent System Operator with the Commission’s Orders 2003 and [Docket Nos. ER94–1188–034, ER98–4540– Corporation (CAISO) and other 2003–A on Standardization of Generator 003, ER99–1623–003, ER98–1278–009, interested parties on November 1, 2004, ER98–1279–005] Interconnection Agreements and pursuant to Schedule F, Article I, Part Procedures. OVEC has requested an Take notice that on November 19, B of the Must-Run Service Agreement effective date of April 26, 2004. 2002, LG&E Energy Marketing Inc., dated June 24, 2004, between Reliant OVEC states that a copy of this filing (LEM) Louisville Gas & Electric Energy Etiwanda, Inc. and the California has been mailed to OVEC’s Company, Kentucky Utilities Company, Independent System Operator jurisdictional customers and to each WKE Station Two Inc., and Western Corporation. See Etiwanda’s Rate State public service commission that, to Kentucky Energy Corporation tendered Schedule FERC No. 2, Must-Run Service the best of OVEC’s knowledge, has retail for filing an updated market power Agreement between Etiwanda and the jurisdiction over such customers. analysis in compliance Acadia Power CAISO, Original Sheet No. 175 (filed in Comment Date: 5 p.m. eastern time on Partners, LLC, 107 FERC ¶ 61,168 Docket No. ER04–959–000, June 25, December 10, 2004. (2004). 2004). Comment Date: 5 p.m. eastern time on Etiwanda states that this filing has 8. Western Electricity Coordinating December 10, 2004. been served upon the CAISO, the Council 2. Puget Sound Energy, Inc. California Public Utilities Commission, [Docket No. ER05–243–000] the California Electricity Oversight Take notice that on November 19, [Docket No. ER99–845–006] Board and Southern California Edison 2004, Western Electricity Coordinating Take notice that on November 19, Company. Council (WECC) tendered for filing a 2004, Puget Sound Energy, Inc. (Puget) Comment Date: 5 p.m. eastern time on request for approval of certain filed with the Federal Energy Regulatory December 16, 2004. amendments to WECC Rate Schedule Commission a revised Market Based 6. Reliant Energy Etiwanda, Inc. FERC No. 1, the WECC Bylaws. WECC Rate Tariff to incorporate the Market states that the amendments reflect Behavior Rules contained in the [Docket No. ER05–138–002] changes to the WECC Bylaws adopted November 17, 2003 Order Amending Take notice that on November 19, by vote of the WECC Board of Directors Market-Based Tariffs and 2004, Reliant Energy Etiwanda, Inc. on July 29, 2004, with additional minor Authorizations, 105 FERC ¶ 61,218 (Etiwanda) tendered for filing revised modifications for consistency and (2003). sheets for certain of the schedules to the formatting purposes. WECC requests an Comment Date: 5 p.m. eastern time on Must-Run Service Agreement dated June effective date of September 27, 2004. December 10, 2004. 24, 2004, between Reliant Energy Comment Date: 5 p.m. eastern time on 3. Neptune Regional Transmission Etiwanda, Inc. and the California December 10, 2004. Independent System Operator System, LLC 9. American Electric Power Service Corporation (Must-Run Service Corporation [Docket No. ER01–2099–003] Agreement), reflecting minor changes to Take notice that on November 18, the Must-Run Service Agreement [Docket No. ER05–244–000] 2004 Neptune Regional Transmission, schedules filed in the captioned docket Take notice that on November 19, LLC (Neptune) submitted for filing a on November 1, 2004, as well as a 2004, American Electric Power Service

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70437

Corporation (AEPSC) submitted for DEPARTMENT OF ENERGY 3. California Independent System filing a letter agreement that provides Operator Corporation, Pacific Gas and for AEPSC to begin engineering, Federal Energy Regulatory Electric Company, San Diego Gas & equipment procurement and Commission Electric Company v. California construction work on the Independent System Operator interconnection facilities and network [Docket No. EC05–21–000, et al.] Corporation upgrades required to interconnect to the [Docket No. ER01–313–006, ER01–424–006, AEP transmission system the wind Reliant Energy Wholesale Generation, EL03–131–003] LLC, et al.; Electric Rate and Corporate power project being developed by FPL Take notice that on November 22, Filings Energy Cowboy Wind, LLC. AEPSC 2004, California Independent System requests an effective date of November November 29, 2004. Operator Corporation (ISO), submitted a 5, 2004 for the agreement. The following filings have been made Notice of Withdrawal of its November AEPSC served copies of the filing on with the Commission. The filings are 15, 2004, compliance refund report filed FPL Energy Cowboy Wind, LLC. listed in ascending order within each pursuant to the Commission’s Orders in docket classification. California Independent System Comment Date: 5 p.m. eastern yime Operator Corporation, 103 FERC on December 10, 2004. 1. Reliant Energy Wholesale ¶ 61,114 (2003); on reh’g, 106 FERC Standard Paragraph Generation, LLC ¶ 61,032 (2004). [Docket No. EC05–21–000] Comment Date: 5 p.m. eastern time on Any person desiring to intervene or to December 13, 2004. Take notice that on November 23, protest this filing must file in 2004, Reliant Energy Wholesale 4. AES Red Oak, L.L.C. accordance with Rules 211 and 214 of Generation, LLC, (Applicant) submitted the Commission’s Rules of Practice and [Docket No. ER01–2401–002] an application pursuant to section 203 Procedure (18 CFR 385.211 and Take notice that on November 22, of the Federal Power Act, seeking 2004, AES Red Oak, L.L.C. (Red Oak) 385.214). Protests will be considered by authorization for the disposition of the the Commission in determining the submitted for filing its revised triennial Applicant’s jurisdictional assets that market power update in compliance appropriate action to be taken, but will would result from a proposed transfer of not serve to make protestants parties to with the Commission’s letter order certain generator interconnection issued November 20, 2001, in Docket the proceeding. Any person wishing to facilities to the Nevada Power Company become a party must file a notice of No. ER01–2401–001, AEP Power (NPC) and requesting expedited Marketing, Inc., et al., 107 FERC intervention or motion to intervene, as consideration of its Application and appropriate. Such notices, motions, or ¶ 61,018, on reh’g, 108 FERC ¶ 61,026 certain waivers. Applicant states that (2004). Red Oak also submitted for filing protests must be filed on or before the pursuant to an agreement entered into comment date. Anyone filing a motion amendments to its market-based rate by Applicant’s predecessor and NPC, tariff implementing six (6) new market to intervene or protest must serve a copy Applicant’s predecessor would behavior rules adopted by the of that document on the Applicant and construct the interconnection facilities Commission in Investigation of Terms all parties to this proceeding. and subsequently transfer ownership and Conditions of Public Utility Market- The Commission encourages and control of the interconnection Based Rate Authorization, 105 FERC electronic submission of protests and facilities to NPC. Applicant further ¶ 61,128 (2003). In addition, Red Oak interventions in lieu of paper using the states that transferring these facilities to submitted for approval a second ‘‘eFiling’’ link at http://www.ferc.gov. NPC will allow NPC to operate the revision to FERC Electric Tariff, Original Persons unable to file electronically interconnection facilities in an Volume No. 1, and a second revision to should submit an original and 14 copies integrated manner with its transmission Red Oak’s Statement of Policy and Code system. of the protest or intervention to the of Conduct. Federal Energy Regulatory Commission, Comment Date: 5 p.m. eastern time on Comment Date: 5 p.m. eastern time on December 9, 2004. 888 First Street, NE., Washington, DC December 13, 2004. 20426. 2. PEI Power Corp. 5. Southern California Water Company This filing is accessible on-line at [Docket No. ER98-2270-005] [Docket No. ER02–2400–002] http://www.ferc.gov, using the Take notice that on November 22, Take notice that on November 22, ‘‘eLibrary’’ link and is available for 2004, PEI Power Corp. (PEI) submitted 2004, Southern California Water review in the Commission’s Public for filing an amendment to PEI’s Company submitted a notice of change Reference Room in Washington, DC. triennial updated market power in status pursuant to the Commission’s There is an ‘‘eSubscription’’ link on the analysis. PEI states that this analysis order granting market-based rate Web site that enables subscribers to supports the continuation of PEI’s authority, Southern California Water receive e-mail notification when a authority to make sales at market-based Company, 100 FERC ¶ 61,373 (2002). document is added to a subscribed rates. PEI also submits revisions to its Comment Date: 5 p.m. eastern time on docket(s). For assistance with any FERC market-based rate tariff, which December 13, 2004. Online service, please e-mail incorporate a statement that PEI Power [email protected], or call will not sell to any affiliate with a 6. ONEOK Energy Services Company, (866) 208–3676 (toll free). For TTY, call franchised electric service territory L.P. (202) 502–8659. without first receiving approval from [Docket No. ER03–10–003] the Commission pursuant to a separate Take notice that on November 22, Magalie R. Salas, filing under section 205 of the Federal 2004, ONEOK Energy Services Secretary. Power Act. Company, L.P. (OSEC), formerly known [FR Doc. E4–3462 Filed 12–3–04; 8:45 am] Comment Date: 5 p.m. eastern time on as ONEOK Energy Marketing and BILLING CODE 6717–01–P December 6, 2004. Trading Company, L.P., submitted an

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00011 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70438 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

amendment to its updated market power 10. Midwest Independent Transmission 12. Wisconsin Public Service analysis filed on August 17, 2004. System Operator, Inc., American Corporation Comment Date: 5 p.m. eastern time on Transmission Company LLC [Docket No. ER05–245–000] December 13, 2004. [Docket No. ER04–1160–001] Take notice that on November 22, 7. San Diego Gas & Electric Company Take notice that on November 24, 2004, Wisconsin Public Service 2004, the Midwest Independent [Docket No. ER04–1126–001] Corporation (WPSC) tendered for filing Transmission System Operator, Inc. a revised rate schedule sheet (Revised Take notice that on November 22, (Midwest ISO) and American Sheet) in Exhibit G to WPSC’s rate 2004, San Diego Gas & Electric Transmission Company, LLC schedule with the City of Marshfield. Company (SDG&E) tendered for filing an (collectively, Applicants) submitted an The Revised Sheet modifies the capacity errata to adjust its California amendment to their August 30, 2004, ratings of the West Marinette Unit 33. Independent System Operator (CAISO) filing regarding proposed changes to the WPSC requests an effective date of Base Transmission Revenue liability limitation provisions in the January 1, 2005. Requirements in accordance with Midwest ISO’s OATT. Midwest ISO WPSC states that copies of the filing approved revised tariff changes to its states that the amendment was filed in were served upon the City of Transmission Formula Rate as reflected response to the Commission’s October Marshfield, the Public Service in its Transmission Owner Tariff, FERC 28, 2004, deficiency letter. In addition, Commission of Wisconsin, and the Electric Tariff, Original Volume No. 11. Midwest ISO states that they have filed Michigan Public Service Commission. SDG&E states that copies of the filing a Notice of Withdrawal of a proposed Comment Date: 5 p.m. eastern time on have been served on the California tariff sheet regarding a change to the December 13, 2004. Public Utilities Commission and the Midwest ISO OATT’s Indemnification CAISO. provision that was submitted on August 13. Southern California Edison Comment Date: 5 p.m. eastern time on 30, 2004. Company December 13, 2004. Midwest ISO states that they have [Docket No. ER05–246–000] served a copy of the filing upon all Take notice that on November 22, 8. AES Red Oak, L.L.C. parties on the official service in this 2004, Southern California Edison [Docket No. ER01-2401-002] docket. The Midwest ISO has also requested Company (SCE) submitted for filing an Take notice that on November 22, Interconnection Facilities Agreement 2004, AES Red Oak, L.L.C. (Red Oak) waiver of the service requirements set forth in 18 CFR 385.2010. The Midwest (Interconnection Agreement), Service submitted for filing its revised triennial Agreement No. 127, under SCE’s market power update in compliance ISO has electronically served a copy of this filing, with attachments, upon all Wholesale Distribution Access Tariff with the Commission’s letter order (WDAT), FERC Electric Tariff, First issued November 20, 2001 in Docket No. Midwest ISO Members, Member representatives of Transmission Owners Revised Volume No. 5, and an ER01–2401–001, AEP Power Marketing, associated Service Agreement for Inc., et al., 107 FERC ¶ 61,018, on reh’g, and Non-Transmission Owners, the Midwest ISO Advisory Committee Wholesale Distribution Service (WDAT 108 FERC ¶ 61,026 (2004). Red Oak also Service Agreement), Service Agreement submitted for filing amendments to its participants, as well as all State commissions within the region. In No. 128, under the WDAT, between SCE market-based rate tariff implementing and the City of Moreno Valley, six (6) new market behavior rules addition, the filing has been electronically posted on the Midwest California (Moreno Valley). SCE states adopted by the Commission in that the purpose of the Interconnection Investigation of Terms and Conditions ISO’s Web site at http:// www.midwestiso.org under the heading Agreement and the WDAT Service of Public Utility Market-Based Rate Agreement is to specify the terms and Authorization, 105 FERC ¶ 61,128 ‘‘Filings to FERC’’ for other interested parties in this matter. The Midwest ISO conditions under which SCE will (2003). In addition, Red Oak submitted provide Wholesale Distribution Service for approval a second revision to FERC will provide hard copies to any interested parties upon request. from the California Independent System Electric Tariff, Original Volume No. 1, Operator Controlled Grid at SCE’s and a second revision to Red Oak’s Comment Date: 5 p.m. eastern time on December 7, 2004. Valley Substation to a new SCE–Moreno Statement of Policy and Code of Valley 12 kV interconnection at Moreno Conduct. 11. Southern Company Services, Inc. Valley owned property located on the Comment Date: 5 p.m. eastern time on [Docket No. ER04–1161–002] corner of Frederick Avenue and December 13, 2004. Take notice that on November 22, Alessandro Boulevard in the City of 9. Southern California Edison Company 2004, Southern Company Services, Inc. Moreno Valley, California. SCE states that copies of the filing [Docket No. ER04–1159–001] (SCS), on behalf of Alabama Power Company, Georgia Power Company, were served upon the Public Utilities Take notice that on November 22, Gulf Power Company, Mississippi Commission of the State of California 2004, Southern California Edison Power Company and Savannah Electric and Moreno Valley. Company (SCE) submitted a compliance and Power Company (collectively Comment Date: 5 p.m. eastern time on filing pursuant to the Commission’s Southern Companies), submitted a December 13, 2004. letter order issued October 27, 2004, in compliance filing pursuant to the 14. Western Systems Power Pool, Inc. the Docket No. ER04–1159–000. Commission’s order issued October 22, SCE states that copies of the filing 2004, in Docket No. ER04–1161. [Docket No. ER05–249–000] were served on parties on the official SCS states that copies of the filing Take notice that on November 22, service list in the above-captioned were served on parties on the official 2004, the Western Systems Power Pool, proceeding and on each affected service list in the above-captioned Inc. (WSPP) requested the Commission customer. proceeding. to amend the WSPP Agreement to Comment Date: 5 p.m. eastern time on Comment Date: 5 p.m. eastern time on include Merrill Lynch Commodities, December 13, 2004. December 13, 2004. Inc. (MLCI) as a participant. WSPP

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00012 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70439

requests an effective date of October 22, DEPARTMENT OF ENERGY Contract Nos. 94–SLC–0253 and 94– 2004. SLC–0254 between the United States WSPP states that copies of this filing Western Area Power Administration and its Customers require that the will be served upon Keith Bailey, Chief amount of each annual installment be Operating Officer of MLCI, and Provo River Project Rate Order No. established in advance by Western and Catherine Krupka and Donna Sauter of WAPA–116 submitted to the Customers on or before McDermott Will & Emergy, counsel to AGENCY: Western Area Power August 31 of the year preceding the MLCI. WSPP further states that in Administration, DOE. appropriate fiscal year. Each fiscal year, addition, copies will be emailed to Western will estimate the Deer Creek ACTION: Notice of rate order concerning WSPP members who have supplied e- Powerplant (DCP) expenses by a power rate formula. mail addresses for the Contract preparing a power repayment study, Committee and Contacts lists which will SUMMARY: The Deputy Secretary of which will include estimates of reach most if not all active members. Energy confirmed and approved Rate operation, maintenance, and WSPP indicates that this filing also has Order No. WAPA–116, placing a rate replacement costs for the DCP. been posted on the WSPP home page formula for the Provo River Project Each annual installment pays the (http://www.wspp.org) thereby (Project) of Western Area Power annual amortized portion of the United providing notice to all WSPP members. Administration (Western) into effect on States investment in the Deer Creek Comment Date: 5 p.m. eastern time on an interim basis. The provisional power Dam and Reservoir hydroelectric December 13, 2004. rate formula will remain in effect on an facilities with interest and the associated operation, maintenance, and Standard Paragraph interim basis until the Federal Energy Regulatory Commission (Commission) replacement costs. This repayment Any person desiring to intervene or to confirms, approves, and places it into schedule does not depend upon the protest this filing must file in effect on a final basis, or until the power power and energy made available for accordance with Rules 211 and 214 of rate formula is replaced by another sale or the rate of generation each year, the Commission’s Rules of Practice and power rate formula. but is included in the contract in which Procedure (18 CFR 385.211 and the Customers pay all operating, DATES: The provisional rate formula 385.214). Protests will be considered by maintenance, and replacement expenses extension will be placed into effect on the Commission in determining the of the Project and, in return, receive all an interim basis on April 1, 2005, and appropriate action to be taken, but will of the energy produced by the Project. will be in effect until the Commission not serve to make protestants parties to Western will continue to provide the confirms, approves, and places the the proceeding. Any person wishing to Customers a revised annual installment provisional rate formula extension in become a party must file a notice of by August 31 of each year using the effect on a final basis for 5 years ending intervention or motion to intervene, as same methodology. March 31, 2010, or until superseded. appropriate. Such notices, motions, or By Delegation Order No. 00–037.00, protests must be filed on or before the FOR FURTHER INFORMATION CONTACT: Mr. effective December 6, 2001, the comment date. Anyone filing a motion Bradley S. Warren, CRSP Manager, Secretary of Energy delegated: (1) The to intervene or protest must serve a copy CRSP Management Center, Western authority to develop power and of that document on the Applicant and Area Power Administration, PO Box transmission rates to Western’s all parties to this proceeding. 11606, Salt Lake City, UT 84147–0606, Administrator, (2) the authority to The Commission encourages (801) 524–5493, or Ms. Carol Loftin, confirm, approve, and place such rates electronic submission of protests and Rates Manager, CRSP Management into effect on an interim basis to the interventions in lieu of paper using the Center, Western Area Power Deputy Secretary of Energy, and (3) the ‘‘eFiling’’ link at http://www.ferc.gov. Administration, PO Box 11606, Salt authority to confirm, approve, and place Persons unable to file electronically Lake City, UT 84147–0606, (801) 524– into effect on a final basis, to remand, should submit an original and 14 copies 6380, e-mail [email protected]. or to disapprove such rates to the of the protest or intervention to the SUPPLEMENTARY INFORMATION: The Commission. Existing DOE procedures Federal Energy Regulatory Commission, Project was authorized in 1935. for public participation in power rate 888 First Street, NE., Washington, DC Construction on the Project, which adjustments (10 CFR part 903) were 20426. includes Deer Creek Dam and published on September 18, 1985 (50 FR This filing is accessible on-line at Powerplant on the Provo River in Utah, 37835). http://www.ferc.gov, using the began in 1938 but, because of World Under Delegation Order Nos. 00– ‘‘eLibrary’’ link and is available for War II, was not completed until 1951. 037.00 and 00–001.00A, 10 CFR 903, review in the Commission’s Public The powerplant, authorized on August and 18 CFR 300, I hereby confirm, Reference Room in Washington, DC. 20, 1951, was completed and generation approve, and place Rate Order No. There is an ‘‘eSubscription’’ link on the began in 1958. Its maximum operating WAPA–116 into effect on an interim Web site that enables subscribers to capacity is 5,300 kilowatts. basis. The extension of the rate formula receive e-mail notification when a Provo River Project power is now will be promptly submitted to the document is added to a subscribed marketed independently from the Salt Commission for confirmation and docket(s). For assistance with any FERC Lake City Area Integrated Projects approval on a final basis. Online service, please e-mail subsequent to a marketing plan that was Dated: November 22, 2004. [email protected], or call approved and published in the Federal Kyle E. McSlarrow, (866) 208–3676 (toll free). For TTY, call Register on November 21, 1994. This Deputy Secretary. marketing plan allows Western to (202) 502–8659. In the matter of: Western Area Power market the output of the Project to Magalie R. Salas, Administration Power Rate Formula customers of the Utah Municipal Power Extension for the Provo River Project; Order Secretary. Agency and the Utah Associated Confirming, Approving, and Placing a Rate [FR Doc. E4–3465 Filed 12–3–04; 8:45 am] Municipal Power Systems (Customers) Formula Extension for the Provo River BILLING CODE 6717–01–P in the Provo River drainage area. Project Into Effect on an Interim Basis.

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00013 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70440 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

This rate was established in OM&R: Operation, Maintenance, and PRP’s original power investment has accordance with section 302 of the Replacement. been repaid. Department of Energy (DOE) PRP: Provo River Project. PRP power is now marketed Organization Act (42 U.S.C. 7152). This PRS: Power repayment study. independently from the SLCA/IP under PRWUA: Provo River Water Users Act transferred to and vested in the a marketing plan published in the Association. Secretary of Energy the power marketing Federal Register on November 21, 1994. Reclamation: United States functions of the Secretary of the This marketing plan allows Western to Department of the Interior, Bureau of Department of the Interior and the market the output of the PRP to Bureau of Reclamation under the Reclamation. SLCA/IP: Salt Lake City Area customers of UMPA and UAMPS in the Reclamation Act of 1902 (ch. 1093, 32 Provo River drainage area. Stat. 388), as amended and Integrated Projects. The resources and supplemented by subsequent laws, revenue requirements of the Collbran, Power Repayment Studies Dolores, Rio Grande, and Seedskadee particularly section 9(c) of the Each fiscal year, Western will Reclamation Project Act of 1939 (43 projects blended together with the CRSP to create the SLCA/IP resources and estimate DCP expenses by preparing a U.S.C. 485h(c)), and other Acts that PRS that will include estimates of specifically apply to the Provo River rate. UAMPS: Utah Associated Municipal OM&R costs for the DCP for the next Project (PRP). Power Systems. fiscal year. The PRS determines if power By Delegation Order No. 00–037.00, UMPA: Utah Municipal Power revenues will be sufficient to pay, effective December 6, 2001, the Agency. within the prescribed time periods, all Secretary of Energy delegated: (1) The Western: United States Department of costs assigned to the PRP power authority to develop power and Energy, Western Area Power function. Repayment criteria are based transmission rates to Western’s Administration. on law, policies including DOE Order Administrator, (2) the authority to RA 6120.2, and authorizing legislation. confirm, approve, and place such rates Effective Date Western calculates the annual into effect on an interim basis to the This power rate formula will become installment based on 2 years of data. Deputy Secretary, and (3) the authority effective on an interim basis beginning The calculation includes the projected to confirm, approve, and place into April 1, 2005, and will be in effect costs of the rate installment year (future effect on a final basis, to remand, or to pending the Commission’s approval of fiscal year) and an adjustment from the disapprove such rates to the this or a substitute rate formula on a last historic fiscal year. The adjustment Commission. Existing DOE procedures final basis for 5 years ending March 31, is the surplus or deficit that occurs in for public participation in power rate 2010, or until superseded. the last historic year when actual costs adjustments (10 CFR 903) were and repayment obligations are published on September 18, 1985 (50 FR Public Notice and Comment subtracted from actual revenues. This 37835). Paragraph 903.23(a) of 10 CFR 903 for rate extensions does not require either a surplus or deficit is combined with the Acronyms and Definitions consultation and comment period, or projected rate installment year costs to As used in this rate order, the public information or comment forums. arrive at the rate installment. Each following acronyms and definitions This request is for approval of an annual installment pays the annual apply: extension of the present methodology amortized portion of the United States CRSP: Colorado River Storage Project. used for calculating the annual investment in the Deer Creek Dam and Commission: Federal Energy installment. On April 14, 2004, Western Reservoir hydroelectric facilities with Regulatory Commission. met with the Customers and notified interest and the associated OM&R. This Contracts: Contract No. 94–SLC–0254 them of Western’s intent to extend the repayment schedule does not depend with UMPA effective December 22, present rate formula. Western also upon the power and energy made 1994, and Contract No. 94–SLC–0253 discussed the FY 2005 budget and available for sale or the rate of with UAMPS effective January 19, 1995, capital expenditures. The Customers generation each year. which were extended to September 30, expressed their desire to continue using Certification of Rates 2024. the rate formula methodology through Customers: UMPA and UAMPS. notifications dated July 20, 2004, and Western’s Administrator certified that DCP: Deer Creek Powerplant. August 26, 2004. the interim rates for PRP power are the DOE: Department of Energy. lowest possible rates consistent with DOE Order RA 6120.2: A Department Project Description sound business principles. The of Energy order dealing with power Construction of the PRP began in May provisional rates were developed marketing administration financial 1938, and the powerplant was following administrative policies and reporting and ratemaking procedures. completed in 1958. Presently, it has a applicable laws. FY: Fiscal year; October 1 to generating capacity of 5,300 kW of Statement of Revenue and Related September 30. power. Only energy excess to PRP Expenses Interior: United States Department of purposes has been available for Federal the Interior. marketing. Between 1963 and 1994, The revenue requirements for the PRP kW: Kilowatt—the electrical unit of SLCA/IP needed additional energy and are based on PRS calculations for future capacity that equals 1,000 watts. purchased the available PRP energy at requirements, which will be adjusted MW: Megawatt—the electrical unit of an amount established annually for the when FY actuals are known. The capacity that equals 1 million watts or PRP to cover its costs, including OM&R following table summarizes revenues 1,000 kilowatts. and repayment expenses. These and expenses for the current 6-year rate NEPA: National Environmental Policy expenses included $1.6 million of formula and the actual revenues and Act of 1969 (42 U.S.C. 4321, et seq.). irrigation assistance to the PRWUA. expenses for the same period.

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70441

PROVO RIVER COMPARISON OF 6-YEAR REVENUES AND EXPENSES FY 1999–2004 [$1,000]

Item Actual 1 Projected 2 Difference

Total Revenues ...... $1,857 $1,424 $433 Revenues Distribution: O&M ...... 1,217 1,046 171 Transmission ...... 179 179 0 Interest ...... 165 153 12 Investment Repayment ...... 264 46 218 Surplus Revenues ...... 32 0 32

Total Revenues Distribution ...... 1,857 1,424 433 1 Amounts for FY 2004 are estimates taken from FY 2003 final PRS. 2 Taken from FY 1998 final PRS.

The following table provides a maintenance expenses of the DCP. If 1969 (42 U.S.C. 4321, et seq.); Council summary of the projected revenues and major replacements and additions on Environmental Quality Regulations expenses during the provisional rate exceeding $5,000, but not greater than (40 CFR 1500–1508); and DOE NEPA formula period. $25,000, are needed, the Customers will Regulations (10 CFR 1021), Western has be given the option of financing their determined that this action is PROVO RIVER PROJECT 6-YEAR PRO- share of the cost or having the cost categorically excluded from the JECTIONS REVENUES AND EXPENSES capitalized and amortized over the life preparation of an environmental [$1,000]1 of the replacement or addition, or over assessment or an environmental impact the life of the contract. If the Customers statement. select the latter, the costs will be FY 2005–2010 Determination Under Executive Order projections capitalized at the current interest rate 12866 prescribed by DOE, under RA 6120.2, 2 Total Revenues ...... $1,785 Paragraph 11B, ‘‘Basic Policy for Rate Western has an exemption from Costs: centralized regulatory review under O&M ...... 1,606 Adjustment; Interest Rate Formula,’’ in Interest ...... 133 the fiscal year in which the replacement Executive Order 12866; accordingly, no Investment Repayment ..... 46 or addition is made. Such costs will be clearance of this notice by the Office of based on prudent and businesslike Management and Budget is required. Total Costs ...... 1,785 management practices and following Small Business Regulatory Enforcement established electric industry operation 1 Does not include $29,788 per year for Fairness Act transmission expense. and maintenance practices. If 2 Although the rate process seeks approval extraordinary replacements exceeding Western has determined that this rule for a 5-year period (FY 2006–2010), 6 years $25,000 are needed, the Customers will is exempt from congressional of data are shown in the above table because notification requirements under 5 U.S.C. FY 2005 is an estimate. consult with Reclamation, PRWUA, and Western on financing the replacement. 801 because the action is a rulemaking Basis for Rate Development The rate does not depend upon the of particular applicability relating to Each Customer is billed for electric power and energy made available for rates or services and involves matters of service calculated every FY, payable in sale; instead, the Customers will pay the procedure. total PRP’s annual powerplant expenses 12 equal monthly payments. Every FY, Submission to Federal Energy in return for the total marketable PRP Western will estimate PRP expenses by Regulatory Commission preparing a PRS which will include production. Each Customer will pay its estimates of OM&R costs for the DCP. proportional share of the OM&R The interim rate formula extension The amount of each monthly payment expenses identified in the PRS in 12 herein confirmed, approved, and placed will be established in advance by monthly installments. into effect on an interim basis, together with supporting documents, will be Western and submitted to the Customers Availability of Information on or before August 31 of the year submitted to the Commission for Information about this rate formula preceding the appropriate FY. confirmation and final approval. extension is available for public review The calculation of the amount of the Order annual installment and the monthly at the Colorado River Storage Project payments will include adjustments to Management Center, Western Area In view of the above and under the the OM&R charges. These adjustments Power Administration, 150 East Social authority delegated to me as the Deputy deal with the difference between Hall Avenue, Suite 300, Salt Lake City, Secretary of Energy, I confirm and estimated and actual OM&R expenses. If Utah 84111. Documents are also approve on an interim basis, effective OM&R charges are underestimated, an available at http://www.wapa.gov/crsp/ April 1, 2005, an extension of the rate amount equal to the difference must be rateanal.htm under CRSP rate formula for the Provo River Project of added to the next annual installment. adjustment documents for the Provo the Western Area Power Conversely, if OM&R charges are River Project’s section. Administration. The rate formula shall remain in effect on an interim basis, overestimated, the amount would be Regulatory Procedure Requirements deducted from the next installment. pending the Commission’s confirmation In accordance with the Contracts, Environmental Compliance and approval of it or a substitute rate on minor replacements and additions are In compliance with the National a final basis through March 31, 2010. included in the annual operation and Environmental Policy Act (NEPA) of Dated: November 22, 2004.

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70442 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

Kyle E. McSlarrow, Please do not rely solely on overnight Constitution Avenue, NW., Washington, Deputy Secretary. mail to meet the deadlines. DC 20210, Room numbers C5515 1A [FR Doc. 04–26714 Filed 12–3–04; 8:45 am] FOR FURTHER INFORMATION: Copies of the and 1B. FOR FURTHER INFORMATION CONTACT: BILLING CODE 6450–01–P Request for Proposals package may be For downloaded from the Internet at general information contact: Colby http://www.epa.gov/tribalmsw by Lintner, Regulatory Coordinator, clicking on the ‘‘Grants/Funding’’ link. Environmental Assistance Division ENVIRONMENTAL PROTECTION Copies may also be obtained by (7408M), Office of Pollution Prevention AGENCY contacting EPA, IHS or BIA regional or and Toxics, Environmental Protection area offices or one of the following Agency, 1200 Pennsylvania Ave., NW., [FRL–7843–6] Workgroup representatives: Washington, DC 20460–0001; telephone Interagency Project To Clean Up Open EPA—Christopher Dege, 703–308–2392 number: (202) 554–1404; e-mail address: Dumps on Tribal Lands: Request for or Charles Bearfighter Reddoor 703– [email protected]. Proposals 308–8245. For technical information contact: IHS—Steve Aoyama, 301–443–1046. Paul S. Tobin, Designated Federal AGENCY: Environmental Protection BIA—Debbie McBride, 202–208–3606. Officer (DFO), Economics, Exposure, Agency (EPA). and Technology Division (7403M), Dated: November 15, 2004. ACTION: Notice of availability. Office of Pollution Prevention and Matt Hale, Toxics, 1200 Pennsylvania Ave., NW., SUMMARY: The Tribal Solid Waste Director, Office of Solid Waste. Washington, DC 20460–0001; telephone Interagency Workgroup (Workgroup) is [FR Doc. 04–26732 Filed 12–3–04; 8:45 am] number: (202) 564–8557; e-mail address: soliciting proposals for its seventh year BILLING CODE 6560–50–P [email protected]. of the Tribal Open Dump Cleanup SUPPLEMENTARY INFORMATION: Project (Cleanup Project). Since FY99, the Workgroup has funded ENVIRONMENTAL PROTECTION I. General Information approximately $13.4 million in projects. AGENCY A. Does this Action Apply to Me? In FY04, the Interagency Workgroup [OPPT–2004–0121; FRL–7686–1] This action is directed to the public made approximately $2.5 million in general. This action may be of available to fully or partially fund 24 National Advisory Committee for Acute particular interest to anyone who may selected projects. A similar amount of Exposure Guideline Levels for be affected if the AEGL values are funding is projected for FY05. The Hazardous Substances; Notice of adopted by government agencies for Cleanup Project is part of a federal effort Public Meeting emergency planning, prevention, or to help tribes comprehensively address response programs, such as EPA’s Risk AGENCY: Environmental Protection their solid waste needs. The purpose of Management Program under the Clean Agency (EPA). the Cleanup Project is to assist with Air Act and Amendments Section 112r. closing or upgrading tribal high-threat ACTION: Notice. It is possible that other Federal agencies waste disposal sites and providing besides EPA, as well as State agencies alternative disposal and integrated solid SUMMARY: A meeting of the National Advisory Committee for Acute Exposure and private organizations, may adopt waste management. the AEGL values for their programs. As The Workgroup was established in Guideline Levels for Hazardous Substances (NAC/AEGL Committee) such, the Agency has not attempted to April 1998 to coordinate federal describe all the specific entities that assistance to tribes in bringing their will be held on December 13-15, 2004, in Washington, DC. At this meeting, the may be affected by this action. If you waste disposal sites into compliance have any questions regarding the with the municipal solid waste landfill NAC/AEGL Committee will address, as time permits, the various aspects of the applicability of this action to a criteria (40 CFR part 258). Current particular entity, consult the DFO listed Workgroup members include acute toxicity and the development of Acute Exposure Guideline Levels under FOR FURTHER INFORMATION representatives from the U.S. CONTACT. Environmental Protection Agency (AEGLs) for the following chemicals: (EPA); the Bureau of Indian Affairs Acetone; acrolein; biphenyl; butadiene; B. How Can I Get Copies of this (BIA); the Indian Health Service (IHS); chloroacetaldehyde; chloroform; Document and Other Related and the Departments of Agriculture and dimethylamine; epichlorohydrin; ethyl Information? Defense. EPA has issued docket number mercaptan; hexafluoroacetone; methyl 1. Docket. EPA has established an RCRA–2004–0018 for this Notice. chlorosilane; methyl dichlorosilane; official public docket for this action Criteria: Eligible recipients of methylene chloride; N,N,- under docket identification (ID) number assistance under the Open Dump dimethylformamide; nitric oxide; OPPT–2004–0121. The official public Cleanup Project include federally nitrogen dioxide; nitrogen mustards; docket consists of the documents recognized tribes and intertribal peracetic acid; perchloromethyl specifically referenced in this action, consortiums. A full explanation of the mercaptan; propionaldehyde; any public comments received, and submittal process, the qualifying tetrachloroethylene; trichloroethylene; other information related to this action. requirements, and the criteria that will vinyl acetate monomer. Although a part of the official docket, be used to evaluate proposals for this DATES: A meeting of the NAC/AEGL the public docket does not include project may be found in the Request for Committee will be held from 10:00 a.m. Confidential Business Information (CBI) Proposals package. to 5:30 p.m. on December 13, 2004; 8:30 or other information whose disclosure is DATES: For consideration, proposals a.m. to 5:30 p.m. on December 14, 2004 restricted by statute. The official public must be received by close of business on and from 8:00 a.m. to noon on December docket is the collection of materials that January 31, 2005. Proposals postmarked 15, 2004. is available for public viewing at the on or before but not received by the ADDRESSES: The meeting will be held at EPA Docket Center, Rm. B102-Reading closing date will not be considered. the U.S. Department of Labor, 200 Room, EPA West, 1301 Constitution

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70443

Ave., NW., Washington, DC. The EPA Dated: December 1, 2004. FEDERAL DEPOSIT INSURANCE Docket Center is open from 8:30 a.m. to Wendy C. Hamnett CORPORATION 4:30 p.m., Monday through Friday, Acting Director, Office of Pollution Prevention excluding legal holidays. The EPA and Toxics. Notice of Agency Meeting Docket Center Reading Room telephone [FR Doc. 04–26814 Filed 12–2–04; 1:28 pm] Pursuant to the provisions of the number is (202) 566–1744 and the BILLING CODE 6560–50–S ‘‘Government in the Sunshine Act’’ (5 telephone number for the OPPT Docket, U.S.C. 552b), notice is hereby given that which is located in EPA Docket Center, at 10:30 a.m. on Tuesday, December 7, is (202) 566–0280. 2004, the Federal Deposit Insurance 2. Electronic access. You may access FARM CREDIT ADMINISTRATION Corporation’s Board of Directors will this Federal Register document meet in closed session, pursuant to electronically through the EPA Internet Farm Credit Administration Board; Regular Meeting section 552b(c)(2), (c)(4), (c)(6), (c)(8), under the ‘‘Federal Register’’ listings at (c)(9)(A)(ii), (c)(9)(B), and (c)(10) of Title http://www.epa.gov/fedrgstr/. AGENCY: Farm Credit Administration. 5, United States Code, to consider An electronic version of the public SUMMARY: Notice is hereby given, matters relating to the Corporation’s docket is available through EPA’s pursuant to the Government in the corporate and supervisory activities. electronic public docket and comment Sunshine Act (5 U.S.C. 552b(e)(3)), of The meeting will be held in the Board system, EPA Dockets. You may use EPA the regular meeting of the Farm Credit Room on the sixth floor of the FDIC Dockets at http://www.epa.gov/edocket/ Administration Board (Board). Building located at 550–17th Street, NW., Washington, DC. to submit or view public comments, DATES: The regular meeting of the Board Requests for further information access the index listing of the contents will be held at the offices of the Farm concerning the meeting may be directed of the official public docket, and to Credit Administration in McLean, to Mr. Robert E. Feldman, Executive access those documents in the public Virginia, on December 9, 2004, from 9 Secretary of the Corporation, at (202) docket that are available electronically. a.m. until such time as the Board 898–7043. Although not all docket materials may concludes its business. be available electronically, you may still Dated: November 30, 2004. FOR FURTHER INFORMATION CONTACT: access any of the publicly available Federal Deposit Insurance Corporation. docket materials through the docket Jeanette C. Brinkley, Secretary to the Farm Credit Administration Board, Robert E. Feldman, facility identified in Unit I.B.1. Once in Executive Secretary. the system, select ‘‘search,’’ then key in (703) 883–4009, TTY (703) 883–4056. [FR Doc. E4–3463 Filed 12–3–04; 8:45 am] the appropriate docket ID number. ADDRESSES: Farm Credit Administration, 1501 Farm Credit Drive, BILLING CODE 6714–01–P II. Meeting Procedures McLean, Virginia 22102–5090. For additional information on the SUPPLEMENTARY INFORMATION: Parts of FEDERAL DEPOSIT INSURANCE scheduled meeting, the agenda of the this meeting of the Board will be open CORPORATION NAC/AEGL Committee, or the to the public (limited space available), submission of information on chemicals and parts will be closed to the public. Notice of Agency Meeting to be discussed at the meeting, contact In order to increase the accessibility to the DFO listed under FOR FURTHER Board meetings, persons requiring Pursuant to the provisions of the INFORMATION CONTACT. assistance should make arrangements in ‘‘Government in the Sunshine Act’’ (5 U.S.C. 552b), notice is hereby given that The meeting of the NAC/AEGL advance. The matters to be considered at the meeting are: the Federal Deposit Insurance Committee will be open to the public. Corporation’s Board of Directors will Oral presentations or statements by Open Session meet in open session at 10 a.m. on interested parties will be limited to 10 A. Approval of Minutes Tuesday, December 7, 2004, to consider minutes. Interested parties are the following matters: • encouraged to contact the DFO to November 18, 2004 (Open). Summary Agenda: No substantive schedule presentations before the NAC/ B. Reports discussion of the following items is AEGL Committee. Since seating for anticipated. These matters will be • outside observers may be limited, those Farm Credit System Building resolved with a single vote unless a wishing to attend the meeting as Association Quarterly Report. member of the Board of Directors • observers are also encouraged to contact Corporate Report. requests that an item be moved to the the DFO at the earliest possible date to • FCS of America Termination discussion agenda. ensure adequate seating arrangements. Summary. Summary reports, status reports, and Inquiries regarding oral presentations C. New Business—Regulations reports of actions taken pursuant to and the submission of written authority delegated by the Board of statements or chemical-specific • Governance—Proposed Rule. Directors. information should be directed to the Closed Session* Discussion Agenda: DFO. Memorandum and resolution re: • OSMO Quarterly Report. III. Future Meetings Federal Register Notice Seeking *Session Closed—Exempt pursuant to 5 Public Comments—Shared National Another meeting of the NAC/AEGL U.S.C. 552b(c)(8) and (9). Credit (SNC) Data Collection Committee is scheduled for March or Modernization. April, 2005. Dated: December 2, 2004. Memorandum and resolution re: Final Jeanette C. Brinkley, List of Subjects Rule—12 CFR part 364: Proper Secretary, Farm Credit Administration Board. Disposal of Consumer Information Environmental protection, Chemicals, [FR Doc. 04–26807 Filed 12–2–04; 11:04 am] under the Fair and Accurate Credit Hazardous substances, Health. BILLING CODE 6705–01–P Transactions Act of 2003.

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70444 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

Memorandum and resolution re: Background Summary of the Revised Rating System Proposed 2005 Corporate Operating On July 23, 2004, the Federal Reserve Each BHC is assigned a composite Budget. published a notice in the Federal rating (C) based on an evaluation and The meeting will be held in the Board Register (69 FR 43996) requesting rating of its managerial and financial Room on the sixth floor of the FDIC comment on proposed revisions to the condition and an assessment of future Building located at 550 17th Street, BHC rating system. The BHC rating potential risk to its subsidiary NW., Washington, DC. system is an internal rating system used depository institution(s). The main The FDIC will provide attendees with by the Federal Reserve as a management components of the rating system auxiliary aids (e.g., sign language information and supervisory tool that represent: Risk Management (R); interpretation) required for this meeting. defines the condition of all BHCs, Financial Condition (F); and potential Those attendees needing such assistance including financial holding companies Impact (I) of the parent company and should call (202) 416–2089 (Voice); (FHCs), in a systematic way. First and nondepository subsidiaries (collectively (202) 416–2007 (TTY), to make foremost, a BHC’s rating provides a nondepository entities) on the necessary arrangements. summary evaluation of the BHC’s subsidiary depository institutions. Requests for further information condition for use by the supervisory While the Federal Reserve expects all concerning the meeting may be directed community. Second, the BHC rating bank holding companies to act as a to Mr. Robert E. Feldman, Executive forms the basis of supervisory responses source of strength to their subsidiary Secretary of the Corporation, at (202) and actions. Third, the BHC rating depository institutions, the Impact 898–7043. provides the basis for supervisors’ rating focuses on downside risk—that is, Dated: November 30, 2004. discussion of the firm’s condition with on the likelihood of significant negative Federal Deposit Insurance Corporation. BHC management. Fourth, the BHC impact by the nondepository entities on Robert E. Feldman, rating determines whether the BHC is the subsidiary depository institution. A Executive Secretary. entitled to expedited applications fourth component rating, Depository [FR Doc. E4–3464 Filed 12–3–04; 8:45 am] processing and to certain regulatory Institution (D), will generally mirror the exemptions. primary regulator’s assessment of the BILLING CODE 6714–01–P The former BHC rating system, subsidiary depository institutions. Thus, implemented in 1979 and commonly the primary component and composite referred to as the BOPEC rating system, ratings are displayed: FEDERAL RESERVE SYSTEM focused on the financial condition of discrete legal entities, consolidated RFI/C (D) [Docket No. OP–1207] capital, and consolidated earnings. It In order to provide a consistent also included composite financial framework for assessing risk Bank Holding Company Rating System condition and management ratings. management, the R component is Since that time, a number of changes supported by four subcomponents that AGENCY: Board of Governors of the have occurred in the financial services Federal Reserve System. reflect the effectiveness of the banking industry, prompting a shift in organization’s risk management and ACTION: Notice. supervisory policies and procedures controls. The subcomponents are: Board SUMMARY: The Federal Reserve has away from historical analyses of and Senior Management Oversight; revised its bank holding company (BHC) financial condition, toward more Policies, Procedures, and Limits; Risk rating system to better reflect and forward looking assessments of risk Monitoring and Management communicate its supervisory priorities management and financial factors. In Information Systems; and Internal and practices. The revised BHC rating order to address this shift, the Federal Controls. The F component is similarly system emphasizes risk management; Reserve introduced a risk management supported by four subcomponents implements a comprehensive and rating for all bank holding companies in reflecting an assessment of the quality of adaptable framework for analyzing and the mid-1990s. Although this the banking organization’s Capital; rating financial factors; and provides a adjustment proved an effective tool for Asset Quality; Earnings; and Liquidity. framework for assessing and rating the assessing risk management, it was not A simplified version of the rating potential impact of the nondepository the central focus of the rating system. system that requires only the entities of a holding company on the Moreover, as the banking industry has assignment of the risk management subsidiary depository institution(s). continued to evolve over the past component rating and composite rating decade, the focus of the Federal will be applied to noncomplex bank DATES: The revised rating system will be Reserve’s examination program for bank holding companies with assets at or applied to all BHC inspections holding companies has increasingly below $1 billion. beginning on or after January 1, 2005, as centered on a comprehensive review of Composite, component, and well as to inspections opened in 2004 financial risk and the adequacy of risk subcomponent ratings are assigned and closed in 2005, at the discretion of management. As a result, in order to based on a 1 to 5 numeric scale. A 1 the Reserve Bank. more fully align the rating process for numeric rating indicates the highest FOR FURTHER INFORMATION CONTACT: BHCs with current supervisory rating, strongest performance and Deborah Bailey, Associate Director, practices, the Federal Reserve is revising practices, and least degree of (202–452–2634), Barbara Bouchard, the BHC rating system to emphasize risk supervisory concern, whereas a 5 Deputy Associate Director, (202–452– management; introduce a numeric rating indicates the lowest 3072), Molly Mahar, Senior Supervisory comprehensive and adaptable rating, weakest performance, and the Financial Analyst, (202–452–2568), or framework for analyzing and rating highest degree of supervisory concern. Anna Lee Hewko, Supervisory Financial financial factors; and provide a The Federal Reserve recognizes the Analyst, (202–530–6260). For users of framework for assessing and rating the interrelationship between the risk Telecommunications Device for the Deaf potential impact of the nondepository management and financial performance (‘‘TDD’’) only, contact (202) 263–4869. entities of a holding company on the components of the revised rating SUPPLEMENTARY INFORMATION: subsidiary depository institution(s). system, an interrelationship that is

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70445

inherent in all supervisory rating intent is clearly stated in the final Commenters also raised questions systems. As such, examiners are policy. about whether the Federal Reserve expected to consider that a risk Commenters also raised concerns intends to impose de facto capital management factor may have a bearing about the ability of the Federal Reserve requirements on nondepository on the assessment of a financial to apply the new rating system in a subsidiaries, whether the language in subcomponent or component rating and consistent manner due to the large the proposal around the use of market vice versa. In general, however, the risk number of subcomponent ratings in the indicators is signaling more extensive management component and new system and the inherent use of these references in the rating subcomponents should be viewed as the subjectivity in the rating process. As is process, and whether the Federal forward-looking component of the rating the case with all supervisory rating Reserve intends to run the BOPEC rating system and the financial condition systems, there is some subjectivity system in conjunction with the revised component and subcomponents should inherent in the revised BHC rating BHC rating system for some time period be viewed as the current component of system; however, the Federal Reserve of time. The Federal Reserve has the rating system. For example, a BHC’s has made and will continue to make clarified in the final policy that, ability to monitor and manage market every effort to provide appropriate consistent with current practice, the risk (or sensitivity to market risk) examiner guidance and training around revised BHC rating system assesses the should be evaluated together with the the revised BHC rating system to ensure consolidated capital adequacy of the organization’s ability to monitor and that the system is applied in a organization and is not intended to manage all risks under the R component consistent manner. In addition, the impose de facto capital requirements on of the rating system. However, poor Federal Reserve notes that the nondepository subsidiaries. In addition, market risk management may also be subcomponents under the R rating are the Federal Reserve has clarified and reflected in the F component if it based on the same guidance that has simplified the language around the use impacts earnings or capital. been used to rate risk management since of market indicators in the revised 1995 and are therefore familiar to rating system to indicate that, consistent Comments Received and Changes Made examination staff. Examination staff also with current practice, examination staff The Federal Reserve received a total is very familiar with assigning capital, should use these indicators as a source of 13 comments regarding the proposed asset quality, earnings, and liquidity of information complementary to the revisions to the BHC rating system. The ratings, as these components are examination process. Also, the Federal comments came from banking important elements of our existing Reserve is implementing a quality organizations, trade associations, several rating systems. The Federal Reserve assurance program around the new Reserve Banks and one law firm. believes that the subcomponents will rating system during the first year of Commenters generally supported increase consistency and transparency implementation that includes a changes to the rating system, stating that in the rating process by providing a mechanism to collect feedback from the move to a more forward-looking clearer basis for the component ratings. examination staff to address any Commenters raised concerns about assessment of risk management systems significant implementation issues and to the possibility of one factor being and the condition of the consolidated discuss difficult rating decisions to weighted too heavily in the composite organization is appropriate. ensure consistent application of the rating due to overlap between the revised rating system. Many commenters recommended that component ratings and because the the rating scale for the subcomponents proposal stated that the composite Finally, a few commenters suggested under the risk management rating be rating may not be the numerical average that BHC understanding of the revised changed from a three point qualitative of the component ratings. There is an rating system would be enhanced if the scale to a five point numeric rating scale interrelationship among the component Federal Reserve were to utilize a in order to provide more granularity and ratings in the revised BHC rating system temporary dual implementation period consistency with the rest of the rating that is inherent in all supervisory rating during which the BOPEC rating system system. In response, the Federal Reserve systems. Federal Reserve examiners will and the revised rating system would be has changed the rating scale for the risk consider that a risk management factor applied simultaneously and a BHC’s management subcomponent ratings to a may have a bearing on the assessment BOPEC rating would prevail. The five point numeric rating scale. of a financial subcomponent or Federal Reserve has determined that a Several commenters raised concerns component rating and vice versa, and direct and prompt adoption of the that the new rating system is signaling weight that factor proportionately in the revised rating system is preferable a move by the Federal Reserve to lessen overall composite rating. Consistent because the revised rating system better its reliance on the work of primary bank with current rating practices for the reflects current supervisory practices regulators and other functional nonbank BOPEC and CAMELS rating systems, and because use of a single rating regulators in its supervision of BHCs. some components may be given more system would minimize regulatory The revised BHC rating system was weight than others in determining the burden on both examination staff and developed to align the BHC rating composite rating, depending on the institutions. To ensure that BHCs process with the Federal Reserve’s importance of that component in the understand the revised rating system, current supervisory practices in carrying overall condition of the BHC. In general, examination staff will be prepared to out consolidated or umbrella assignment of a composite rating may discuss the differences and similarities supervision of BHCs. As such, the incorporate any factor that bears between the revised rating system and revised rating system and the significantly on the overall condition the BOPEC system with senior BHC accompanying implementation and soundness of the BHC. Therefore, officials during the first inspection cycle guidance is not intended to signal a shift the composite rating is not derived by under the revised rating system. in the Federal Reserve’s supervisory computing the arithmetic average of the Moreover, during the first inspection practices of coordinating with and component ratings. Nevertheless, the cycle under the revised rating system, in relying to the greatest extent possible on composite rating generally bears a close situations in which a BHC has received the work of primary bank and other relationship to the component ratings a ratings downgrade, examiners will be functional nonbank regulators. This assigned. prepared to discuss with senior BHC

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70446 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

officials the new ratings and how they deteriorating BHCs, as well as for component, and subcomponent ratings, compare with the BOPEC ratings for that categorizing BHCs with deficiencies in implementation guidance by BHC type, institution. particular areas. Further, the rating and definitions of the ratings. system assists the Federal Reserve in Disclosure I. Description of the Rating System following safety and soundness trends Elements The numeric ratings for bank holding and in assessing the aggregate strength companies under the revised BHC rating and soundness of the financial industry. The Composite (C) Rating 1 system will be disclosed to the bank Each BHC is assigned a composite C is the overall composite assessment holding company for its confidential rating (C) based on an overall evaluation of the BHC as reflected by consolidated use, in accordance with current and rating of its managerial and risk management, consolidated financial disclosure practices. Under no financial condition and an assessment strength, and the potential impact of the circumstances should the bank holding of future potential risk to its subsidiary nondepository entities on the subsidiary company or any of its directors, officers, depository institution(s). The main depository institutions. The composite or employees disclose or make public components of the rating system 2 rating encompasses both a forward- any of the ratings. represent: Risk Management (R); looking and static assessment of the Financial Condition (F); and Impact (I) Implementation consolidated organization, as well as an of the nondepository entities on the assessment of the relationship between The revised BHC rating system subsidiary depository institutions. the depository and nondepository becomes effective January 1, 2005, and While the Federal Reserve expects all entities. Consistent with current Federal is to be used for all BHC inspections bank holding companies to act as a Reserve practice, the C rating is not commencing after that date. Inspections source of strength to their subsidiary derived as a simple numeric average of opened in 2004 and closed in 2005 may depository institutions, the Impact the R, F, and I components; rather, it assign either the BOPEC rating or the rating focuses on downside risk—that is, reflects examiner judgment with respect RFI/C(D) rating. Although the timing of on the likelihood of significant negative to the relative importance of each implementation is relatively close to the impact by the nondepository entities on component to the safe and sound December release of the final rating the subsidiary depository institution(s). operation of the BHC. system, supervision and examination A fourth rating, Depository Institution(s) staff at all twelve Reserve Banks and the (D), will generally mirror the primary The Risk Management (R) Component Board of Governors have had and will regulator’s assessment of the subsidiary R represents an evaluation of the continue to receive appropriate training depository institution(s). Thus, the ability of the BHC’s board of directors in the revised rating system. Moreover, primary component and composite and senior management, as appropriate the revised rating system was developed ratings are displayed: for their respective positions, to and reviewed over a number of years RFI/C (D) identify, measure, monitor, and control with participation from a wide range of risk. The R rating underscores the In order to provide a consistent Federal Reserve System supervision and importance of the control environment, framework for assessing risk examination staff. Because the revised taking into consideration the complexity management, the R component is BHC rating system incorporates factors of the organization and the risk inherent supported by four subcomponents that that have been routinely considered by in its activities. reflect the effectiveness of the banking examiners for years in evaluating a The R rating is supported by four organization’s risk management and BHC’s condition, the revised rating subcomponents that are each assigned a controls. The subcomponents are: Board system should not have a significant separate rating. The four and Senior Management Oversight; effect on the conduct of inspections or subcomponents are as follows: (1) Board Policies, Procedures, and Limits; Risk on the regulatory burden of supervised and Senior Management Oversight; (2) Monitoring and Management institutions. Policies, Procedures and Limits; (3) Risk Information Systems; and Internal Monitoring and Management Text of the Bank Holding Company Controls. The F component is also Information Systems; and (4) Internal Rating System supported by four subcomponents Controls.3 The subcomponents are reflecting an assessment of the quality of Bank Holding Company Rating System evaluated in the context of the risks the consolidated banking organization’s undertaken by and inherent in a The bank holding company (BHC) Capital; Asset Quality; Earnings; and banking organization and the overall rating system provides an assessment of Liquidity. certain risk management and financial Composite, component, and level of complexity of the firm’s condition factors that are common to all subcomponent ratings are assigned operations. They provide the Federal BHCs, as well as an assessment of the based on a 1 to 5 numeric scale. A 1 Reserve System with a consistent potential impact of the parent BHC and numeric rating indicates the highest framework for evaluating risk its nondepository subsidiaries rating, strongest performance and management and the control (collectively nondepository entities) on practices, and least degree of environment. Moreover, the the BHC’s subsidiary depository supervisory concern, whereas a 5 subcomponents provide a clear institutions. Under this system, the numeric rating indicates the lowest structure and basis for discussion of the Federal Reserve endeavors to ensure rating, weakest performance, and the R rating with BHC management, reflect that all BHCs, including financial highest degree of supervisory concern. the principles of SR Letter 95–51, are holding companies (FHCs), are The following three sections contain detailed descriptions of the composite, 3 Another subcomponent assessing the adequacy evaluated in a comprehensive and of disclosures relating to risk exposures, risk uniform manner, and that supervisory assessment, and capital adequacy for BHCs using attention is appropriately focused on the 1 A simplified version of the rating system that the advanced internal ratings based approach to BHCs that exhibit financial and includes only the R and C components will be risk-based capital may be added once the Basel II applied to noncomplex bank holding companies framework has been implemented in the United operational weaknesses or adverse with assets at or below $1 billion. States. The Federal Reserve does not intend to trends. The rating system serves as a 2 This risk management rating replaces the risk adopt such a disclosure rating without going out for useful vehicle for identifying problem or management rating required for BHCs by SR 95–51. public comment.

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70447

familiar to examiners, and parallel the ability of the BHC’s resources to support Liquidity existing risk assessment process. the level of risk associated with its L reflects the consolidated activities. The F rating is supported by Risk Management Subcomponents 4 organization’s ability to attract and four subcomponents: capital (C), asset maintain the sources of funds necessary Board and Senior Management quality (A), earnings (E), and liquidity to support its operations and meet its 5 Oversight (L). The CAEL subcomponents can be obligations. The funding conditions for This subcomponent evaluates the evaluated along individual business each of the material legal entities in the lines, product lines, or on a legal entity adequacy and effectiveness of board and holding company structure should be basis, depending on what is most senior management’s understanding and evaluated to determine if any appropriate given the structure of the management of risk inherent in the weaknesses exist that could affect the organization. The assessment of the BHC’s activities, as well as the general funding profile of the consolidated CAEL components should utilize capabilities of management. It also organization. benchmarks and metrics appropriate to includes consideration of management’s the business activity being evaluated. The Impact (I) Component ability to identify, understand, and Consistent with current supervisory Like the other components and control the risks undertaken by the practices, examination staff should subcomponents, the I component is institution, to hire competent staff, and continue to review relevant market rated on a five point numerical scale. to respond to changes in the indicators, such as external debt ratings, However, the descriptive definitions of institution’s risk profile or innovations credit spreads, debt and equity prices, the numerical ratings for I are different in the banking sector. and qualitative rating agency than those of the other components and Policies, Procedures and Limits assessments as a source of information complementary to examination findings. subcomponents. The I ratings are This subcomponent evaluates the defined as follows: adequacy of a BHC’s policies, Financial Condition Subcomponents 1—Low likelihood of significant procedures, and limits given the risks (CAEL) negative impact; inherent in the activities of the Capital Adequacy 2—Limited likelihood of significant consolidated BHC and the negative impact; organization’s stated goals and C reflects the adequacy of an 3—Moderate likelihood of significant objectives. This analysis will include organization’s consolidated capital negative impact; consideration of the adequacy of the position, from a regulatory capital 4—Considerable likelihood of institution’s accounting and risk perspective and an economic capital significant negative impact; and disclosure policies and procedures. perspective, as appropriate to the BHC.6 5—High likelihood of significant The evaluation of capital adequacy negative impact. Risk Monitoring and Management should consider the risk inherent in an The I component is an assessment of Information Systems organization’s activities and the ability the potential impact of the This subcomponent assesses the of capital to absorb unanticipated losses, nondepository entities on the subsidiary adequacy of a BHC’s risk measurement to provide a base for growth, and to depository institution(s). The I and monitoring, and the adequacy of its support the level and composition of the assessment will evaluate both the risk management reports and information parent company and subsidiaries’ debt. management practices and financial systems. This analysis will include a Asset Quality condition of the nondepository review of the assumptions, data, and entities—an analysis that will borrow A reflects the quality of an procedures used to measure risk and the heavily from the analysis conducted for organization’s consolidated assets. The consistency of these tools with the level the R and F components. Consistent evaluation should include, as of complexity of the organization’s with current practices, nondepository activities. appropriate, both on-balance sheet and off-balance sheet exposures, and the entities will be evaluated using Internal Controls level of criticized and nonperforming benchmarks and analysis appropriate assets. Forward-looking indicators of for those businesses. In addition, for This subcomponent evaluates the functionally regulated nondepository adequacy of a BHC’s internal controls asset quality, such as the adequacy of underwriting standards, the level of subsidiaries, examination staff will and internal audit procedures, including continue to rely, to the extent possible, the accuracy of financial reporting and concentration risk, the adequacy of credit administration policies and on the work of those functional disclosure and the strength and regulators to assess the risk management influence, within the organization, of procedures, and the adequacy of management information systems for practices and financial condition of the internal audit team. This analysis those entities. In rating the I component, will also include a review of the credit risk may also inform the Federal Reserve’s view of asset quality. examination staff is required to evaluate independence of control areas from the degree to which current or potential management and the consistency of the Earnings issues within the nondepository entities scope coverage of the internal audit E reflects the quality of consolidated present a threat to the safety and team with the complexity of the earnings. The evaluation considers the soundness of the subsidiary depository organization. level, trend, and sources of earnings, as institution(s). In this regard, the I The Financial Condition (F) Component well as the ability of earnings to component will give a clearer indication of the degree of risk posed by the F represents an evaluation of the augment capital as necessary, to provide ongoing support for a BHC’s activities. nondepository entities to the federal consolidated organization’s financial safety net than does the current rating strength. The F rating focuses on the 6 Of course, the regulatory minimum capital ratios system. for BHCs are eight percent total risk-based capital, The I component focuses on the 4 SR Letter 95–51 contains a detailed description four percent tier 1 risk-based capital, three percent aggregate impact of the nondepository of the four risk management subcomponents. tier 1 leverage for BHCs rated strong, and four 5 The Board of Directors is considered separate percent tier 1 leverage for all other BHCs. See 12 entities on the subsidiary depository from Management. CFR 225, Appendices A and D. institution(s). In this regard, the I rating

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70448 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

does not include individual laws or regulations, especially Consistent with current practice, if, in subcomponent ratings for the parent pertaining to intercompany transactions the process of analyzing the financial company and nondepository where the subsidiary depository condition and risk management subsidiaries. An I rating is always institution(s) is involved; and programs of the consolidated assigned for each BHC; however, as is • Concentration Considerations: The organization, a major difference of currently the case, nonmaterial potential risks posed to the subsidiary opinion regarding the safety and nondepository subsidiaries7 may be depository institution(s) by soundness of the subsidiary depository excluded from the I analysis at examiner concentrations within the institution(s) emerges between the discretion. Any risk management and nondepository entities in business lines, Federal Reserve and the depository financial issues at the nondepository geographic areas, industries, customers, institution’s primary regulator, then the entities that potentially impact the or other factors. (D) rating should reflect the Federal safety and soundness of the subsidiary Financial Factors Reserve’s evaluation. To highlight the presence of one or depository institution(s) should be • identified in the written comments Capital Distribution: The more problem depository institution(s) under the I rating. This approach is distribution and transferability of in a multi-bank BHC whose depository capital across the legal entities; institution component, based on consistent with the Federal Reserve’s • objective not to extend bank-like Intra-Group Exposures: The extent weighted averages, might not otherwise supervision to nondepository entities. to which intra-group exposures, reveal their presence (i.e., depository The analysis of the parent company including servicing agreements, have institution ratings of 1, 2 or 3), a for the purpose of assigning an I rating the potential to undermine the problem modifier, ‘‘P’’ would be should emphasize weaknesses that condition of subsidiary depository attached to the depository institution could directly impact the risk institution(s); and, rating (e.g., 1P, 2P, or 3P). Thus, 2P • Parent Company Cash Flow and management or financial condition of would indicate that, while on balance Leverage: The extent to which the the subsidiary depository institution(s). the depository subsidiaries are rated parent company is dependent on Similarly, the analysis of the satisfactory, there exists a problem dividend payments, from both the nondepository subsidiaries for the depository institution (composite 4 or 5) nondepository subsidiaries and the purpose of assigning an I rating should among the subsidiary depository subsidiary depository institution(s), to emphasize weaknesses that could institutions. The problem identifier is service debt and cover fixed charges. negatively impact the parent company’s unnecessary when the depository Also, the effect that these upstreamed relationship with its subsidiary institution component is rated 4 or 5. cash flows have had, or can be expected depository institution(s) and to have, on the financial condition of II. Implementation of the BHC Rating weaknesses that could have a direct the BHC’s nondepository subsidiaries System by Bank Holding Company impact on the risk management and subsidiary depository institution(s). Type practices or financial condition of the The Federal Reserve revised the BHC subsidiary depository institution(s). The The Depository Institutions (D) rating system to align the rating system analysis under the I component should Component with current Federal Reserve consider existing as well as potential The (D) component will generally supervisory practices. The rating system issues and risks that may impact the reflect the composite CAMELS rating will require analysis and support subsidiary depository institution(s) now assigned by the subsidiary depository similar to that required by the former or in the future. Particular attention institution’s primary supervisor. In a BOPEC rating system for BHCs of all should be paid to the following risk multi-bank BHC, the (D) rating will sizes.8 As such, the level of analysis and management and financial factors in reflect a weighted average of the support will vary based upon whether a assigning the I rating: CAMELS composite ratings of the BHC has been determined to be Risk Management Factors individual subsidiary depository ‘‘complex’’ or ‘‘noncomplex.’’ 9 In • institutions, weighted by both asset size addition, the resources dedicated to the Strategic Considerations: The and the relative importance of each inspection of each BHC will continue to potential risks posed to the subsidiary depository institution within the depository institution(s) by the holding company structure. In this 8 As described in the BHC inspection manual, SR nondepository entities’ strategic plans regard, the CAMELS composite rating 95–51, SR 97–24, SR 99–15, and SR 02–01. for growth in existing activities and for a subsidiary depository institution 9 The determination of whether a holding company is ‘‘complex’’ versus ‘‘noncomplex’’ is expansion into new products and that dominates the corporate culture services; made at least annually on a case-by-case basis • may figure more prominently in the taking into account and weighing a number of Operational Considerations: The assignment of the (D) rating than would considerations, such as: The size and structure of spillover impact on the subsidiary be dictated by asset size, particularly the holding company; the extent of intercompany depository institution(s) from actual transactions between depository institution when problems exist within that subsidiaries and the holding company or losses, a poor control environment, or depository institution. nondepository subsidiaries of the holding company; an operational loss history in the The (D) component conveys the nature and scale of any nondepository activities, nondepository entities; important supervisory information, including whether the activities are subject to • Legal and Reputational review by another regulator and the extent to which reflecting the primary supervisor’s the holding company is conducting Gramm-Leach- Considerations: The spillover effect on assessment of the legal entity. The (D) Bliley authorized activities (e.g., insurance, the subsidiary depository institution(s) component stands outside of the securities, merchant banking); whether risk of complaints and litigation that name composite rating although significant management processes for the holding company are one or more of the nondepository consolidated; and whether the holding company risk management and financial has material debt outstanding to the public. Size is entities as defendants, or violations of condition considerations at the a less important determinant of complexity than depository institution level are many of the factors noted above, but generally 7 As a general rule, nondepository subsidiaries companies of significant size (e.g., assets of $10 should be included in the I analysis whenever their incorporated in the consolidated R and billion on balance sheet or managed) would be assets exceed five percent of the BHC’s consolidated F ratings, which are then factored into considered complex, irrespective of the other capital or $10 million, whichever is lower. the C rating. considerations.

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70449

be determined by the risk posed by the and resources spent on this assessment depository institution(s) to the federal subsidiary depository institution(s) to should be in line with the level of risk safety net and the level of risk posed by the federal safety net 10 and the risk the subsidiary depository institution the BHC to the subsidiary depository posed by the BHC to the subsidiary poses to the federal safety net. In institution(s). depository institution(s). addition, any activities that involve Nontraditional BHCs information gathering with respect to Noncomplex BHCs with Assets of $1 the subsidiary depository institution Billion or Less (Shell Holding Rating: RFI/C (D) should be coordinated with and, if Companies) possible, conducted by, the primary Examination staff are required to Rating: R and C regulator of that institution. assign the full rating system for nontraditional BHCs. Nontraditional Consistent with SR 02–1, examination Examination staff are required to BHCs include BHCs in which most or staff will assign only an R and C rating make an independent assessment in all nondepository entities are regulated for all companies in the shell BHC order to assign the I rating, which by a functional regulator and in which program (noncomplex BHCs with assets provides an evaluation of the impact of the subsidiary depository institution(s) under $1 billion). The R rating is the M the BHC on the subsidiary depository are small in relation to the rating from the subsidiary depository institution. Analysis for the I rating in nondepository entities. The rating institution’s CAMELS rating. To provide non-complex one-bank holding system is not intended to introduce consistent rating terminology across companies should place particular BHCs of all sizes, the terminology is emphasis on issues related to parent significant additional work in the rating changed to R from the former M. The C company cash flow and compliance process for these organizations. As rating is the subsidiary depository with sections 23A and 23B of the discussed above, the level of analysis institution’s composite CAMELS rating. Federal Reserve Act. conducted and resources needed to inspect the BHC and to assign the Multi-Bank Holding Company Noncomplex BHCs With Assets Greater consolidated R and F ratings should be Than $1 Billion Rating: RFI/C (D) commensurate with the level of risk One-Bank Holding Company For all noncomplex BHCs with assets posed by the subsidiary depository of greater than $1 billion and more than institution(s) to the federal safety net Rating: RFI/C (D) one subsidiary depository institution, and the level of risk posed by the BHC For all noncomplex, one-bank holding examination staff will assign all to the subsidiary depository companies with assets of greater than $1 component and subcomponent ratings institution(s). The report of examination billion, examination staff will assign all of the new system. Examiners should by, and other information obtained component and subcomponent ratings; rely, to the extent possible, on the work from, the functional and primary bank however, examination staff should conducted by the primary regulators of regulators should provide the basis for continue to rely heavily on information the subsidiary depository institutions to the consolidated R and F ratings. On- and analysis contained in the primary assign the R and F ratings. However, any site work, to the extent it involves areas regulator’s report of examination for the risk management or other important that are the primary responsibility of the subsidiary depository institution to functions conducted by the functional or primary bank regulator, assign the R and F ratings. If nondepository entities of the BHC, or should be coordinated with and, if examination staff have reviewed the conducted across legal entity lines, possible, conducted by, those regulators. primary regulator’s examination report should be subject to review by Federal Examination staff should concentrate and are comfortable with the analysis Reserve examination staff. These their independent analysis for the R and and conclusions contained in that reviews should be conducted in F ratings around activities and risk report, then the BHC ratings should be coordination with the primary management conducted by the parent supported with concise language that regulator(s). The assessment for the I company and non-functionally indicates that the conclusions are based rating requires an independent regulated nondepository subsidiaries, as on the analysis of the primary regulator. assessment by Federal Reserve well as around activities and risk No additional analysis will be required. examination staff. management functions that are related Please note, however, in cases where to the subsidiary depository the analysis and conclusions of the Complex BHCs institution(s), for example, audit primary regulator are insufficient to Rating: RFI/C (D) functions for the depository assign the ratings, the primary regulator institution(s) and compliance with For complex BHCs, examination staff should be contacted to ascertain sections 23A and 23B. will assign all component and whether additional analysis and support subcomponent ratings of the new rating Examination staff are required to may be available. Further, if discussions system. The ratings analysis should be make an independent assessment of the with the primary regulator do not based on the primary and functional impact of the nondepository entities on provide sufficient information to assign regulators’ assessment of the subsidiary the subsidiary depository institution(s) the ratings, discussions with BHC entities, as well as on the examiners’ in order to assign the I rating. management may be warranted to obtain assessment of the consolidated adequate information to assign the III. Rating Definitions for the RFI/C (D) organization as determined through off- ratings. In most cases, additional Rating System site review and the BHC inspection information or support obtained through process, as appropriate. The resources All component and subcomponent these steps will be sufficient to permit needed for the inspection and the level ratings are rated on a five point numeric the assignment of the R and F ratings. of support needed for developing a full scale. With the exception of the I To the extent that additional analysis is rating will depend on the complexity of component, ratings will be assigned in deemed necessary, the level of analysis the organization, including structure ascending order of supervisory concern 10 The federal safety net includes the federal and activities (see footnote 7), and as follows: 1—Strong; 2—Satisfactory; deposit insurance fund, the payments system, and should be commensurate with the level 3—Fair; 4—Marginal; and 5— the Federal Reserve’s discount window. of risk posed by the subsidiary Unsatisfactory.

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00023 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70450 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

A description of the I component Rating 4 (Marginal). BHCs in this and none is material. Management ratings is in the I section below. group have an immoderate volume of effectively and accurately monitors the As is current Federal Reserve practice, risk management and financial condition of the institution consistent the component ratings are not derived weaknesses, which may pose a with the standards of safety and as a simple numeric average of the heightened risk of significant negative soundness, and in accordance with subcomponent ratings; rather, weight impact on the subsidiary depository internal and supervisory policies and afforded to each subcomponent in the institution(s). The holding company’s practices. Risk management processes overall component rating will depend cash flow needs may be being met only are fully effective in identifying, on the severity of the condition of that by upstreaming imprudent dividends monitoring, and controlling the risks to subcomponent and the relative and/or fees from its subsidiaries. Unless the institution. importance of that subcomponent to the prompt action is taken to correct these Rating 2 (Satisfactory). A rating of 2 consolidated organization. Similarly, conditions, the organization’s future indicates that the institution’s some components may be given more viability could be impaired. These management of risk is largely effective, weight than others in determining the companies require close supervisory but lacking in some modest degree. composite rating, depending on the attention and substantially increased Management demonstrates a situation of the BHC. Assignment of a financial surveillance. responsiveness and ability to cope composite rating may incorporate any Rating 5 (Unsatisfactory). The critical successfully with existing and factor that bears significantly on the volume and character of the risk foreseeable risks that may arise in overall condition and soundness of the management and financial weaknesses carrying out the institution’s business BHC, although generally the composite of BHCs in this category, and concerns plan. While the institution may have rating bears a close relationship to the about the nondepository entities some minor risk management component ratings assigned. negatively impacting the subsidiary weaknesses, these problems have been depository institution(s), could lead to recognized and are in the process of Composite Rating insolvency without urgent aid from being resolved. Overall, board and Rating 1 (Strong). BHCs in this group shareholders or other sources. The senior management oversight, policies are sound in almost every respect; any imminent inability to prevent liquidity and limits, risk monitoring procedures, negative findings are basically of a and/or capital depletion places the reports, and management information minor nature and can be handled in a BHC’s continued viability in serious systems are considered satisfactory and routine manner. Risk management doubt. These companies require effective in maintaining a safe and practices and financial condition immediate corrective action and sound institution. Risks are controlled provide resistance to external economic constant supervisory attention. in a manner that does not require more and financial disturbances. Cash flow is than normal supervisory attention. more than adequate to service debt and Risk Management Component The BHC’s risk management practices other fixed obligations, and the Rating 1 (Strong). A rating of 1 and infrastructure are satisfactory and nondepository entities pose little risk to indicates that management effectively generally are adjusted appropriately in the subsidiary depository institution(s). identifies and controls all major types of response to changing industry practices Rating 2 (Satisfactory). BHCs in this risk posed by the BHC’s activities. and current regulatory guidance. Staff group are fundamentally sound but may Management is fully prepared to experience, expertise and depth are have modest weaknesses in risk address risks emanating from new generally appropriate to manage the management practices or financial products and changing market risks assumed by the institution. condition. The weaknesses could conditions. The board and management Internal controls may display modest develop into conditions of greater are forward-looking and active weaknesses or deficiencies, but they are concern but are believed correctable in participants in managing risk. correctable in the normal course of the normal course of business. As such, Management ensures that appropriate business. The examiner may have the supervisory response is limited. policies and limits exist and are recommendations for improvement, but Cash flow is adequate to service understood, reviewed, and approved by the weaknesses noted should not have obligations, and the nondepository the board. Policies and limits are a significant effect on the safety and entities are unlikely to have a significant supported by risk monitoring soundness of the institution. negative impact on the subsidiary procedures, reports, and management Rating 3 (Fair). A rating of 3 signifies depository institution(s). information systems that provide that risk management practices are Rating 3 (Fair). BHCs in this group management and the board with the lacking in some important ways and, exhibit a combination of weaknesses in information and analysis that is therefore, are a cause for more than risk management practices and financial necessary to make timely and normal supervisory attention. One or condition that range from fair to appropriate decisions in response to more of the four elements of sound risk moderately severe. These companies are changing conditions. Risk management management11 (active board and senior less resistant to the onset of adverse practices and the organization’s management oversight; adequate business conditions and would likely infrastructure are flexible and highly policies, procedures, and limits; deteriorate if concerted action is not responsive to changing industry adequate risk management monitoring effective in correcting the areas of practices and current regulatory and management information systems; weakness. Consequently, these guidance. Staff has sufficient comprehensive internal controls) is companies are vulnerable and require experience, expertise and depth to considered less than acceptable, and has more than normal supervisory attention manage the risks assumed by the precluded the institution from fully and financial surveillance. However, the institution. addressing one or more significant risks risk management and financial capacity Internal controls and audit procedures to its operations. Certain risk of the company, including the potential are sufficiently comprehensive and negative impact of the nondepository appropriate to the size and activities of 11 Framework for Risk-Focused Supervision of entities on the subsidiary depository the institution. There are few noted Large Complex Institutions, August 1997; SR Letter 95–51, Rating the Adequacy of Risk Management institution(s), pose only a remote threat exceptions to the institution’s Processes and Internal Controls at State Member to its continued viability. established policies and procedures, Banks and Bank Holding Companies.

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00024 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70451

management practices are in need of procedures and internal controls require practices is satisfactory and the improvement to ensure that immediate and close supervisory organization’s overall business strategy management and the board are able to attention. is generally sound. identify, monitor, and control all Senior management generally adjusts Risk Management Subcomponents significant risks to the institution. Also, risk management practices the risk management structure may need Board and Senior Management appropriately in accordance with to be improved in areas of significant Oversight enhancements to industry practices and regulatory guidance, and adjusts business activity, or staff expertise may Rating 1 (Strong). An assessment of exposure limits as necessary to reflect not be commensurate with the scope Strong signifies that the board and the institution’s changing risk profile, and complexity of business activities. In senior management are forward-looking, addition, management’s response to although these practices may be lacking fully understand the types of risk changing industry practices and in some modest degree. Policies, limits, inherent in the BHC’s activities, and regulatory guidance may need to and tracking reports are generally actively participate in managing those improve. appropriate, understood, and regularly The internal control system may be risks. The board has approved overall reviewed, and the new product approval lacking in some important aspects, business strategies and significant process adequately identifies the particularly as indicated by continued policies, and ensures that senior associated risks and necessary controls. control exceptions or by a failure to management is fully capable of Senior management’s day-to-day adhere to written policies and managing the activities that the BHC supervision of management and staff at procedures. The risk management conducts. Consistent with the standards all levels is generally effective. The level weaknesses could have adverse effects of safety and soundness, oversight of of staffing, and its experience, expertise, on the safety and soundness of the risk management practices is strong and and depth, is sufficient to operate the institution if corrective action is not the organization’s overall business business lines in a safe and sound taken by management. strategy is effective. manner. Minor weaknesses may exist in Rating 4 (Marginal). A rating of 4 Senior management ensures that risk the staffing, infrastructure, and risk represents deficient risk management management practices are rapidly management processes for individual practices that fail to identify, monitor, adjusted in accordance with business lines or products, but these and control significant risk exposures in enhancements to industry practices and weaknesses have been identified by many material respects. Generally, such regulatory guidance, and exposure management, are correctable in the a situation reflects a lack of adequate limits are adjusted as necessary to normal course of business, and are in guidance and supervision by reflect the institution’s changing risk the process of being addressed. management and the board. One or profile. Policies, limits, and tracking Weaknesses noted should not have a more of the four elements of sound risk reports are appropriate, understood, and significant effect on the safety and management is deficient and requires regularly reviewed. soundness of the institution. immediate and concerted corrective Management provides effective Rating 3 (Fair). An assessment of Fair action by the board and management. supervision of the day-to-day activities signifies that board and senior The institution may have serious of all officers and employees, including management oversight is lacking in identified weaknesses, such as an the supervision of the senior officers some important way and, therefore, is a inadequate separation of duties, that and the heads of business lines. It hires cause for more than normal supervisory require substantial improvement in staff that possess experience and attention. The weaknesses may involve internal control or accounting expertise consistent with the scope and a broad range of activities or be material procedures, or improved adherence to complexity of the organization’s to a major business line or activity. supervisory standards or requirements. business activities. There is a sufficient Weaknesses in one or more aspect of The risk management deficiencies depth of staff to ensure sound board and senior management oversight warrant a high degree of supervisory operations. Management ensures have precluded the institution from attention because, unless properly compliance with laws and regulations fully addressing one or more significant addressed, they could seriously affect and that employees have the integrity, risks to the institution. The deficiencies the safety and soundness of the ethical values, and competence may include a lack of knowledge with institution. consistent with a prudent management respect to the organization’s risk profile, Rating 5 (Unsatisfactory). A rating of philosophy and operating style. insufficient oversight of risk 5 indicates a critical absence of effective Management responds appropriately management practices, ineffective risk management practices with respect to changes in the marketplace. It policies or limits, inadequate or under- to the identification, monitoring, or identifies all risks associated with new utilized management reporting, an control over significant risk exposures. activities or products before they are inability to respond to industry One or more of the four elements of launched, and ensures that the enhancements and changes in sound risk management is considered appropriate infrastructure and internal regulatory guidance, or failure to wholly deficient, and management and controls are established. execute appropriate business strategies. the board have not demonstrated the Rating 2 (Satisfactory). An assessment Staffing may not be adequate or staff capability to address these deficiencies. of Satisfactory indicates that board and may not possess the experience and Internal controls are critically weak senior management have an adequate expertise needed for the scope and and, as such, could seriously jeopardize understanding of the organization’s risk complexity of the organization’s the continued viability of the profile and provide largely effective business activities. The day-to-day institution. If not already evident, there oversight of risk management practices. supervision of officer and staff is an immediate concern as to the In this regard, the board has approved activities, including the management of reliability of accounting records and all major business strategies and senior officers or heads of business regulatory reports and the potential for significant policies, and ensures that lines, may be lacking. Certain risk losses if corrective measures are not senior management is capable of management practices are in need of taken immediately. Deficiencies in the managing the activities that the BHC improvement to ensure that institution’s risk management conducts. Oversight of risk management management and the board is able to

VerDate jul<14>2003 17:19 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70452 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

identify, monitor, and control all Policies, Procedures and Limits address a number of significant risks to significant risks to the institution. Rating 1 (Strong). An assessment of the institution. Multiple practices are in Weaknesses noted could have adverse Strong indicates that the policies, need of immediate improvement, which effects on the safety and soundness of procedures, and limits provide for may include policies, procedures, or the institution if corrective action is not effective identification, measurement, limits (or the lack thereof) that taken by management. monitoring, and control of the risks ineffectively identify, measure, monitor, or control the risks posed by significant Rating 4 (Marginal). An assessment of posed by all significant activities, including lending, investing, trading, activities; are not commensurate with Marginal represents deficient oversight the experience of staff, the institution’s practices that reflect a lack of adequate trust, and fiduciary activities. Policies, procedures, and limits are consistent strategic goals and objectives, or the guidance and supervision by financial strength of the institution; or with the institution’s goals and management and the board. A number do not delineate accountability or lines objectives and its overall financial of significant risks to the institution of authority. Moreover, policies may be strength. The policies clearly delineate have not been adequately addressed, considerably lacking with regards to accountability and lines of authority and the board and senior management providing for effective due diligence across the institution’s activities. The function warrants a high degree of before engaging in new activities or policies also provide for the review of supervisory attention. Multiple board products. These conditions warrant a new activities to ensure that the and senior management weaknesses are high degree of supervisory attention infrastructure necessary to identify, in need of immediate improvement. because, unless properly addressed, monitor, and control the associated risks They may include a significant lack of they could seriously affect the safety is in place before the activities are knowledge with respect to the and soundness of the institution. initiated. organization’s risk profile, largely Rating 5 (Unsatisfactory). An Rating 2 (Satisfactory). An assessment assessment of Unsatisfactory indicates a insufficient oversight of risk of Satisfactory indicates that the management practices, ineffective critical absence of effective policies, policies, procedures and limits cover all procedures, and limits. Policies, policies or limits, inadequate or major business areas, are thorough and considerably under-utilized procedures, or limits (or the lack substantially up-to-date, and provide a thereof) are largely or entirely management reporting, an inability to clear delineation of accountability and respond to industry enhancements and ineffective with regard to identifying, lines of authority across the institution’s measuring, monitoring, or controlling changes in regulatory guidance, or activities. Policies, procedures, and the risks posed by significant activities; failure to execute appropriate business limits are generally consistent with the are completely inconsistent with the strategies. Staffing may not be adequate institution’s goals and objectives and its experience of staff, the organization’s or possess the experience and expertise overall financial strength. Also, the strategic goals and objectives, or the needed for the scope and complexity of policies provide for adequate due financial strength of the institution; or the organization’s business activities, diligence before engaging in new do not delineate accountability or lines and the day-to-day supervision of officer activities or products. Any deficiencies of authority. Also, policies may be and staff activities, including the or gaps that have been identified are completely lacking with regard to management of senior officers or heads minor in nature and in the process of providing for effective due diligence of business lines, may be considerably being addressed. Weaknesses should not before engaging in new activities or lacking. These conditions warrant a have a significant effect on the safety products. Critical weaknesses could high degree of supervisory attention and soundness of the institution. seriously jeopardize the continued because, unless properly addressed, Rating 3 (Fair). An assessment of Fair viability of the institution and require they could seriously affect the safety signifies that deficiencies exist in immediate and close supervisory and soundness of the institution. policies, procedures, and limits that attention. require more than normal supervisory Rating 5 (Unsatisfactory). An attention. The deficiencies may involve Risk Monitoring and MIS assessment of Unsatisfactory indicates a a broad range of activities or be material Rating 1 (Strong). An assessment of critical absence of effective board and to a major business line or activity. The Strong indicates that risk monitoring senior management oversight practices. deficiencies may include policies, practices and MIS reports address all Problems may include a severe lack of procedures, or limits (or the lack material risks. The key assumptions, knowledge with respect to the thereof) that do not adequately identify, data sources, and procedures used in organization’s risk profile, insufficient measure, monitor, or control the risks measuring and monitoring risk are oversight of risk management practices, posed by significant activities; are not appropriate, thoroughly documented, wholly ineffective policies or limits, consistent with the experience of staff, and frequently tested for reliability. critically inadequate or under-utilized the organization’s strategic goals and Reports and other forms of management reporting, a complete objectives, or the financial strength of communication are consistent with inability to respond to industry the institution; or do not clearly activities, are structured to monitor enhancements and changes in delineate accountability or lines of exposures and compliance with regulatory guidance, or failure to authority. Also, the policies may not established limits, goals, or objectives, execute appropriate business strategies. provide for adequate due diligence and compare actual versus expected Staffing may be inadequate, inexpert, before engaging in new activities or performance when appropriate. and/or inadequately supervised. The products. Weaknesses noted could have Management and board reports are deficiencies require immediate and adverse effects on the safety and accurate and timely and contain close supervisory attention, as soundness of the institution unless sufficient information to identify management and the board have not corrective action is taken by adverse trends and to thoroughly demonstrated the capability to address management. evaluate the level of risk faced by the them. Weaknesses could seriously Rating 4 (Marginal). An assessment of institution. jeopardize the continued viability of the Marginal indicates deficient policies, Rating 2 (Satisfactory). An assessment institution. procedures, and limits that do not of Satisfactory indicates that risk

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00026 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70453

monitoring practices and MIS reports Rating 5 (Unsatisfactory). An information systems are adequately cover major risks and business areas, assessment of Unsatisfactory indicates a tested and reviewed, and the coverage, although they may be lacking in some critical absence of risk monitoring and procedures, findings, and responses to modest degree. In general, the reports MIS. They are wholly deficient due to audits and review tests are documented. contain valid assumptions that are inappropriate assumptions, incorrect Identified material weaknesses are given periodically tested for accuracy and data, poor documentation, or the lack of appropriate attention and management’s reliability and are adequately timely testing. Moreover, MIS reports actions to address material weaknesses documented and distributed to the may not be distributed to the are objectively reviewed and verified. appropriate decision-makers. Reports appropriate decision-makers, fail to The board or its audit committee and other forms of communication monitor significant risks, or fail to reviews the effectiveness of internal generally are consistent with activities; identify adverse trends and the level of audits and other control review are structured to monitor exposures and risk faced by the institution. These activities. Any weaknesses or compliance with established limits, critical weaknesses require immediate deficiencies that have been identified goals, or objectives; and compare actual and close supervisory attention, as they are modest in nature and in the process versus expected performance when could seriously jeopardize the of being addressed. appropriate. Management and board continued viability of the institution. Rating 3 (Fair). An assessment of Fair signifies that weaknesses exist in the reports are generally accurate and Internal Controls timely, and broadly identify adverse system of internal controls that require trends and the level of risk faced by the Rating 1 (Strong). An assessment of more than normal supervisory attention. institution. Any weaknesses or Strong indicates that the system of The weaknesses may involve a broad deficiencies that have been identified internal controls is robust for the type range of activities or be material to a are in the process of being addressed. and level of risks posed by the nature major business line or activity. The and scope of the organization’s Rating 3 (Fair). An assessment of Fair weaknesses may include insufficient activities. The organizational structure signifies that weaknesses exist in the oversight of internal controls and audit establishes clear lines of authority and institution’s risk monitoring practices or by the board or its audit committee; responsibility for monitoring adherence MIS reports that require more than unclear or conflicting lines of authority to policies, procedures, and limits, and normal supervisory attention. The and responsibility; a lack of wherever applicable, exceptions are weaknesses may involve a broad range independence between control areas noted and promptly investigated. and business activities; or ineffective of activities or be material to a major Reporting lines provide clear separation of duties. The internal business line or activity. They may independence of the control areas from control system may produce inadequate contribute to ineffective risk the business lines and separation of or untimely risk coverage and identification or monitoring through duties throughout the organization. verification, including monitoring inappropriate assumptions, incorrect Robust procedures exist for ensuring compliance with both safety and data, poor documentation, or the lack of compliance with applicable laws and soundness and consumer laws and timely testing. In addition, MIS reports regulations, including consumer laws regulations; inaccurate records or may not be distributed to the and regulations. Financial, operational, financial, operational, or regulatory appropriate decision-makers, adequately and regulatory reports are reliable, reporting; a lack of documentation for monitor significant risks, or properly accurate, and timely. Internal audit or work performed; or a lack of timeliness identify adverse trends and the level of other control review practices provide in management review and correction of risk faced by the institution. for independence and objectivity. identified weaknesses. Weaknesses Weaknesses noted could have adverse Internal controls and information noted could have adverse effects on the effects on the safety and soundness of systems are thoroughly tested and safety and soundness of the institution the institution if corrective action is not reviewed; the coverage, procedures, if corrective action is not taken by taken by management. findings, and responses to audits and management. Rating 4 (Marginal). An assessment of review tests are well documented; Rating 4 (Marginal). An assessment of Marginal represents deficient risk identified material weaknesses are given Marginal represents a deficient internal monitoring practices or MIS reports thorough and timely high level control system that does not adequately that, unless properly addressed, could attention; and management’s actions to address a number of significant risks to seriously affect the safety and address material weaknesses are the institution. The deficiencies may soundness of the institution. A number objectively reviewed and verified. The include neglect of internal controls and of significant risks to the institution are board or its audit committee regularly audit by the board or its audit not adequately monitored or reported. reviews the effectiveness of internal committee; conflicting lines of authority Ineffective risk identification may result audits and other control review and responsibility; a lack of from notably inappropriate activities. independence between control areas assumptions, incorrect data, poor Rating 2 (Satisfactory). An assessment and business activities; or no separation documentation, or the lack of timely of Satisfactory indicates that the system of duties in critical areas. The internal testing. In addition, MIS reports may not of internal controls adequately covers control system may produce inadequate, be distributed to the appropriate major risks and business areas, with untimely, or nonexistent risk coverage decision-makers, may inadequately some modest weaknesses. In general, and verification in certain areas, monitor significant risks, or fail to the control functions are independent including monitoring compliance with identify adverse trends and the level of from the business lines, and there is both safety and soundness and risk faced by the institution. The risk appropriate separation of duties. The consumer laws and regulations; monitoring and MIS deficiencies control system supports accuracy in inaccurate records or financial, warrant a high degree of supervisory record-keeping practices and reporting operational, or regulatory reporting; a attention because, unless properly systems, is adequately documented, and lack of documentation for work addressed, they could seriously affect verifies compliance with laws and performed; or infrequent management the safety and soundness of the regulations, including consumer laws review and correction of identified institution. and regulations. Internal controls and weaknesses. The internal control

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00027 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70454 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

deficiencies warrant a high degree of financial strength stemming from one or parent and subsidiary borrowing. In supervisory attention because, unless more of the following: modest capital addition, a company assigned a rating of properly addressed, they could deficiencies, substandard asset quality, 1 has more than sufficient capital to seriously affect the safety and weak earnings, or liquidity problems. As provide a base for the growth of risk soundness of the institution. a result, the BHC and its subsidiaries are assets and the entry into capital markets Rating 5 (Unsatisfactory). An less resistant to adverse business as the need arises for the parent assessment of Unsatisfactory indicates a conditions. The financial condition of company and subsidiaries. critical absence of an internal control the BHC will likely deteriorate if Rating 2 (Satisfactory). A rating of 2 system. There may be no oversight by concerted action is not taken to correct indicates that the consolidated BHC the board or its audit committee; areas of weakness. The company’s cash maintains adequate capital to support conflicting lines of authority and flow is sufficient to meet immediate the volume and risk characteristics of all responsibility; no distinction between obligations, but may not remain parent and subsidiary business lines control areas and business activities; or adequate if action is not taken to correct and products; provide a sufficient no separation of duties. The internal weaknesses. Consequently, the BHC is cushion to absorb unanticipated losses control system may produce totally vulnerable and requires more than arising from the parent and subsidiary inadequate or untimely risk coverage normal supervision. Overall financial activities; and support the level and and verification, including monitoring strength and capacity are still such as to composition of parent and subsidiary compliance with both safety and pose only a remote threat to the viability borrowing. In addition, a company soundness and consumer laws and of the company. assigned a rating of 2 has sufficient regulations; completely inaccurate Rating 4 (Marginal). A rating of 4 capital to provide a base for the growth records or regulatory reporting; a severe indicates that the consolidated BHC has of risk assets and the entry into capital lack of documentation for work either inadequate capital, an markets as the need arises for the parent performed; or no management review immoderate volume of problem assets, company and subsidiaries. and correction of identified weaknesses. very weak earnings, serious liquidity Rating 3 (Fair). A rating of 3 indicates Such deficiencies require immediate issues, or a combination of factors that that the consolidated BHC may not and close supervisory attention, as they are less than satisfactory. An additional maintain sufficient capital to ensure could seriously jeopardize the weakness may be that the BHC’s cash support for the volume and risk continued viability of the institution. flow needs are met only by upstreaming characteristics of all parent and imprudent dividends and/or fees from Financial Condition Component subsidiary business lines and products; subsidiaries. Unless prompt action is the unanticipated losses arising from the Rating 1 (Strong). A rating of 1 taken to correct these conditions, they parent and subsidiary activities; or the indicates that the consolidated BHC is could impair future viability. BHCs in level and composition of parent and financially sound in almost every this category require close supervisory subsidiary borrowing. In addition, a respect; any negative findings are attention and increased financial company assigned a rating of 3 may not basically of a minor nature and can be surveillance. maintain a sufficient capital position to handled in a routine manner. The Rating 5 (Unsatisfactory). A rating of provide a base for the growth of risk capital adequacy, asset quality, 5 indicates that the volume and assets and the entry into capital markets earnings, and liquidity of the character of financial weaknesses of the as the need arises for the parent consolidated BHC are more than BHC are so critical as to require urgent company and subsidiaries. The capital adequate to protect the company from aid from shareholders or other sources position of the consolidated BHC could reasonably foreseeable external to prevent insolvency. The imminent quickly become inadequate in the event economic and financial disturbances. inability of such a company to service of asset deterioration or other negative The company generates more than its fixed obligations and/or prevent factors and therefore requires more than sufficient cash flow to service its debt capital depletion due to severe normal supervisory attention. and fixed obligations with no harm to operating losses places its viability in subsidiaries of the organization. serious doubt. Such companies require Rating 4 (Marginal). A rating of 4 Rating 2 (Satisfactory). A rating of 2 immediate corrective action and indicates that the capital level of the indicates that the consolidated BHC is constant supervisory attention. consolidated BHC is significantly below fundamentally financially sound, but the amount needed to ensure support may have modest weaknesses The Financial Condition for the volume and risk characteristics correctable in the normal course of Subcomponents of all parent and subsidiary business business. The capital adequacy, asset The financial condition lines and products; the unanticipated quality, earnings and liquidity of the subcomponents can be evaluated along losses arising from the parent and consolidated BHC are adequate to business lines, product lines, or legal subsidiary activities; and the level and protect the company from external entity lines—depending on which type composition of parent and subsidiary economic and financial disturbances. of review is most appropriate for the borrowing. In addition, a company The company also generates sufficient holding company structure. assigned a rating of 4 does not maintain cash flow to service its obligations; a sufficient capital position to provide a however, areas of weakness could Capital Adequacy base for the growth of risk assets and the develop into areas of greater concern. To Rating 1 (Strong). A rating of 1 entry into capital markets as the need the extent minor adjustments are indicates that the consolidated BHC arises for the parent company and handled in the normal course of maintains more than adequate capital to subsidiaries. If left unchecked, the business, the supervisory response is support the volume and risk consolidated capital position of the limited. characteristics of all parent and company might evolve into weaknesses Rating 3 (Fair). A rating of 3 indicates subsidiary business lines and products; or conditions that could threaten the that the consolidated BHC exhibits a provide a sufficient cushion to absorb viability of the institution. The capital combination of weaknesses ranging unanticipated losses arising from the position of the consolidated BHC from fair to moderately severe. The parent and subsidiary activities; and requires immediate supervisory company has less than adequate support the level and composition of attention.

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00028 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70455

Rating 5 (Unsatisfactory). A rating of quality and BHC growth. Generally, to sufficient sources of funds on 5 indicates that the level of capital of BHCs with a 1 rating have earnings well acceptable terms to meet present and the consolidated BHC is critically above peer-group averages. anticipated liquidity needs. Modest deficient and in need of immediate Rating 2 (Satisfactory). A rating of 2 weaknesses in funds management corrective action. The consolidated indicates that the quantity and quality practices may be evident, but those capital position threatens the viability of of the BHC’s consolidated earnings over weaknesses are correctable in the the institution and requires constant time are generally adequate to make normal course of business. supervisory attention. provision for the absorption of losses Rating 3 (Fair). A rating of 3 indicates and/or accretion of capital when due that the BHC’s liquidity levels or funds Asset Quality consideration is given to asset quality management practices are in need of Rating 1 (Strong). A rating of 1 and BHC growth. Generally, BHCs with improvement. BHCs rated 3 may lack indicates that the BHC maintains strong a 2 earnings rating have earnings that ready access to funds on reasonable asset quality across all parts of the are in line with or slightly above peer- terms or may evidence significant organization, with a very low level of group averages. weaknesses in funds management criticized and nonperforming assets. Rating 3 (Fair). A rating of 3 indicates practices at the parent company or Credit risk across the organization is that the BHC’s consolidated earnings are subsidiary levels. However, these commensurate with management’s not fully adequate to make provisions deficiencies are considered correctable abilities and modest in relation to credit for the absorption of losses and the in the normal course of business. Such risk management practices. accretion of capital in relation to BHCs require more than normal Rating 2 (Satisfactory). A rating of 2 company growth. The consolidated supervisory attention. indicates that the BHC maintains earnings of companies rated 3 may be Rating 4 (Marginal). A rating of 4 satisfactory asset quality across all parts further clouded by static or inconsistent indicates that the BHC’s liquidity levels of the organization, with a manageable earnings trends, chronically insufficient or funds management practices are level of criticized and nonperforming earnings, or less than satisfactory asset deficient. Institutions rated 4 may not assets. Any identified weaknesses in quality. BHCs with a 3 rating for have or be able to obtain a sufficient asset quality are correctable in the earnings generally have earnings below volume of funds on reasonable terms to normal course of business. Credit risk peer-group averages. Such BHCs require meet liquidity needs at the parent across the organization is commensurate more than normal supervisory attention. company or subsidiary levels and with management’s abilities and Rating 4 (Marginal). A rating of 4 require immediate supervisory generally modest in relation to credit indicates that the BHC’s consolidated attention. risk management practices. earnings, while generally positive, are Rating 5 (Unsatisfactory). A rating of Rating 3 (Fair). A rating of 3 indicates clearly not sufficient to make full 5 indicates that the BHC’s liquidity that the asset quality across all or a provision for losses and the necessary levels or funds management practices material part of the consolidated BHC is accretion of capital. BHCs with earnings are critically deficient and may threaten less than satisfactory. The BHC may be rated 4 may be characterized by erratic the continued viability of the facing a decrease in the overall quality fluctuations in net income, poor institution. Institutions rated 5 require of assets currently maintained on and earnings (and the likelihood of the constant supervisory attention and off balance sheet. The BHC may also be development of a further downward immediate external financial assistance experiencing an increase in credit risk trend), intermittent losses, chronically to meet maturing obligations or other exposure that has not been met with an depressed earnings, or a substantial liquidity needs. appropriate improvement in risk drop from the previous year. The management practices. BHCs assigned a earnings of such companies are Impact Component rating of 3 require more than normal generally substantially below peer- The I component rating reflects the supervisory attention. group averages. Such BHCs require aggregate potential impact of the Rating 4 (Marginal). A rating of 4 immediate supervisory attention. nondepository entities on the subsidiary indicates that the BHC’s asset quality is Rating 5 (Unsatisfactory). A rating of depository institution(s). It is rated on a deficient. The level of problem assets 5 indicates that the BHC is experiencing five point numerical scale. Ratings will and/or unmitigated credit risk subjects losses or a level of earnings that is worse be assigned in ascending order of the holding company to potential losses than that described for the 4 rating. supervisory concern as follows: that, if left unchecked, may threaten its Such losses, if not reversed, represent a 1—Low likelihood of significant viability. BHCs assigned a rating of 4 distinct threat to the BHC’s solvency negative impact; require immediate supervisory through erosion of capital. Such BHCs 2—Limited likelihood of significant attention. require immediate and constant negative impact; Rating 5 (Unsatisfactory). A rating of supervisory attention. 3—Moderate likelihood of significant 5 indicates that the BHC’s asset quality negative impact; is critically deficient and presents an Liquidity 4—Considerable likelihood of imminent threat to the institution’s Rating 1 (Strong). A rating of 1 significant negative impact; and viability. BHCs assigned a rating of 5 indicates that the BHC maintains strong 5—High likelihood of significant require immediate remedial action and liquidity levels and well developed negative impact. constant supervisory attention. funds management practices. The parent Rating 1 (Low Likelihood of company and subsidiaries have reliable Significant Negative Impact). A rating of Earnings access to sufficient sources of funds on 1 indicates that the nondepository Rating 1 (Strong). A rating of 1 favorable terms to meet present and entities of the BHC are highly unlikely indicates that the quantity and quality anticipated liquidity needs. to have a significant negative impact on of the BHC’s consolidated earnings over Rating 2 (Satisfactory). A rating of 2 the subsidiary depository institution(s) time are more than sufficient to make indicates that the BHC maintains due to the sound financial condition of full provision for the absorption of satisfactory liquidity levels and funds the nondepository entities, the strong losses and/or accretion of capital when management practices. The parent risk management practices within the due consideration is given to asset company and subsidiaries have access nondepository entities, or the corporate

VerDate jul<14>2003 17:11 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00029 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70456 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

structure of the BHC. The BHC from subsidiaries. Strategic growth viability of the subsidiary depository maintains an appropriate capital plans, weaknesses in the control institution(s). allocation across the organization environment, risk concentrations or (D) (Depository Institutions) Component commensurate with associated risks. legal or reputational issues within the Intra-group exposures, including nondepository entities may pose The (D) component identifies the servicing agreements, are very unlikely significant risks to the subsidiary overall condition of the subsidiary to undermine the financial condition of depository institution(s). A BHC depository institution(s) of the BHC. For the subsidiary depository institution(s). assigned a 3 impact rating requires more BHCs with only one subsidiary Parent company cash flow is sufficient than normal supervisory attention, as depository institution, the (D) and not dependent on excessive there could be adverse effects on the component rating generally will mirror dividend payments from subsidiaries. safety and soundness of the subsidiary the CAMELS composite rating for that The potential risks posed to the depository institution(s) if corrective depository institution. To arrive at a (D) subsidiary depository institution(s) by action is not taken by management. component rating for BHCs with strategic plans, the control environment, Rating 4 (Considerable Likelihood of multiple subsidiary depository risk concentrations, or legal or Significant Negative Impact). A rating of institutions, the CAMELS composite reputational issues within or facing the 4 indicates that there is a considerable ratings for each of the depository nondepository entities are minor in likelihood that the nondepository institutions should be weighted, giving nature and can be addressed in the entities of the BHC will have a consideration to asset size and the normal course of business. significant negative impact on the relative importance of each depository Rating 2 (Limited Likelihood of subsidiary depository institution(s) due institution within the overall structure Significant Negative Impact). A rating of to weaknesses in the financial condition of the organization. In general, it is 2 indicates a limited likelihood that the and/or risk management practices of the expected that the resulting (D) nondepository entities of the BHC will nondepository entities. A 4-rated BHC component rating will reflect the lead have a significant negative impact on may have insufficient capital within the depository institution’s CAMELS the subsidiary depository institution(s) nondepository entities to support their composite rating. due to the adequate financial condition risks and activities. Intra-group If in the process of analyzing the of the nondepository entities, the exposures, including servicing financial condition and risk satisfactory risk management practices agreements, may also have the management programs of the within the parent nondepository immediate potential to undermine the consolidated organization, a major entities, or the corporate structure of the financial condition of the subsidiary difference of opinion regarding the BHC. The BHC maintains adequate depository institution(s). Parent safety and soundness of the subsidiary capital allocation across the company cash flow may be dependent depository institution(s) emerges organization commensurate with on excessive dividend payments from between the Federal Reserve and the associated risks. Intra-group exposures, subsidiaries. Strategic growth plans, depository institution’s primary including servicing agreements, are weaknesses in the control environment, regulator, then the (D) rating should unlikely to undermine the financial risk concentrations or legal or reflect the Federal Reserve’s evaluation. condition of the subsidiary depository reputational issues within the By order of the Board of Governors of the institution(s). Parent company cash flow nondepository entities may pose Federal Reserve System. is satisfactory and generally does not considerable risks to the subsidiary Dated: December 1, 2004. require excessive dividend payments depository institution(s). A BHC Jennifer J. Johnson, from subsidiaries. The potential risks assigned a 4 impact rating requires Secretary of the Board. posed to the subsidiary depository immediate remedial action and close institution(s) by strategic plans, the supervisory attention because the [FR Doc. 04–26723 Filed 12–3–04; 8:45 am] control environment, risk nondepository entities could seriously BILLING CODE 6210–01–P concentrations, or legal or reputational affect the safety and soundness of the issues within the nondepository entities subsidiary depository institution(s). FEDERAL RESERVE SYSTEM are modest and can be addressed in the Rating 5 (High Likelihood of normal course of business. Significant Negative Impact). A rating of Change in Bank Control Notices; Rating 3 (Moderate Likelihood of 5 indicates a high likelihood that the Acquisition of Shares of Bank or Bank Significant Negative Impact). A rating of aggregate impact of the nondepository Holding Companies 3 indicates a moderate likelihood that entities of the BHC on the subsidiary the aggregate impact of the depository institution(s) is or will The notificants listed below have nondepository entities of the BHC on become significantly negative due to applied under the Change in Bank the subsidiary depository institution(s) substantial weaknesses in the financial Control Act (12 U.S.C. 1817(j)) and will have a significant negative impact condition and/or risk management § 225.41 of the Board’s Regulation Y (12 on the subsidiary depository practices of the nondepository entities. CFR 225.41) to acquire a bank or bank institution(s) due to weaknesses in the Strategic growth plans, a deficient holding company. The factors that are financial condition and/or risk control environment, risk considered in acting on the notices are management practices of the concentrations or legal or reputational set forth in paragraph 7 of the Act (12 nondepository entities. The BHC may issues within the nondepository entities U.S.C. 1817(j)(7)). have only marginally sufficient may pose critical risks to the subsidiary The notices are available for allocation of capital across the depository institution(s). The parent immediate inspection at the Federal organization to support risks. Intra- company also may be unable to meet its Reserve Bank indicated. The notices group exposures, including servicing obligations without excessive support also will be available for inspection at agreements, may have the potential to from the subsidiary depository the office of the Board of Governors. undermine the financial condition of institution(s). The BHC requires Interested persons may express their the subsidiary depository institution(s). immediate and close supervisory views in writing to the Reserve Bank Parent company cash flow may at times attention, as the nondepository entities indicated for that notice or to the offices require excessive dividend payments seriously jeopardize the continued of the Board of Governors. Comments

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00030 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70457

must be received not later than nonbanking company complies with the for Preventing the Transmission of December 20, 2004. standards in section 4 of the BHC Act Mycobacterium tuberculosis in Health- A. Federal Reserve Bank of Atlanta (12 U.S.C. 1843). Unless otherwise care Facilities and were last published (Sue Costello, Vice President) 1000 noted, nonbanking activities will be in 1994. Peachtree Street, N.E., Atlanta, Georgia conducted throughout the United States. The 2005 draft Guidelines reflect 30303: Additional information on all bank shifts in the epidemiology of 1. Rogers Investments, LP, holding companies may be obtained tuberculosis, advances in scientific Russellville, Alabama, with Dianne from the National Information Center understanding, and changes in health- Rogers Barnes, Marietta, Georgia, and website at www.ffiec.gov/nic/. care practice that have occurred in the Robert Isaac Rogers, Jr., Russellville, Unless otherwise noted, comments United States in the last decade. Alabama, as general partners; Rogers regarding each of these applications DATES: Comments on the draft Family Holdings, LLC, Russellville, must be received at the Reserve Bank Guidelines for Preventing the Alabama, with Dianne Rogers Barnes indicated or the offices of the Board of Transmission of Mycobacterium and Robert Isaac Rogers, Jr., as Governors not later than December 30, tuberculosis in Health-care Settings, managers, and whose members include 2004. 2005, must be received in writing on or the two managers and Anne C. Rogers, A. Federal Reserve Bank of San before February 4, 2005. Russellville, Alabama, the R.I. Rogers, Francisco (Tracy Basinger, Director, ADDRESSES: Comments on the draft Sr. Marital Trust GST Non—Exempt, the Regional and Community Bank Group) Guidelines should be labeled ‘‘Public Robert I. Rogers, Sr. GST Exempt Family 101 Market Street, San Francisco, comment on Draft Guidelines for Trust, and the Robert I. Rogers, Sr. California 94105–1579: Preventing the Transmission of Marital Trust GST Exempt, with Robert 1. Great Western Bancorp, Inc., Mycobacterium tuberculosis in Health- Isaac Rogers, Jr., and Dianne Rogers Phoenix, Arizona; to become a bank care Settings, 2005,’’ and submitted by Barnes serving as trustees of the trusts; holding company by acquiring at least e-mail to [email protected]. and Robert Isaac Rogers, Jr., and Dianne 45 percent of the voting shares of Please include the specific section, Rogers Barnes; to collectively retain Western National Bank, Phoenix, paragraph, and page number for each voting shares of Valley Bancshares, Inc., Arizona (in organization). comment. If unable to submit and thereby indirectly retain voting Board of Governors of the Federal Reserve electronically, comments may be mailed shares of Valley State Bank, both of System, November 30, 2004. to Public Comment on Draft Guidelines Russellville, Alabama. Robert deV. Frierson, for Preventing the Transmission of Board of Governors of the Federal Reserve Deputy Secretary of the Board. Mycobacterium tuberculosis in Health- System, November 30, 2004. [FR Doc. 04–26711 Filed 12–3–04; 8:45 am] care Settings 2005, Centers for Disease Robert deV. Frierson, BILLING CODE 6210–01–S Control and Prevention, Division of Deputy Secretary of the Board. Tuberculosis Elimination, 1600 Clifton [FR Doc. 04–26712 Filed 12–3–04; 8:45 am] Road, NE., Mailstop E10, Atlanta, Georgia 30333. Comments may also be BILLING CODE 6210–01–S DEPARTMENT OF HEALTH AND faxed to 404–929–2676. HUMAN SERVICES FOR FURTHER INFORMATION CONTACT: FEDERAL RESERVE SYSTEM Centers for Disease Control and Lauren Lambert, Centers for Disease Prevention Control and Prevention, National Center Formations of, Acquisitions by, and for HIV, STD, and TB Prevention, 1600 Mergers of Bank Holding Companies Draft Guidelines for Preventing the Clifton Road, NE., Mailstop E10, The companies listed in this notice Transmission of Mycobacterium Atlanta, Georgia 30333. Telephone: have applied to the Board for approval, tuberculosis in Health-care Settings, (404) 639–8120. Email: pursuant to the Bank Holding Company 2005 [email protected]. Act of 1956 (12 U.S.C. 1841 et seq.) AGENCY: Centers for Disease Control and SUPPLEMENTARY INFORMATION: As stated (BHC Act), Regulation Y (12 CFR Part Prevention (CDC), Department of Health above, the 2005 draft Guidelines reflect 225), and all other applicable statutes and Human Services (HHS). shifts in the epidemiology of and regulations to become a bank ACTION: Notice for public comment. tuberculosis, advances in scientific holding company and/or to acquire the understanding, and changes in health- assets or the ownership of, control of, or SUMMARY: The purpose of this notice is care practice that have occurred in the the power to vote shares of a bank or to request public comment on draft United States in the last decade. In the bank holding company and all of the Guidelines for Preventing the context of diminished risk of health- banks and nonbanking companies Transmission of Mycobacterium care-associated transmission of M. owned by the bank holding company, tuberculosis in Health-care Settings, tuberculosis, the 2005 Draft Guidelines including the companies listed below. 2005 (Guidelines). These Guidelines are places emphasis on actions needed to The applications listed below, as well available at the CDC Web site at maintain momentum and expertise as other related filings required by the http://www.cdc.gov/nchstp/tb/ needed to avert another resurgence of Board, are available for immediate Federal_Register/default.htm as a pdf tuberculosis and to eliminate the inspection at the Federal Reserve Bank file. The Guidelines will be used by lingering threat to healthcare workers, indicated. The application also will be infection control staff, healthcare which is mainly from patients or others available for inspection at the offices of epidemiologists, healthcare with unsuspected and undiagnosed the Board of Governors. Interested administrators, facility managers, and infectious tuberculosis disease. Whereas persons may express their views in other persons responsible for previous Guidelines were aimed writing on the standards enumerated in developing, implementing, and primarily at hospital-based facilities, the the BHC Act (12 U.S.C. 1842(c)). If the evaluating infection-control programs 2005 CDC Guidelines have been proposal also involves the acquisition of for healthcare settings across the expanded to address a broader concept: a nonbanking company, the review also continuum of patient care. These health-care-associated settings go includes whether the acquisition of the Guidelines update the CDC Guidelines beyond the previously defined facilities.

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00031 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70458 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

CDC expects to publish final Guidelines that a proposed collection of Application for Participation in the in 2005. information has been submitted to the Medical Device Fellowship Program— Dated: November 24, 2004. Office of Management and Budget (OMB Control Number 0910–0551)— James D. Seligman, (OMB) for review and clearance under Extension the Paperwork Reduction Act of 1995. Associate Director for Program Services, DATES: Fax written comments on the Collecting applications for the Centers for Disease Control and Prevention Medical Device Fellowship Plan will (CDC). collection of information by January 5, 2005. allow FDA’s Center for Devices and [FR Doc. 04–26710 Filed 12–3–04; 8:45 am] Radiological Health (CDRH) to easily ADDRESSES: OMB is still experiencing BILLING CODE 4163–18–P and efficiently elicit and review significant delays in the regular mail, information from students and health including first class and express mail, care professionals who are interested in DEPARTMENT OF HEALTH AND and messenger deliveries are not being becoming involved in CDRH activities. HUMAN SERVICES accepted. To ensure that comments on The process will reduce the time and the information collection are received, Food and Drug Administration OMB recommends that comments be cost of submitting written documentation to the agency and lessen [Docket No. 2004N–0395] faxed to the Office of Information and Regulatory Affairs, OMB, Attn: Fumie the likelihood of applications being Agency Information Collection Yokota, Desk Officer for FDA, FAX: misrouted within the agency mail Activities; Submission for Office of 202–395–6974. system. It will assist the agency in promoting and protecting the public Management and Budget Review; FOR FURTHER INFORMATION CONTACT: health by encouraging outside persons Comment Request; Application for Peggy Robbins, Office of Management to share their expertise with CDRH. Participation in the Medical Device Programs (HFA–250), Food and Drug Fellowship Program Administration, 5600 Fishers Lane, In the Federal Register of September 20, 2004 (69 FR 56228), FDA published AGENCY: Food and Drug Administration, Rockville, MD 20857, 301–827–1223. SUPPLEMENTARY INFORMATION: In a 60–day notice requesting public HHS. comment on the information collection ACTION: Notice. compliance with 44 U.S.C. 3507, FDA has submitted the following proposed provisions. No comments were received. SUMMARY: The Food and Drug collection of information to OMB for FDA estimates the burden of this Administration (FDA) is announcing review and clearance. collection of information as follows:

TABLE 1–ESTIMATED ANNUAL REPORTING BURDEN1

No. of Annual Frequency Total Annual Hours per FDA Form No. Respondents per Response Responses Response Total Hours

FDA Form 3608 100 1 100 1 100 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

FDA based these estimates on the Dated: November 26, 2004. Center for Biologics Evaluation and number of inquiries that have been Jeffrey Shuren, Research (CBER). received about the program and requests Assistant Commissioner for Policy. DATES: Industry organizations interested for application forms over the past year. [FR Doc. 04–26672 Filed 12–3–04; 8:45 am] in participating in the selection of a We anticipate the number of interested BILLING CODE 4160–01–S nonvoting member to represent industry individuals and universities, and for the vacancy listed in this notice subsequent number of applications, to must send a letter to FDA by January 5, increase as we continue to develop an DEPARTMENT OF HEALTH AND 2005. outreach program and an alumni base. HUMAN SERVICES Concurrently, nomination materials for prospective candidates should be In addition, we would expect Food and Drug Administration applicants who are not selected for their sent to FDA by January 5, 2005. A preferred term of employment to Request for Nominations for a nominee may either be self-nominated reapply at a later date. For these reasons Nonvoting Member Representing or nominated by an organization to we would expect that the number of Industry Interests on a Public Advisory serve as a nonvoting industry representative. applications submitted in the second Committee and third years would increase ADDRESSES: All letters of interest and AGENCY: Food and Drug Administration, nominations should be sent to the substantially. During the first year, we HHS. expect to receive 100 applications. We contact person listed in the FOR FURTHER ACTION: believe that we will receive Notice. INFORMATION CONTACT section of this document. approximately 100 applications the SUMMARY: The Food and Drug second year and 100 applications the Administration (FDA) requests FOR FURTHER INFORMATION CONTACT: Gail third year. FDA believes it will take nominations for a nonvoting industry Dapolito, Division of Scientific Advisors individuals 1 hour to complete the representative to serve on the Cellular and Consultants (HFM–71), Food and application. This is based on similar Tissue and Gene Therapies Advisory Drug Administration, 1401 Rockville applications submitted to FDA. Committee (formerly the Biological Pike, Rockville, MD 20857–1448, 301– Response Modifiers Advisory 827–0314, e-mail: Committee) under the purview of the [email protected].

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00032 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70459

SUPPLEMENTARY INFORMATION: The biologics manufacturing industry may the Nation. The NHSC will pay the agency requests nominations for a no- nominate one or more individuals to salaries, moving expenses and benefits voting industry representative to the serve as nonvoting industry for these commissioned officers. advisory committee identified below. representatives. A current curriculum These officers will be part of a mobile vitae (which includes the nominee’s cadre of health care professionals who, I. Function business address, telephone number, in addition to the services they will The Cellular, Tissue and Gene and e-mail address) and the name of the provide to patients at their assigned Therapies Advisory Committee committee of interest should be sent to sites, may be called upon to respond to (formerly the Biological Response FDA contact person. FDA will forward regional and/or national emergencies. Modifiers Advisory Committee) reviews all nominations to the organizations that The NHSC will assist the officers in and evaluates available data relating to have expressed interest in participating acquiring, maintaining and enhancing the safety, effectiveness, and in the selection process for that emergency response skills. Their initial appropriate use of human cells, human committee. assignments will be up to three years in tissues, gene transfer therapies and FDA has a special interest in ensuring duration, after which, should these xenotransplantation products which are that women, minority groups, clinicians choose to stay in the U.S. intended for transplantation, individuals with physical disabilities, Public Health Service, they will implantation, infusion and transfer in and small businesses are adequately progress to new assignments. the prevention and treatment of a broad represented on its advisory committees. Eligible Applicants spectrum of human diseases and in the Therefore, the agency encourages reconstruction, repair or replacement of nominations for appropriately qualified Clinicians—Applicants must file a tissues for various conditions. The candidates from these groups. U.S. Public Health Service committee also considers the quality This notice is issued under the Commissioned Corps application and and relevance of FDA’s research Federal Advisory Committee Act (5 meet the requirements for such program which provides scientific U.S.C. app. 2) and 21 CFR part 14, commissioning. For example, all support for the regulation of these relating to advisory committees. clinicians must be U.S. citizens under products, and makes appropriate 44 years of age (age may be offset by Dated: November 29, 2004. recommendations to the Commissioner prior active duty Uniformed Service of Food and Drugs. Sheila Dearybury Walcoff, time and/or civil service work Associate Commissioner for External II. Selection Procedure experience in a Public Health Service Relations. (PHS) agency at a PHS site at a level Any organization in the biologics [FR Doc. 04–26673 Filed 12–3–04; 8:45 am] commensurate with the duties of a manufacturing industry wishing to BILLING CODE 4160–01–S commissioned officer), and have served participate in the selection of a less than 8 years of active duty if the nonvoting member to represent industry clinician is/was a member of another on the Cellular, Tissue and Gene DEPARTMENT OF HEALTH AND Uniformed Service. Also, applicants Therapies Advisory Committee HUMAN SERVICES must meet medical requirements, and (formerly the Biological Response pass an initial suitability investigation. Modifiers Advisory Committee) should Health Resources and Services Administration In addition, prior to the start of their send a letter stating that interest to FDA assignment at an NHSC site, these contact identified above within 30 days Recruitment of Clinicians To Become clinicians must meet the following of publication of this notice. Persons Commissioned Officers; Recruitment requirements: who nominate themselves as an of Sites for Assignment of (1) Physicians must have completed a industry representative for the advisory Commissioned Officers residency in Family Practice, Internal committee will not participate in the Medicine, combined Internal Medicine selection process. It is, therefore, AGENCY: Health Resources and Services and Pediatrics, General Psychiatry or recommended that nominations be Administration (HRSA), HHS. Obstetrics and Gynecology and be a made by someone within an ACTION: General notice. diplomate of their respective Allopathic organization, trade association, or firm or Osteopathic Specialty Boards; who is willing to participate in the SUMMARY: The Health Resources and (2) Family Nurse Practitioners must selection process. Within the Services Administration (HRSA) have national certification by the subsequent 30 days, FDA will send a announces that applications will be American Nurses Credentialing Center letter to each organization and a list of accepted from clinicians seeking to be or the American Academy of Nurse all nominees along with their resumes. hired as commissioned officers in the Practitioners; The letter will state that the interested U.S. Public Health Service and from (3) Physician Assistants must have organizations are responsible for sites seeking the assistance of these national certification by the National conferring with one another to select a commissioned officers. These Commission on Certification of candidate, within 60 days after commissioned officers will be primary Physician Assistants; receiving the letter, to serve as the care clinicians who are physicians, (4) Clinical Psychologists must have a nonvoting member representing dentists, family nurse practitioners, doctoral degree in clinical psychology, industry interests on the advisory physician assistants, clinical have a minimum of 1 year of committee. If no individual is selected psychologists, clinical social workers postgraduate supervised clinical within the 60 days, the Commissioner of and registered nurses (baccalaureate experience, have passed the Food and Drugs may select the level) and will be considered for Examination for Professional Practice in nonvoting member to represent industry placement in ambulatory community- Psychology, and be able to practice interests. based systems of care. These officers independently and unsupervised as a will be assigned by the National Health clinical psychologist; III. Application Procedure Service Corps (NHSC) Ready Responder (5) Clinical Social Workers must have Individuals may nominate themselves Program to the neediest Health a masters degree in social work, have or an organization representing the Professional Shortage Areas throughout passed the Association of Social Work

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00033 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70460 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

Board’s (ASWB) Clinical or Advanced after the deadline date or sent to a 2004–0015, by one of the following licensing exam prior to July 1, 1998 or different address will be returned to the methods: the ASWB Clinical exam on or after July applicant and not considered. • EPA Federal Partner EDOCKET 1, 1998, and be able to practice Sites—Completed applications must Web Site: http://www.epa.gov/ independently and unsupervised as a be postmarked or delivered to the NHSC feddocket. Follow instructions for clinical social worker; and by no later than September 30, 2005. submitting comments on the Web site. (6) All clinicians must possess a Site applications will be evaluated as DHS has joined the Environmental current, unrestricted, and valid license soon as they are received at NHSC Protection Agency (EPA) online public to practice their health profession in at headquarters. Sites will be deemed docket and comment system on its least one of the 50 States, Washington, qualified based on the quality of the Partner Electronic Docket System DC, the Commonwealth of Puerto Rico, application submitted and the score of (Partner EDOCKET). DHS and its the U.S. Virgin Islands, or Guam. the HPSA in which they are located. component agencies (excluding the Sites—Applicants must be located in Preference will be given to NHSC- United States Coast Guard and a Health Professional Shortage Area approved sites in HPSAs with higher Transportation Security Administration) (HPSA) and submit a Proposal for Use scores (the neediest HPSAs). Officers will use the EPA Partner EDOCKET of a Commissioned Officer 2005. will be assigned to qualified sites on an system. The USCG and TSA (legacy Applicants must also submit a ongoing basis. Sites are encouraged to Department of Transportation (DOT) Recruitment and Retention Assistance apply early so as to have a better chance agencies) will continue to use the DOT Application, if not yet approved as an of acquiring one of the commissioned Docket Management System until full NHSC site. Sites applying for a officers. The number of qualified sites is migration to the electronic rulemaking physician, family nurse practitioner, expected to exceed the limited supply of federal docket management system in physician assistant or registered nurse commissioned officers. Completed site 2005. must be located in a primary medical applications should be mailed or • Federal eRulemaking Portal: http:// care HPSA; sites applying for a dentist delivered to: National Health Service www.regulations.gov. Follow the must be located in a dental HPSA; and Corps, Effectiveness and Preparedness instructions for submitting comments. sites applying for a psychiatrist, a Unit, Parklawn Building, Room 8A–55, • Fax: 202–772–5036 (This is not a clinical psychologist, or a clinical social 5600 Fishers Lane, Rockville, MD toll-free number). worker must be located in a mental 20857. Applications delivered or • Mail: Department of Homeland health HPSA. All sites to which NHSC postmarked after the deadline date or Security, Attn: Privacy Office/Nuala clinicians are assigned must accept sent to a different address will be O’Connor Kelly, Chief Privacy Officer/ assignment under Medicare, have returned to the applicant and not 202–772–9848, Washington, DC 20528. appropriate agreements with the considered. • Hand Delivery/Courier: Department applicable State entity to participate in Dated: November 24, 2004. of Homeland Security, Attn: Privacy Medicaid and the State Children’s Office/Nuala O’Connor Kelly, Chief Elizabeth M. Duke, Health Insurance Program, see all Privacy Officer/202–772–9848, patients regardless of their ability to Administrator. Anacostia Naval Annex, 245 Murray pay, and use and post a discounted fee [FR Doc. 04–26674 Filed 12–3–04; 8:45 am] Lane, SW., Building 410, Washington, plan. Sites must also understand and BILLING CODE 4165–15–P DC 20528, 7:30 a.m. to 4 p.m. accept that these officers will Instructions: All submissions received periodically be away from their assigned must include the agency name and locations as they train for, or respond to, DEPARTMENT OF HOMELAND docket number for this notice. All a regional and/or national health SECURITY comments received will be posted emergency. without change to http://www.epa.gov/ Application Requests, Dates and Office of the Secretary feddocket, including any personal Addresses [DHS–2004–0015] information provided. Application materials are available for Docket: For access to the docket to downloading via the Web at http:// Privacy Act of 1974; Systems of read background documents or nhsc.bhpr.hrsa.gov or by calling the Records comments received, go to http:// www.epa.gov/feddocket. You may also National Health Service Corps ‘‘Call AGENCY: Privacy Office, DHS. Center’’ at 1–800–221–9393. access the Federal eRulemaking Portal Clinicians—The original of the ACTION: Notice of Privacy Act systems of at http://www.regulations.gov. completed application must be mailed records. FOR FURTHER INFORMATION CONTACT: Nuala O’Connor Kelly, DHS Chief or delivered no later than September 30, SUMMARY: In accordance with the 2005 to: Office of Commissioned Corps Privacy Officer, Department of Privacy Act of 1974, the Department of Homeland Security, Washington, DC Operations, ATTN: Division of Homeland Security is giving notice that Commissioned Corps Assignments, 20528 by telephone 202–772–9848 or it proposes to add three systems of facsimile 202–772–5036. 1101 Wootton Parkway, Suite 100, records to its inventory of record Rockville, Maryland 20852. A copy of systems. The systems of records are: (1) SUPPLEMENTARY INFORMATION: The the completed application must be The Freedom of Information Act and Department of Homeland Security postmarked or delivered no later than Privacy Act System; (2) the DHS Mailing (DHS) is establishing two new September 30, 2005 to: HRSA and Other Lists System; and (3) the Civil department-wide systems of records and Commissioned Corps Operations Office, Rights and Civil Liberties Matters one new system of records within DHS Parklawn Building, Room 14A–12, 5600 System. headquarters under the Privacy Act of Fishers Lane, Rockville, MD 20857. 1974 (5 U.S.C. 552a). These systems of Clinicians are encouraged to submit an DATES: Comments must be received on records are part of DHS’s ongoing application early, as applications will be or before January 5, 2005. integration and management efforts. considered as soon as they are received. ADDRESSES: You may submit comments, The Privacy Act embodies fair Applications delivered or postmarked identified by Docket Number DHS– information principles in a statutory

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00034 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70461

framework governing the means by In accordance with 5 U.S.C. 552a(r), PURPOSE(S): which the United States Government DHS has provided a report of these new The system is maintained for the collects, maintains, uses and systems of records to the Office of purpose of processing records requests disseminates personally identifiable Management and Budget (OMB) and to and administrative appeals under the information. The Privacy Act applies to the Congress. FOIA as well as access and amendment information that is maintained in a requests and appeals under the PA; for DHS/ALL 001 ‘‘system of records.’’ A ‘‘system of the purpose of participating in litigation records’’ is a group of any records under SYSTEM NAME: arising from such requests and appeals; the control of an agency from which Department of Homeland Security and for the purpose of assisting DHS in information is retrieved by the name of (DHS) Freedom of Information Act carrying out any other responsibilities the individual or by some identifying (FOIA) and Privacy Act (PA) Record under the FOIA or the PA. number, symbol, or other identifying System. particular assigned to the individual. ROUTINE USES OF THESE RECORDS MAINTAINED Individuals may request their own SECURITY CLASSIFICATION: IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND THE PURPOSES OF SUCH USES: records that are maintained in a system Classified, sensitive. of records in the possession or under the In addition to those disclosures SYSTEM LOCATION: control of DHS by complying with DHS generally permitted under 5 U.S.C. Privacy Act regulations, 6 CFR Part 5. This system of records is located in 552a(b) of the Privacy Act, all or a The Homeland Security Act of 2002, the DHS Privacy Office, Washington, DC portion of the records or information Public Law 107–296, section 222, 116 20528, as well as in the component contained in this system may be Stat. 2135, 2155 (Nov. 25, 2002) (HSA), FOIA/PA offices listed in ‘‘System disclosed outside DHS as a routine use requires the Secretary of DHS to appoint Managers,’’ below. pursuant to 5 U.S.C. 552a(b)(3) as follows: a senior official to oversee CATEGORIES OF INDIVIDUALS COVERED BY THE implementation of the Privacy Act and SYSTEM: (1) Where a record, either on its face or in conjunction with other to undertake other privacy-related Individuals who submit FOIA and/or information, indicates a violation or activities. The systems of records being PA requests to DHS; individuals who potential violation of law (i.e., criminal, published today help to carry out the appeal DHS denial of their FOIA/PA civil or regulatory), the relevant records DHS Chief Privacy Officer’s statutory requests; individuals whose requests, may be referred to an appropriate activities. appeals, and/or records have been Federal, state, territorial, tribal, local, The Privacy Act requires each agency referred to DHS by other agencies; and, international, or foreign law to publish in the Federal Register a in some instances, attorneys or other enforcement agency or other appropriate description denoting the type and persons representing individuals authority charged with investigating or character of each system of records that submitting such requests and appeals, prosecuting such a violation or the agency maintains, and the routine individuals who are the subjects of such enforcing or implementing such law. uses that are contained in each system requests, and/or DHS personnel (2) To contractors, grantees, experts, in order to make agency recordkeeping assigned to handle such requests or consultants, students, and others practices transparent, to notify appeals. individuals regarding the uses to which performing or working on a contract, personally identifiable information is CATEGORIES OF RECORDS IN THE SYSTEM: service, grant, cooperative agreement, or put, and to assist the individual to more Records received, created, or other assignment for the Federal easily find such files within the Agency. compiled in response to FOIA/PA government, when necessary to DHS is here publishing the requests or appeals, including: the accomplish an agency function related descriptions of three systems of records. original requests and administrative to this system of records. Two Department-wide systems cover appeals; intra- or inter-agency (3) To a Federal, state, territorial, records kept by all component agencies memoranda, correspondence, notes and tribal, local, international, or foreign within DHS as well as DHS other documentation related to the agency or entity for the purpose of Headquarters relating to the processing processing of the FOIA/PA request; consulting with that agency or entity (a) of Freedom of Information Act and correspondence with the individuals or to assist in making a determination Privacy Act requests, and mailing and entities that submitted the requested regarding access to or amendment of other lists used within DHS for records and copies of the requested information, or (b) for the purpose of administrative and outreach purposes. records, including when those records verifying the identity of an individual or The other system covers DHS records might contain confidential business the accuracy of information submitted that pertain to civil rights and civil information or personal information. by an individual who has requested liberties complaints submitted to the Types of information in the records may access to or amendment of information. DHS Office of Civil Rights and Civil include: Requesters’ and their attorneys’ (4) To a federal agency or entity that Liberties (CRCL). Section 705 of the or representatives’ names, addresses, furnished the record or information for HSA, 116 Stat. at 2220–21, requires the telephone numbers, and FOIA case the purpose of permitting that agency or DHS Officer for Civil Rights and Civil numbers; names, office telephone entity to make a decision regarding Liberties, who is appointed by the numbers, and office routing symbols of access to or correction of the record or Secretary, to review and assess DHS employees; and names, telephone information, or to a federal agency or information alleging abuses of civil numbers, and addresses of the submitter entity for purposes of providing rights, civil liberties, and racial and of the information requested. The guidance or advice regarding the ethnic profiling by employees and system also contains copies of all handling of particular requests. officials of the Department and to documents relevant to appeals and (5) To the Department of Justice or submit a report on these activities. The lawsuits under FOIA and the PA. other federal agency conducting CRCL system of records will maintain litigation or in proceedings before any the records that are created and AUTHORITY FOR MAINTENANCE OF THE SYSTEM: court, adjudicative or administrative obtained in order to carry out this 5 U.S.C. 301, 552, 552a; 44 U.S.C. body, when: (a) DHS, or (b) any statutory mandate. 3101; E.O. 12958, as amended. employee of DHS in his/her official

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00035 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70462 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

capacity, or (c) any employee of DHS in to-know, using locks, and password Under Secretary for Science & Technology, his/her individual capacity where DOJ protection identification features. FOIA Officer/PA System Manager, or DHS has agreed to represent the Classified information is appropriately Washington, DC 20528 employee, or (d) the United States or stored in accordance with applicable Under Secretary for Information Analysis and requirements. DHS file areas are locked Infrastructure Protection, FOIA Officer/PA any agency thereof, is a party to the System Manager, Washington, DC 20528 litigation or has an interest in such after normal duty hours and the Under Secretary for Management, FOIA litigation. facilities are protected from the outside Officer/PA System Manager, 7th and D (6) To a congressional office from the by security personnel. Streets, SW., Room 4082, Washington, DC record of an individual in response to 20472 RETENTION AND DISPOSAL: an inquiry from that congressional office Office of Inspector General, Records made at the request of the individual to Records are retained and disposed of Management Officer, Washington, DC whom the record pertains. in accordance with the National 20528 (7) To the National Archives and Archives and Records Administration’s NOTIFICATION PROCEDURE: Records Administration or other Federal General Records Schedule 14. Files may government agencies pursuant to be retained for up to six years. For To determine whether this system records management inspections being requests that result in litigation, the files contains records relating to you, write to conducted under the authority of 44 related to that litigation will be retained the appropriate System Manager(s) U.S.C. 2904 and 2906. for three years after final court identified above. (8) To the Department of Justice, adjudication. RECORD ACCESS PROCEDURES: including the United States Attorney’s SYSTEM MANAGER(S) AND ADDRESSES: Offices, or a consumer reporting agency I. For Headquarters components of the A request for access to records in this for further collection action on any Department of Homeland Security, the system may be made by writing to the delinquent debt when circumstances System Manager is the Director of System Manager, identified above, in warrant. Departmental Disclosure, U.S. conformance with 6 CFR Part 5, Subpart (9) To the Office of Management and Department of Homeland Security, B, which provides the rules for Budget or the Department of Justice to Washington, DC 20528. requesting access to Privacy Act records obtain advice regarding statutory and II. For operational components that maintained by DHS. other requirements under the Freedom comprise the U.S. Department of CONTESTING RECORD PROCEDURES: of Information Act or the Privacy Act of Homeland Security, the System 1974. Managers are as follows: Same as ‘‘Record Access Procedures,’’ above. DISCLOSURE TO CONSUMER REPORTING United States Coast Guard, FOIA Officer/PA AGENCIES: System Manager, Commandant, CG–611, U.S. Coast Guard, 2100 2nd Street, SW., RECORD SOURCE CATEGORIES: Privacy Act information may be Washington, DC 20593–0001 Information contained in this system reported to consumer reporting agencies United States Secret Service, FOIA Officer/ is obtained from those individuals who pursuant to 5 U.S.C. 552a(b)(12). PA System Manager Suite 3000, 950 H Street, NW., Washington, DC 20223 submit requests and administrative POLICIES AND PRACTICES FOR STORING, United States Citizenship and Immigration appeals pursuant to the FOIA and the RETRIEVING, ACCESSING, RETAINING, AND Services, ATTN: Records Services Branch PA; the agency records searched and DISPOSING OF RECORDS IN THE SYSTEM: (FOIA/PA), 111 Massachusetts Avenue, identified as responsive in the process STORAGE: NW., 2nd Floor, Washington, DC 20529 of responding to such requests and Under Secretary for Emergency Preparedness appeals; Departmental personnel Records in this system are stored on and Response (includes Federal Emergency assigned to handle such requests and paper and/or in digital or other Management Agency), FOIA Officer/PA appeals; other agencies or entities that electronic form. Digital and other System Manager, 500 C Street, SW., Room have referred to DHS requests electronic images are stored on a storage 840, Washington, DC 20472 concerning DHS records, or that have area network in a secured environment. Under Secretary for Border and Transportation Security, Department of consulted with DHS regarding handling RETRIEVABILITY: Homeland Security, C/o Departmental of particular requests; and submitters or Records are retrieved by the name, Disclosure Officer, Privacy Office, subjects of records or information that Washington, DC 20528 unique case identifier, social security have provided assistance to DHS in United States Customs and Border making access or amendment number, or alien identification number Protection, FOIA Officer/PA System of the requester/appellant or the Manager, Disclosure Law Branch, Office of determinations. attorney or other individual Regulations & Rulings, Ronald Reagan EXEMPTIONS CLAIMED FOR THE SYSTEM: representing the requester, or other Building, 1300 Pennsylvania Avenue, NW identifier assigned to the request or (Mint Annex)., Washington, DC 20229 Portions of this system are exempt appeal. United States Immigration and Customs under 5 U.S.C. 552a(j)(2), (k)(1), (k)(2) Enforcement, FOIA Officer/PA System and (k)(5). When DHS is processing SAFEGUARDS: Manager, Office of Investigation, Chester Privacy Act and/or FOIA requests, Arthur Building (CAB), 425 I Street, NW., Information in this system is Room 4038, Washington, DC 20538 responding to appeals, or participating safeguarded in accordance with Transportation Security Administration, in FOIA or Privacy Act litigation, applicable laws, rules and policies, FOIA Officer/PA System Manager, Office exempt materials from other systems of including the DHS Information of Security, West Building, 4th Floor, records may become part of the records Technology Security Program Room 432–N, TSA–20, 601 South 12th in this system. To the extent that copies Handbook. All records are protected Street, Arlington, VA 22202–4220 of exempt records from other systems of from unauthorized access through Federal Protective Service, FOIA Officer/PA records are entered into this system, System Manager, 1800 F Street, NW., Suite appropriate administrative, physical, 2341, Washington, DC 20405 DHS hereby claims the same and technical safeguards. These Federal Law Enforcement Training Center, exemptions for those records that are safeguards include restricting access to Disclosure Officer, 1131 Chapel Crossing claimed for the original primary systems authorized personnel who have a need- Road, Building 94, Glynco, GA 31524 of records from which they originated.

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00036 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70463

DHS/ALL 002 ROUTINE USES OF THESE RECORDS MAINTAINED file areas are locked after normal duty IN THE SYSTEM, INCLUDING CATEGORIES OF hours and the facilities are protected SYSTEM NAME: USERS AND THE PURPOSES OF SUCH USES: from the outside by security personnel. DHS Mailing and Other Lists System In addition to those disclosures RETENTION AND DISPOSAL: SECURITY CLASSIFICATION: generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a Some records are retained and Sensitive portion of the records or information disposed of in accordance with the SYSTEM LOCATION: contained in this system may be National Archives and Records This system of records is located in disclosed outside DHS as a routine use Administration’s General Records the Department of Homeland Security, pursuant to 5 U.S.C. 552a(b)(3) as Schedule 12 (Communications Records). Washington, DC 20528, as well as in the follows: Other records are retained and disposed component DHS offices listed in (1) To DHS employees, contractors, of in accordance with General Records ‘‘System Managers,’’ below. consultants or others, when necessary to Schedule 1. Files may be retained for up perform a function or service related to to three years or less depending on the CATEGORIES OF INDIVIDUALS COVERED BY THE this system of records for which they record. For records that may be used in SYSTEM: have been engaged. Such recipients are litigation, the files related to that All persons appearing on mailing lists required to comply with the Privacy litigation will be retained for three years maintained throughout DHS to facilitate Act, 5 U.S.C. 552a, as amended. after final court adjudication. mailings to multiple addressees and (2) To a congressional office from the other activities in furtherance of DHS record of an individual in response to SYSTEM MANAGER(S) AND ADDRESSES: duties. These lists include: Persons who an inquiry from that congressional office I. For Headquarters components of the have requested DHS material; members made at the request of the individual to Department of Homeland Security, the of the news media; DHS employees and whom the record pertains. System Manager is the Director of the individual(s) they list as emergency (3) To the National Archives and Departmental Disclosure, U.S. contacts, former employees, persons Records Administration or other federal Department of Homeland Security, who serve on DHS boards and government agencies pursuant to Washington, DC 20528. committees and other individuals records management inspections being II. For operational components that having business with DHS who have conducted under the authority of 44 comprise the U.S. Department of provided contact information; U.S.C. 2904 and 2906. Homeland Security, the System individuals who enter contests (4) To the Department of Justice, Managers are as follows: sponsored by DHS; contractors or other United States Attorney’s Office, or a United States Coast Guard, FOIA individuals who work or attend consumer reporting agency for further Officer/PA System Manager, meetings at DHS; and other persons collection action on any delinquent debt Commandant, CG–611, U.S. Coast with an interest in DHS programs, when circumstances warrant. Guard, 2100 2nd Street, SW., contests, exhibits, conferences, training Washington, DC 20593–0001. courses, and similar events. DISCLOSURE TO CONSUMER REPORTING AGENCIES: United States Secret Service, FOIA/PA CATEGORIES OF RECORDS IN THE SYSTEM: System Manager, Suite 3000, 950 H None. Street, NW., Washington, DC 20223. Names, age, school grade, school POLICIES AND PRACTICES FOR STORING, Under Secretary for Emergency name, home telephone numbers, RETRIEVING, ACCESSING, RETAINING, AND Preparedness and Response (includes cellular phone numbers, pager numbers, DISPOSING OF RECORDS IN THE SYSTEM: Federal Emergency Management numbers where individuals can be STORAGE: Agency), FOIA/PA System Manager, reached while on travel or otherwise 500 C Street, SW., Room 840, Records in this system are on paper away from the office, home addresses, Washington, DC 20472. electronic mail addresses, names and and/or in digital or other electronic Under Secretary for Border and phone numbers of family members or form. Digital and other electronic Transportation Security, Department other contacts, position/title, business images are stored on a storage area of Homeland Security, c/o affiliation (where appropriate); and network in a secured environment. Departmental Disclosure Officer, other contact information provided to RETRIEVABILITY: Privacy Office, Washington, DC the Department by individuals covered 20528. by this system of records or derived Information typically will be retrieved United States Citizenship and from other sources. by an identification number assigned by computer, by e-mail address, or by name Immigration Services, U.S. AUTHORITY FOR MAINTENANCE OF THE SYSTEM: of an individual. Citizenship and Immigration Services, 5 U.S.C. 301; 44 U.S.C. 3101. ATTN: Records Services Branch SAFEGUARDS: (FOIA/PA), 111 Massachusetts Ave, PURPOSE(S): Information in this system is NW., 2nd Floor, Washington, DC The system is maintained for the safeguarded in accordance with 20529. purpose of mailing informational applicable laws, rules and policies, Bureau of Customs and Border literature to those who request it; including the DHS Information Protection, FOIA/PA System Manager, maintaining lists of individuals who Technology Security Program Disclosure Law Branch, Office of attend meetings; maintaining contact Handbook. All records are protected Regulations & Rulings, Ronald Reagan and emergency contact information for from unauthorized access through Building, 1300 Pennsylvania Avenue, DHS employees and contractors appropriate administrative, physical, NW., (Mint Annex) Washington, DC working on site at DHS; maintaining and technical safeguards. These 20229. information regarding individuals who safeguards include restricting access to Bureau of Immigration and Customs enter contests sponsored by DHS; and authorized personnel who have a need- Enforcement, FOIA/PA System for other purposes for which mailing or to-know, using locks, and password Manager, Office of Investigation, contact lists may be created. protection identification features. DHS Chester Arthur Building (CAB), 425 I

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00037 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70464 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

Street, NW., Room 4038, Washington, or to allege racial or ethnic profiling by (2) Where a record, either on its face DC 20538 DHS, its employees, contractors, or in conjunction with other Transportation Security Administration, grantees, or others acting under the information, indicates a violation or FOIA/PA System Manager, Office of authority of the Department; persons potential violation of law (i.e. criminal, Security, West Building, 4th Floor, alleged to be involved in civil rights or civil or regulatory) the relevant records Room 432–N, TSA–20, 601 South civil liberties abuses or racial or ethnic may be referred to an appropriate 12th Street, Arlington, VA 22202– profiling, victims or witnesses to such Federal, state, territorial, tribal, local, 4220 abuse; third parties not directly international, or foreign agency law Federal Protective Service, FOIA/PA involved in the alleged incident, but enforcement agency or other appropriate System Manager, 1800 F Street, NW., identified as relevant persons to an authority charged with investigating or Suite 2341, Washington, DC 20405 investigation; and DHS employees and prosecuting such a violation or Federal Law Enforcement Training contractors. enforcing or implementing such law; Center, Disclosure Officer, 1131 Identifying data contained in this (3) To an organization or individual in Chapel Crossing Road, Building 94, information may include, but is not either the public or private sector, either Glynco, GA 31524 limited to: The name of persons making foreign or domestic, where there is a Under Secretary for Science & a report; home or work address, reason to believe that the recipient is or Technology, FOIA/PA System telephone number, e-mail address; could become the target of a particular Manager, Washington, DC 20528 social security number; alien terrorist activity or conspiracy, to the Under Secretary for Information registration number; and other unique extent the information is relevant to the Analysis and Infrastructure identifiers assigned to the information. protection of life or property; Protection, Nebraska Avenue (4) To a congressional office from the Complex, Building 19, 3rd floor, CATEGORIES OF RECORDS IN THE SYSTEM: record of an individual in response to Washington, DC 20528 Records in this system consist of an inquiry from that congressional office Office of Inspector General, Records complaints, comments, investigative made at the request of the individual to Management Officer, Washington, DC notes and memoranda, correspondence, whom the record pertains; 20528 evidentiary documents and material, (5) To a former employee of the and reports relating to the resolution of Department for purposes of: responding NOTIFICATION PROCEDURE: complaints. The system also contains to an official inquiry by a federal, state, To determine whether this system similar information relating to or local government entity or contains records relating to you, write to witnesses, persons involved in the professional licensing authority, in the appropriate System Manager(s) alleged incident or other persons with accordance with applicable Department identified above. relevant information. regulations; or facilitating communications with a former RECORD ACCESS PROCEDURES: AUTHORITY FOR MAINTENANCE OF THE SYSTEM: employee that may be necessary for A request for access to records in this 6 U.S.C. 345; 44 U.S.C. 3101. personnel-related or other official system may be made by writing to the purposes where the Department requires System Manager, identified above, in PURPOSE(S): information and/or consultation conformance with 6 CFR Part 5, Subpart The purpose of this system is to allow assistance from the former employee B, which provides the rules for the Officer for Civil Rights and Civil regarding a matter within that person’s requesting access to Privacy Act records Liberties and staff to maintain relevant former area of responsibility; maintained by DHS. information necessary to review (6) To contractors, grantees, experts, consultants, students, and others CONTESTING RECORD PROCEDURES: complaints or comments about alleged civil rights or civil liberties violations, performing or working on a contract, Same as ‘‘Record Access Procedures,’’ or racial or ethnic profiling tied to the service, grant, cooperative agreement, or above. Department’s activities. The system will other assignment for the Federal RECORD SOURCE CATEGORIES: also track and maintain investigative government, when necessary to Information contained in this system files and records of complaint resolution accomplish an agency function related is obtained from affected individuals/ and other matters, and facilitate to this system of records; (7) To the National Archives and organizations, public source data, other oversight and accountability of the Records Administration, or other federal government agencies and/or information Department’s civil rights and civil government agencies pursuant to already in other DHS records systems. liberties complaint resolution mechanisms. records management operations EXEMPTIONS CLAIMED FOR THE SYSTEM: conducted under the authority of 44 None. ROUTINE USES OF THESE RECORDS MAINTAINED U.S.C. 2904 and 2906; IN THE SYSTEM, INCLUDING CATEGORIES OF (8) To the Department of Justice or DHS/CRCL 001 USERS AND THE PURPOSES OF SUCH USES: other federal agency conducting In addition to those disclosures litigation or in proceedings before any SYSTEM NAME: generally permitted under 5 U.S.C. court, adjudicative or administrative Civil Rights and Civil Liberties 552a(b) of the Privacy Act, all or a body, when (a) DHS, or (b) any (CRCL) Matters portion of the records or information employee of DHS in his/her official SYSTEM LOCATION: contained in this system may be capacity, or (c) any employee of DHS in Office of Civil Rights and Civil disclosed outside DHS as a routine use his/her individual capacity where DOJ Liberties, Department of Homeland pursuant to 5 U.S.C. 552a(b)(3) as or DHS has agreed to represent the Security (DHS), Washington, DC 20528. follows: employee, or (d) the United States or (1) To another federal agency with any agency thereof, is a party to the CATEGORIES OF INDIVIDUALS COVERED BY THE responsibility for labor or employment litigation or has an interest in such SYSTEM: relations or other matters, when that litigation, and DHS determines that Persons who contact CRCL to allege agency has jurisdiction over matters disclosure is relevant and necessary to abuses of civil rights and civil liberties, reported to CRCL; the litigation.

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00038 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70465

POLICIES AND PRACTICES FOR STORING, national security activities may be Form Numbers: FEMA Form 22–13, RETRIEVING, ACCESSING, RETAINING, AND exempt from disclosure pursuant to 5 Debt Collection Financial Statement. DISPOSING OF RECORDS IN THE SYSTEM: U.S.C. 552a(k)(1), (k)(2) and (k)(5). Abstract: FEMA may request debtors STORAGE: Dated: December 1, 2004. to provide personal financial information on FEMA Form 22–13 These records are stored in an Nuala O’Connor Kelly, electronic database or paper media and concerning their current financial Chief Privacy Officer. position. With this information, FEMA may include physical objects as [FR Doc. 04–26744 Filed 12–3–04; 8:45 am] exhibits. evaluates whether to allow debtors to BILLING CODE 4410–10–P pay the FEMA debts under installment RETRIEVABILITY: repayment agreements and if so, under Information may be retrieved by what terms. FEMA also uses this data to DEPARTMENT OF HOMELAND name, incident code, unique personal determine whether to compromise, SECURITY identifier, or other identifying data. suspend, or completely terminate collection efforts on respondent’s debts. SAFEGUARDS: Federal Emergency Management Agency This data is also used to locate the Records are stored in a secure, debtor’s assets if the debts are sent for guarded, facility, at which a badge must Agency Information Collection judicial enforcement. be shown to enter. The storage area is Activities: Proposed Collection; Affected Public: Individuals or locked when not attended by CRCL Comment Request Households. personnel. Electronic records are Estimated Total Annual Burden maintained in accordance with DHS AGENCY: Federal Emergency Hours: 225 hours. security policies contained in the DHS Management Agency, Emergency Estimated Costs: The annualized cost Information Technology Security Preparedness and Response Directorate, for this information collection is $5100, Program Handbook and the DHS Department of Homeland Security. based on 300 respondents spending 45 Sensitive Systems Handbook. Electronic ACTION: Notice and request for minutes (.75 hours) per form at an records are password-protected and can comments. average hourly rate of $22.27 per 2003 only be accessed from a DHS work Department of Labor’s National station. All CRCL personnel are briefed SUMMARY: The Federal Emergency Employment, Hours, and Earnings prior to gaining initial access and Management Agency (FEMA), as part of Tables. annually thereafter. its continuing effort to reduce Comments: Written comments are paperwork and respondent burden, solicited to (a) evaluate whether the RETENTION AND DISPOSAL: invites the general public and other proposed data collection is necessary for These records are governed by Federal agencies to take this the proper performance of the agency, General Records Schedule 1, Item 25 opportunity to comment on a proposed including whether the information shall and will be retained and disposed of in continuing information collection. In have practical utility; (b) evaluate the accordance with that schedule. accordance with the Paperwork accuracy of the agency’s estimate of the SYSTEM MANAGER(S) AND ADDRESS: Reduction Act of 1995 (44 U.S.C. burden of the proposed collection of information, including the validity of Officer for Civil Rights and Civil 3506(c)(2)(A)), this notice seeks the methodology and assumptions used; Liberties, U.S. Department of Homeland comments concerning FEMA’s Debt (c) enhance the quality, utility, and Security, Washington, DC 20528. Collection Financial Statement, which requests personal financial data from clarity of the information to be NOTIFICATION PROCEDURE: individual debtors. collected; and (d) minimize the burden Address inquiries to the System SUPPLEMENTARY INFORMATION: Under of the collection of information on those Manager named above. FEMA’s debt collection regulations, 44 who are to respond, including through CFR 11.36(b), FEMA is required to the use of appropriate automated, RECORD ACCESS PROCEDURE: maintain current credit data on FEMA’s electronic, mechanical, or other A request for access to records in this debtors including, the individual technological collection techniques or system may be made by writing to the debtor’s own financial statement, other forms of information technology, System Manager, identified above, in executed under penalty for false claim, e.g., permitting electronic submission of conformance with 6 CFR Part 5, Subpart concerning his/her assets and liabilities responses. Comments should be B, which provides the rules for and his/her income and expenses. received within 60 days of the date of requesting access to Privacy Act records FEMA Form 22–13, Debt Collection this notice. maintained by DHS. Financial Statement, collects such data ADDRESSES: Interested persons should submit written comments to Muriel B. CONTESTING RECORD PROCEDURE: directly from the individual debtor. FEMA uses this data to understand the Anderson, Chief, Records Management Same as ‘‘Records access procedure.’’ debtor’s financial condition and locate Section, Information Resources RECORD SOURCE CATEGORIES: their assets to accurately determine a Management Branch, Information Information in this system of records debtor’s ability to pay debts or to set Technology Services Division, Federal is obtained from correspondence, arrangements for installment payments Emergency Management Agency, telephone calls, e-mails, facsimiles, or of debts. Emergency Preparedness and Response Directorate, Department of Homeland other means of reporting allegations of Collection of Information civil rights or civil liberties abuses, or Security, 500 C Street, SW., Room 316, racial or ethnic profiling. Title: Debt Collection Financial Washington, DC 20472. Statement. FOR FURTHER INFORMATION CONTACT: EXEMPTIONS CLAIMED FOR THE SYSTEM: Type of Information Collection: Contact Michael H. Komack, Systems Certain portions of CRCL’s files Revision of a currently approved Accountant, FEMA, Financial and containing information relating to collection. Acquisition Management Division ongoing criminal investigations or OMB Number: 1660–0011. (FAMD), Management and Policy

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00039 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70466 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

Analysis Branch (MPA), (202) 646–4164 Program—Other Needs, 97.036, Public Needs Assistance under section 408 of the for additional information. You may Assistance Grants; 97.039, Hazard Mitigation Stafford Act is later warranted, Federal contact Ms. Anderson for copies of the Grant Program.) funding under that program will also be proposed collection of information at limited to 75 percent of the total eligible Michael D. Brown, costs. facsimile number (202) 646–3347 or e- Under Secretary, Emergency Preparedness Further, you are authorized to make mail address: FEMA-Information- and Response, Department of Homeland changes to this declaration to the extent [email protected]. Security. allowable under the Stafford Act. Dated: November 30, 2004. [FR Doc. 04–26706 Filed 12–3–04; 8:45 am] The Federal Emergency Management Edward W. Kernan, BILLING CODE 9110–10–P Agency (FEMA) hereby gives notice that Branch Chief, Information Resources pursuant to the authority vested in the Management Branch, Information Under Secretary for Emergency Technology Services Division. DEPARTMENT OF HOMELAND Preparedness and Response, Department [FR Doc. 04–26696 Filed 12–3–04; 8:45 am] SECURITY of Homeland Security, under Executive BILLING CODE 9110–49–P Federal Emergency Management Order 12148, as amended, William Agency Lokey, of FEMA is appointed to act as the Federal Coordinating Officer for this DEPARTMENT OF HOMELAND [FEMA–1571–DR] declared disaster. SECURITY I do hereby determine the following Alaska; Major Disaster and Related areas of the State of Alaska to have been Federal Emergency Management Determinations affected adversely by this declared Agency AGENCY: Federal Emergency major disaster: [FEMA–1549–DR] Management Agency, Emergency Bering Strait Regional Education Preparedness and Response Directorate, Attendance Area and Northwest Arctic Alabama; Amendment No. 8 to Notice Department of Homeland Security. Borough for Public Assistance. of a Major Disaster Declaration Bering Strait Regional Education ACTION: Notice. Attendance Area, Northwest Arctic Borough, AGENCY: Federal Emergency and the City of Mekoryuk in the State of Management Agency, Emergency SUMMARY: This is a notice of the Alaska are eligible to apply for assistance Preparedness and Response Directorate, Presidential declaration of a major under the Hazard Mitigation Grant Program. Department of Homeland Security. disaster for the State of Alaska (FEMA– (The following Catalog of Federal Domestic ACTION: Notice. 1571–DR), dated November 15, 2004, Assistance Numbers (CFDA) are to be used and related determinations. for reporting and drawing funds: 97.030, SUMMARY: This notice amends the notice EFFECTIVE DATE: November 15, 2004. Community Disaster Loans; 97.031, Cora of a major disaster declaration for the Brown Fund Program; 97.032, Crisis FOR FURTHER INFORMATION CONTACT: State of Alabama (FEMA–1549–DR), Counseling; 97.033, Disaster Legal Services Magda Ruiz, Recovery Division, Federal Program; 97.034, Disaster Unemployment dated September 15, 2004, and related Emergency Management Agency, determinations. Assistance (DUA); 97.046, Fire Management Washington, DC 20472, (202) 646–2705. Assistance; 97.048, Individuals and EFFECTIVE DATES: November 8, 2004. SUPPLEMENTARY INFORMATION: Notice is Households Housing; 97.049, Individuals and FOR FURTHER INFORMATION CONTACT: hereby given that, in a letter dated Households Disaster Housing Operations; Magda Ruiz, Recovery Division, Federal 97.050 Individuals and Households Program- November 15, 2004, the President Other Needs, 97.036, Public Assistance Emergency Management Agency, declared a major disaster under the Washington, DC 20472, (202) 646–2705. Grants; 97.039, Hazard Mitigation Grant authority of the Robert T. Stafford Program). SUPPLEMENTARY INFORMATION: The Disaster Relief and Emergency Federal Emergency Management Agency Assistance Act, 42 U.S.C. 5121–5206 Michael D. Brown, (FEMA) hereby gives notice that (the Stafford Act), as follows: Under Secretary, Emergency Preparedness pursuant to the authority vested in the and Response, Department of Homeland Under Secretary for Emergency I have determined that the damage in Security. certain areas of the State of Alaska, resulting [FR Doc. 04–26698 Filed 12–3–04; 8:45 am] Preparedness and Response, Department from a severe winter storm, tidal surges, and of Homeland Security, under Executive flooding on October 18–20, 2004, is of BILLING CODE 9110–10–P Order 12148, as amended, Anthony A. sufficient severity and magnitude to warrant Russell, of FEMA is appointed to act as a major disaster declaration under the Robert the Federal Coordinating Officer for this T. Stafford Disaster Relief and Emergency DEPARTMENT OF HOMELAND declared disaster. Assistance Act, 42 U.S.C. 5121–5206 (the SECURITY This action terminates my Stafford Act). Therefore, I declare that such appointment of Michael J. Hall as a major disaster exists in the State of Alaska. Federal Emergency Management Federal Coordinating Officer for this In order to provide Federal assistance, you Agency are hereby authorized to allocate from funds disaster. available for these purposes such amounts as [FEMA–1572–DR] (The following Catalog of Federal Domestic you find necessary for Federal disaster Assistance Numbers (CFDA) are to be used assistance and administrative expenses. Delaware; Major Disaster and Related for reporting and drawing funds: 97.030, You are authorized to provide Public Determinations Community Disaster Loans; 97.031, Cora Assistance and Hazard Mitigation in the AGENCY: Federal Emergency Brown Fund Program; 97.032, Crisis designated areas and any other forms of Counseling; 97.033, Disaster Legal Services assistance under the Stafford Act you may Management Agency, Emergency Program; 97.034, Disaster Unemployment deem appropriate. Consistent with the Preparedness and Response Directorate, Assistance (DUA); 97.046, Fire Management requirement that Federal assistance be Department of Homeland Security. Assistance; 97.048, Individuals and supplemental, any Federal funds provided ACTION: Notice. Households Housing; 97.049, Individuals and under the Stafford Act for Public Assistance Households Disaster Housing Operations; and Hazard Mitigation will be limited to 75 SUMMARY: This is a notice of the 97.050 Individuals and Households percent of the total eligible costs. If Other Presidential declaration of a major

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00040 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70467

disaster for the State of Delaware Brown Fund Program; 97.032, Crisis Assistance Grants; 97.039, Hazard Mitigation (FEMA–1572–DR), dated November 15, Counseling; 97.033, Disaster Legal Services Grant Program.) 2004, and related determinations. Program; 97.034, Disaster Unemployment Michael D. Brown, EFFECTIVE DATE: November 15, 2004. Assistance (DUA); 97.046, Fire Management Assistance; 97.048, Individuals and Under Secretary, Emergency Preparedness FOR FURTHER INFORMATION CONTACT: Households Housing; 97.049, Individuals and and Response, Department of Homeland Magda Ruiz, Recovery Division, Federal Security. Emergency Management Agency, Households Disaster Housing Operations; 97.050 Individuals and Households Program- [FR Doc. 04–26701 Filed 12–3–04; 8:45 am] Washington, DC 20472, (202) 646–2705. Other Needs, 97.036, Public Assistance BILLING CODE 9110–10–P SUPPLEMENTARY INFORMATION: Notice is Grants; 97.039, Hazard Mitigation Grant hereby given that, in a letter dated Program.) November 15, 2004, the President DEPARTMENT OF HOMELAND declared a major disaster under the Michael D. Brown, SECURITY authority of the Robert T. Stafford Under Secretary, Emergency Preparedness Disaster Relief and Emergency and Response, Department of Homeland Federal Emergency Management Assistance Act, 42 U.S.C. 5121–5206 Security. Agency (the Stafford Act), as follows: [FR Doc. 04–26697 Filed 12–3–04; 8:45 am] I have determined that the damage in BILLING CODE 9110–10–P [FEMA–1551–DR] certain areas of the State of Delaware, resulting from severe storms, tornadoes, and Florida; Amendment No. 5 to Notice of flooding from the remnants of Hurricane Jeanne, on September 28–October 2, 2004, is DEPARTMENT OF HOMELAND a Major Disaster Declaration of sufficient severity and magnitude to SECURITY warrant a major disaster declaration under AGENCY: Federal Emergency the Robert T. Stafford Disaster Relief and Federal Emergency Management Management Agency, Emergency Emergency Assistance Act, 42 U.S.C. 5121– Agency Preparedness and Response Directorate, 5206 (the Stafford Act). Therefore, I declare Department of Homeland Security. that such a major disaster exists in the State of Delaware. [FEMA–1561–DR] ACTION: Notice. In order to provide Federal assistance, you Florida; Amendment No. 9 to Notice of are hereby authorized to allocate from funds SUMMARY: This notice amends the notice a Major Disaster Declaration available for these purposes such amounts as of a major disaster for the State of you find necessary for Federal disaster assistance and administrative expenses. AGENCY: Federal Emergency Florida (FEMA–1551–DR), dated You are authorized to provide Public Management Agency, Emergency September 16, 2004, and related Assistance in the designated areas; and Preparedness and Response Directorate, determinations. Hazard Mitigation throughout the State. Consistent with the requirement that Federal Department of Homeland Security. EFFECTIVE DATE: November 17, 2004. assistance be supplemental, any Federal ACTION: Notice. funds provided under the Stafford Act for FOR FURTHER INFORMATION CONTACT: Public Assistance and Hazard Mitigation will Magda Ruiz, Recovery Division, Federal be limited to 75 percent of the total eligible SUMMARY: This notice amends the notice Emergency Management Agency, costs. If Other Needs Assistance under of a major disaster for the State of Washington, DC 20472, (202) 646–2705. Section 408 of the Stafford Act is later Florida (FEMA–1561–DR), dated warranted, Federal funding under that September 26, 2004, and related SUPPLEMENTARY INFORMATION: Notice is program will also be limited to 75 percent of determinations. hereby given that the incident period for the total eligible costs. this disaster is closed effective Further, you are authorized to make EFFECTIVE DATE: November 17, 2004. November 17, 2004. changes to this declaration to the extent allowable under the Stafford Act. FOR FURTHER INFORMATION CONTACT: (The following Catalog of Federal Domestic The Federal Emergency Management Magda Ruiz, Recovery Division, Federal Assistance Numbers (CFDA) are to be used Agency (FEMA) hereby gives notice that Emergency Management Agency, for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora pursuant to the authority vested in the Washington, DC 20472, (202) 646–2705. Brown Fund Program; 97.032, Crisis Under Secretary for Emergency SUPPLEMENTARY INFORMATION: Notice is Counseling; 97.033, Disaster Legal Services Preparedness and Response, Department hereby given that the incident period for Program; 97.034, Disaster Unemployment of Homeland Security, under Executive this disaster is closed effective Assistance (DUA); 97.046, Fire Management Order 12148, as amended, James N. November 17, 2004. Assistance; 97.048, Individuals and Russo, of FEMA is appointed to act as (The following Catalog of Federal Domestic Households Housing; 97.049, Individuals and the Federal Coordinating Officer for this Households Disaster Housing Operations; declared disaster. Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, 97.050 Individuals and Households I do hereby determine the following Program—Other Needs, 97.036, Public areas of the State of Delaware to have Community Disaster Loans; 97.031, Cora Brown Fund Program; 97.032, Crisis Assistance Grants; 97.039, Hazard Mitigation been affected adversely by this declared Grant Program.) major disaster: Counseling; 97.033, Disaster Legal Services Program; 97.034, Disaster Unemployment New Castle County for Public Assistance. Michael D. Brown, Assistance (DUA); 97.046, Fire Management All counties within the State of Delaware Under Secretary, Emergency Preparedness are eligible to apply for assistance under the Assistance; 97.048, Individuals and and Response, Department of Homeland Hazard Mitigation Grant Program. Households Housing; 97.049, Individuals and Security. Households Disaster Housing Operations; (The following Catalog of Federal Domestic [FR Doc. 04–26704 Filed 12–3–04; 8:45 am] 97.050 Individuals and Households Assistance Numbers (CFDA) are to be used BILLING CODE 9110–10–P for reporting and drawing funds: 97.030, Program—Other Needs, 97.036, Public Community Disaster Loans; 97.031, Cora

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00041 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70468 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

DEPARTMENT OF HOMELAND DEPARTMENT OF HOMELAND DEPARTMENT OF HOMELAND SECURITY SECURITY SECURITY

Federal Emergency Management Federal Emergency Management Federal Emergency Management Agency Agency Agency

[FEMA–1560–DR] [FEMA–1554–DR] [FEMA–1564–DR]

Georgia; Amendment No. 4 to Notice of Georgia; Amendment No. 6 to Notice of New York; Amendment No. 5 to Notice a Major Disaster Declaration a Major Disaster Declaration of a Major Disaster Declaration

AGENCY: Federal Emergency AGENCY: Federal Emergency AGENCY: Federal Emergency Management Agency, Emergency Management Agency, Emergency Management Agency, Emergency Preparedness and Response Directorate, Preparedness and Response Directorate, Preparedness and Response Directorate, Department of Homeland Security. Department of Homeland Security. Department of Homeland Security. ACTION: Notice. ACTION: Notice. ACTION: Notice.

SUMMARY: This notice amends the notice SUMMARY: This notice amends the notice SUMMARY: This notice amends the notice of a major disaster declaration for the of a major disaster declaration for the of a major disaster declaration for the State of Georgia (FEMA–1560–DR), State of Georgia (FEMA–1554–DR), State of New York (FEMA–1564–DR), dated September 24, 2004, and related dated September 18, 2004, and related dated October 1, 2004, and related determinations. determinations. determinations.

EFFECTIVE DATE: November 1, 2004. EFFECTIVE DATE: November 1, 2004. EFFECTIVE DATE: November 16, 2004. FOR FURTHER INFORMATION CONTACT: FOR FURTHER INFORMATION CONTACT: FOR FURTHER INFORMATION CONTACT: Magda Ruiz, Recovery Division, Federal Magda Ruiz, Recovery Division, Federal Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Emergency Management Agency, Emergency Management Agency, Washington, DC 20472, (202) 646–2705. Washington, DC 20472, (202) 646–2705. Washington, DC 20472, (202) 646–2705. SUPPLEMENTARY INFORMATION: The SUPPLEMENTARY INFORMATION: The SUPPLEMENTARY INFORMATION: The notice Federal Emergency Management Agency Federal Emergency Management Agency of a major disaster declaration for the (FEMA) hereby gives notice that (FEMA) hereby gives notice that State of New York is hereby amended to pursuant to the authority vested in the pursuant to the authority vested in the include Individual Assistance for the Under Secretary for Emergency Under Secretary for Emergency following areas among those areas Preparedness and Response, Department Preparedness and Response, Department determined to have been adversely of Homeland Security, under Executive of Homeland Security, under Executive affected by the catastrophe declared a Order 12148, as amended, Jesse F. Order 12148, as amended, Jesse F. major disaster by the President in his Munoz, of FEMA is appointed to act as Munoz, of FEMA is appointed to act as declaration of October 1, 2004: the Federal Coordinating Officer for this the Federal Coordinating Officer for this Madison, Oneida, and Wayne Counties for declared disaster. declared disaster. Individual Assistance. This action terminates my This action terminates my Allegany, Broome, Cattaraugus, Monroe, appointment of James N. Russo as appointment of James N. Russo as Niagara, Onondaga, Orange, Orleans, Federal Coordinating Officer for this Federal Coordinating Officer for this Steuben, Sullivan, and Ulster Counties for disaster. disaster. Individual Assistance (already designated for Public Assistance.) (The following Catalog of Federal Domestic (The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used Assistance Numbers (CFDA) are to be used (The following Catalog of Federal Domestic for reporting and drawing funds: 97.030, for reporting and drawing funds: 97.030, Assistance Numbers (CFDA) are to be used Community Disaster Loans; 97.031, Cora Community Disaster Loans; 97.031, Cora for reporting and drawing funds: 97.030, Brown Fund Program; 97.032, Crisis Brown Fund Program; 97.032, Crisis Community Disaster Loans; 97.031, Cora Counseling; 97.033, Disaster Legal Services Counseling; 97.033, Disaster Legal Services Brown Fund Program; 97.032, Crisis Program; 97.034, Disaster Unemployment Program; 97.034, Disaster Unemployment Counseling; 97.033, Disaster Legal Services Assistance (DUA); 97.046, Fire Management Assistance (DUA); 97.046, Fire Management Program; 97.034, Disaster Unemployment Assistance; 97.048, Individuals and Assistance; 97.048, Individuals and Assistance (DUA); 97.046, Fire Management Households Housing; 97.049, Individuals and Households Housing; 97.049, Individuals and Assistance; 97.048, Individuals and Households Disaster Housing Operations; Households Disaster Housing Operations; Households Housing; 97.049, Individuals and 97.050 Individuals and Households 97.050 Individuals and Households Households Disaster Housing Operations; Program—Other Needs, 97.036, Public Program—Other Needs, 97.036, Public 97.050, Individuals and Households Assistance Grants; 97.039, Hazard Mitigation Assistance Grants; 97.039, Hazard Mitigation Program-Other Needs; 97.036, Public Grant Program.) Grant Program.) Assistance Grants; 97.039, Hazard Mitigation Grant Program.) Michael D. Brown, Michael D. Brown, Michael D. Brown, Under Secretary, Emergency Preparedness Under Secretary, Emergency Preparedness Under Secretary, Emergency Preparedness and Response, Department of Homeland and Response, Department of Homeland Security. and Response, Department of Homeland Security. Security. [FR Doc. 04–26702 Filed 12–3–04; 8:45 am] [FR Doc. 04–26703 Filed 12–3–04; 8:45 am] [FR Doc. 04–26699 Filed 12–3–04; 8:45 am] BILLING CODE 9110–10–P BILLING CODE 9110–10–P BILLING CODE 9110–10–P

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00042 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70469

DEPARTMENT OF HOMELAND Anchorage Field Office (AFO), Alaska, 3. Issues beyond the scope of this SECURITY is initiating a planning effort to prepare plan. the Bay Resource Management Plan Rationale will be provided in the plan Federal Emergency Management (RMP). This planning activity for each issue placed in category two or Agency encompasses approximately 3.6 million three. In addition to these major issues, [FEMA–1564–DR] acres of BLM administered land in the a number of management questions and Bristol Bay and Goodnews Bay areas of concerns will be addressed in the plan. New York; Amendment No. 4 to Notice Alaska. Section 201 and 202 of the The public is encouraged to help of a Major Disaster Declaration Federal Land Policy and Management identify these questions and concerns Act of 1976 (FLPMA: 43 U.S.C. 1711) during the scoping process. AGENCY: Federal Emergency and the regulations in 43 CFR part 1600 An interdisciplinary approach will be Management Agency, Emergency direct this planning effort. The plan will used to develop the plan in order to Preparedness and Response Directorate, fulfill the needs and obligations set forth consider the variety of resource issues Department of Homeland Security. by the National Environmental Policy and concerns identified. Disciplines ACTION: Notice. Act (NEPA). As required in 43 CFR involved in the planning process will 3420.1–2, this notice is also the specific include specialists with expertise in SUMMARY: This notice amends the notice call for coal resource information and lands and realty, wildlife, subsistence, of a major disaster for the State of New identification of areas where there is an fisheries, vegetation, outdoor recreation, York (FEMA–1564–DR), dated October interest in future leasing and fire management, minerals and geology, 1, 2004, and related determinations. development of federal coal. forestry, archaeology, paleontology, EFFECTIVE DATE: November 16, 2004. hydrology, soil, sociology and DATES: The scoping comment period FOR FURTHER INFORMATION CONTACT: economics. The planning area includes will commence with the publication of Magda Ruiz, Recovery Division, Federal lands adjacent to Bristol Bay and this notice and will end 90 days after Emergency Management Agency, Goodnews Bay on the west side of the publication. Meetings and comment Washington, DC 20472, (202) 646–2705. Aleutian Range, and extends southward deadlines will be announced through SUPPLEMENTARY INFORMATION: Notice is on the Alaska Peninsula to Big Creek, the local news media, newsletters and a south of South Naknek. Within this area hereby given that the incident period for Web site. Comments on issues and this disaster is now August 13, 2004, there are approximately 3.6 million planning criteria should be received on acres (surface estate) of BLM- through and including September 16, or before the end of the scoping period 2004. administered lands occurring primarily at the address listed below. as blocks of land, with some small (The following Catalog of Federal Domestic ADDRESSES: Written comments should scattered tracts. Approximately 979,171 Assistance Numbers (CFDA) are to be used be sent to the Bay Planning Team, BLM– for reporting and drawing funds: 97.030, acres have been selected by Native Community Disaster Loans; 97.031, Cora AFO, 6881 Abbott Loop Road, Corporations, and 914,933 acres have Brown Fund Program; 97.032, Crisis Anchorage, Alaska 99507; or via fax been selected by the State of Alaska, but Counseling; 97.033, Disaster Legal Services (907) 267–1267. Documents pertinent to have not been conveyed. Program; 97.034, Disaster Unemployment this proposal may be examined at the Preliminary issues and management Assistance (DUA); 97.046, Fire Management Anchorage Field Office located in concerns have been identified by BLM Assistance; 97.048, Individual and Anchorage, Alaska. and other agencies, and in prior Household Housing; 97.049, Individual and FOR FURTHER INFORMATION CONTACT: meetings with individuals and user Household Disaster Housing Operations; groups. They represent the BLM’s 97.050 Individual and Household Program- Interested parties may obtain further information or request to be placed on knowledge to date on the existing issues Other Needs, 97.036, Public Assistance and concerns with current management. Grants; 97.039, Hazard Mitigation Grant the mailing list for the Bay Resource Program) Management Plan (RMP) planning effort Some concerns that will be addressed in by contacting Pat McClenahan, RMP the planning effort include the Michael D. Brown, Team Leader, (907) 267–1484, or June management of subsistence; oil and gas; access; locatable minerals; D1 and D2 Under Secretary, Emergency Preparedness Bailey, Field Manager, Anchorage Field lands; and Wild and Scenic Rivers. and Response, Department of Homeland Office, 6881 Abbott Loop Road, Public Participation: Public meetings Security. Anchorage, Alaska 99507, (907) 267– [FR Doc. 04–26700 Filed 12–3–04; 8:45 am] will be held throughout the plan 1205. The toll-free telephone number is scoping and preparation period. In order BILLING CODE 9110–10–P 1–800–478–1263. to ensure local community participation SUPPLEMENTARY INFORMATION: The BLM and input, public meetings will be will work closely with interested parties scheduled in a number of communities DEPARTMENT OF THE INTERIOR to identify the management decisions within the planning area. Early that are best suited to the needs of the Bureau of Land Management participation by all of those interested is public. This public process will take encouraged and will help determine the [AK–040–05–1610–DO–087L] into account local, regional, and future management of lands within the national needs and concerns. This Bay planning area. At least 15 days Notice of Intent To Prepare a Resource notice initiates the public scoping public notice will be given for activities Management Plan and Environmental process to identify planning issues and where the public is invited to attend. Impact Statement, and a Request for to develop planning criteria. The minutes and list of attendees for Information for the Scoping Process After gathering public comments on each meeting will be available to the AGENCY: Bureau of Land Management, the issues the plan should address, the public and open for 30 days to any Interior. suggested issues will be placed in one participant who wishes to clarify the of three categories: ACTION: Notice of intent. views they expressed. Written 1. Issues to be resolved in the plan; comments will be accepted throughout SUMMARY: Notice is hereby given that 2. Issues resolved through policy or the planning process at the address the Bureau of Land Management (BLM), administrative action; or shown above.

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00043 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70470 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

Freedom of Information Act DEPARTMENT OF JUSTICE comments or objections to the issuance Considerations: Public comments of the proposed registration and may, at submitted for this planning effort, Drug Enforcement Administration the same time, file a written request for including names and street addresses of a hearing on such application pursuant respondents, will be available for public Manufacturer of Controlled to 21 CFR 1301.43 and in such form as review at the Anchorage Field Office Substances; Notice of Application; prescribed by 21 CFR 1316.47. during regular business hours (7:30 a.m. Correction Any such comments or objections or to 4 p.m.), Monday through Friday, By Notice dated June 28, 2004, and requests for hearing may be addressed, except holidays. All submissions from published in the Federal Register on in quintuplicate, to the Deputy Assistant organizations or businesses, and from July 13, 2004, (69 FR 42067–42068), Administrator, Office of Diversion individuals identifying themselves as dated April 29 2004, the listing of Control, Drug Enforcement representatives or officials of controlled substances for Oxycodone Administration, United States organizations or businesses, will be (9143) and Hydrocodone (9193), were Department of Justice, Washington, DC made available for public inspection in inadvertently omitted, by Cedarburg 20537, Attention: DEA Federal Register their entirety. Individual respondents Pharmaceuticals, Inc., 870 Badger Representative, Office of Liaison and may request confidentiality. If you wish Circle, Grafton, Wisconsin 53024. Policy (ODLR) and must be filed no later than January 5, 2005. to withhold your name or address from Dated: November 22, 2004. public review or from disclosure under This procedure is to be conducted William J. Walker, the Freedom of Information Act, you simultaneously with and independent Deputy Assistant Administrator, Office of of the procedures described in 21 CFR must state this prominently at the Diversion Control, Drug Enforcement beginning of your comments. Such 1301.34(b), (c), (d), (e), and (f). As noted Administration. in a previous notice published in the requests will be honored to the extent [FR Doc. 04–26734 Filed 12–3–04; 8:45 am] allowed by law. Federal Register on September 23, 1975, BILLING CODE 4410–09–P (40 FR 43745–46), all applicants for June Bailey, registration to import basic class of any Field Office Manager. controlled substance in Schedule I or II DEPARTMENT OF JUSTICE [FR Doc. 04–26725 Filed 12–3–04; 8:45 am] are and will continue to be required to BILLING CODE 4310–$$–P Drug Enforcement Administration demonstrate to the Deputy Assistant Administrator, Office of Diversion Importation of Controlled Substances; Control, Drug Enforcement Notice of Application Administration that the requirements DEPARTMENT OF JUSTICE for such registration pursuant to 21 Pursuant to 21 U.S.C. 958(1)), the U.S.C. 958(a), 21 U.S.C. 823(a), and 21 Office of Justice Programs Attorney General shall, prior to issuing CFR 1301.34(b), (c), (d), (e), and (f) are a registration under this Section to a satisfied. [OJP (OVW) Docket No. 1414] bulk manufacturer of a controlled substance in Schedule I or II and prior Dated: November 22, 2004. Notice of Cancellation of Meeting to issuing a registration under 21 U.S.C. William J. Walker, 952 (a)(2)(b) authorizing the importation Deputy Assistant Administrator, Office of AGENCY: Office on Violence Against of such substances, provide Diversion Control, Drug Enforcement Women, DOJ. manufacturers holding registrations for Administration. ACTION: Notice of cancellation of the bulk manufacture of the substances [FR Doc. 04–26735 Filed 12–3–04; 8:45 am] meeting. an opportunity for a hearing. BILLING CODE 4410–09–P Therefore, in accordance with 21 CFR SUMMARY: This notice cancels the public 1301.34(a), this is notice that on meeting of the National Advisory September 20, 2004, Johnson Matthey DEPARTMENT OF JUSTICE Committee on Violence Against Women Inc., Pharmaceutical Materials, 2003 scheduled for December 7, 2004, from Nolte Drive, West Deptford, New Jersey Drug Enforcement Administration 8:30 a.m. to 4 p.m. 08066, made application by renewal to Manufacturer of Controlled DATES: The cancelled meeting was the Drug Enforcement Administration Substances; Notice of Application scheduled to take place on December 7, (DEA) for registration as an importer of 2004, from 8:30 a.m. to 4 p.m. the basic classes of controlled Pursuant to section 1301.33(a) of Title substances: 21 of the Code of Federal Regulations FOR FURTHER INFORMATION CONTACT: Jana (CFR), this is notice that on September Sinclair White, The National Advisory Drug Schedule 20, 2004, Johnson Matthey, Inc., Custom Committee on Violence Against Women, Pharmaceuticals Department, 2003 810 Seventh Street, NW., Washington, Phenylacetone (8501) ...... II Nolte Drive, West Deptford, New Jersey DC, 20531; by telephone at: (202) 353– Raw Opium (9600) ...... II 08066, made application by renewal to 4343; e-mail: [email protected]; Concentrate of Poppy Straw II the Drug Enforcement Administration or fax: (202) 307–3911. You may also (9670). (DEA) for registration as a bulk view the Committee’s Web site at: manufacturer of the basic classes of http://www.ojp.usdoj.gov/vawo/nac/ The company plans to import the controlled substances listed: welcome.html. listed controlled substances as raw materials for use in the manufacture of Dated: November 30, 2004. bulk controlled substances for Drug Schedule Margaret Davis, distribution to its customers. Tetrahydrocannabinols (7370) ...... I Principal Deputy Director, Office on Violence Any manufacturer who is presently, Difenoxin (9168) ...... I Against Women. or is applying to be, registered with DEA Propiram (9649) ...... I [FR Doc. 04–26683 Filed 12–3–04; 8:45 am] to manufacture such basic classes of Amphetamine (1100) ...... II BILLING CODE 4410–18–P controlled substances may file written Methylphenidate (1724) ...... II

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00044 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70471

Drug Schedule Any other such applicant and any has developed regulations for the person who is presently registered with establishment of a permit system for Codeine (9050) ...... II DEA to manufacture such substances various activities in Antarctica and Oxycodone (9143) ...... II may file comments or objections to the designation of certain animals and Hydromorphone (9150) ...... II issuance of the proposed registration certain geographic areas a requiring Hydrocodone (9193) ...... II pursuant to 21 CFR 1301.33(a). special protection. The regulations Morphine (9300) ...... II Thebaine (9333) ...... II Any such comments or objections establish such a permit system to Alfentanil (9737) ...... II may be addressed, in quintuplicate, to designate Antarctic Specially Protected Sufentanil (9740) ...... II the Deputy Assistant Administrator, Areas. Fentanyl (9801) ...... II Office of Diversion Control, Drug The applications received are as Enforcement Administration, United follows: The company plans to manufacture States Department of Justice, 1. Applicant: Permit Application No. the listed controlled substances in bulk Washington, DC 20537, Attention: DEA 2005–017, Peter Doran Earth and for distribution to its customers. Federal Register Representative, Office Environmental Sciences (MC186), Any other such applicant and any of Liaison and Policy (ODLR) and must University of Illinois at Chicago, person who is presently registered with be filed no later than February 4, 2005. Chicago, IL 60607. DEA to manufacture such substances Dated: November 22, 2004. may file comments or objections to the Activity for Which Permit Is Requested William J. Walker, issuance of the proposed registration Take. The applicant plans to collect pursuant to 21 CFR 1301.33(a). Deputy Assistant Administrator, Office of bone samples from mummified Any such comments or objections Diversion Control, Drug Enforcement penguins and seals located on the ice Administration. may be addressed, in quintuplicate, to surface of the Dry Valley lakes. The the Deputy Assistant Administrator, [FR Doc. 04–26737 Filed 12–3–04; 8:45 am] radiocarbon dates of the bones may help Office of Diversion Control, Drug BILLING CODE 4410–09–P to determine the age of the lake ice Enforcement Administration, United covers. States Department of Justice, Location Washington, DC 20537, Attention: DEA NATIONAL SCIENCE FOUNDATION Federal Register Representative, Office Taylor Valley Lakes. Notice of Permit Applications Received of Liaison and Policy (ODLR) and must Under the Antarctic Conservation Act Dates be filed no later than February 4, 2005. of 1978 (Pub. L. 95–541) December 1, 2004 to February 15, Dated: November 22, 2004. 2005. William J. Walker, AGENCY: National Science Foundation. Deputy Assistant Administrator, Office of ACTION: Notice of Permit Applications Nadene G. Kennedy, Diversion Control, Drug Enforcement Received under the Antarctic Permit Officer, Office of Polar Programs. Administration. Conservation Act of 1978, Pub. L. 95– [FR Doc. 04–26675 Filed 12–3–04; 8:45 am] [FR Doc. 04–26736 Filed 12–3–04; 8:45 am] 541. BILLING CODE 7555–01–M BILLING CODE 4410–01–P SUMMARY: The National Science Foundation (NSF) is required to publish NUCLEAR REGULATORY DEPARTMENT OF JUSTICE notice of permit applications received to conduct activities regulated under the COMMISSION Drug Enforcement Administration Antarctic Conservation Act of 1978. [Docket Nos. 50–325 and 50–324] NSF has published regulations under Manufacturer of Controlled the Antarctic Conservation Act at Title Carolina Power & Light Company, Substances; Notice of Application 45 part 670 of the Code of Federal Brunswick Steam Electric Plant, Units Regulations. This is the required notice 1 and 2; Notice of Acceptance for Pursuant to section 1301.33(a) of Title of permit applications received. Docketing of the Application and 21 of the Code of Federal Regulations Notice of Opportunity for Hearing (CFR), this is notice that on August 19, DATES: Interested parties are invited to submit written data, comments, or Regarding Renewal of Facility 2004, Organichem, Corporation, 33 Operating License Nos. DPR–71 and Riverside Avenue, Rensselaer, New views with respect to this permit application by January 5, 2005. This DPR–62 for an Additional 20-Year York 12144, made application by Period renewal to the Drug Enforcement application may be inspected by Administration (DEA) for registration as interested parties at the Permit Office, The U.S. Nuclear Regulatory a bulk manufacturer of the basic classes address below. Commission (NRC or Commission) is of controlled substances listed: ADDRESSES: Comments should be considering an application for the addressed to Permit Office, Room 755, renewal of Operating License Nos. DPR– Drug Schedule Office of Polar Programs, National 71 and DPR–62, which authorizes the Science Foundation, 4201 Wilson Carolina Power & Light Company, now Tetrahydrocannabinols (7370) ...... I Boulevard, Arlington, Virginia 22230. Amphetamine (1100) ...... II doing business as Progress Energy FOR FURTHER INFORMATION CONTACT: Methylphenidate (1724) ...... II Carolinas, Inc. (PEC), to operate Pentobarbital (2270) ...... II Nadene G. Kennedy at the above Brunswick Steam Electric Plant, at 2,923 Meperidine (9230) ...... II address or (703) 292–7405. megawatts thermal for Unit 1, and 2,923 Dextropoxyphene (9273) ...... II SUPPLEMENTARY INFORMATION: The megawatts thermal for Unit 2. The National Science Foundation, as renewed licenses would authorize the The company plans to manufacture directed by the Antarctic Conservation applicant to operate the Brunswick bulk controlled substances for use Act of 1978 (Pub. L. 95–541), as Steam Electric Plant, Units 1 and 2, for internally and for distribution to its amended by the Antarctic Science, an additional 20 years beyond the customers. Tourism and Conservation Act of 1996, period specified in the current licenses.

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00045 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70472 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

The current operating license for Impact Statement for License Renewal pursuant to 10 CFR parts 51 and 54. The Brunswick Steam Electric Plant, Unit 1 of Nuclear Power Plants,’’ dated May petition must specifically explain the expires on September 8, 2016, and the 1996. Pursuant to 10 CFR 51.26, and as reasons why intervention should be current operating license for Brunswick part of the environmental scoping permitted with particular reference to Steam Electric Plant, Unit 2 expires on process, the staff intends to hold a the following factors: (1) The nature of December 27, 2014. public scoping meeting. Detailed the requestor’s/petitioner’s right under The Commission’s staff has received information regarding this meeting will the Act to be made a party to the an application dated October 18, 2004, be included in a future Federal Register proceeding; (2) the nature and extent of from Carolina Power & Light Company, notice. the requestor’s/petitioner’s property, filed pursuant to 10 CFR Part 54, to Within 60 days after the date of financial, or other interest in the renew the Operating License Nos. DPR– publication of this Federal Register proceeding; and (3) the possible effect of 71 and DPR–62 for Brunswick Steam Notice, the requestor/petitioner may file any decision or order which may be Electric Plant, Units 1 and 2, a request for a hearing, and any person entered in the proceeding on the respectively. A Notice of Receipt and whose interest may be affected by this requestor’s/petitioner’s interest. The Availability of the license renewal proceeding and who wishes to petition must also set forth the specific application, ‘‘Carolina Power & Light participate as a party in the proceeding contentions which the petitioner/ Company; Notice of Receipt of must file a written request for a hearing requestor seeks to have litigated at the Application for Renewal of Brunswick and a petition for leave to intervene proceeding. Steam Electric Plant, Units 1 and 2; with respect to the renewal of the Each contention must consist of a Facility Operating License Nos. DPR–71 licenses. Requests for a hearing and a specific statement of the issue of law or and DPR–62 for an Additional 20-year petition for leave to intervene shall be fact to be raised or controverted. In Period’’ was published in the Federal filed in accordance with the addition, the requestor/petitioner shall Register on November 18, 2004 (69 FR Commission’s ‘‘Rules of Practice for provide a brief explanation of the bases 67611). Domestic Licensing Proceedings’’ in 10 of each contention and a concise The Commission’s staff has CFR Part 2. Interested persons should statement of the alleged facts or the determined that Carolina Power & Light consult a current copy of 10 CFR 2.309, expert opinion that supports the Company has submitted sufficient which is available at the Commission’s contention on which the requestor/ information in accordance with 10 CFR Public Document Room (PDR), located petitioner intends to rely in proving the 54.19, 54.21, 54.22, 54.23, and 51.53(c) at One White Flint North, 11555 contention at the hearing. The that is acceptable for docketing. The Rockville Pike (first floor), Rockville, requestor/petitioner must also provide current Docket Nos. 50–325 and 50–324 Maryland 20852 and is accessible from references to those specific sources and for Operating License Nos. DPR–71 and the Agencywide Documents Access and documents of which the requestor/ DPR–62, respectively, will be retained. Management System’s (ADAMS) Public petitioner is aware and on which the The docketing of the renewal Electronic Reading Room on the Internet requestor/petitioner intends to rely to application does not preclude at http://www.nrc.gov/reading-rm/ establish those facts or expert opinion. requesting additional information as the adams.html. Persons who do not have The requestor/petitioner must provide review proceeds, nor does it predict access to ADAMS or who encounter sufficient information to show that a whether the Commission will grant or problems in accessing the documents genuine dispute exists with the deny the application. located in ADAMS should contact the applicant on a material issue of law or Before issuance of each requested NRC’s PDR reference staff at 1–800– fact.1 Contentions shall be limited to renewed license, the NRC will have 397–4209, or by e-mail at [email protected]. matters within the scope of the action made the findings required by the If a request for a hearing or a petition under consideration. The contention Atomic Energy Act of 1954, as amended for leave to intervene is filed within the must be one that, if proven, would (the Act), and the Commission’s rules 60-day period, the Commission or a entitle the requestor/petitioner to relief. and regulations. In accordance with 10 presiding officer designated by the A requestor/petitioner who fails to CFR 54.29, the NRC will issue a Commission or by the Chief satisfy these requirements with respect renewed license on the basis of its Administrative Judge of the Atomic to at least one contention will not be review if it finds that actions have been Safety and Licensing Board Panel will identified and have been or will be rule on the request and/or petition; and permitted to participate as a party. taken with respect to (1) managing the the Secretary or the Chief Each contention shall be given a effects of aging during the period of Administrative Judge of the Atomic separate numeric or alpha designation extended operation on the functionality Safety and Licensing Board will issue a within one of the following groups and of structures and components that have notice of a hearing or an appropriate all like subject-matters shall be grouped been identified as requiring aging order. In the event that no request for a together: management review, and (2) time- hearing or petition for leave to intervene 1. Technical—primarily concerns issues limited aging analyses that have been is filed within the 60-day period, the relating to technical and/or health and safety identified as requiring review, such that NRC may, upon completion of its matters discussed or referenced in the there is reasonable assurance that the evaluations and upon making the Brunswick Steam Electric Plant, Units 1 and activities authorized by the renewed findings required under 10 CFR parts 51 2, safety analysis for the application (including issues related to emergency licenses will continue to be conducted and 54, renew the licenses without planning and physical security to the extent in accordance with the current licensing further notice. that such matters are discussed or referenced basis (CLB), and that any changes made As required by 10 CFR 2.309, a in the application). to the plant’s CLB comply with the Act petition for leave to intervene shall set and the Commission’s regulations. forth with particularity the interest of 1 To the extent that the application contains Additionally, in accordance with 10 the petitioner in the proceeding, and attachments and supporting documents that are not CFR 51.95(c), the NRC will prepare an how that interest may be affected by the publicly available because they are asserted to contain safeguards or proprietary information, environmental impact statement that is results of the proceeding, taking into petitioners desiring access to this information a supplement to the Commission’s consideration the limited scope of should contact the applicant or applicant’s counsel NUREG–1437, ‘‘Generic Environmental matters that may be considered to discuss the need for a protective order.

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00046 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70473

2. Environmental—primarily concerns Service Company, LCC, Post Office Box For the Nuclear Regulatory Commission. issues relating to matters discussed or 1551, Raleigh, North Carolina, 27602– Pao-Tsin Kuo, referenced in the Environmental Report for 1551. Program Director, License Renewal and the license renewal application Environmental Impacts Program, Division of 3. Miscellaneous—does not fall into one of Non-timely requests and/or petitions Regulatory Improvement Programs, Office of the categories outlined above. and contentions will not be entertained Nuclear Reactor Regulation. As specified in 10 CFR 2.309, if two absent a determination by the [FR Doc. 04–26693 Filed 12–3–04; 8:45 am] or more requestors/petitioners seek to Commission, the presiding officer, or BILLING CODE 7590–01–P co-sponsor a contention, the requestors/ the Atomic Safety and Licensing Board petitioners shall jointly designate a that the petition, request and/or representative who shall have the contentions should be granted based on NUCLEAR REGULATORY authority to act for the requestors/ a balancing of the factors specified in 10 COMMISSION petitioners with respect to that CFR 2.309(a)(1)(i)–(viii). contention. If a requestor/petitioner [Docket No. 50–346] Detailed information about the license seeks to adopt the contention of another Firstenergy Nuclear Operating sponsoring requestor/petitioner, the renewal process can be found under the Nuclear Reactors icon at http:// Company; Davis-Besse Nuclear Power requestor/petitioner who seeks to adopt Station; Amended Exemption the contention must either agree that the www.nrc.gov/reactors/operating/ sponsoring requestor/petitioner shall act licensing/renewal.html on the NRC’s 1.0 Background Web site. Copies of the application to as the representative with respect to that The FirstEnergy Nuclear Operating renew the operating licenses for contention, or jointly designate with the Company (the licensee) is the holder of Brunswick Steam Electric Plant, Units 1 sponsoring requestor/petitioner a Facility Operating License No. NPF–3, representative who shall have the and 2, are available for public which authorizes operation of the Davis- authority to act for the requestors/ inspection at the Commission’s PDR, Besse Nuclear Power Station (DBNPS). petitioners with respect to that located at One White Flint North, 11555 The license provides, among other contention. Rockville Pike (first floor), Rockville, things, that the facility is subject to all Those permitted to intervene become Maryland 20852–2738, and on the rules, regulations, and orders of the parties to the proceeding, subject to any NRC’s webpage at http://www.nrc.gov/ Nuclear Regulatory Commission (NRC, limitations in the order granting leave to reactors/operating/licensing/renewal/ the Commission) now or hereafter in intervene, and have the opportunity to applications.html while the application effect. participate fully in the conduct of the is under review. The NRC maintains an The facility consists of a pressurized- hearing. A request for a hearing or a Agencywide Documents Access and water reactor located in Ottawa County, petition for leave to intervene must be Management System (ADAMS), which Ohio. filed by: (1) First class mail addressed provides text and image files of NRC’s to the Office of the Secretary of the 2.0 Request public documents. These documents Commission, U.S. Nuclear Regulatory Title 10 of the Code of Federal may be accessed through the NRC’s Commission, Washington, DC, 20555– Regulations (10 CFR), Part 50, Section Public Electronic Reading Room on the 0001, Attention: Rulemaking and 50.46 provides acceptance criteria for Adjudications Staff; (2) courier, express Internet at http://www.nrc.gov/reading- the emergency core cooling systems mail, and expedited delivery services: rm/adams.html under ADAMS (ECCS), including an option to develop Office of the Secretary, Sixteenth Floor, accession number ML043060444. (Note: the ECCS evaluation model in One White Flint North, 11555 Rockville Public access to ADAMS has been conformance with Appendix K Pike, Rockville, Maryland 20852, temporarily suspended so that security requirements (10 CFR 50.46(a)(1)(ii)). 10 Attention: Rulemaking and reviews of publicly available documents CFR Part 50, Appendix K, Section 1.D.1, Adjudications Staff; (3) E-mail may be performed and potentially in turn, requires that accident addressed to the Office of the Secretary, sensitive information removed. Please evaluations use the combination of U.S. Nuclear Regulatory Commission, check the NRC’s Web site for updates on ECCS subsystems assumed to be [email protected]; or (4) the resumption of ADAMS access.) operative ‘‘after the most damaging facsimile transmission addressed to the Persons who do not have access to single failure of ECCS equipment has Office of the Secretary, U.S. Nuclear ADAMS or who encounter problems in taken place.’’ Regulatory Commission, Washington, accessing the documents located in An exemption issued on May 5, 2000, DC, Attention: Rulemakings and ADAMS may contact the NRC Public exempted the licensee from the single- Adjudications Staff at 301–415–1101, Document Room (PDR) Reference staff failure requirement for the two systems verification number is 301–415–1966. A at 1–800–397–4209, 301–415–4737, or (paths) for preventing boric acid copy of the request for hearing and by e-mail to [email protected]. precipitation (boric acid precipitation petition for leave to intervene must also control or BPC) during the long-term be sent to the Office of the General The staff has verified that a copy of cooling phase following a loss-of- Counsel, U.S. Nuclear Regulatory the license renewal application is also coolant accident (LOCA). Additionally, Commission, Washington, DC 20555– available to local residents near the the licensee was exempted from the 0001, and it is requested that copies be Brunswick Steam Electric Plant, Units 1 calculation requirements of 50.46(b)(5) transmitted either by means of facsimile and 2, at the North Carolina University and Appendix K, Section I.A.4 for the transmission to 301–415–3725 or by e- at Wilmington, William Randall Library, second or backup path for BPC. The mail to [email protected]. A copy 601 South College Road, Wilmington, proposed action would amend the of the request for hearing and petition North Carolina. existing exemption by approving a new for leave to intervene should also be Dated at Rockville, Maryland, this 30th day path for BPC. This new path would sent to the attorney for the applicant. of November, 2004. become the primary path and the Attorney for the Applicant: Mr. Steven original primary path would become the R. Carr, Associate General Counsel— backup path. The original backup path Legal Department, Progress Energy would no longer be credited as part of

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00047 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70474 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

the licensing basis, although it would elements, when combined with other reactor vessel to back-flush precipitated remain as a third option procedurally. unlikely events, were not assumed to boron from the core. The NRC staff As such, the parts of the exemption fail because the probabilities of the determined that this is an improvement related to the calculation requirements resulting scenarios were deemed over the previous primary alignment in of 50.46(b)(5) and Appendix K, Section sufficiently small that they did not need that it provides a faster, higher, I.A.4 are removed from the exemption to be considered. flushing/diluting flow to the reactor as they only applied to the original The single-failure criterion was vessel from the RCS hot leg side. For backup path and are no longer needed. developed without the benefit of RCS cold leg pipe breaks, this alignment Specifically, DBNPS requested the numerical failure assessments. would provide the optimal flow following amended exemption: Regulatory requirements and guidance direction for flushing of the core. FirstEnergy Nuclear Operating consequently were based upon The new proposed backup path is the Company, with respect to the Davis- categories of equipment and examples previous primary path through the Besse Nuclear Power Station, is exempt that must be covered or that are exempt, pressurizer spray line. This continues to from the single-failure criterion and do not allow a probabilistic be an acceptable path as was requirement of 10 CFR 50, Appendix K, consideration during routine determined by the staff’s review for the Section I.D.1, with respect to failure of implementation. Hence, a single failure exemption issued on May 5, 2000. either Motor Control Center E11B or that was not judged to be exempt would Additionally, the new proposed backup Motor Control Center F11A and the need to be addressed, whether or not path through the pressurizer spray line resulting inability to initiate an active there is a substantial impact upon does not need additional exemptions means of controlling core boron overall system reliability. A result that regarding the calculation requirements concentration. does not improve safety is inconsistent of 50.46(b)(5) and Appendix K, Section In summary, the licensee has with the objective of the single-failure I.A.4 that the original backup path modified the plant to install a better criterion, which was not intended to needed. method of post-LOCA BPC and wants to force changes if essentially no benefit The proposed new BPC primary path credit the new method for use. would accrue. This is the case with is significantly more reliable in terms of capacity and timeliness than the 3.0 Discussion potential failure of the active means of BPC. previous primary path. As stated above, Pursuant to 10 CFR 50.12, the No U.S. plants have encountered the proposed new backup path is the Commission may, upon application by LOCA conditions where BPC was of previous primary path and does not any interested person or upon its own concern. BPC measures are not needed need two additional exemptions initiative, grant exemptions from the for hot-leg breaks because water will regarding calculation requirements that requirements of 10 CFR Part 50 when (1) flow through the core, thus preventing the original backup path needed. the exemptions are authorized by law, significant boric acid buildup. Therefore, the staff concludes that the will not present an undue risk to public Additionally, BPC measures are not proposed backup path is significantly health or safety, and are consistent with needed if excore thermocouples indicate better than the original backup path. the common defense and security; and an adequate subcooling margin because Based on its review, the NRC staff has (2) when special circumstances are there is no boiling to cause determined that the proposed BPC present. Special circumstances are concentration of boric acid. Neither are alignment paths are significantly more present whenever, according to 10 CFR they needed for many of the remaining reliable than the previously approved 50.12(a)(2)(ii), ‘‘Application of the pipe breaks until decay heat is low, paths and, therefore, the staff concludes regulation in the particular because water will flow from the core to that they are acceptable. circumstances would not serve the the upper downcomer via the reactor For the foregoing reasons, the NRC underlying purpose of the rule or is not vessel vent valves, thus providing a staff has concluded that amending the necessary to achieve the underlying mechanism to control accumulation of existing exemption to the requirements purpose of the rule.’’ boric acid in the core. Active means for of Appendix K, Section I.D.1, and 10 The requirements of 10 CFR Part 50 BPC are needed in case one of the above CFR 50.46(a)(1)(ii) with respect to the apply to the DBNPS request to amend conditions is not satisfied. revised alignment paths for active the existing exemption. The underlying In reviewing the proposed BPC ECCS means of BPC at DBNPS is acceptable. purpose of the single-failure criterion alignments, the NRC staff used The NRC staff has determined that there requirement is to assure long-term substantial improvement in reliability as are special circumstances present, as cooling performance of the ECCS in the its criterion for acceptance, since the specified in 10 CFR 50.12(a)(2)(ii), in event of the most damaging single- existing BPC ECCS alignments were that application of the specific failure of ECCS equipment. found acceptable on a probabilistic regulations is not necessary in order to As a licensing review tool, the single- basis. achieve the underlying purpose of these failure criterion helps assure reliable The licensee submitted information regulations to assure long term cooling systems as an element of defense in that compared the previously approved performance of the ECCS. depth. As a design and analysis tool, it BPC alignments with the proposed Additionally, the NRC staff has promotes reliability through enforced alignments to show that the proposed concluded that the parts of the redundancy. Since historically only BPC ECCS alignments are more reliable exemption related to the calculation those systems or components that were than the previously approved requirements of 10 CFR 50.46(b)(5) and judged to have a credible chance of alignments. Appendix K, Section I.A.4 are now failure were assumed to fail, the The new proposed primary path takes withdrawn as they are no longer criterion has been applied to such suction from the ECCS sump through needed. responses as valve movement on decay heat pump 1–1 to a newly demand, emergency diesel generator installed crossover line to the decay 4.0 Conclusion start, short circuit in an electrical bus, heat removal system hot leg drop line Accordingly, the Commission has and fluid leakage caused by gross failure and through decay heat system valves determined that, pursuant to 10 CFR of a pump or valve seal during long- DH–11 and DH–12 to the reactor coolant 50.12(a), the amendment to the term cooling. Certain types of structural system (RCS) hot leg, and finally to the exemption is authorized by law, will not

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00048 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70475

present an undue risk to the public II. Summary normal and credible abnormal health and safety, and is consistent with The purpose of this notice is to conditions, all nuclear processes are the common defense and security. Also, provide the public an opportunity to subcritical, including use of an special circumstances are present. review and comment on a draft Interim approved margin of subcriticality for Therefore, the Commission hereby Staff Guidance document for fuel cycle safety.’’ To demonstrate subcriticality, grants FirstEnergy Nuclear Operating facilities. Interim Staff Guidance-10 licensees perform validation studies in Company an amendment to the provides guidance to NRC staff relative which critical experiments similar to exemption from the requirements of 10 to determining whether the minimum actual or anticipated calculations are CFR 50.46(a)(1)(ii) and 10 CFR Part 50, margin of subcriticality (MoS) is chosen and are then used to establish a Appendix K, Section 1.D.1 for Davis- sufficient to provide an adequate mathematical criterion for subcriticality for all future calculations. This criterion Besse Nuclear Power Station. assurance of subcriticality for safety to is expressed in terms of a limit on the Pursuant to 10 CFR 51.32, the demonstrate compliance with the maximum value of the calculated k , Commission has determined that the performance requirements of 10 CFR eff which will be referred to in this ISG as granting of this exemption will not have 70.61(d). a significant effect on the quality of the the upper subcritical limit (USL). The human environment (69 FR 47469). III. Further Information USL includes allowances for bias and bias uncertainty as well as an additional This exemption is effective upon The document related to this action is available electronically at the NRC’s margin which will be referred to issuance and shall be implemented hereafter as the minimum margin of within 120 days. Electronic Reading Room at http:// www.nrc.gov/reading-rm/adams.html. subcriticality (MoS). This MoS has been Dated at Rockville, Maryland, this 29th day From this site, you can access the NRC’s variously referred to within the nuclear of November 2004. Agencywide Document Access and industry as subcritical margin, arbitrary For the Nuclear Regulatory Commission. Management System (ADAMS), which margin, and administrative margin. The Ledyard B. Marsh, provides text and image files of NRC’s term MoS will be used throughout this ISG for consistency, but these terms are Director, Division of Licensing Project public documents. The ADAMS frequently used interchangeably. This Management, Office of Nuclear Reactor ascension number for the document MoS is an allowance for any unknown Regulation. related to this notice is ML043290270. errors in the calculational method that [FR Doc. 04–26692 Filed 12–3–04; 8:45 am] If you do not have access to ADAMS or may bias the result of calculations, BILLING CODE 7590–01–P if there are problems in accessing the beyond those accounted for explicitly in document located in ADAMS, contact the calculation of the bias and bias the NRC Public Document Room (PDR) uncertainty. NUCLEAR REGULATORY Reference staff at 1–800–397–4209, 301– COMMISSION There is little guidance in the fuel 415–4737, or by e-mail to [email protected]. facility Standard Review Plans (SRPs) as This document may also be viewed Notice of Availability of Interim Staff to what constitutes an acceptable MoS. electronically on the public computers Guidance Documents for Fuel Cycle NUREG–1520, Section 5.4.3.4.4, states located at the NRC’s PDR, O 1 F21, One Facilities that the MoS should be pre-approved by White Flint North, 11555 Rockville the NRC and that the MoS must Pike, Rockville, MD 20852. The PDR AGENCY: Nuclear Regulatory ‘‘include adequate allowance for Commission. reproduction contractor will copy uncertainty in the methodology, data, documents for a fee. Comments and and bias to assure subcriticality.’’ ACTION: Notice of availability. questions should be directed to the NRC However, there is little guidance on how contact listed above by January 5, 2005. to determine the amount of MoS that is FOR FURTHER INFORMATION CONTACT: Comments received after this date will appropriate. Partly due to the historical Wilkins Smith, Project manager, be considered if it is practical to do so, lack of guidance, there have been Technical Support Group, Division of but assurance of consideration cannot significantly different margins of Fuel Cycle Safety and Safeguards, Office be given to comments received after this subcriticality approved for different fuel of Nuclear Material Safety and date. cycle facilities over time. In addition, Safeguards, U.S. Nuclear Regulatory Dated at Rockville, Maryland, this 24th day the different ways of defining the MoS Commission, Washington, DC 20005– of November 2004. and calculating keff limits significantly 0001. Telephone: (301) 415–5788; fax For the Nuclear Regulatory Commission. compound the potential for confusion. number: (301) 415–5370; e-mail: Melanie A. Galloway, The MoS can have a significant effect on [email protected]. Chief, Technical Support Group, Division of facility operations (e.g., storage capacity Fuel Cycle Safety and Safeguards, Office of and throughput) and there has therefore SUPPLEMENTARY INFORMATION: Nuclear Material Safety and Safeguards. been considerable recent interest in I. Introduction decreasing the margins of subcriticality Draft—Division of Fuel Cycle Safety below what has been accepted The Nuclear Regulatory Commission and Safeguards Interim Staff historically. These two factors—the lack (NRC) plans to issue Interim Staff Guidance—10; Justification for of guidance and the increasing interest Guidance (ISG) documents for fuel cycle Minimum Margin of Subcriticality for in reducing margins of subcriticality— facilities. These ISG documents provide Safety Issue make clarification of what constitutes clarifying guidance to the NRC staff Technical justification for the acceptable justification for the MoS when reviewing either a license selection of the minimum margin of necessary. In general, consistent with a application or a license amendment subcriticality (MoS) for safety, as risk-informed approach to regulation, request for a fuel cycle facility under 10 required by 10 CFR 70.61(d) smaller margins of subcriticality require CFR part 70. The NRC is soliciting more substantial technical justification. public comments on the ISG documents Introduction The purpose of this ISG therefore is to which will be considered in the final 10 CFR 70.61(d) requires, in part, that provide guidance on determining versions or subsequent revisions. licensees demonstrate that ‘‘under whether the MoS is sufficient to provide

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00049 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70476 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

an adequate assurance of subcriticality Thus, use of a smaller MoS requires a difference between the average for safety, in accordance with 10 CFR greater level of assurance that all calculated keff (including uncertainties) 70.61(d). sources of uncertainty and bias have and the USL, thus: been taken into account and that the ¥ ¥ Discussion MoS = (1 bias bias bias is known with a high degree of uncertainty)¥USL. The neutron multiplication factor of a accuracy. The MoS should be large There are many factors that can affect fissile system (keff) depends, in general, compared to known uncertainties in the the code’s ability to accurately calculate on many different physical variables. nuclear data and limitations of the keff and that can thus impact the The factors that can affect the calculated methodology (e.g., modeling analyst’s confidence in the estimation of value of keff may be broadly divided into approximations, convergence the bias. Some of these factors are the following categories: (1) Geometric uncertainties). It should be noted that described in detail below. form; (2) material composition; and (3) this MoS is only needed when neutron distribution. The geometric subcritical limits are based on the use of Benchmark Similarity form and material composition of the calculational methods, including Because the bias of calculations is system determine—together with the computer and hand calculations. The estimated based on critical benchmarks underlying nuclear data (e.g., v, X(E), MoS is not needed when subcritical with similar geometric form, material and the set of cross section data)—the limits are based on other methods, such composition, and neutronic behavior to spatial and energy distribution of as experiment or published data (e.g., the systems being evaluated, the degree neutrons in the system (i.e., flux and widely accepted handbooks or endorsed of similarity between benchmarks and energy spectrum). An error in the industry standards). actual or anticipated calculations is a nuclear data or in the modeling of these Because the nuclear industry has key consideration in determining the systems can produce an error in the employed widely different terminology appropriate MoS. The more closely the calculated value of k . This difference eff regarding validation and margin, it is benchmarks represent the between the calculated and true value of necessary to define the following terms characteristics of systems being k is referred to as the bias1. The bias eff as used in this ISG. These definitions validated, the more confidence exists in is defined as the difference between the are for clarity only and are not meant to the calculated bias and bias uncertainty. calculated and true values of k , by the eff prescribe any particular terminology. Allowing a comparison of the chosen following equation: b = kcalc ¥ ktrue Bias: The difference between the benchmarks to actual or anticipated The bias of a critical experiment may calculated and true values of k for a eff calculations requires that both the be known with a high degree of fissile system or set of systems. confidence because the true Bias Uncertainty: The calculated experiments and the calculations be (experimental) value is known a priori uncertainty in the bias as determined by described in sufficient detail to permit independent verification of results. This (ktrue ≈ 1). Because both the a statistical method. experimental and the calculational Margin of subcriticality (MoS): Margin may be accomplished by submitting input decks for both benchmarks and uncertainty are known, there is a in keff applied in addition to bias and determinable uncertainty associated bias uncertainty to ensure subcriticality calculations, or by providing detailed with the bias. The bias for a calculated (also known as subcritical, arbitrary, or drawings, tables, or other such data to system other than a critical experiment administrative margin). This term is the NRC to permit a detailed is not typically known with this same shorthand for ‘‘minimum margin of comparison of system parameters. high degree of confidence, because ktrue subcriticality’’. In evaluating benchmark similarity, is not typically known. The MoS is Margin of safety: Margin in one or some parameters are obviously more therefore an allowance for any unknown more system parameters that represents significant than others. The parameters errors that may affect the calculated the difference between the value of the that can have the greatest effect on the value of keff, beyond those accounted for parameter at which it is controlled and calculated keff of the system are those explicitly in the bias and bias the value at which the system becomes that are most significant. Historically, uncertainty. An MoS is needed because critical. (This represents an additional some parameters have been used as the critical experiments chosen will, in margin beyond the MoS.) trending parameters because these are general, exhibit somewhat different Upper Subcritical Limit: The the parameters that are expected to have geometric forms, material compositions, maximum allowable keff value for a the greatest effect on the bias. They and neutron spectra from those of actual system. Generally, the USL is defined by include the moderator-to-fuel ratio (e.g., system configurations, and the effect of the equation USL = 1¥bias¥bias H/U, H/X, vm/vf), isotopic abundance these differences is difficult to quantify. uncertainty¥MoS. (e.g., 235U, 239Pu, or overall Pu-content), Bias and bias uncertainty are estimated Subcritical Limit: The value of a and parameters characterizing the by calculating the keff of critical system parameter at which it is neutron spectrum (e.g., energy of experiments with geometric forms, controlled to ensure criticality safety, average lethargy causing fission (EALF), material compositions, and neutron and at which keff does not exceed the or average energy group (AEG)). Other spectra similar to those of actual or USL (also known as safety limit). parameters, such as material density or anticipated calculations. However, Operating Limit: The value of a overall geometric shape, are generally because of the many factors that can system parameter at which it is considered to be of less importance. effect the bias, it must be recognized administratively controlled to ensure Care should be taken that, when basing that this is only an estimate of the true that the system will not exceed the justification for a reduced MoS on the bias of the system; it is not possible to subcritical limit.2 similarity of benchmarks to actual or guarantee that all sources of error have If the USL is defined as described anticipated calculations, all important been accounted for during validation. above, then the MoS represents the system characteristics that can affect the bias have been taken into consideration. 1 There are many different ways of computing 2 Not all licensees have a separate subcritical and There are several ways to demonstrate bias as used in calculation of the USL. This may operating limit. Use of administrative operating that the chosen benchmarks are be an average bias, a least-squares fitted bias, a limits is optional, because the subcritical limit bounding bias, etc., as described in the applicant’s should conservatively take parametric tolerances sufficiently similar to actual or methodology. into account. anticipated calculations:

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00050 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70477

1. NUREG/CR–6698, ‘‘Guide to for why the differences in chemical similarity. This is because those Validation of Nuclear Criticality Safety form between UO2F2 and UO2 may be parameters to which keff is most Calculational Method,’’ Table 2.3, ignored. sensitive should weigh more heavily in contains a set of screening criteria for A combination of the above methods evaluating benchmark similarity. If keff determining benchmark applicability. may also prove helpful in demonstrating is highly sensitive to a given parameter, As is stated in the NUREG, these criteria benchmark similarity. For example, an error in the parameter could be were arrived at by consensus among TSUNAMI may be used to identify the expected to have a significant impact on experienced NCS specialists and may be parameters to which keff is most the bias. Conversely, if keff is very considered conservative. The NRC staff sensitive, or a sensitivity study may be insensitive to a given parameter, then an considers agreement on all screening used to confirm TSUNAMI results or error would be expected to have a criteria to be sufficient justification for justify screening ranges. Care should be negligible impact on the bias. In the demonstrating benchmark similarity. taken to ensure that all parameters latter case, agreement with regard to that However, less conservative (i.e., which can measurably affect the bias are parameter is not important to broader) screening ranges may be used considered when comparing chosen establishing benchmark similarity. if appropriately justified. benchmarks to calculations. For Two major ways to determine the 2. Use of an analytical method that example, comparison should not be system’s keff sensitivity are: systematically quantifies the degree of based solely on agreement in the 235U 1. The TSUNAMI code in the SCALE similarity between benchmarks and fission spectrum if 238U or 10B 5 code package can be used to calculate design applications, such as Oak Ridge absorption or 1H scattering have a the sensitivity coefficients for each National Laboratory’s TSUNAMI code significant effect on the calculated keff. nuclide-reaction pair present in the in the SCALE 5 code package. A method such as TSUNAMI that problem. TSUNAMI calculates both an TSUNAMI calculates a correlation considers the complete set of reactions integral sensitivity coefficient (i.e., coefficient indicating the degree of and nuclides present should be used summed over all energy groups) and a similarity between each benchmark and rather than relying on a comparison of sensitivity profile as a function of calculation in pair-wise fashion. The only the fission spectra. That all energy group. The sensitivity coefficient appropriate threshold value of the important parameters have been is defined as the fractional change in keff parameter indicating a sufficient degree included can be determined based on a for a 1% change in the nuclear cross of similarity is an unresolved issue with study of the keff sensitivity, as discussed section. It must be recognized that the use of this method. However, the in the next section. It is especially TSUNAMI only evaluates the keff NRC staff currently considers a important that all materials present in sensitivity to changes in the nuclear ≥ correlation coefficient ck 0.95 to be calculations that can have more than a data, and not to other parameters that indicative of a strong degree of negligible effect on the bias are included could affect the bias and should be similarity. Conversely, a correlation in the chosen benchmarks. In addition, considered. coefficient < 0.90 should not be used as it is necessary that if the parameters 2. Direct sensitivity calculations can demonstration of benchmark similarity associated with calculations are outside also be used to perturb the system and without significant additional the range of the benchmark data, the gauge the resulting effect on keff. justification. These observations are effect of extrapolating the bias should be Perturbation of the atomic number tentative and are based on the staff’s taken into account in setting the USL. densities can also be used to confirm the observation that benchmarks and This should be done by making use of integral sensitivity coefficients calculations having a correlation of at trends in the bias. Both the trend and calculated by TSUNAMI (as when there least 95% also appear to be very similar the uncertainty in the trend should be is doubt as to convergence of the adjoint based on a traditional comparison of extrapolated using an established flux). system parameters. TSUNAMI should mathematical method. The relationship between the keff not be used as a ‘‘black box,’’ but may Some questions that should be asked sensitivity and confidence in the bias is be used to inform the benchmark in evaluating the chosen benchmarks the reason that high-enriched uranium selection process, due to the evolving include: fuel facilities have historically required nature of this tool. • Are the critical experiments chosen a greater MoS than low-enriched 3. Sensitivity studies may be all high-quality benchmarks from uranium facilities. High-enriched employed to demonstrate that the reliable (e.g., peer-reviewed and widely- systems tend to be much more sensitive system keff is highly insensitive to a accepted) sources? to changes in the underlying system particular parameter. In such cases, a • Are the benchmarks chosen taken parameters, and in such systems, the significant error in the parameter will from independent sources? effect of any errors on the bias would be have a small effect on the system bias. • Do the most important benchmark greatly magnified. For this same reason, One example is when the number parameters cover the entire range systems involving weapons-grade density of certain trace materials can be needed for actual or anticipated plutonium would also be more shown to have a negligible effect on keff. calculations? susceptible to undetected errors than Another example is when the presence • Is the number of benchmarks low-assay mixed oxide (i.e., a few of a strong external absorber has only a sufficient to establish trends in the bias percent Pu). The appropriate amount of slight effect on keff. In both cases, such across the entire range? (The number MoS should therefore be commensurate a sensitivity study may be used to depends on the specific statistical with the sensitivity of the system to justify why agreement with regard to a method employed.) changes in the underlying parameters. given parameter is not important for • Are all important parameters that Some questions that should be asked demonstrating benchmark similarity. could affect the bias adequately in evaluating the keff sensitivity include: 4. Physical arguments may be used to represented in the chosen benchmarks? • How sensitive is keff to changes in demonstrate benchmark similarity. For the underlying nuclear data (e.g., cross example, the fact that oxygen and System Sensitivity sections)? fluorine are almost transparent to Sensitivity of the calculated keff to • How sensitive is keff to changes in thermal neutrons (i.e., cross sections are changes in system parameters is a the geometric form and material very low) may be used as justification closely related concept to that of composition?

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00051 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70478 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

• Is the MoS large compared to the Rigor of Validation Methodology bias beyond the range covered by the expected magnitude of changes in keff benchmark data). resulting from errors in the underlying Having a high degree of confidence in In addition, confidence that the code’s system parameters? the estimated bias and bias uncertainty performance is well-understood means requires both that there be a sufficient the bias should be relatively small (i.e., Neutron Physics of the System quantity of well-behaved benchmarks bias ¨ 2%), or else the reason for the and that there be a sufficiently rigorous Another consideration that may affect bias should be known, and no credit validation methodology. If either the must be taken for positive bias. If the the appropriate MoS is the extent to data or the methodology is not adequate, which the physical behavior of the absolute value of the bias is very large a high degree of confidence in the (especially if the reason for the large system is known. Fissile systems which results cannot be attained. The are known to be subcritical with a high bias is unknown), this may indicate that validation methodology must also be the calculational method is not very degree of confidence do not require as suitable for the data analyzed. For much MoS as systems where accurate, and a larger MoS may be example, a statistical methodology appropriate. subcriticality is less certain. An example relying on the data being normally of a system known to be subcritical Some questions that should be asked distributed about the mean keff would in evaluating the data and the would be a finished fuel assembly. not be appropriate to analyze data that These systems typically can only be methodology include: are not normally distributed. A linear • Is the methodology consistent with made critical when highly thermalized, regression fit to data that has a non- the distribution of the data (e.g., and due to extensive analysis and linear bias trend would similarly not be normal)? reactor experience, the flooded case is appropriate. • Are there enough benchmarks to known to be subcritical in isolation. In determine the behavior of the bias addition, the thermal neutron cross Having a sufficient quantity of well- behaved benchmarks means that: (1) across the entire area of applicability? sections for materials in finished reactor • There are enough (applicable) Does the assumed functional form fuel have been measured with an of the bias represent a good fit to the exceptionally high degree of accuracy benchmarks to make a statistically meaningful calculation of the bias and benchmark data? (as opposed to the unresolved resonance • Are there discrete clusters of region). Other examples may include bias uncertainty; (2) the benchmarks span the entire range of all important benchmarks for which the overall bias systems consisting of very simple appears to be non-conservative geometry or other idealized situations, parameters, without gaps requiring extrapolation or wide interpolation; and (especially consisting of the most in which there is strong evidence that applicable benchmarks)? the system is subcritical based on (3) the benchmarks do not display any • apparent anomalies. Most of the Has additional margin been applied comparisons with highly similar to account for extrapolation or wide systems in published references such as statistical methods used rely on the benchmarks being normally distributed. interpolation? handbooks or standards. In these cases, • Have all apparent bias trends been To test for normality, there must be a the amount of MoS needed may be taken into account? statistically significant number of significantly reduced. • Has an excessive number of benchmarks (which may vary benchmarks been discarded as statistical An important factor in determining depending on the test employed). If outliers? that the neutron physics of the system there is insufficient data to verify is well-known is ensuring that the Performance of an adequate code normality to at least the 95% confidence validation alone is not sufficient configuration of the system is fixed. For level, then a non-parametric technique example, a finished fuel assembly is justification for any specific MoS. The should be used to analyze the data. In reason for this is that determination of subject to tight quality assurance checks addition, the benchmarks should and has a form that is well-characterized the bias and bias uncertainty is separate provide a continuum of data across the from selection of an appropriate MoS. and highly stable. A solution or powder entire validated range so that any process with a complex geometric Therefore, performing an adequate code variation in the bias as a function of validation is not alone sufficient arrangement would be much more important system parameters may be susceptible to having its configuration demonstration that an appropriate MoS observed. Anomalies that may cast has been chosen. change to one whose neutron physics is doubt on the results of the validation not well-understood. Experience with may include the presence of discrete Margin in System Parameters similar processes may also be credited. clusters of experiments having a lower The MoS is a reflection of the degree Some questions that should be asked calculated keff than the set of of confidence in the results of the in evaluating the neutron physics of the benchmarks as a whole, an excessive validation analysis; the MoS is a margin system include: fluctuation in keff values (e.g., having a in keff to provide a high degree of 2 ® • Is the geometric form and material X /N 1), or discarding an unusually assurance that fissile systems calculated composition of the system rigid and high number of benchmarks as outliers to be subcritical are in fact subcritical. unchanging? (i.e., more than 1–2%). However, there are other types of • Is the geometric form and material Having a sufficiently rigorous margin that can provide additional composition of the system subject to validation methodology means having a assurance of subcriticality; these strict quality assurance? methodology that is appropriate for the margins are frequently expressed in number and distribution of benchmark terms of the system parameters rather • Are there other reasons besides experiments, that calculates the bias and than keff. It is generally acknowledged criticality calculations to conclude that bias uncertainty using an established that the margin to criticality in system the system will be subcritical (e.g., statistical methodology, that accounts parameters (termed the margin of safety) handbooks, standards, reactor fuel for any trends in the bias, and that is a better indication of the inherent studies)? accounts for all apparent sources of safety of the system than margin in keff. • How well-known are the cross uncertainty in the bias (e.g., the increase In addition to establishing subcritical sections in the energy range of interest? in uncertainty due to extrapolating the limits on controlled system parameters,

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00052 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70479

licensees frequently establish operating Normal vs. Abnormal Conditions Confidence Band Approach but is not limits to ensure that subcritical limits Historically, several licensees have included explicitly in the Lower are not exceeded. The difference distinguished between normal and Tolerance Band Approach. Justification between the subcritical limit and the that the MoS chosen in the Confidence abnormal condition keff limits, in that operating limit (if used) of a system Band Approach is adequate has been they have a higher keff limit for parameter represents one type of margin abnormal conditions. Separate limits for based on a comparison of USL–1 and that may be credited in justifying a USL–2 (i.e., the condition that USL–1, normal and abnormal condition keff lower MoS than would be otherwise values are permissible but are not including the chosen MoS, is less than USL–2). However, this justification is acceptable. This difference between the required. subcritical limit and the operating limit There is a certain likelihood not sufficient. The condition that USL–1 < USL–2 is should not be confused with the MoS. associated with the MoS that processes necessary, but not sufficient, to show Confusion often arises, however, calculated to be subcritical will in fact that an adequate MoS has been selected. because systems in which keff is highly be critical. A somewhat higher sensitive to changes in process These methods are two different likelihood is permissible for abnormal statistical treatments of the data, and a parameters may require both: (1) A large than for normal condition calculations. margin between subcritical and comparison between them can only This is because the abnormal condition demonstrate whether the MoS is operating limits, and (2) a large MoS. should be at least unlikely to occur, in This is because systems in which keff is sufficient to bound statistical accordance with the double contingency uncertainties included in the Lower highly sensitive to changes in process principle. That is, achieving the parameters are highly sensitive to Tolerance Band Approach but not abnormal condition requires at least one included in the Confidence Band normal process variations and to any contingency to have occurred and is potential errors. Both the MoS and the Approach. There may be other statistical likely to be promptly corrected upon or non-statistical errors in the margin between the subcritical and detection. In addition, there is often operating limits are thus dependent on calculation of keff that are not handled additional conservatism present in the in the statistical treatments. Therefore, the keff sensitivity of the system. abnormal condition because the NRC does not consider this an In addition to the margin between the uncontrolled parameters are analyzed at subcritical and operating limits, there is acceptable justification for selection of their worst-case credible conditions. the MoS. also usually a significant amount of As stated in NUREG–1718, the fact conservatism in the facility’s technical that abnormal conditions meet the Regulatory Basis practices with regard to modeling. In standard of being at least unlikely from In addition to complying with criticality calculations, controlled the standpoint of the double paragraphs (b) and (c) of this section, parameters are typically analyzed at contingency principle may be used to the risk of nuclear criticality accidents their subcritical limits, whereas justify having a lower MoS than would must be limited by assuring that under uncontrolled parameters are analyzed at be permissible for normal conditions. In normal and credible abnormal their worst-case credible condition. In addition, the increased risk associated conditions, all nuclear processes are addition, tolerances must be with the less conservative MoS should subcritical, including use of an conservatively taken into account. be commensurate with and offset by the approved margin of subcriticality for These technical practices generally unlikelihood of achieving the abnormal safety. [10 CFR 70.61(d)] result in conservatism of at least several condition. That is, the likelihood that a Technical Review Guidance percent in keff. Examples of this process calculated to be subcritical will conservatism may include assuming be critical increases when going from a Determination of an adequate MoS is optimum concentration in solution normal to a higher abnormal condition strongly dependent upon the specific processes, neglect of neutron absorbers keff limit. If the normal condition keff processes and conditions at the facility in structural materials, or requiring at limit is acceptable, then the abnormal being licensed, which is largely the least a 1-inch, tight-fitting reflector limit will also be acceptable provided reason that different facilities have been around process equipment. The margin this increased likelihood is offset by the licensed with different limits. due to this conservatism may be unlikelihood of going to the abnormal Judgement and experience must be credited in justifying a smaller MoS condition because of the controls that employed in evaluating the adequacy of than would otherwise be found have been established. If a single keff the proposed MoS. Historically, acceptable. However, in order to take limit is used (i.e., no credit for however, an MoS of 0.05 in keff has credit for this as part of the basis for the unlikelihood of the abnormal generally been found acceptable for a MoS, it should be demonstrated that the condition), then it must be determined typical low-enriched fuel fabrication technical practices committed to in the to be acceptable to cover both normal facility. This will generally be the case license application will result in a and credible abnormal conditions. provided there is a sufficient quantity of predictable and consistent amount of well-behaved benchmarks and a Statistical Arguments conservatism in keff. If this modeling sufficiently rigorous validation conservatism will not always be present, Historically, the argument has been methodology has been employed. For it should not be used as justification for used that the MoS can be estimated systems involving high-enriched the MoS. based on comparing the results of two uranium or plutonium, additional MoS Some questions that should be asked statistical methods. In the USLSTATS may be appropriate to account for the in evaluating the margin in system code issued with the SCALE code increased sensitivity of keff to changes in parameters include: package there are two methods for system parameters. There is no • How much margin in keff is present calculating the USL: (1) The Confidence consistent precedent for such facilities, due to conservatism in the modeling Band with Administrative Margin but the amount of increased MoS should practices? Approach, which calculates USL–1, and be commensurate with the increased keff • Will this margin be present for all (2) the Lower Tolerance Band sensitivity of these systems. Therefore, normal and credible abnormal condition Approach, which calculates USL–2. The an MoS of 0.05 in keff for low-enriched calculations? MoS is an input parameter to the fuel facilities or an MoS of 0.1 for high-

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00053 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70480 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

enriched or plutonium fuel facilities Recommendation For copies of this proposal, contact must be justified but will generally be The guidance in this ISG should Mary Beth Smith-Toomey on (202) 606– found acceptable, with the caveats supplement the current guidance in the 8358, FAX (202) 418–3251 or via E-mail 3 discussed above . NCS chapters of the fuel facility SRPs to [email protected]. Please include a For facility processes involving (NUREG–1520 and –1718). In addition, mailing address with your request. unusual materials or new process NUREG–1718, Section 6.4.3.3.4, should DATES: Comments on this proposal conditions, the validation should be be revised to remove the following should be received within 30 calendar reviewed in detail to ensure that there sentence: ‘‘A minimum subcritical days from the date of this publication. are no anomalies associated with unique margin of 0.05 is generally considered to ADDRESSES: Send or deliver comments system characteristics. be acceptable without additional to— In any case, the MoS should not be justification when both the bias and its Ellen Korchek, CEBS, Chief, Program reduced below a minimum of 0.02. uncertainty are determined to be Planning & Evaluation Group, Reducing the MoS below 0.05 for low- negligible.’’ Insurances Services Program, Center enriched processes or 0.1 for high- References for Retirement and Insurance enriched or plutonium processes Services, U.S. Office of Personnel requires substantial additional NUREG–1520, ‘‘Standard Review Plan for the Management, 1900 E Street, NW., justification, which may include: Review of a License Application for a Fuel Cycle Facility’’ Room 3425, Washington, DC 20415– 1. An unusually high degree of NUREG–1718, ‘‘Standard Review Plan for the 3650 similarity between the chosen Review of an Application for a Mixed and benchmarks and anticipated normal and Oxide (MOX) Fuel Fabrication Facility’’ Joseph F. Lackey, OPM Desk Officer, credible abnormal conditions being NUREG/CR–6698, ‘‘Guide for Validation of Office of Information and Regulatory validated. Nuclear Criticality Safety Calculational Affairs, Office of Management & 2. Demonstration that the system keff Methodology’’ Budget, New Executive Office is highly insensitive to changes in NUREG/CR–6361, ‘‘Criticality Benchmark Building, NW., Room 10235, underlying system parameters, such that Guide for Light-Water-Reactor Fuel in Washington, DC 20503. Transportation and Storage Packages’’ the worst credible modeling or cross For Information Regarding section errors would have a negligible Approved: llllllllllll Administrative Coordination—Contact: effect on the bias. Date: lllllllllllllll Cyrus S. Benson, Team Leader, 3. Demonstration that the system Director, FCSS Publications Team, Support Group, being modeled is known to be [FR Doc. 04–26688 Filed 12–3–04; 8:45 am] (202) 606–0623. subcritical with a high degree of BILLING CODE 7590–01–P Office of Personnel Management. confidence. This requires that there be Kay Coles James, other strong evidence in addition to the calculations that the system is Director. OFFICE OF PERSONNEL [FR Doc. 04–26729 Filed 12–3–04; 8:45 am] subcritical (such as comparison with MANAGEMENT highly similar systems in published BILLING CODE 6325–38–P references such as handbooks or Submission for OMB Review; standards). Comment Request for Review of a 4. Demonstration that the validation Revised Information Collection: Form SECURITIES AND EXCHANGE methodology is exceptionally rigorous, DPRS–2809 COMMISSION so that any potential sources of error [Release No. 50747] have been accounted for in calculating AGENCY: Office of Personnel the USL. Management. Securities Exchange Act of 1934; 5. Demonstration that there is a ACTION: Notice. Order Delaying Pilot Period for dependable and consistent amount of Suspension of the Operation of Short SUMMARY: In accordance with the conservatism in keff due to the Sale Price Provisions conservatism in modeling practices. Paperwork Reduction Act of 1995 (Pub. L. 104–13, May 22, 1995), this notice November 29, 2004. In addition, justification of the MoS announces that the Office of Personnel for abnormal conditions may include: On July 28, 2004, we issued an order Management (OPM) has submitted to (‘‘Pilot Order’’) establishing a one year 6. Demonstration that the increased the Office of Management and Budget Pilot (‘‘Pilot’’) suspending the likelihood of a process calculated as (OMB) a request for review of a revised provisions of Rule 10a-1(a) under the subcritical being critical is offset by the information collection. DPRS–2809, Securities Exchange Act of 1934 (the unlikelihood of achieving the abnormal Request to Change Federal Employees ‘‘Act’’) 1 and any short sale price test of condition. Health Benefits (FEHB) Enrollment or to any exchange or national securities This list is not all-inclusive; other Receive Plan Brochures, is used by association for short sales 2 of certain technical justification demonstrating former spouses, Temporary securities.3 The Pilot Order provided that there is a high degree of confidence Continuation of Coverage enrollees, and in the calculation of keff may be used. direct pay annuitants to change health 1 17 CFR 240.10a–1. benefits enrollment or request plan 2 ‘‘Short sale’’ is defined in Rule 200 of Regulation 3 NUREG–1718, Section 6.4.3.3.4, states that the brochures for plans they wish to SHO, 17 CFR 242.200. applicant should submit justification for the MoS, 3 Securities Exchange Act Release No. 50104 (July but then states that an MoS of 0.05 is ‘‘generally consider for enrollment during open 28, 2004), 69 FR 48032 (August 6, 2004). considered to be acceptable without additional season. Specifically, the Pilot Order suspended price tests justification when both the bias and its uncertainty Approximately 27,000 DPRS–2809 for the following: (1) Short sales in the securities are determined to be negligible.’’ These statements forms are completed annually. We identified in Appendix A to the Pilot Order; (2) are inconsistent. The statement about 0.05 being short sales in the securities included in the Russell generally acceptable without additional justification estimate it takes approximately 45 1000 index effected between 4:15 p.m. EST and the is in error and should be removed from the next minutes to complete the form. The open of the effective transaction reporting plan of revision to the SRP. annual burden is 20,250 hours. the Consolidated Tape Association (‘‘consolidated

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00054 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70481

that the Pilot would commence on process, our staff was informed that a would process all short sale orders of January 3, 2005 and terminate on large number of brokers and dealers Pilot stocks without any short sale price December 31, 2005, and that we may believe it would be inefficient and very test, regardless of whether the broker- issue further orders affecting the costly for them to comply with this dealers had marked the orders as ‘‘short operation of the Pilot Order.4 In marking requirement for Pilot stocks exempt.’’ The market centers would do response to information that we have under the time frame established by the this by ‘‘masking’’ short sale received from market participants, we Pilot Order. According to these brokers instructions on Pilot stocks and are issuing this Order (‘‘Second Pilot and dealers, they and their customers executing the short sales as ‘‘short Order’’) to reset the Pilot to commence would need to make significant systems exempt.’’ Therefore, brokers and dealers on May 2, 2005 and end on April 28, changes to be sure that short sale orders and their customers would not be 2006. All other terms of the Pilot Order for Pilot stocks are marked properly and required to make extensive, and remain unchanged. We may issue that the marking is maintained at each possibly temporary, systems changes, further orders affecting the operation of stage of processing the order. They also and short sales of Pilot stocks would be the Pilot. We find that the delay of the assert that these systems changes will be executed appropriately. commencement of the Pilot is necessary more extensive, costly and time- We have been informed that both the and appropriate in the public interest consuming to implement than they had brokers and dealers and the market and consistent with the protection of anticipated during the comment period centers agree that the market centers’ investors.5 for Regulation SHO. proposals to ‘‘mask’’ short sale orders in The order processing systems of Pilot stocks for the duration of the Pilot I. New Pilot Period brokers and dealers and their customers would be more efficient than having the We established the Pilot as part of our are predominantly electronic. Currently, brokers and dealers and their customers review of short sale regulation in many of these systems are not make necessary systems changes. Some conjunction with the adoption of programmed to automatically identify market centers, however, would be Regulation SHO.6 The Pilot is designed and mark Pilot stocks as ‘‘short exempt’’ required to make significant changes to to assist us in assessing whether or to recognize a ‘‘short exempt’’ their systems, and we understand that changes to short sale regulation are marking. A broker-dealer may have some of the market centers would not be necessary in light of current market many different internal systems that are able to complete all the necessary practices and the purposes underlying linked together, and each of its systems changes by January 3, 2005. We short sale regulation.7 In order to customers may have different systems have been informed that the market achieve this goal, it is critical that the through which the customer centers would be ready to ‘‘mask’’ data we receive on short sales of Pilot communicates orders to the broker- orders on May 2, 2005. securities during the term of the Pilot is dealer. According to the market Based on the forgoing, we believe that accurate and comprehensive. This is participants, modifying these systems it is necessary and appropriate in the possible only if market participants and their interconnections presents public interest and consistent with the execute all short sales of Pilot stocks significant programming challenges. protection of investors to delay the without regard to any short sale price For example, market participants state commencement of the Pilot until May 2, test. that these systems currently are not 2005. For the Commission to fully Pursuant to Regulation SHO, brokers equipped to change orders marked evaluate the effectiveness of short sale and dealers are required to mark short ‘‘short’’ to ‘‘short exempt.’’ Broker- price restrictions, the data must be sale orders of Pilot stocks effected dealer firms have advised our staff that complete and accurate. The delay will during any Pilot period as ‘‘short it will be difficult to implement systems provide an opportunity for systems to be exempt’’ so that such orders are not changes under the time frame modified in a manner that will help subject to price tests.8 Since the established by the Pilot Order to achieve the purposes of the Pilot.9 adoption of Regulation SHO and the identify and change all orders marked Accordingly, the Pilot will now order establishing the Pilot, our staff has short so that all short sales of Pilot commence on May 2, 2005 and will end communicated extensively with self- stocks are processed as intended by on April 28, 2006. regulatory organizations and brokers Regulation SHO and the Pilot, i.e., The compliance date for all other and dealers in order to facilitate the without regard to any short sale price provisions of Regulation SHO remains implementation of Regulation SHO and test. January 3, 2005. This Second Pilot the Pilot. During the course of this Finally, broker-dealer firms have Order does not affect the responsibility asked us to consider the possibility that of brokers and dealers to comply with the systems changes may be in effect tape’’) on the following day; and (3) short sales in the requirements of Regulation SHO, only for the one-year duration of the any security not included in paragraphs (1) and (2) including the order marking effected in the period between the close of the Pilot. Even if the brokers and dealers requirements.10 By issuing this Second consolidated tape and the open of the consolidated and their customers were able to make Pilot Order, we are providing an tape on the following day. the necessary systems changes with 4 69 FR at 48033. opportunity for firms to work with the reasonable expenditure of time and 5 See Section 36 of the Act. In addition, pursuant money, at the conclusion of the Pilot, to Section 3(f) of the Act, we considered the impact 9 In addition, resetting the commencement date of of these modifications on efficiency, competition, brokers and dealers and their customers the Pilot would allow the market centers to and capital formation. 15 U.S.C. 78c(f). may be required to change their systems continue implementation of systems to 6 69 FR at 48032; Securities Exchange Act Release again, which would result in additional electronically record all short sale orders, including No. 50103 (July 28, 2004), 69 FR 48008 (August 6, costs. manual orders. 2004) (the ‘‘Adopting Release’’). 10 We believe that an exemption from the order 7 69 FR at 48032. In this context, we have been marking requirements may be necessary and 8 Rule 200(g) of Regulation SHO requires that informed that a number of market appropriate to allow broker-dealers to avail brokers and dealers mark all sell orders of any centers have offered to assist their themselves of the order ‘‘masking’’ process equity security as ‘‘long,’’ ‘‘short,’’ or ‘‘short broker-dealer members in executing described above for Pilot stocks, if implemented by exempt.’’ 17 CFR 242.200(g). The Adopting Release the market centers. Accordingly, prior to the states that short sales of pilot securities effected short sales in Pilot stocks in a manner commencement of the Pilot, we will consider during any pilot period should be marked ‘‘short consistent with Regulation SHO. written requests for appropriate relief from the exempt.’’ 69 FR at 48012. According to these market centers, they order marking requirements for Pilot stocks.

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00055 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70482 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

market centers to develop cost effective I. Self-Regulatory Organization’s option symbol; (ii) the expiration month; means of executing trades of Pilot Statement of the Terms of Substance of (iii) the expiration year; (iv) the strike stocks. Brokers and dealers, however, the Proposed Rule Change price; (v) buy or sell; (vi) call or put; (vii) retain the responsibility to appropriately CBOE proposes to amend its rules the number of contracts; and (viii) the mark the orders of Pilot stocks upon relating to the systematizing of orders in Clearing Member. Any additional commencement of the Pilot on May 2, connection with the requirement to information with respect to the order 2005. design and implement a consolidated shall be input into the Exchange’s systems contemporaneously upon II. Conclusion options audit trail system (‘‘COATS’’). The text of the proposed rule change is receipt, which may occur after the We find that delaying implementation provided below. Proposed additions are representation and execution of the of the Pilot until May 2, 2005, for the in italics and proposed deletions are in order. reasons stated above, is necessary and brackets. (3) Orders in Certain Index Option Classes. The requirement to systematize appropriate in the public interest and * * * * * consistent with the protection of orders as set forth in this Rule shall investors. CHAPTER VI commence on March 28, 2005, in the following option classes: the S&P 500 Section B: Member Activities on the Accordingly, it is hereby ordered that index option class (SPX), the S&P 100 Floor the suspension of the provisions of Rule index option class (OEX), and the 10a–1(a) and any short sale price test of [Orders Required to Be in Written Form] European-style S&P 100 index option any exchange or national securities Required Order Information class (XEO). association shall commence on May 2, Rule 6.24 (4) In the event of a malfunction or 2005 and shall terminate on April 28, (a) [Transmitted to the Floor. Each disruption of the Exchange’s systems 2006. The Commission from time to order transmitted to the floor must be such that a member is unable to time may issue further orders affecting recorded legibly in a written form that systematize an order, the member or the operation of the Second Pilot Order. has been approved by the Exchange, and member organization shall follow the All other provisions of the Pilot Order the member receiving such order must procedures as described in paragraph shall remain in effect. record the time of its receipt on the (b) of this Rule during the time period floor. Each such order must be in legible that the malfunction or disruption By the Commission. written form when taken to the post for occurs. Upon the cessation of the Margaret H. McFarland, attempted execution.] Orders Must Be malfunction or disruption, the member Deputy Secretary. Systematized. The Exchange has shall immediately resume systematizing [FR Doc. E4–3469 Filed 12–3–04; 8:45 am] undertaken with the other options orders. In addition, the member shall BILLING CODE 8010–01–P exchanges to develop a Consolidated exert best efforts to input electronically Options Audit Trail System (‘‘COATS’’), into the Exchange’s systems all relevant which when fully developed and order information received during the SECURITIES AND EXCHANGE implemented, will provide an accurate, time period when there was a COMMISSION time-sequenced record of electronic and malfunction or disruption of the other orders, quotations, and Exchange’s systems as soon as possible, [Release No. 34–50755; File No. SR–CBOE– transactions in certain option classes and in any event shall input such data 2004–77] listed on the Exchange. Unless electronically into the Exchange’s otherwise provided, the requirements of systems not later than the close of Self-Regulatory Organizations; Notice this Rule shall commence on January business on the day that the of Filing of Proposed Rule Change by 10, 2005. In connection with the malfunction or disruption ceases. If, the Chicago Board Options Exchange, implementation of COATS: following a malfunction or disruption, Inc. Relating to the Systematizing of (1) Except as provided in paragraphs the Exchange’s systems were to become Orders in Connection With the (a)(2) through (a)(4), and (b), of this available for the systemization of orders Requirement To Design and Implement Rule, each order, cancellation of, or after the close of business, the member a Consolidated Options Audit Trail change to an order transmitted to the would be expected to input System (‘‘COATS’’) Exchange must be ‘‘systematized’’, in a electronically into the Exchange’s format approved by the Exchange, either November 30, 2004. systems all relevant order information before it is sent to the Exchange or upon received during the malfunction or Pursuant to Section 19(b)(1) of the receipt on the floor of the Exchange. An disruption on the next business day. Securities Exchange Act of 1934 (the order is systematized if: (i) the order is (b) With respect to orders received ‘‘Act’’),1 and Rule 19b–4 thereunder,2 sent electronically to the Exchange; or during a malfunction or disruption of notice is hereby given that on November (ii) the order that is sent to the Exchange the Exchange’s systems under 24, 2004, the Chicago Board Options non-electronically (e.g., telephone paragraph (a)(4) above: Exchange, Incorporated (‘‘CBOE’’ or orders) is input electronically into the (1) Transmitted to the Floor. Each ‘‘Exchange’’) filed with the Securities Exchange’s systems contemporaneously order transmitted to the Exchange must and Exchange Commission (‘‘SEC’’ or upon receipt on the Exchange, and prior be recorded legibly in a written form ‘‘Commission’’) the proposed rule to representation of the order. that has been approved by the change as described in Items I, II, and (2) Market and Marketable Orders. Exchange, and the member receiving III below, which Items have been With respect to non-electronic, market such order must record the time of its prepared by the CBOE. The Commission and marketable orders sent to the receipt on the floor and legibly record is publishing this notice to solicit Exchange, the member responsible for the terms of the order, in written form. comments on the proposed rule change systematizing the order shall input into (2) Cancellations and Changes. Each from interested persons. the Exchange’s systems at least the cancellation of, or change to, an order following specific information with that has been transmitted to the floor 1 15 U.S.C. 78s(b)(1). respect to the order prior to the must be recorded legibly in a written 2 17 CFR 240.19b–4. representation of the order: (i) The form that has been approved by the

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00056 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70483

Exchange, and the member receiving will have full force and effect as if fully II. Self-Regulatory Organization’s such cancellation or change must record set forth herein. The Telephone and Statement of the Purpose of, and the time of its receipt on the floor. Terminal Order Formats in the Manual Statutory Basis for, the Proposed Rule (c) Executions. A member shall comply with the requirements of Change transmitting from the floor a report of COATS. In its filing with the Commission, the the execution of an order must record .04 Accommodation liquidations as Exchange included statements the time at which a report of such described in Rule 6.54 are exempt from concerning the purpose of and basis for execution is received by such member. the requirements of this Rule. However, the proposed rule change and discussed [(d) On-floor Market-Maker Orders. the Exchange maintains quotation, any comments it received on the Each order transmitted by a Market- order and transaction information for proposed rule change. The text of these Maker while on the floor, including any accommodation liquidations in the statements may be examined at the cancellation of or change to such order, same format as the COATS data is places specified in Item IV below. The must be recorded legibly in a written maintained, and will make such Exchange has prepared summaries, set form that has been approved by the information available to the SEC upon forth in sections A, B, and C below, of Exchange, and must be time stamped request. the most significant parts of such immediately prior to its transmission.] .05 FLEX options, as described in statements. * * * Interpretations and Policies: Chapter 24A of the Exchange’s rules, are A. Self-Regulatory Organization’s .01 Any member desiring to use an exempt from the requirements of this Statement of the Purpose of, and order form other than those provided by Rule. However, the Exchange will Statutory Basis for, the Proposed Rule the Exchange must submit such form to maintain as part of its audit trail Change the appropriate Floor Procedure quotation, order and transaction Committee and obtain its approval prior information for FLEX options in a form 1. Purpose to using such form on the Floor. When and manner that is substantially similar CBOE proposes this rule change to approving an order form other than to the form and manner as the COATS comply with the requirement to those provided by the Exchange, the data is maintained, and will make such implement COATS. In connection with appropriate Floor Procedure Committee information available to the SEC upon the filing of this proposed rule change, shall ensure that the form complies with request. CBOE is withdrawing SR–CBOE–2003– COATS. .06 Any proprietary system 18, and Amendment Nos. 1 and 2 .02 [(a) Without limiting the approved by the Exchange on the thereto, which CBOE previously filed to applicability of the foregoing, the] The Exchange’s trading floor which receives comply with the requirement to use of hand signal communications on orders will be considered an Exchange implement COATS.3 the floor of the Exchange may be used system for purposes of paragraph (a)(1) Specifically, CBOE is submitting the to initiate an order, to increase or of this Rule. Any proprietary system proposed change to Rule 6.24 in decrease the size of an order, to change approved by the Exchange shall have connection with subparagraph IV.B.e(v) an order’s limit, to cancel an order, or the functionality to comply with the of the Commission’s September 11, 2000 to activate a market order. [Unless an requirements of COATS. Order (‘‘Order’’),4 which requires the options class is exempted by the .07 On-floor Market-Maker Orders. options exchanges to design and Exchange, any] Any initiation, Each order transmitted by a Market- implement COATS to ‘‘incorporate into cancellation, or change of an order Maker while on the floor, including any the audit trail all non-electronic orders relayed to a floor broker through the use cancellation of or change to such order, such that the audit trail provides an of hand signals also must be must be systematized in accordance accurate, time-sequenced record of systematized in accordance with with the procedures described in electronic and other orders, quotations paragraph (a) of this Rule [relayed to the Paragraph (a) and (b) of this Rule, as and transactions on such respondent floor broker in written form, time- applicable. exchange, beginning with the receipt of stamped, immediately thereafter]. All an order by such respondent exchange other rules applicable to order Rule 6.73 Responsibilities of Floor and further documenting the life of the preparation and retention, and reporting Brokers order through the process of execution, duties are applicable to orders [in (a)–(d) No change. partial execution, or cancellation of that exempted option classes] under this * * * Interpretations and Policies: order * * *’’ (‘‘Phase V’’). Interpretation, except that the record- In order to assure that all non- .01—.03 No change. keeping obligation lies with the member electronic orders are incorporated into signaling the order where a hand signal .04 Pursuant to Rule 6.73(a), and COATS for Phase V, the proposed rule is used. All cancellations and changes of subject to the requirement to change proposes to amend CBOE Rule orders held by the [Board Broker or] systematize orders prior to 6.24, which currently requires orders to Order Book Official must be provided in representation pursuant to Rule 6.24, a be in written form. The proposed rule written form or electronically, and also Floor Broker’s use of due diligence in change generally requires that each must be systematized in accordance handling an order shall include the order, change to an order, or with paragraph (a) of this Rule. [(b) immediate and continuous Until further notice the following are representation at the trading station 3 Amendment No. 1 to SR–CBOE–2003–18 exempt options classes under this where the option class represented by superceded the original filing in its entirety, and Interpretation: OEX, SPX, NSX, and the order is traded, any of the following was published for comment by the SEC on July 31, types of orders: (1) market orders, (2) 2003. See Securities Exchange Act Release No. DJX.] 48267 (August 1, 2003), 68 FR 47116 (August 8, .03 The appropriate Floor Procedure limit orders to sell where the specified 2003). Committee will from time to time price is at or below the current offer or, 4 Order Instituting Public Administrative prescribe the form of Telephone and (3) limit orders to buy where the Proceedings Pursuant to Section 19(h)(1) of the specified price is at or above the current Securities Exchange Act of 1934, Making Findings Terminal Order Formats in a Manual and Imposing Remedial Sanctions. See Securities and the contents of this Manual are bid. Exchange Act Release No. 43268 (September 11, hereby incorporated in these Rules and * * * * * 2000).

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00057 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70484 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

cancellation of an order transmitted to about the same time to ensure an that the exception for these option the Exchange must be ‘‘systematized,’’ accurate audit trail. Accordingly, the classes is reasonable and appropriate in a format approved by the Exchange, proposed rule change requires that a because the manner in which these either before it is sent to the Exchange member input into the Exchange’s option classes trade is significantly or contemporaneously upon receipt on systems the following specific different than equity option classes and the floor of the Exchange, and prior to information with respect to a market or because of the trading environment that representation of the order.5 Each order, marketable order prior to the exists in these option classes.11 change to an order, or cancellation of an representation of the order: (i) The Additionally, in proposed new order may be systematized in one of two option symbol; (ii) the expiration subparagraph (a)(4) of CBOE Rule 6.24, ways. If an order, change to an order, or month; (iii) the expiration year; (iv) the the Exchange proposes that in the event cancellation of an order is sent strike price; (v) buy or sell; (vi) call or of a malfunction or disruption of the electronically to the Exchange, it is put; (vii) the number of contracts; and Exchange’s systems such that a member systematized. Alternatively, if an order, (viii) the Clearing Member.8 Any is unable to systematize an order, the change to an order, or cancellation of an additional information with respect to member or member organization shall order that is sent to the Exchange non- the order shall be input into the follow the procedures as described in electronically is input electronically Exchange’s systems contemporaneously paragraph (b) of CBOE Rule 6.24 during into the Exchange’s systems thereafter, which may occur after the the time period that the malfunction or contemporaneously upon receipt on the representation and execution of the disruption occurs. Upon the cessation of Exchange, it is systematized.6 The order. the malfunction or disruption, the proposed rule states that this This requirement for market and member shall immediately resume requirement will commence on January marketable orders necessarily requires systematizing orders. In addition, the 10, 2005. the member receiving the market or member shall exert best efforts to input Although the proposed rule change marketable order to balance the electronically into the Exchange’s generally requires that each order be requirement to immediately systematize systems all relevant order information systematized prior to representation, the non-electronic orders for audit trail received during the time period when Exchange believes that it is appropriate purposes with the member’s obligation there was a malfunction or disruption of and necessary to treat market and under CBOE rules,9 the federal the Exchange’s systems as soon as marketable orders differently than other securities laws, and common law possible, and in any event shall input orders so that marketable orders may be agency principles to immediately and such data electronically into the represented immediately in the continuously represent market and Exchange’s systems not later than the marketplace as customers expect and as marketable customer orders.10 Because close of business on the day that the members representing those orders are the requirement to systematize market malfunction or disruption ceases.12 obligated to do.7 Accordingly, with and marketable orders will affect a The proposed rule change also keeps respect to non-electronic market and member’s ability to immediately the current Interpretation and Policy marketable orders sent to the Exchange, represent market and marketable .02(a) of CBOE Rule 6.24, which permits the proposed rule change provides that customer orders, the Exchange is also the use of hand signal communications the member responsible for proposing to amend Interpretation .04 to on the floor to, among other things, systematizing the order shall input into CBOE Rule 6.73—Responsibilities of initiate an order, cancel an order or the Exchange’s systems a number of Floor Brokers, to make explicit that a change material terms of an order. order terms that are sufficient to broker’s responsibility to immediately However, any initiation, cancellation, or distinguish one order from another and continuously represent market and change of an order relayed to a floor order that a member may receive at or marketable orders is subject to the broker through the use of hand signals requirement set forth in this rule also must be systematized upon receipt 5 CBOE notes that the execution or partial change, namely, that each order must be in accordance with paragraph (a) of execution of an order has been incorporated into systematized prior to representation. CBOE Rule 6.24. The proposed rule COATS in Phase II, and as described in Paragraph With respect to non-electronic orders II of the formal COATS Plan that the options change also deletes paragraph (b) of exchanges previously have provided to the SEC. received in the S&P 100 index option Interpretation .02, as paragraph (a) of 6 The Exchange recognizes the need for effective class (OEX), the S&P 500 index option that interpretation is being amended to and proactive surveillance for activities such as class (SPX), and the European-style S&P delete the reference to exempt classes. trading ahead and front-running. It currently 100 index option class (XEO), the conducts surveillance for such activities and will The Exchange has added a new incorporate a review of order systemization as part proposed rule change states that the Interpretation and Policy .04 to CBOE of such surveillance. The Exchange also intends to requirement to systematize orders prior Rule 6.24, which states that implement supplementary surveillance and to representation shall commence on examination programs related to the systemization March 28, 2005. The Exchange believes of orders requirement promptly after this 11 As CBOE has advised the SEC staff, CBOE requirement is instituted, and which will support, initially developed its floor broker workstation among other things, trading ahead and front- 8 The ‘‘Clearing Member’’ means the CBOE (‘‘FBW’’) to assist its members in complying with running surveillances. clearing member firm that is required to be their obligations to systematize orders for COATS. 7 CBOE Rule 6.73(a) requires that ‘‘[a] floor broker identified for each transaction on the Exchange However, the FBW was designed specifically for handling an order is to use due diligence to execute pursuant to Rule 6.51(d). See Rule 1.1(f) defining COATS compliance in equity option classes, and the order at the best price or prices available to ‘‘Clearing Member’’. not for use in index option classes. Upon being him.’’ Interpretation .04 to Rule 6.73 further 9 See CBOE Rule 6.73. advised in late December 2003 that the requirement clarifies a broker’s obligation to exercise due 10 Following implementation of this rule change to systematize orders also applied to non-equity diligence, stating ‘‘Pursuant to Rule 6.73(a), a Floor on would be sufficient to distinguish one order option classes, the Exchange actively pursued Broker’s use of due diligence in handling an order from another January 10, 2005, the Exchange developing an alternative technology to utilize in shall include the immediate and continuous intends to analyze whether some number of orders index option classes. representation, at the trading station where the terms less than the eight identified above that a 12 If, following a malfunction or disruption, the option class represented by the order is traded, any member may receive at or about the same time. If Exchange’s systems were to become available for of the following types of orders: (1) Market orders, the Exchange’s analysis supports eliminating the the systemization of orders after the close of (2) limit orders to sell where the specified price is necessity to input some of these order terms prior business, the member would be expected to input at or below the current offer or, (3) limit orders to to representation, the Exchange may propose to electronically into the Exchange’s systems all buy where the specified price is at or above the amend this requirement, which would be subject to relevant order information received during the current bid.’’ Commission review and approval. malfunction or disruption on the next business day.

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00058 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70485

accommodation liquidations as defined protect investors and the public interest. Securities and Exchange Commission, in Rule 6.54 are exempted from the CBOE believes that the proposed rule 450 Fifth Street, NW., Washington, DC systematization requirement. However, change will promote just and equitable 20549–0609. the Exchange maintains quotation, order principles of trade and protect investors All submissions should refer to File and transaction information for and the public interest by electronically Number SR–CBOE–2004–77. This file accommodation liquidations in the enhancing the audit trail for orders by number should be included on the same format as the COATS data is incorporating non-electronic orders into subject line if e-mail is used. To help the maintained, and will make such COATS. This enhanced audit trail will Commission process and review your information available to the SEC upon permit CBOE to conduct surveillance of comments more efficiently, please use request. the activity on the Exchange and only one method. The Commission will The Exchange also has added a new reconstruct markets in a more efficient post all comments on the Commission’s Interpretation and Policy .05 to CBOE and effective manner. Internet Web site (http://www.sec.gov/ Rule 6.24, which states that FLEX rules/sro.shtml). Copies of the B. Self-Regulatory Organization’s options, as described in Chapter 24A of submission, all subsequent Statement on Burden on Competition the Exchange’s rules, are exempt from amendments, all written statements the requirements of this Rule. However, CBOE does not believe that the with respect to the proposed rule the Exchange will maintain as part of its proposed rule change will impose any change that are filed with the audit trail quotation, order and burden on competition not necessary or Commission, and all written transaction information for FLEX appropriate in furtherance of the communications relating to the options in a form and manner that is purposes of the Act. proposed rule change between the substantially similar to the form and Commission and any person, other than manner as the COATS data is C. Self-Regulatory Organization’s Statement on Comments on the those that may be withheld from the maintained, and will make such public in accordance with the information available to the SEC upon Proposed Rule Change Received From Members, Participants, or Others provisions of 5 U.S.C. 552, will be request. available for inspection and copying in The proposed rule change also The Exchange neither received nor the Commission’s Public Reference includes a new Interpretation .06 which solicited written comments on the Section, 450 Fifth Street, NW., provides that any proprietary system proposed rule change. Washington, DC 20549. Copies of such approved by the Exchange on the III. Date of Effectiveness of the filing also will be available for Exchange’s trading floor that receives inspection and copying at the principal orders will be considered an Exchange Proposed Rule Change and Timing for Commission Action office of the CBOE. All comments system for purposes of paragraph (a)(1) received will be posted without change; of this Rule. Any proprietary system Within 35 days of the date of the Commission does not edit personal approved by the Exchange shall comply publication of this notice in the Federal identifying information from with the requirements of COATS. Register or within such longer period (i) submissions. You should submit only Finally, the proposed rule change as the Commission may designate up to information that you wish to make includes a new Interpretation .07 which 90 days of such date if it finds such available publicly. All submissions provides that each order transmitted by longer period to be appropriate and should refer to File Number SR–CBOE– a Market-Maker while on the floor, publishes its reasons for so finding or 2004–77 and should be submitted on or including any cancellation of or change (ii) as to which the self-regulatory before December 27, 2004. to such order, must be systematized in organization consents, the Commission accordance with the procedures will: For the Commission, by the Division of described in Paragraph (a) and (b) of this (A) By order approve such proposed Market Regulation, pursuant to delegated authority.15 Rule, as applicable. Currently paragraph rule change, or (d) of CBOE Rule 6.24 requires that each (B) Institute proceedings to determine Jill M. Peterson, order transmitted by a Market-Maker whether the proposed rule change Assistant Secretary. while on the floor, including any should be disapproved. [FR Doc. E4–3472 Filed 12–3–04; 8:45 am] cancellation of or change to such order, BILLING CODE 8010–01–P IV. Solicitation of Comments must be recorded legibly in a written form that has been approved by the Interested persons are invited to Exchange, and must be time stamped submit written data, views, and SECURITIES AND EXCHANGE immediately prior to its transmission. arguments concerning the foregoing, COMMISSION This new interpretation thus requires including whether the proposed rule [Release No. 34–50748; File No. SR–NASD– that each order transmitted by a Market- change is consistent with the Act. 2004–153] Maker while on the floor, including any Comments may be submitted by any of cancellation of or change to such order, the following methods: Self-Regulatory Organizations; Order Approving Proposed Rule Change by is systematized in accordance with Electronic Comments CBOE Rule 6.24. the National Association of Securities • Use the Commission’s Internet Dealers, Inc. To Provide a Delta Hedge 2. Statutory Basis comment form (http://www.sec.gov/ Exemption From Stock Option Position CBOE believes the proposed rule rules/sro.shtml); or Limits for OTC Derivatives Dealers change is consistent with Section 6(b) of • Send an e-mail to rule- Affiliated With NASD Member Firms the Act 13 in general and furthers the [email protected]. Please include File When Certain Conditions Are Satisfied objectives of Section 6(b)(5) 14 in Number SR–CBOE–2004–77 on the particular in that it should promote just subject line. November 29, 2004. and equitable principles of trade, and On October 12, 2004, the National Paper Comments Association of Securities Dealers, Inc. 13 15 U.S.C. 78f(b). • Send paper comments in triplicate 14 15 U.S.C. 78(b)(5). to Jonathan G. Katz, Secretary, 15 17 CFR 200.30–3(a)(12).

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00059 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70486 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

(‘‘NASD’’) submitted to the Securities among other things, that NASD rules be compliance periods on the Nasdaq and Exchange Commission designed to prevent fraudulent and National Market and the Nasdaq (‘‘Commission’’), pursuant to Section manipulative acts and practices, to SmallCap Market and to require non- 19(b)(1) of the Securities Exchange Act promote just and equitable principles of Canadian foreign issuers to satisfy the of 1934 (‘‘Act’’) 1 and Rule 19b–4 trade, to remove impediments to and minimum bid price and market value of thereunder,2 a proposed rule change to perfect the mechanism of a free and publicly held shares requirements amend its Rule 2860(b) to provide a open market and a national market applicable to domestic issuers for delta hedging exemption from stock system, and, in general, to protect continued listing on the Nasdaq option position limits for OTC investors and the public interest. The SmallCap Market. The proposed rule Derivatives Dealers affiliated with Commission has previously stated its change was published for notice and NASD member firms when certain support for recognizing options comment in the Federal Register on conditions are satisfied.3 The positions hedged on a delta neutral October 21, 2004.3 The Commission Commission published the proposed basis as properly exempted from received no comments on the proposal. rule change for comment in the Federal position limits.9 On November 24, 2004, Nasdaq filed Register on October 21, 2004.4 The It is therefore ordered, pursuant to Amendment No. 1.4 This order approves Commission received no comments on Section 19(b)(2) of the Act,10 that the the proposed rule change. the proposed rule change. proposed rule change (SR–NASD–2004– Simultaneously, the Commission Under the proposal, a stock option 153) be, and it hereby is, approved. provides notice of filing of Amendment position of an OTC Derivatives Dealer For the Commission, by the Division of No. 1 and grants accelerated approval of that is delta neutral 5 would be exempt Market Regulation, pursuant to delegated Amendment No. 1. from position limits, provided that, authority.11 II. Description of the Proposal among other things, the NASD member Margaret H. McFarland, with which the OTC Derivatives Dealer Deputy Secretary. A. Modification of the Bid Price is affiliated has received a written [FR Doc. E4–3467 Filed 12–3–04; 8:45 am] Compliance Periods representation from the OTC Derivatives BILLING CODE 8010–01–P Nasdaq rules relating to the minimum Dealer stating that it is hedging its stock bid price requirement were approved on options positions in accordance with its a pilot basis by the Commission in internal risk management control and SECURITIES AND EXCHANGE February 2002 5 and modified in March pricing models approved by the COMMISSION 2003 6 and December 2003.7 The pilot, Commission. Any stock options position which expires on December 31, 2004, of an OTC Derivatives Dealer that is not [Release No. 34–50753; File No. SR–NASD– 2004–147] provides 180 calendar days for a delta neutral would remain subject to National Market issuer trading below 6 position limits. Self-Regulatory Organizations; $1.00 to regain compliance. Upon the The Commission finds that the National Association of Securities expiration of the first 180 calendar days, proposed rule change is consistent with Dealers, Inc.; Order Granting Approval an issuer able to satisfy all initial listing the requirements of the Act and the to Proposed Rule Change and Notice criteria is eligible for an additional grace rules and regulations thereunder that of Filing and Order Granting period of another 180 calendar days. are applicable to a national securities 7 Accelerated Approval to Amendment Thereafter, a National Market issuer association. In particular, the No. 1 To Modify the Bid Price may phase down to the SmallCap Commission believes that the proposed Compliance Periods on the Nasdaq Market to take advantage of an rule change is consistent with Section National Market and SmallCap Market additional grace period if it meets all 8 15A(b)(6) of the Act, which requires, and To Require Non-Canadian Foreign SmallCap initial listing criteria except Issuers To Satisfy the Bid Price and for bid price.8 If a National Market 1 15 U.S.C. 78s(b)(1). 2 Market Value of Publicly Held Shares issuer is not in compliance 45 days 17 CFR 240.19b–4. Requirements Applicable to Domestic before the expiration of its second grace 3 The proposal relates to options positions of an ‘‘OTC Derivatives Dealer’’ as that term is defined in Issuers for Continued Listing on the period, Nasdaq would send a warning Rule 3b–12 under the Act. See 17 CFR 240.3b–12. SmallCap Market letter to the issuer and the issuer could 4 Securities Exchange Act Release No. 50539 request a hearing at that time, if one (October 14, 2004), 69 FR 61884 (October 21, 2004). November 29, 2004. were desired. 5 The term ‘‘delta neutral’’ as defined in the I. Introduction The current pilot also provides 180 proposed rule change describes a stock options calendar days for a SmallCap Market position that has been hedged, in accordance with On October 1, 2004, the National issuer to regain compliance. Upon the a Commission-approved pricing model, with a Association of Securities Dealers, Inc. portfolio of instruments relating to the same expiration of the first 180-day grace (‘‘NASD’’), through its subsidiary, The underlying stock to offset the risk that the value of period, an issuer satisfying all initial the options position will change with changes in Nasdaq Stock Market, Inc. (‘‘Nasdaq’’), the price of the stock underlying the options filed with the Securities and Exchange 3 See Securities Exchange Act Release No. 50541 position. Commission (‘‘Commission’’) pursuant 6 See proposed NASD Rule (October 14, 2004), 69 FR 61888. 2860(b)(3)(A)(vii)(b)(3). The Commission notes that to Section 19(b)(1) of the Securities 4 In Amendment No. 1, Nasdaq made a technical NASD Rule 2860(b)(3)(A)(vii) provides for multiple, Exchange Act of 1934 (‘‘Act’’),1 and correction to the text of NASD Rule 4450(i)(1). independent hedge exemptions. Of course, to the Rule 19b–4 thereunder,2 a proposed rule 5 See Securities Exchange Act Release No. 45387 extent that a position is used to hedge for the change to modify the bid price (February 4, 2002), 67 FR 6306 (February 11, 2002) purpose of one exemption from position limit (SR–NASD–2002–13). requirements, such as the delta hedge exemption, 6 See Securities Exchange Act Release No. 47482 such position cannot be used to take advantage of 9 Securities Exchange Act Release No. 40594 (March 11, 2003), 68 FR 12729 (March 17, 2003) another exemption from position limit (October 23, 1998), 63 FR 59362, 59380 (November (SR–NASD–2003–34). requirements. 3, 1998) (adopting rules relating to OTC Derivatives 7 See Securities Exchange Act Release No. 48991 7 In approving this rule, the Commission notes Dealers). (December 23, 2003), 68 FR 75677 (December 31, that it has considered the proposed rule’s impact on 10 15 U.S.C. 78s(b)(2). 2003) (SR–NASD–2003–44), amended by Securities efficiency, competition, and capital formation. See 11 17 CFR 200.30–3(a)(12). Exchange Act Release No. 48991A (February 5, 15 U.S.C. 78c(f). 1 15 U.S.C. 78s(b)(1). 2004), 69 FR 6707 (February 11, 2004). 8 15 U.S.C. 78o–3(b)(6). 2 17 CFR 240.19b–4. 8 See infra Section III.

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00060 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70487

listing criteria for the SmallCap Market III. Amendment No. 1 that it meets all applicable requirements for [continued] initial inclusion on the SmallCap is eligible for an additional grace period In Amendment No. 1 Nasdaq of 180 days. Thereafter, an issuer can Market set forth in Rule 4310(c) [(other than modified the text of NASD Rule the minimum bid price requirement of Rule receive a third grace period, up to the 4450(i)(1) to provide that a National 4310(c)(4))] or Rule 4320(e), as applicable, time of its next shareholders meeting Market issuer deemed not in other than the minimum bid price (but not more than two years from the compliance prior to the expiration of the requirement. A Nasdaq National Market original notice of deficiency), if the compliance period for bid price may issuer transferring to The Nasdaq SmallCap issuer seeks shareholder approval for a transfer to SmallCap Market if it meets Market must pay the entry fee set forth in Rule 4520(a). The issuer may also request a reverse stock split at that meeting and all applicable requirements for initial implements the reverse stock split hearing to remain on The Nasdaq National inclusion on the SmallCap Market. The Market pursuant to the Rule 4800 Series. promptly afterward. prior text of the rule referred to Having reviewed its experience with requirements for ‘‘continued’’ rather IV. Discussion and Commission the pilot program, Nasdaq proposes to than ‘‘initial’’ inclusion. Findings modify the bid price rules and seeks According to Nasdaq, Amendment The Commission has reviewed permanent Commission approval of the No. 1 corrects an inconsistency in both revised rules. Under the proposal, a carefully the proposed rule change, as the existing and proposed rule amended, and finds that it is consistent National Market issuer would now have concerning the appropriate standard 180 days to regain compliance on the with the requirements of the Act and the pursuant to which an issuer may rules and regulations thereunder National Market, after which it could transfer between the Nasdaq National transfer to the SmallCap Market if it applicable to a national securities Market and the SmallCap Market. This 13 complied with all SmallCap initial association. In particular, the inconsistency first arose following the Commission believes that the proposal inclusion requirements except for bid approval of SR–NASD–2003–44.11 In price.9 The new rules would provide a is consistent with Section 15A(b)(6) of SR–NASD–2003–44, Nasdaq proposed 14 SmallCap issuer with an initial 180- the Act, which requires that an that a SmallCap issuer must meet all association’s rules be designed to calendar-day period to regain initial inclusion requirements for the compliance. Thereafter, the issuer could prevent fraudulent and manipulative SmallCap Market to be eligible for an acts and practices, promote just and receive a second 180-day grace period if additional compliance period.12 As it complied with all initial SmallCap equitable principles of trade, remove such, an issuer that transferred from the impediments to, and perfect the inclusion requirements except for bid National Market would not be eligible price. The third grace period under the mechanism of, a free and open market for an additional compliance period on and, in general, protect investors and pilot rules, which allows a SmallCap the SmallCap Market unless it met all issuer to remain listed while it seeks the public interest. SmallCap initial inclusion standards. The Commission believes that a 180- shareholder approval of a reverse stock In addition, NASD Rules 4310(c)(8)(D) day grace period for bid price split, would be eliminated. An issuer in and 4320(e)(2)(E)(ii) would permit an compliance on the Nasdaq National a compliance period under the pilot issuer to qualify for a second 180-day Market and a 360-day grace compliance rules at the time the new rules become compliance period on the SmallCap period on the SmallCap Market will effective would be able to finish that Market only if that issuer met all criteria allow a reasonable period for issuers to period, but thereafter could only use for initial inclusion (except for the bid regain compliance with the bid price grace periods afforded by the new rules. price requirement) on the SmallCap rules before being subject to delisting. B. Nasdaq SmallCap Market Continued Market. Thus, even if an issuer were These time frames are generally Listing Requirements for non-Canadian permitted to transfer to the SmallCap consistent with bid price compliance Foreign Issuers Market based on the continued periods available on other markets that inclusion criteria at the end of its have been approved by the Nasdaq proposes to amend NASD compliance period on the National Commission.15 The Commission also Rule 4320 to require non-Canadian Market, the issuer would be subject to believes that requiring non-Canadian foreign issuers to satisfy the minimum immediate delisting because it would be foreign issuers to satisfy the same bid price and market value of publicly ineligible for any additional compliance continued listing standards for held shares requirements applicable to periods with respect to its bid price minimum bid price and market value of domestic issuers for continued listing deficiency. publicly held shares applicable to on the SmallCap Market. Currently no The text of NASD Rule 4450(i)(1) as domestic issuers is reasonable and will such continued listing requirements Nasdaq is proposing to amend it is establish consistent standards apply to SmallCap non-Canadian below. New text is in italics and applicable to all SmallCap issuers. foreign issuers.10 To allow these issuers deletions are in brackets. The Commission finds good cause for sufficient time to take any necessary approving proposed Amendment No. 1 action to achieve compliance, Nasdaq If a National Market issuer has not been deemed in compliance prior to the expiration before the 30th day after the date of proposes that this requirement be of [a] the compliance period for bid price publication of notice of filing thereof in effective 18 months after approval by provided in Rule 4450(e)(2), it may transfer the Federal Register. NASD Rule the Commission. to The Nasdaq SmallCap Market, provided 13 In approving this proposed rule change, the 9 See NASD Rule 4450(i). See also infra Section 11 Securities Exchange Act Release No. 48991 Commission has considered the proposed rule’s III. (December 23, 2003), 68 FR 75677 (December 31, impact on efficiency, competition, and capital 10 A rule change to impose such requirements for 2003). formation. See 15 U.S.C. 78c(f). initial listing by non-Canadian foreign issuers was 12 Prior to approval of this rule change, issuers 14 15 U.S.C. 78o–3(b)(6). approved in September 2004. Under this change, all listed on the SmallCap Market (including those that 15 See, e.g., NYSE Listed Company Manual, Rule non-Canadian foreign issuers are required to meet transfer from the Nasdaq National Market) were 802.01C (Price Criteria for Capital or Common the same initial inclusion bid price and market eligible for an additional compliance period based Stock); Securities Exchange Act Release No. 42194 value of publicly held shares requirements as on meeting only the core initial inclusion (December 1, 1999), 64 FR 69311 (December 10, domestic and Canadian issuers. See Securities requirements contained in NASD Rule 4310(c)(2)(A) 1999) (SR–NYSE–99–29); Securities Exchange Act Exchange Act Release No. 50458 (September 28, and the remaining continued inclusion Release No. 44481 (June 27, 2001), 66 FR 35303 2004), 69 FR 59286 (October 4, 2004). requirements for the SmallCap Market. (July 3, 2001) (SR–NYSE–2001–02).

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00061 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70488 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

4450(i)(1) currently states that a office of the NASD. All comments effective upon filing with the National Market issuer deemed not in received will be posted without change; Commission. The Commission is compliance prior to the expiration of the the Commission does not edit personal publishing this notice to solicit compliance period may transfer to the identifying information from comments on the proposed rule change, SmallCap Market if it meets all submissions. You should submit only as amended, from interested persons. applicable requirements for continued information that you wish to make I. Self-Regulatory Organization’s inclusion on the SmallCap Market. available publicly. All submissions Statement of the Terms of Substance of Nasdaq contends that use of the word should refer to File Number SR–NASD– the Proposed Rule Change ‘‘continued’’ in Rule 4450(i)(1) is 2004–147 and should be submitted on inadvertent and has provided evidence or before December 27, 2004. The PCX proposes to amend its that the rule language instead should Schedule of Fees and Charges For VI. Conclusion have used the word ‘‘initial’’ from its Exchange Services to add a $500 inception. The Commission agrees and It is therefore ordered, pursuant to application fee for waivers of Exchange finds good cause for accelerating Section 19(b)(2) of the Act,16 that the examination requirements pursuant to approval of Amendment No. 1, thereby proposed rule change (File No. SR– PCX Rule 2.5(c)(4). The text of the allowing the text of NASD Rule NASD–2004–147) be, and it hereby is, proposed rule change is available at the 4450(i)(1) to mirror the original intent of approved, and that Amendment No. 1 to PCX and at the Commission. the rule without delay. the proposed rule change be, and hereby II. Self-Regulatory Organization’s is, approved on an accelerated basis. V. Solicitation of Comments Statement of the Purpose of, and For the Commission, by the Division of Statutory Basis for, the Proposed Rule Interested persons are invited to Market Regulation, pursuant to delegated Change submit written data, views, and 17 authority. In its filing with the Commission, the arguments concerning Amendment No. Jill M. Peterson, 1, including whether Amendment No. 1 PCX included statements concerning the Assistant Secretary. is consistent with the Act. Comments purpose of and basis for its proposal and may be submitted by any of the [FR Doc. E4–3473 Filed 12–3–04; 8:45 am] discussed any comments it received following methods: BILLING CODE 8010–01–P regarding the proposal. The text of these statements may be examined at the Electronic Comments places specified in Item IV below. The • Use the Commission’s Internet SECURITIES AND EXCHANGE PCX has prepared summaries, set forth comment form (http://www.sec.gov/ COMMISSION in Sections A, B and C below, of the rules/sro.shtml); or [Release No. 34–50742; File No. SR–PCX– most significant aspects of such • Send an e-mail to rule- 2004–101] statements. [email protected]. Please include File A. Self-Regulatory Organization’s Number SR–NASD–2004–147 on the Self-Regulatory Organizations; Pacific Statement of the Purpose of, and subject line. Exchange, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Statutory Basis for, the Proposed Rule Paper Comments Rule Change and Amendment No. 1 Change • Send paper comments in triplicate Thereto To Add a $500 Application Fee 1. Purpose to Jonathan G. Katz, Secretary, for Waivers of Exchange Examination The PCX is proposing to implement a Securities and Exchange Commission, Requirements Pursuant to PCX Rule non-refundable application fee of $500 450 Fifth Street, NW., Washington, DC 2.5(c)(4) when a request to waive an Exchange 20549–0609. examination requirement is submitted All submissions should refer to File November 29, 2004. pursuant to PCX Rule 2.5(c)(4). Since Number SR–NASD–2004–147. This file Pursuant to Section 19(b)(1) of the the Commission approved PCX Rule number should be included on the Securities Exchange Act of 1934 2.5(c)(4),6 the Exchange has received a subject line if e-mail is used. To help the (‘‘Act’’),1 and Rule 19b–4 thereunder,2 number of requests for waivers of its Commission process and review your notice is hereby given that on October examination requirements. comments more efficiently, please use 18, 2004, the Pacific Exchange, Inc. When a request is submitted to the only one method. The Commission will (‘‘PCX’’ or ‘‘Exchange’’) filed with the Exchange, the Exchange’s Shareholder post all comments on the Commission’s Securities and Exchange Commission and Registration Services Department Internet Web site (http://www.sec.gov/ (‘‘Commission’’) the proposed rule (‘‘SRS’’) evaluates each application. SRS rules/sro.shtml). Copies of the change as described in Items I, II and III must independently verify each submission, all subsequent below, which Items have been prepared statement made in the application to amendments, all written statements by the Exchange. On November 23, ensure that waivers are only granted to with respect to the proposed rule 2004, PCX amended the proposed rule those who are properly qualified. change that are filed with the change.3 The PCX has designated this Applicants requesting waivers have Commission, and all written proposal as one changing a fee imposed based their requests on numerous communications relating to Amendment by the PCX under Section 19(b)(3)(A)(ii) factors including employment history, No. 1 between the Commission and any of the Act 4 and Rule 19b–4(f)(2) education, professional licenses held, person, other than those that may be thereunder,5 which renders the proposal examinations passed, etc. Depending on withheld from the public in accordance the type of justification given and how with the provisions of 5 U.S.C. 552, will 16 15 U.S.C. 78s(b)(2). 17 recently such justification occurred, the be available for inspection and copying 17 CFR 200.30–3(a)(12). 1 amount of time needed to in the Commission’s Public Reference 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. independently verify each individual Section, 450 Fifth Street, NW., 3 See Amendment No. 1 replaced and superseded Washington, DC 20549. Copies of such the original filing in its entirety. 6 See Securities Exchange Act Release No. 49922 filing also will be available for 4 15 U.S.C. 78s(b)(3)(A)(ii). (June 28, 2004), 69 FR 40701 (July 6, 2004)(SR– inspection and copying at the principal 5 17 CFR 240.19b–4(f)(2). PCX–2004–51).

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00062 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70489

justification varies from minutes to including whether the proposed rule SECURITIES AND EXCHANGE hours. Collectively verifying all change is consistent with the Act. COMMISSION justifications provided requires SRS to Comments may be submitted by any of devote significant resources to review [Release No. 34–50756; File No. SR–PCX– the following methods: 2004–83] and process each application. As such, Electronic Comments SRS has been devoting significant Self-Regulatory Organizations; Notice resources to these applications and the • Use the Commission’s Internet of Filing of Proposed Rule Change, $500 fee is needed to allow the comment form (http://www.sec.gov/ and Amendment No. 1 Thereto, by the Exchange to recover costs associated rules/sro.shtml); or Pacific Exchange, Inc., Relating to with the processing of these Changing the Opening Time and the • Send an e-mail to rule- applications. Commencement of the Opening [email protected]. Please include File Auction 2. Statutory Basis Number SR–PCX–2004–101 on the The Exchange believes that the subject line. November 30, 2004. proposed rule change is consistent with Paper Comments Pursuant to Section 19(b)(1) of the Section 6(b) of the Act 7 in general, and Securities Exchange Act of 1934 furthers the objectives of Section 6(b)(4) • (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 8 Send paper comments in triplicate of the Act in particular, because it to Jonathan G. Katz, Secretary, notice is hereby given that on October provides for the equitable allocation of Securities and Exchange Commission, 22, 2004, the Pacific Exchange, Inc., dues, fees, and other charges among its 450 Fifth Street, NW., Washington, DC (‘‘PCX’’ or ‘‘Exchange’’) submitted to the OTP Holders and other persons using its 20549–0609. Securities and Exchange Commission facilities for the purpose of trading (‘‘Commission’’) the proposed rule option contracts. All submissions should refer to File change as described in Items I, II, and Number SR–PCX–2004–101. This file III below, which Items have been B. Self-Regulatory Organization’s number should be included on the Statement on Burden on Competition prepared by the PCX. On November 22, subject line if e-mail is used. To help the 2004, the PCX submitted Amendment The Exchange does not believe that Commission process and review your No. 1 to the proposed rule change.3 The the proposed rule change will impose comments more efficiently, please use Commission is publishing this notice to any burden on competition that is not only one method. The Commission will solicit comments on the proposed rule necessary or appropriate in furtherance post all comments on the Commission’s of the purposes of the Act. change, as amended, from interested Internet Web site (http://www.sec.gov/ persons. C. Self-Regulatory Organization’s rules/sro.shtml). Copies of the Statement on Comments on the submission, all subsequent I. Self-Regulatory Organization’s Proposed Rule Change Received From amendments, all written statements Statement of the Terms of Substance of Members, Participants or Others with respect to the proposed rule the Proposed Rule Change Written comments on the proposed change that are filed with the The PCX, through its wholly owned rule change were neither solicited nor Commission, and all written subsidiary PCX Equities, Inc. (‘‘PCXE’’), received. communications relating to the is proposing to change the opening time proposed rule change between the and the commencement of the Opening III. Date of Effectiveness of the Commission and any person, other than Auction from 5 a.m. (Pacific time) to 1 Proposed Rule Change and Timing for those that may be withheld from the a.m. (Pacific time) and modify PCXE Commission Action public in accordance with the Rules 7.34 and 7.35, respectively. The foregoing proposed rule change provisions of 5 U.S.C. 552, will be The text of the proposed rule change, has been designated as a fee change available for inspection and copying in as amended, is below. Proposed pursuant to Section 19(b)(3)(A)(ii) of the the Commission’s Public Reference additions are in italics. Proposed Act 9 and Rule 19b–4(f)(2) 10 thereunder, Room. Copies of such filing also will be deletions are in [brackets]. because it establishes or changes a due, available for inspection and copying at Rule 7—Equities Trading; Trading fee, or other charge imposed by the the principal office of the PCX. All Sessions Exchange. Accordingly, the proposal comments received will be posted will take effect upon filing with the without change; the Commission does Rule 7.34(a) Sessions. The Commission. At any time within 60 not edit personal identifying Archipelago Exchange shall have three days of the filing of such proposed rule information from submissions. You trading sessions each day the change, the Commission may summarily should submit only information that Corporation is open for business unless abrogate such rule change if it appears you wish to make available publicly. All otherwise determined by the to the Commission that such action is submissions should refer to File Corporation: necessary or appropriate in the public Number SR–PCX–2004–101 and should (1) Opening Session. The Opening interest, for the protection of investors, be submitted on or before December 27, Session shall begin at 1:00:00 [5:00:00] a.m. (Pacific time) and conclude at the or otherwise in furtherance of the 2004. purposes of the Act. commencement of the Core Trading For the Commission, by the Division of Session. The Opening Auction and the IV. Solicitation of Comments Market Regulation, pursuant to delegated Market Order Auction shall occur Interested persons are invited to authority.11 during the Opening Session. submit written data, views, and Margaret H. McFarland, (2) Core Trading Session. The Core arguments concerning the foregoing, Deputy Secretary. Trading Session shall begin for each [FR Doc. E4–3468 Filed 12–3–04; 8:45 am] 7 15 U.S.C. 78f(b). 1 15 U.S.C. 78s(b)(1). BILLING CODE 8010–01–P 8 15 U.S.C. 78f(b)(4). 2 17 CFR 240.19b–4. 9 15 U.S.C. 78s(b)(3)(A)(ii). 3 Amendment No. 1 replaced and superceded the 10 17 CFR 240.19b–4(f)(2). 11 17 CFR 200.30–3(a)(12). original filing in its entirety.

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00063 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70490 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

security at 6:30:00 a.m. (Pacific time) or Rule 7.34(e)–(f)—No change. (2)–(4)—No change. at the conclusion of the Market Order * * * * * Rule 7.35(c)–(f)—No change. Auction, whichever comes later, and Rule 7.35(a) Order Entry and * * * * * conclude at 1:00:00 p.m. (Pacific time). Cancellation Before Opening Auction (3) Late Trading Session. The Late II. Self-Regulatory Organization’s (1) Users may submit any orders to Statement of the Purpose of, and Trading Session shall begin following the Archipelago Exchange beginning [at the conclusion of the Core Trading Statutory Basis for, the Proposed Rule 4:30 a.m. (Pacific time)] 30 minutes Change Session and conclude at 5:00:00 p.m. prior to the Opening Session. Any such (Pacific time). Limited Price Orders designated for the In its filing with the Commission, the Rule 7.34(b)–(c)—No change. Opening Session will be queued until PCX included statements concerning the (d) Orders Permitted in Each Session. 1:00 [5:00] a.m. (Pacific time) at which purpose of and basis for the proposed (1) During the Opening Session: time they will be eligible to be executed rule change and discussed any (A) Orders eligible for the Display pursuant to paragraph (b) of this Rule. comments it had received on the Order Process and for the Working Any such market orders will be queued proposed rule change. The text of these Order Process that have been designated until the Market Order Auction at which statements may be examined at the as available for the Opening Session are time they will be executed pursuant to places specified in Item IV below. The eligible for entry into and execution on paragraph (c) of this Rule. PCX has prepared summaries, set forth the Archipelago Exchange. (2) Only Limited Priced Orders in sections A, B, and C below, of the (B) Stop Orders are not eligible for designated for the Opening Session will most significant aspects of such execution during the Opening Session. be eligible for the Opening Auction. statements. (C) Users may enter market and However, a Limited Price Order A. Self-Regulatory Organization’s Auction-Only Limit Orders for inclusion designated for the Opening Session and Statement of the Purpose of, and in the Market Order Auction. Market entered as a Timed Order good from Statutory Basis for, the Proposed Rule orders and Auction-Only Limit Orders 1:00 [5:00] a.m. (Pacific time), is not Change are not eligible for execution during the eligible for execution during the Opening Session, except during the Opening Auction. Market orders entered 1. Purpose Market Order Auction. before the Opening Auction or during As part of its continuing efforts to (D) Neither the Directed Order Process the Opening Session will participate in enhance participation on the nor the Tracking Order Process is the Market Order Auction. However, a Archipelago Exchange (‘‘ArcaEx’’) available during the Opening Session. Limited Price Order designated for the facility, the PCX is proposing to change For the purposes of the Opening Opening Session and entered as a the opening time from 5 a.m. Pacific Session, market Directed Orders are Timed Order good from 6:30 a.m. time to 1 a.m. Pacific time. This included in the Market Order Auction. (Pacific time), is not eligible for proposal applies to both exchange-listed (E) NOW Orders are eligible for execution during the Market Order and over-the-counter (‘‘OTC’’) execution during the Opening Session, Auction. Limited Price Orders, securities. In addition, the Exchange is provided, however, NOW Orders are not including Timed Orders, designated for seeking to change the commencement of eligible for the Opening Auction or the the Core Trading Session and not the Opening Auction 4 from 5 a.m. Market Order Auction. designated for the Opening Session will Pacific time to 1 a.m. Pacific time. The (F) PNP Orders are eligible for become eligible for execution at the Exchange believes that opening earlier execution during the Opening Session. commencement of the Market Order will increase opportunities for attracting (G) Limited Price Orders are eligible Auction pursuant to Rule 7.35(c). liquidity on the system. Specifically, for execution during the Opening (3) Beginning 30 minutes prior to the Users 5 of ArcaEx trading in American Session; provided, however, a Timed Opening Session [at 4:30 a.m. (Pacific Depositary Receipts (‘‘ADRs’’) and other Order designated for the Opening time)], and various times thereafter as foreign issues have expressed interest in Session and designated as good from determined from time to time by the using the ArcaEx system at times 1:00 [5:00] a.m. (Pacific time) is not Corporation, the Indicative Match Price coinciding with the hours of overseas eligible for execution during the of the Opening Auction, and any trading markets.6 Opening Auction. Similarly, a Timed Imbalance associated therewith, shall be Currently, PCXE Rule 7.34 states that Order designated for the Opening published via electronic means as the Opening Session begins at 5:00:00 Session and designated as good from determined from time to time by the a.m. (Pacific time). The Exchange 6:30 a.m. (Pacific time) is not eligible for Corporation. proposes to modify this to 1 a.m. execution during the Market Order (4) Orders that are eligible for the (Pacific time). Furthermore, pursuant to Auction. Opening Auction may not be cancelled PCXE Rule 7.35, the Opening Auction (H) Notwithstanding that the Market 2 minutes prior to the Opening Session commences at 5 a.m. (Pacific time). The Order Auction occurs during the [between 4:58 a.m. (Pacific time) and] Exchange also proposes to modify the Opening Session, as set forth in Rule until the conclusion of the Opening commencement of the Opening 7.34(a)(1), the following orders not Auction. Auction 7 to be consistent with the designated for the Opening Session (b) Opening Auction. shall participate in the Market Order (1) At 1:00 [5:00] a.m. (Pacific time), 4 See PCXE Rule 7.35(b). Auction: Limited Price Orders designated for the 5 See PCXE Rule 1.1 (yy). (i) Market orders designated for the Opening Session are matched and 6 For example the Deutsche Borse opens at 9 a.m. Central European time. ArcaEx has proposed Core Trading Session and entered prior executed in the Opening Auction; opening at 1 a.m. Pacific time which is the to the conclusion of the Market Order provided, however, a Limited Price equivalent to 10 a.m. Central European time. Auction; and Order designated for the Opening ArcaEx is unable to open consistent with the (ii) Limited Price Orders designated Session and entered as a Timed Order Deutsche Borse opening time due to limitations on when the OTC SIP is available for quote and trade for the Core Trading Session and good from 1:00 [5:00] a.m. (Pacific time), dissemination. entered prior to 6:28 a.m. (Pacific time). is not eligible for execution during the 7 The Commission staff made a technical (2)–(3)—No change. Opening Auction. correction to Amendment No. 1 of the filing to

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00064 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70491

Opening Session commencement at 1 halted in the subject security on procedures, including PCX Market a.m. (Pacific time). Furthermore, times ArcaEx.9 Management transition of issues to associated with disseminating the PCX is establishing contacts with RTOs. Opening Auction Imbalance and order foreign markets trading during the early 2. Statutory Basis cancellation requirements are kept time period. Several markets have consistent with the existing timeframes offered to include PCX representatives The Exchange believes that the relative to the opening time and on distribution lists in order to proposed rule change is consistent with adjusted in accordance with the proactively contact PCX during Section 6(b) of the Act,10 in general, and proposed 1 a.m. (Pacific time) opening instances of trading halts. Also, to the furthers the objectives of Section time. extent another domestic market 6(b)(5),11 in particular, because it is ArcaEx will submit all quotes and commences trading during early hours, designed to promote just and equitable trades that are generated in the early PCX will coordinate halts with these principles of trade, to foster cooperation session beginning at 1 a.m. (Pacific markets as well. Further, PCX has and coordination with persons engaged time) to the consolidated quote and developed appropriate surveillance for in facilitating transactions in securities, trade system for public dissemination.8 the early session. PCX Market and to remove impediments and perfect Accordingly, quotes and trades will be Management staff will be available real- the mechanisms of a free and open made available to the investing public time to monitor quote and trade activity market and to protect investors and the consistent with the availability of quotes and to make rulings where appropriate. public interest. and trades during regular trading hours. Specifically, PCX Market Management will rely on communications with B. Self-Regulatory Organization’s In addition, the Exchange will work Statement on Burden on Competition with foreign markets (i.e. those that are primary markets and third-party data trading subject securities during the vendor systems to review and monitor The PCX does not believe that the early time period) to coordinate trading news, quoting activity, and stock trading proposed rule change will impose any halts. Such coordination will occur in a patterns. To the extent unusual trading burden on competition not necessary or manner similar to that of trading halts activity occurs during the early session appropriate in furtherance of the during regular trading hours with prior to the arrival of PCX Regulatory purposes of the Act. domestic markets. Specifically, the Trading Officials (‘‘RTOs’’), PCX Market Management staff will refer such C. Self-Regulatory Organization’s Exchange represents that PCX Market Statement on Comments on the Management staff will be on-site starting activity to the RTOs for follow-up upon their arrival. PCX Market Management Proposed Rule Change Received From at 1 a.m. (Pacific time) to monitor Members, Participants, or Others trading in ArcaEx to maintain a fair and and RTO procedures manuals will be orderly market and make any necessary updated to reflect the early open No written comments were solicited rulings. For example, during early procedures, including PCX Market or received with respect to the proposed trading when unusual quoting activity is Management transition of issues to rule change. noted in the security underlying an RTOs. The Exchange believes opening III. Date of Effectiveness of the ADR, PCX Market Management will earlier, consistent with trading hours in Proposed Rule Change and Timing for contact the foreign market where the the overseas markets, will enhance Commission Action underlying is listed to obtain additional transparency in these securities. information as needed. When a halt has Within 35 days of the date of Moreover, by providing overseas been declared on the primary market publication of this notice in the Federal investors with the ability to trade in a due to material news, PCX will also halt Register or within such longer period (i) U.S. based market, the proposal will trading in the subject security on as the Commission may designate up to provide additional trading opportunities ArcaEx. If a halt has been declared for 90 days of such date if it finds such for foreign investors interested in another non-regulatory reason (e.g. longer period to be appropriate and participating in U.S. markets during system malfunction or unusual price publishes its reasons for so finding, or overseas business hours. Such movement), PCX will use its discretion (ii) as to which the PCX consents, the opportunities should enable enhanced to determine whether trading should be Commission will: order interaction, foster price (A) By order approve such proposed signify that the Exchange intended to refer to the competition, promote a more efficient rule change, as amended; or ‘‘Opening Auction.’’ Telephone conversation and effective market operation, and (B) Institute proceedings to determine between Mai Shiver, Director, Regulatory Policy, enhance the investment choices whether the proposed rule change, as PCX and Tim Fox, Attorney, Division of Market available to investors. amended, should be disapproved. Regulation, Commission, on November 26, 2004. In Amendment No. 1, the Exchange 8 The Securities Information Processor in IV. Solicitation of Comments exchange-listed securities that is responsible for represented that PCX Market consolidation and dissemination of all exchange- Management staff will be on-site starting Interested persons are invited to listed quotes and trades is the Securities Industry at 1 a.m. (Pacific time) to monitor submit written data, views, and Automation Corporation (‘‘SIAC’’) and for trading in ArcaEx to maintain a fair and arguments concerning the foregoing, dissemination of Nasdaq-listed quotes and trades is Nasdaq. ArcaEx has agreed with SIAC and Nasdaq orderly market and make any necessary including whether the proposed rule that each of the respective Securities Information rulings. To the extent unusual trading change, as amended, is consistent with Processors will open the tape at 1 a.m. (Pacific activity occurs during the early session the Act. Comments may be submitted by time). In addition, ArcaEx has notified the prior to the arrival of PCX RTOs, PCX any of the following methods: Operating Committee of the Consolidated Tape Market Management staff will refer such Association (‘‘CTA’’) and Consolidated Quote Electronic Comments (‘‘CQ’’) Plans and the OTC/UTP Committee of its activity to the RTOs for follow-up upon agreement with the Processors to open the tapes their arrival. PCX Market Management • Use the Commission’s Internet early. ArcaEx will not begin trading at 1 a.m. and RTO procedures manuals will be comment form (http://www.sec.gov/ (Pacific time) until the Securities Information Processors are ready to accommodate quoting and updated to reflect the Early Open rules/sro.shtml); or trading at that time and have provided ArcaEx with notification that they are prepared to disseminate 9 See PCXE Rule 7.13 regarding PCX’s authority 10 15 U.S.C. 78f(b). quotes and trades at that time. to declare a trading halt. 11 15 U.S.C. 78f(b)(5).

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00065 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70492 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

• Send an e-mail to rule- SECURITIES AND EXCHANGE lists and trades full-sized option [email protected]. Please include File COMMISSION contracts on the Index (‘‘QCX’’) and mini-sized option contracts on the Index Number SR–PCX–2004–83 on the [Release No. 34–50751; File No. SR–Phlx– subject line. 2004–59] (‘‘QXE’’), which are one-tenth the size of QCX contracts.9 The Index is a cash- Paper Comments Self-Regulatory Organizations; Notice settled, capitalization-weighted, broad- based, A.M.-settled index composed of • Send paper comments in triplicate of Filing and Immediate Effectiveness approximately 3,400 stocks listed and to Jonathan G. Katz, Secretary, of Proposed Rule Change and Amendment Nos. 1 and 2 by the traded on The Nasdaq Stock Market, Securities and Exchange Commission, Inc. (‘‘Nasdaq’’). 450 Fifth Street, NW., Washington, DC Philadelphia Stock Exchange, Inc. 20549–0609. Relating to Minor Adjustments in the II. Self-Regulatory Organization’s Calculation of the Nasdaq Composite Statement of the Purpose of, and All submissions should refer to File Index Statutory Basis for, the Proposed Rule Number SR–PCX–2004–83. This file Change number should be included on the November 29, 2004. subject line if e-mail is used. To help the Pursuant to Section 19(b)(1) of the In its filing with the Commission, the Commission process and review your Securities Exchange Act of 1934 Phlx included statements concerning 1 2 comments more efficiently, please use (‘‘Act’’), and Rule 19b–4 thereunder, the purpose of and basis for the proposed rule change and discussed any only one method. The Commission will notice is hereby given that on October 8, 2004, the Philadelphia Stock comments it received on the proposed post all comments on the Commission’s rule change. The text of these statements Internet Web site http://www.sec.gov/ Exchange (‘‘Phlx’’ or ‘‘Exchange’’) filed with the Securities and Exchange may be examined at the places specified rules/sro.shtml. Copies of the Commission (‘‘SEC’’ or ‘‘Commission’’) in Item IV below. The Exchange has submission, all subsequent the proposed rule change as described prepared summaries, set forth in amendments, all written statements in Items I and II below, which Items Sections A, B, and C below, of the most with respect to the proposed rule have been prepared by the Exchange. significant aspects of such statements. change that are filed with the On November 16, 2004, the Phlx filed Commission, and all written A. Self-Regulatory Organization’s Amendment No. 1 to the proposed rule Statement of the Purpose of, and communications relating to the 3 change. On November 16, 2004, the Statutory Basis for, the Proposed Rule proposed rule change between the Phlx filed Amendment No. 2 to the Change Commission and any person, other than proposed rule change.4 The Phlx filed those that may be withheld from the the proposal under Section 19(b)(3)(A) 1. Purpose public in accordance with the of the Act,5 and Rule 19b–4(f)(6) The purpose of the proposed rule provisions of 5 U.S.C. 552, will be thereunder,6 which renders the proposal change is to make minor adjustments to available for inspection and copying in effective upon filing.7 The Commission the manner by which the Index is the Commission’s Public Reference is publishing this notice to solicit calculated because Nasdaq has made Section, 450 Fifth Street, NW., comments on the proposed rule change, certain minor adjustments to the Washington, DC 20549. Copies of such as amended, from interested persons. manner of calculating the settlement values of the component securities of filing also will be available for I. Self-Regulatory Organization’s inspection and copying at the principal the Index. Statement of the Terms of Substance of Nasdaq maintains, compiles, and office of the PCX. All comments the Proposed Rule Change received will be posted without change; calculates the Index. The Exchange, for The Phlx proposes to make minor the Commission does not edit personal its part, provides and maintains the adjustments to the manner by which the market for QCX and QCE Index options. identifying information from Nasdaq Composite Index (‘‘Index’’) is The QCX and QCE options on the Index submissions. You should submit only calculated.8 The Exchange currently information that you wish to make are the ‘‘Corporations’’) and are licensed for use by available publicly. 1 15 U.S.C. 78s(b)(1). the Phlx. The product(s) described herein have not All submissions should refer to File 2 17 CFR 240.19b–4. been passed on by the Corporations as to their legality or suitability. The product(s) are not issued, Number SR–PCX–2004–83 and should 3 Amendment No. 1 changed language in the Purpose section of the proposal to more accurately endorsed, sold, or promoted by the Corporations. The Corporations make no warranties and bear no be submitted on or before December 27, reflect the changes Nasdaq is making with respect liability with respect to the product(s). 2004. to calculating the settlement values of the component securities of the Index, which the Phlx The Corporations do not guarantee the accuracy For the Commission, by the Division of and/or uninterrupted calculation of the Nasdaq is proposing to copy. Amendment No. 1 also  Market Regulation, pursuant to delegated included an Exhibit that set forth the comments the Composite Index or any data included therein. authority.12 Phlx received regarding this proposal. Amendment The Corporations make no warranty, express or No. 1 replaced the original filing in its entirety. implied, as to results to be obtained by the Jill M. Peterson, exchange, owners of the product(s), or any other 4 Amendment No. 2 made a technical correction person or entity from the use of the Nasdaq Assistant Secretary. to the proposed rule change. Amendment No. 2 Composite Index or any data included therein. [FR Doc. E4–3471 Filed 12–3–04; 8:45 am] replaced the proposed rule change, including The Corporations make no express or implied Amendment No. 1, in its entirety. BILLING CODE 8010–01–P warranties, and expressly disclaim all warranties of 5 15 U.S.C. 78s(b)(3)(A). merchantiability or fitness for a particular purpose 6 19 CFR 240.19b–4. or use with respect to the Nasdaq Composite Index 7 The Commission considers the 60-day period or any data included therein. Without limiting any within which the Commission may summarily of the foregoing, in no event shall the Corporations abrogate the proposed rule change under Section have any liability for any lost profits or special, 19(b)(3)(C) of the Act to have commenced on incidental, punitive, indirect, or consequential November 16, 2004, the date the Phlx filed damages, even if notified of the possibility of such Amendment No. 2 to the proposal. damages. 8 Nasdaq, Nasdaq Composite and Nasdaq 9 See Securities Exchange Act Release No. 48884 Composite Index are registered trademarks of The (December 5, 2003), 68 FR 69753 (December 15, 12 17 CFR 200.30–3(a)(12). Nasdaq Stock Market, Inc. (which with its affiliates 2003) (SR–Phlx–2003–66).

VerDate jul<14>2003 17:11 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70493

expire on the Saturday following the 2. Statutory Basis consistent with the protection of third Friday of the expiration month. The Exchange believes that the investors and the public interest, it has Trading in the expiring contract month proposed rule change is consistent with become effective pursuant to Section will normally cease at 4:15 p.m. (eastern 14 19(b)(3)(A) of the Act and Rule 19b– Section 6(b) of the Act, in general, and 18 time) on the Thursday immediately furthers the objectives of Section 6(b)(5) 4(f)(6) thereunder. The Exchange has requested that the prior to expiration. Previously, the of the Act,15 in particular, in that it is Commission waive the 30-day operative exercise settlement value of the Index at designed to promote just and equitable delay specified in Rule 19b–4(f)(6). The option expiration was calculated by principles of trade, as well as to protect Nasdaq based on the volume-weighted Commission believes that waiving the investors and the public interest, by 30-day operative delay is consistent opening price (‘‘Nasdaq VWOP’’) of the establishing a more accurate calculation component securities in the first four with the protection of investors and the of the Index. The Exchange believes that public interest.19 The Exchange will be minutes of trading on the business day adjusting the calculation of the Index prior to expiration, which would able, without delay, to conform the should not raise manipulation concerns manner in which the Index is calculated normally be a Friday (‘‘A.M. and should not cause adverse market 10 to the adjustments made by Nasdaq for Settlement’’). impact, because the Exchange will Under the new calculation, the calculating the settlement values of the continue to employ its current component securities of the Index. For exercise settlement value of the Index at surveillance procedures. option expiration will be calculated by these reasons, the Commission Nasdaq based on the Nasdaq VWOP of B. Self-Regulatory Organization’s designates the proposal operative the component securities in the first five Statement on Burden on Competition immediately. At any time within 60 days of the minutes of trading (or period of time The Exchange does not believe that 11 filing of the proposed rule change, the that Nasdaq determines) on the the proposed rule change will impose business day prior to expiration. Under Commission may summarily abrogate any inappropriate burden on the rule change if it appears to the the new calculation, Nasdaq will competition. independently maintain the trade Commission that the action is necessary history of each index component C. Self-Regulatory Organization’s or appropriate in the public interest, for beginning with the receipt of the day’s Statement on Comments on the the protection of investors, or would first eligible trade in that issue and Proposed Rule Change Received From otherwise further the purposes of the continuing for five minutes.12 Members, Participants or Others Act. Trade adjustments will be recorded The Exchange received several IV. Solicitation of Comments and reflected for each component, under comments in the form of electronic mail Interested persons are invited to the new calculation, until the five- from Nasdaq on the proposed rule submit written data, views, and minute window for the last component change. Nasdaq’s comments were arguments concerning the foregoing, stock closes, or 4 p.m. (previously 10:30 limited to, on the one hand, specific line including whether the proposed rule a.m.), whichever is sooner. For edits on Section 3.a of the proposed rule change, as amended, is consistent with individual securities, the VWOP value change, and, on the other hand, the Act. Comments may be submitted by is calculated based on the first five comments with respect to the timing of any of the following methods: minutes of trading in the Nasdaq the implementation of the adjustment to market. For Nasdaq indices, such as the the VWOP calculation and the filing of Electronic Comments Index, the VWOP value is determined the proposed rule change by the • Use the Commission’s Internet by the VWOP and weighting Exchange. These comments are comment form (http://www.sec.gov/ information for each of the component available at the Phlx and at the rules/sro.shtml); or securities. The VWOP messages will be Commission. • Send an e-mail to rule- disseminated as the values are [email protected]. Please include File calculated between 9:45 a.m. and 4 p.m. III. Date of Effectiveness of the Number SR–Phlx–2004–59 on the (eastern time).13 Proposed Rule Change and Timing for subject line. Commission Action Paper Comments 10 Telephone conversation between Mark The Exchange has designated the • Salvacion, Director and Counsel, Phlx, and Angela proposed rule change as a ‘‘non- Send paper comments in triplicate Muehr, Attorney, Division of Market Regulation to Jonathan G. Katz, Secretary, (‘‘Division’’), Commission, on November 24, 2004 controversial’’ rule change pursuant to (clarifying the calculation of the exercise settlement Section 19(b)(3)(A) of the Act 16 and Securities and Exchange Commission, value). subparagraph (f)(6) of Rule 19b–4 450 Fifth Street, NW., Washington, DC 11 If Nasdaq determines to change the period of thereunder.17 Consequently, because the 20549–0609. time for calculating the VWOP from the first five foregoing rule change: (1) Does not All submissions should refer to File minutes of trading to another period of time, the Number SR–Phlx–2004–59. This file Exchange will announce the effective date of any significantly affect the protection of future change by way of an Exchange memorandum investors or the public interest; (2) does number should be included on the to the membership within a reasonable time prior not impose any significant burden on to the implementation of such change, but in no 18 Rule 19b–4(f)(6) under the Act also requires a event sooner than five business days prior to its competition; and (3) does not become self-regulatory organization to give the Commission implementation. Telephone conversation between operative for 30 days from the date on written notice of its intent to file the proposed rule Mark Salvacion, Director and Counsel, Phlx, and which it was filed, or such shorter time change, along with a brief description and text of Terri Evans, Special Counsel, Division, as the Commission may designate if the proposed rule change, at least five business days Commission, and Angela Muehr, Attorney, prior to the date of filing of the proposed rule Division, Commission on November 18, 2004. change, or such shorter time as designated by the 12 Previously, the time period was four minutes. Phlx, and Terri Evans, Special Counsel, Division, Commission. The Phlx complied with this Commission, and Angela Muehr, Attorney, 13 There are certain instances in which the VWOP requirement. Division, Commission, on November 18, 2004. value will be calculated at a time later than the first 19 For purposes only of waiving the operative 14 five minutes of trading in the Nasdaq market. See 15 U.S.C. 78f(b). delay for this proposal, the Commission has http://www.nasdaqtrader.com/trader/mds/ 15 15 U.S.C. 78f(b)(5). considered the proposed rule’s impact on nasdaqfeeds/nidsspec.pdf. Telephone conversation 16 15 U.S.C. 78s(b)(3)(A). efficiency, competition, and capital formation. See between Mark Salvacion, Director and Counsel, 17 17 CFR 240.19b–4(f)(6). 15 U.S.C. 78c(f).

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00067 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70494 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

subject line if e-mail is used. To help the 3, 2004, the Philadelphia Stock be automatically executed up to the Commission process and review your Exchange, Inc. (‘‘Phlx’’ or ‘‘Exchange’’) disseminated size, followed by an comments more efficiently, please use filed with the Securities and Exchange AUTO–X disengagement period of 30 only one method. The Commission will Commission (‘‘Commission’’) the seconds. If the specialist revises the post all comments on the Commission’s proposed rule change as described in quotation in such an option prior to the Internet Web site (http://www.sec.gov/ Items I, II, and III, below, which Items expiration of such 30-second period, rules/sro.shtml). Copies of the have been prepared by the Phlx. On eligible orders in such an option shall submission, all subsequent November 24, 2004, the Exchange filed again be executed automatically. amendments, all written statements Amendment No. 1 to the proposed rule The Exchange’s systems are designed with respect to the proposed rule change.3 The Commission is publishing and programmed to identify the change that are filed with the this notice to solicit comments on the conditions that cause inbound orders to Commission, and all written proposed rule change from interested be ineligible for automatic execution. communications relating to the persons, and granting accelerated Once it is established that inbound proposed rule change between the approval to the proposal to extend the orders are ineligible for automatic Commission and any person, other than pilot period through April 30, 2005. execution, Exchange staff has the ability those that may be withheld from the to determine which of the above public in accordance with the I. Self-Regulatory Organization’s conditions occurred. provisions of 5 U.S.C. 552, will be Statement of the Terms of Substance of (d)–(k) No change. available for inspection and copying in the Proposed Rule Change Commentary: the Commission’s Public Reference The Phlx proposes to extend, through No change. Section, 450 Fifth Street, NW., April 30, 2005, its pilot program II. Self-Regulatory Organization’s Washington, DC 20549. Copies of this concerning AUTO–X, whereby AUTO– Statement of the Purpose of, and filing also will be available for X is disengaged for a period of 30 Statutory Basis for, the Proposed Rule inspection and copying at the principal seconds after the number of contracts Change office of the Phlx. All comments automatically executed in a given class received will be posted without change; of non-Streaming Quote Options,4 meets In its filing with the Commission, the the Commission does not edit personal the specified disengagement size for the Phlx included statements concerning identifying information from option (the ‘‘pilot’’). The pilot expires the purpose of, and basis for, the submissions. You should submit only November 30, 2004. proposed rule change and discussed any information that you wish to make The text of amended Exchange Rule comments it received on the proposed available publicly. All submissions 1080 is set forth below. Brackets rule change. The text of these statements should refer to File Number SR–Phlx– indicate deletions; italics indicate may be examined at the places specified 2004–59 and should be submitted on or additions. in Item III below. The Phlx has prepared before December 27, 2004. summaries, set forth in sections A, B, Philadelphia Stock Exchange For the Commission, by the Division of and C below, of the most significant Automated Options Market (AUTOM) aspects of such statements. Market Regulation, pursuant to delegated and Automatic Execution System authority.20 (AUTO–X) A. Self-Regulatory Organization’s Margaret H. McFarland, Statement of the Purpose of, and Rule 1080. Deputy Secretary. Statutory Basis for, the Proposed Rule [FR Doc. E4–3466 Filed 12–3–04; 8:45 am] (a)–(b) No change. Change BILLING CODE 8010–01–P (c)(i)–(iii) No change. (iv) (A)–(H) No change. 1. Purpose (I) respecting non-Streaming Quote The purpose of the proposed rule SECURITIES AND EXCHANGE Options, when the number of contracts change is to extend the pilot through COMMISSION automatically executed within a 15 April 30, 2005, which is the date that second period in an option (subject to the Exchange plans to have rolled out [Release No. 34–50752; File No. SR–Phlx– a Pilot program [until November 30, 2004–71] all options in the Exchange’s electronic 2004] through April 30, 2005) exceeds options trading platform, Phlx XL.5 Self-Regulatory Organizations; Notice the specified disengagement size, a 30 When that roll out is complete there of Filing and Order Granting second period ensues during which will no longer be any need to continue Accelerated Approval of Proposed subsequent orders are handled this pilot program because pursuant to Rule Change and Amendment No. 1 manually. If the Exchange’s Phlx Rule 1082, with respect to Thereto by the Philadelphia Stock disseminated size exceeds the specified Streaming Quote Options (‘‘SQO’’), if Exchange, Inc. Relating to the disengagement size and an eligible order the Exchange’s disseminated size in a Extension Through April 30, 2005, of a is delivered for a number of contracts particular series in a SQO is exhausted, Pilot Program To Disengage the that is greater than the specified the Exchange shall disseminate the next Automatic Execution Feature (AUTO– disengagement size, such an order will best available quotation.6 If no specialist X) of the Exchange’s Automated or ‘‘Streaming Quote Trader’’ has Options Market (AUTOM) 3 In Amendment No. 1, the Exchange proposes to modify the proposed rule change to correct a revised their quotation immediately November 29, 2004. typographical error in the proposed rule text. 4 In a telephone conversation between Richard 5 See Securities Exchange Act Release No. 50100 Pursuant to Section 19(b)(1) of the Rudolph, Director and Counsel, Phlx, and Kim (July 27, 2004), 69 FR 46612 (August 3, 2004) (SR– Securities Exchange Act of 1934 Allen, Attorney, Division of Market Regulation Phlx–2003–59). (‘‘Act’’) 1 and Rule 19b–4 2 thereunder, (‘‘Division’’), Commission, on November 23, 2004, 6 Pursuant to a telephone conversation between notice is hereby given that on November the Exchange clarified that the pilot applies only to Richard Rudolph, Director and Counsel, Phlx, and option classes known as non-Streaming Quote Kim Allen, Attorney, Division, Commission, on Options, defined in Phlx Rule 1014, Commentary November 23, 2004, the Exchange clarified that 20 17 CFR 200.30–3(a)(12). .05 as those classes not eligible to be traded by there will be no non-Streaming Quote Options 1 5 U.S.C. 78s(b)(1). Streaming Quote Traders pursuant to Phlx Rule when the roll out for options in Phlx XL is 2 17 CFR 240.19b–4. 1014(b)(ii)(A). completed.

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00068 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70495

following the exhaustion of the and drops all AUTO–X eligible orders in III. Solicitation of Comments Exchange’s disseminated size, the that option for manual handling by the Interested persons are invited to Exchange shall automatically specialist for a period of 30 seconds to submit written data, views, and disseminate the specialist’s most recent enable the specialist to refresh quotes in arguments concerning the foregoing, disseminated price prior to the time of that option. • including whether the proposed rule such exhaustion with a size of one Upon the expiration of 30 seconds, change is consistent with the Act. 7 contract. automatic executions resume, the Comments may be submitted by any of The pilot was originally approved on ‘‘counting’’ program is set to zero, and the following methods: a six-month basis for a limited number it begins counting the number of of eligible options 8 and extended for an contracts executed automatically within Electronic Comments additional six-month period.9 a 15 second time frame again, up to the • Use the Commission’s Internet Subsequently, the number of options specified disengagement size. comment form (http://www.sec.gov/ eligible for the pilot was expanded to Again, when the number of contracts rules/sro.shtml); or include all Phlx-traded options.10 In automatically executed exhausts the • Send an e-mail to rule- December 2001, the pilot was extended specified disengagement size within a [email protected]. Please include File again for an additional six-month 15-second time frame, the system drops Number SR–Phlx–2004–71 on the period; 11 and was extended again in all subsequent AUTO–X eligible orders subject line. May 2002,12November 2002,13 May for manual handling by the specialist for 2003,14 and November 2003 (for a one- a period of 30 seconds. The system then Paper Comments year period).15 The instant proposed continues to reset the ‘‘counting’’ • Send paper comments in triplicate rule change would extend the pilot program and drop to manual, etc. If the to Jonathan G. Katz, Secretary, through April 30, 2005. disseminated size exceeds the specified Securities and Exchange Commission, The pilot currently includes the disengagement size, and an eligible 450 Fifth Street, NW., Washington, DC following features: order is delivered for a number of 20549–0609. • Once an automatic execution occurs contracts that is greater than the All submissions should refer to File via AUTO–X in an option, the system specified disengagement size, the order Number SR–Phlx–2004–71. This file begins a ‘‘counting’’ program, which will be automatically executed up to the number should be included on the counts the number of contracts executed disseminated size, followed by an subject line if e-mail is used. To help the automatically for that option up to a AUTO–X disengagement period of 30 Commission process and review your 16 certain size, which such size causes seconds. If the specialist revises the comments more efficiently, please use AUTO–X to become disengaged for that quote in such an option prior to the only one method. The Commission will option. expiration of the 30-second period, post all comments on the Commission’s • When the number of contracts AUTO–X will be automatically re- Internet Web site (http://www.sec.gov/ executed automatically for that option engaged. rules/sro.shtml). Copies of the exhausts the specified disengagement submission, all subsequent size for the specific option within a 15- 2. Statutory Basis amendments, all written statements second time frame, the system ceases to The Exchange believes that its with respect to the proposed rule automatically execute for that option, proposal is consistent with Section 6(b) change that are filed with the of the Act 17 in general, and furthers the Commission, and all written 7 See Phlx Rule 1082(a)(ii)(C)(2). objectives of Section 6(b)(5) of the Act 18 communications relating to the 8 See Securities Exchange Act Release No. 43652 proposed rule change between the (December 1, 2000), 65 FR 77059 (December 8, in particular, in that it is designed to 2000) (SR–Phlx–00–96). perfect the mechanisms of a free and Commission and any person, other than 9 See Securities Exchange Act Release No. 44362 open market and a national market those that may be withheld from the (May 29, 2001), 66 FR 30037 (June 4, 2001) (SR– system, protect investors and the public public in accordance with the Phlx–2001–56). interest and promote just and equitable provisions of 5 U.S.C. 552, will be 10 See Securities Exchange Act Release No. 44760 available for inspection and copying in (August 31, 2001), 66 FR 47253 (September 11, principles of trade by providing 2001) (SR–Phlx–2001–79). automatic executions for eligible orders the Commission’s Public Reference 11 See Securities Exchange Act Release No. 45090 up to the Exchange’s disseminated size, Room, 450 Fifth Street, NW., (November 21, 2001), 66 FR 59834 (November 30, while continuing to enable Exchange Washington, DC 20549. Copies of the 2001) (SR–Phlx–2001–100). specialists to maintain fair and orderly filing also will be available for 12 See Securities Exchange Act Release No. 45862 inspection and copying at the principal (May 1, 2002), 67 FR 30990 (May 8, 2002) (SR– markets during periods of peak market Phlx–2002–22). activity. office of the Phlx. All comments 13 See Securities Exchange Act Release No. 46840 received will be posted without change; (November 15, 2002), 67 FR 70473 (November 22, B. Self-Regulatory Organization’s the Commission does not edit personal 2002) (SR–Phlx–2002–59). Statement on Burden on Competition identifying information from 14 See Securities Exchange Act Release No. 47955 The Exchange does not believe that submissions. You should submit only (May 30, 2003), 68 FR 34458 (June 9, 2003) (SR– Phlx–2003–29). the proposed rule change will impose information that you wish to make 15 See Securities Exchange Act Release No. 48851 any inappropriate burden on available publicly. All submissions (November 26, 2003), 68 FR 68442 (December 8, competition. should refer to File Number SR–Phlx– 2003) (SR–Phlx–2003–77). 2004–71 and should be submitted on or 16 Exchange Rule 1080(c)(iv)(I) provides that, C. Self-Regulatory Organization’s before December 27, 2004. when the number of contracts automatically Statement on Comments on the executed within a 15-second period in an option Proposed Rule Change Received From IV. Commission’s Findings and Order exceeds the ‘‘specified disengagement size,’’ a 30- Members, Participants, or Others Granting Accelerated Approval of second period ensues during which subsequent Proposed Rule Change orders are handled manually. The specified No written comments were either disengagement size is determined by the specialist solicited or received. The Commission finds that the and subject to the approval of the Exchange’s Options Committee. The specified disengagement proposed rule change is consistent with size for each option is listed on the Exchange’s Web 17 15 U.S.C. 78f(b). the requirements of the Act and the site. 18 15 U.S.C. 78f(b)(5). rules and regulations thereunder

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00069 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70496 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

applicable to a national securities SMALL BUSINESS ADMINISTRATION Management Agency, effective October exchange.19 In particular, the 22 and November 10, 2004, the above [Declaration of Disaster #3635] Commission finds that the proposed numbered Public Assistance declaration rule change is consistent with Section State of Florida; Amendment #4 is hereby amended to include Giles and 6(b)(5) of the Act, which requires that Unicoi Counties in the State of the rules of an exchange be designed to In accordance with a notice received Tennessee as disaster areas due to promote just and equitable principles of from the Department of Homeland damages caused by severe storms and trade, remove impediments to and Security—Federal Emergency flooding occurring on September 16–20, Management Agency—effective perfect the mechanism of a free and 2004. November 17, 2004, the above open market and a national securities All other information remains the numbered declaration is hereby same, i.e., the deadline for filing system, and to protect investors and the amended to establish the incident applications for physical damage is public interest.20 period for this disaster as beginning December 6, 2004. The Commission believes that the September 24, 2004, and continuing (Catalog of Federal Domestic Assistance extension of the pilot should assist through November 17, 2004. Program Nos. 59008) All other information remains the specialists in maintaining fair and Dated: November 30, 2004. orderly markets during periods of peak same, i.e., the deadline for filing Herbert L. Mitchell, market activity. The Commission applications for physical damage is Associate Administrator for Disaster believes that an extension of the pilot January 3, 2005 and for economic injury the deadline is June 27, 2005. Assistance. program through April 30, 2005 should [FR Doc. 04–26759 Filed 12–3–04; 8:45 am] allow the Exchange to continue its (Catalog of Federal Domestic Assistance BILLING CODE 8025–01–P efforts to deploy its fully automated Program Nos. 59002 and 59008) Phlx XL system. Moreover, according to Dated: November 29, 2004. the Phlx, no complaints from customers, Herbert L. Mitchell, SMALL BUSINESS ADMINISTRATION floor traders, or member firms have been Associate Administrator for Disaster received during the entire period of the Assistance. Small Business Size Standards: pilot program.21 [FR Doc. 04–26757 Filed 12–3–04; 8:45 am] Waiver of the Nonmanufacturer Rule Accordingly, the Commission finds BILLING CODE 8025–01–P AGENCY: U.S. Small Business good cause, pursuant to Section 19(b)(2) Administration. 22 of the Act, for approving the proposed SMALL BUSINESS ADMINISTRATION ACTION: Notice of intent to waive the rule change prior to the thirtieth day Nonmanufacturer Rule for Adhesives after the date of publication of notice [Declaration of Disaster #3627] and Sealants Manufacturing. thereof in the Federal Register. The State of Florida; Amendment #4 Commission believes that granting SUMMARY: The U. S. Small Business Administration (SBA) is considering accelerated approval to extend the pilot In accordance with a notice received granting a waiver of the program through April 30, 2005 raises from the Department of Homeland Nonmanufacturer Rule for Adhesives no new issues of regulatory concern and Security—Federal Emergency and Sealants Manufacturing. The basis Management Agency—effective should allow Phlx to continue, without for waivers is that no small business November 17, 2004, the above interruption, the existing operation of manufacturers are supplying these numbered declaration is hereby its AUTO–X system. classes of products to the Federal amended to establish the incident government. The effect of a waiver V. Conclusion period for this disaster as beginning would be to allow otherwise qualified September 13, 2004, and continuing It is therefore ordered, pursuant to regular dealers to supply the products of 23 through November 17, 2004. Section 19(b)(2) of the Act, that the All other information remains the any domestic manufacturer on a Federal proposed rule change (SR–Phlx–2004– same, i.e., the deadline for filing contract set aside for small businesses, 71) is hereby approved on an applications for physical damage is service-disabled veteran-owned small accelerated basis, as a pilot, scheduled January 3, 2005 and for economic injury businesses; SBA’s Very Small Business to expire on April 30, 2005. the deadline is June 16, 2005. Program or awarded through the SBA’s 8(a) Business Development Program. For the Commission, by the Division of (Catalog of Federal Domestic Assistance DATES: Comments and sources must be Market Regulation, pursuant to delegated Program Nos. 59002 and 59008) authority.24 submitted on or before December 17, Dated: November 29, 2004. 2004. Margaret H. McFarland, Herbert L. Mitchell, FOR FURTHER INFORMATION CONTACT: Deputy Secretary. Associate Administrator for Disaster Edith Butler, Program Analyst, by [FR Doc. E4–3470 Filed 12–3–04; 8:45 am] Assistance. telephone at (202) 619–0422; by FAX at BILLING CODE 8010–01–P [FR Doc. 04–26758 Filed 12–3–04; 8:45 am] (202) 205–7280; or by email at BILLING CODE 8025–01–P [email protected]. 19 In approving this proposal, the Commission has considered its impact on efficiency, competition, SUPPLEMENTARY INFORMATION: Section and capital formation. 15 U.S.C. 78c(f). SMALL BUSINESS ADMINISTRATION 8(a)(17) of the Small Business Act, (Act) 20 15 U.S.C. 78f(b)(5). 15 U.S.C. 637(a)(17), requires that 21 Telephone conversation between Richard [Declaration of Disaster #P068] recipients of Federal contracts set aside Rudolph, Director and Counsel, Phlx, and Kim for small businesses, service-disabled Allen, Attorney, Division, Commission, on State of Tennessee Amendment #1 November 23, 2004. veteran-owned small businesses, SBA’s 22 15 U.S.C. 78s(b)(2). In accordance with notices received Very Small Business Program or 23 15 U.S.C. 78s(b)(2). from the Department of Homeland awarded through the SBA’s 8(a) 24 17 CFR 200.30–3(a)(12). Security—Federal Emergency Business Development Program provide

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00070 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70497

the product of a small business Small Arms Ammunition Nonmanufacturer Rule for Small Arms manufacturer or processor, if the Manufacturing based on our recent Ammunition Manufacturing. In recipient is other than the actual discovery of a small business responses to these notices, SBA manufacturer or processor of the manufacturer for this class of products. discovered the existence of a small product. This requirement is commonly Terminating this waiver will require business manufacturer of that class of referred to as the Nonmanufacturer recipients of contracts set aside for products. Accordingly, based on the Rule. The SBA regulations imposing small businesses, service-disabled available information, SBA has this requirement are found at 13 CFR veteran-owned small businesses, SBA’s determined that there is a small 121.406 (b). Section 8(a)(17)(b)(iv) of the Very Small Business Program or 8(a) business manufacturer of this class of Act authorizes SBA to waive the businesses to provide the products of products, and is therefore terminating Nonmanufacturer Rule for any ‘‘class of small business manufacturers or process the class waiver of the Nonmanufacturer products’’ for which there are no small on such contracts. Rule for Small Arms Ammunition business manufacturers or processors DATES: This termination of waiver is Manufacturing, NAICS 332992. available to participate in the Federal effective on December 21, 2004. Authority: 15 U.S.C. 637(a)(17). market. FOR FURTHER INFORMATI0N CONTACT: As implemented in SBA’s regulations Dated: November 29, 2004. Edith Butler, Program Analyst, by Emily Murphy, at 13 CFR 121.1204, in order to be telephone at (202) 619–0422; by Fax at considered available to participate in Acting Associate Administrator for (202) 481–1788; or by e-mail at Government Contracting. the Federal market for a class of [email protected]. products, a small business manufacturer [FR Doc. 04–26755 Filed 12–3–04; 8:45 am] must have submitted a proposal for a SUPPLEMENTARY INFORMATION: Section BILLING CODE 8025–01–P contract solicitation or received a 8(a)(17) of the Small Business Act, contract from the Federal government (Act)15 U.S.C. 637(a)(17), requires that within the last 24 months. The SBA recipients of Federal contracts set aside SMALL BUSINESS ADMINISTRATION defines ‘‘class of products’’ based on six for small businesses, service-disabled Small Business Size Standards: digit coding systems. The first coding veteran-owned small businesses, SBA’s Waiver of the Nonmanufacturer Rule system is the Office of Management and Very Small Business Program or SBA’s Budget North American Industry 8(a) Business Development Program AGENCY: U.S. Small Business Classification System (NAICS). The provide the product of a small business Administration. second is the Product and Service Code manufacturer or processor, if the ACTION: Notice of intent to waive the established by the Federal Procurement recipient is other than the actual Nonmanufacturer Rule for Petroleum Data System. manufacturer or processor of the and Coal Products Manufacturing. The SBA received a request on product. This requirement is commonly November 2, 2004 to waive the referred to as the Nonmanufacturer SUMMARY: The U.S. Small Business Nonmanufacturer Rule for Adhesives Rule. Administration (SBA) is considering and Sealants Manufacturing. In The SBA regulations imposing this granting a waiver of the response, SBA is currently processing a requirement are found at 13 CFR Nonmanufacturer Rule for Petroleum request to waive the Nonmanufacturer 121.406(b). Section 8(a)(17)(b)(iv) of the and Coal Products Manufacturing. The Rule for Adhesives and Sealants Act authorizes SBA to waive the basis for waivers is that no small Manufacturing, North American Nonmanufacturer Rule for any ‘‘class of business manufacturers are supplying Industry Classification System (NAICS) products’’ for which there are no small these classes of products to the Federal 325520. business manufacturers or processors government. The effect of a waiver The public is invited to comment or available to participate in the Federal would be to allow otherwise qualified provide source information to SBA on market. regular dealers to supply the products of the proposed waiver of the As implemented in SBA’s regulations any domestic manufacturer on a Federal nonmanufacturer rule for this NAICS at 13 CFR 121.1204, in order to be contract set aside for small businesses, code. considered available to participate in service-disabled veteran-owned small the Federal market for a class of Authority: 15 U.S.C. 637(a)(17). businesses; SBA’s Very Small Business products, a small business manufacturer Program or awarded through the SBA’s Dated: November 29, 2004. must have submitted a proposal for a 8(a) Business Development Program. Emily Murphy, contract solicitation or received a DATES: Comments and sources must be Acting Associate Administrator for contract from the Federal government submitted on or before December 17, Government Contracting. within the last 24 months. The SBA 2004. [FR Doc. 04–26754 Filed 12–3–04; 8:45 am] defines ‘‘class of products’’ based on six FOR FURTHER INFORMATI0N CONTACT: BILLING CODE 8025–01–P digit coding systems. The first coding Edith Butler, Program Analyst, by system is the Office of Management and telephone at (202) 619–0422; by FAX at Budget North American Industry (202) 205–7280; or by email at SMALL BUSINESS ADMINISTRATION Classification System (NAICS). The [email protected]. second is the Product and Service Code Small Business Size Standards: established by the Federal Procurement SUPPLEMENTARY INFORMATION: Section Waiver of the Nonmanufacturer Rule Data System. 8(a)(17) of the Small Business Act, (Act) AGENCY: Small Business Administration. The SBA received a request on 15 U.S.C. 637(a)(17), requires that ACTION: Notice of termination of waiver September 7, 2004 to waive the recipients of Federal contracts set aside of the Nonmanufacturer Rule for Small Nonmanufacturer Rule for Small Arms for small businesses, service-disabled Arms Ammunition Manufacturing. Ammunition Manufacturing. veteran-owned small businesses, SBA’s In response, SBA published notices in Very Small Business Program or SUMMARY: The U. S. Small Business the Federal Register on October 18, awarded through the SBA’s 8(a) Administration (SBA) is terminating the 2004 and FedBizOpps on October 14, Business Development Program provide waiver of the Nonmanufacturer Rule for 2004 of intent to the waiver of the the product of a small business

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00071 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70498 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

manufacturer or processor, if the known as al-Tawhid, also known as This notice shall be published in the recipient is other than the actual Tanzim Qa’idat al-Jihad fi Bilad al- Federal Register. manufacturer or processor of the Rafidayn, also known as the Dated: November 30, 2004. product. This requirement is commonly Organization of al-Jihad’s Base in Iraq, Colin L. Powell, referred to as the Nonmanufacturer also known as the Organization of al- Secretary of State, Department of State. Rule. The SBA regulations imposing Jihad’s Base of Operations in Iraq, also this requirement are found at 13 CFR known as al-Qaida of Jihad in Iraq, also [FR Doc. 04–26733 Filed 12–3–04; 8:45 am] 121.406(b). Section 8(a)(17)(b)(iv) of the known as al-Qaida in Iraq, also known BILLING CODE 4710–10–P Act authorizes SBA to waive the as al-Qaida in Mesopotamia, also known Nonmanufacturer Rule for any ‘‘class of as al-Qaida in the Land of the Two products’’ for which there are no small Rivers, also known as al-Qaida of the OFFICE OF THE UNITED STATES business manufacturers or processors Jihad in the Land of the Two Rivers, TRADE REPRESENTATIVE available to participate in the Federal also known as al-Qaida of Jihad Request for Comments and Notice of market. Organization in the Land of the Two Public Hearing Concerning Proposed As implemented in SBA’s regulations Rivers, also known as al-Qaida Group of at 13 CFR 121.1204, in order to be Jihad in Iraq, also known as al-Qaida Free Trade Agreement With Oman considered available to participate in Group of Jihad in the Land of the Two AGENCY: Office of the United States the Federal market for a class of Rivers, also known as the Organization Trade Representative. products, a small business manufacturer of Jihad’s Base in the Country of the ACTION: Notice of intent to initiate must have submitted a proposal for a Two Rivers, also known as the negotiations on a free trade agreement contract solicitation or received a Organization Base of Jihad/Country of with Oman, request for comments, and contract from the Federal government the Two Rivers, also known as the notice of public hearing. within the last 24 months. The SBA Organization of al-Jihad’s Base in the defines ‘‘class of products’’ based on six Land of the Two Rivers, also known as SUMMARY: The United States intends to digit coding systems. The first coding the Organization Base of Jihad/ initiate negotiations on a free trade system is the Office of Management and Mesopotamia, also known as the agreement with Oman. The interagency Budget North American Industry Organization of al-Jihad’s Base of Trade Policy Staff Committee (TPSC) Classification System (NAICS). The Operations in the Land of the Two will convene a public hearing and seek second is the Product and Service Code Rivers, also known as Tanzeem qa’idat public comment to assist the United established by the Federal Procurement al Jihad/Bilad al Raafidaini. States Trade Representative (USTR) in Data System. Acting under the authority of section amplifying and clarifying negotiating The SBA received a request on 1(b) of Executive Order 13224 of objectives for the proposed agreements November 2, 2004 to waive the September 23, 2001, as amended by and to provide advice on how specific Nonmanufacturer Rule for Petroleum Executive Order 13286 of July 2, 2002, goods and services and other matters and Coal Products Manufacturing. and Executive Order 13284 of January should be treated under the proposed In response, SBA is currently 23, 2003, and in consultation with the agreements. Secretary of the Treasury, the Attorney processing a request to waive the DATES: Persons wishing to testify orally General, and the Secretary of Homeland Nonmanufacturer Rule for Petroleum at the hearing must provide written Security, I hereby determine that the and Coal Products Manufacturing, North notification of their intent to testify, as designated terrorist organization known American Industry Classification well as their testimony, by January 5, as Jam’at al-Tawhid wa’al-Jihad, aka the System (NAICS) 324110. 2005. A hearing will be held in The public is invited to comment or Monotheism and Jihad Group, aka, the Washington, DC, on January 14, 2005. provide source information to SBA on al-Zarqawi Network, also known as al- Written comments are due by noon, the proposed waiver of the Tawhid, has amended its name to January 25, 2005. nonmanufacturer rule for this NAICS Tanzim Qa’idat al-Jihad fi Bilad al- ADDRESSES: code. Rafidayn and all the translations and Submissions by electronic mail: [email protected]. Authority: 15 U.S.C. 637(a)(17). transliterations of that name listed above. This group continues to commit, Submissions by facsimile: Gloria Blue, Dated: November 29, 2004. or poses a significant risk of committing, Executive Secretary, Trade Policy Staff Emily Murphy, acts of terrorism that threaten the Committee, at (202) 395–6143. The Acting Associate Administrator for security of U.S. nationals or the national public is strongly encouraged to submit Government Contracting. security, foreign policy, or economy of documents electronically rather than by [FR Doc. 04–26756 Filed 12–3–04; 8:45 am] the United States. facsimile. (See requirements for BILLING CODE 8025–01–P Consistent with the determination in submissions below.) section 10 of Executive Order 13224 that FOR FURTHER INFORMATION CONTACT: For ‘‘prior notice to persons determined to procedural questions concerning written DEPARTMENT OF STATE be subject to the Order who might have comments or participation in the public a constitutional presence in the United hearing, contact Gloria Blue, Executive [Public Notice 4915] States would render ineffectural the Secretary, Trade Policy Staff Committee, Foreign Terrorists and Terrorist blocking and other measures authorized at (202) 395–3475. All other questions Organizations; Designation: Jam’at in the Order because of the ability to regarding Oman should be directed to Tawhid al wa’al-Jihad, et al. transfer funds instantaneously,’’ I Jason Buntin, Director for Western determine that no prior notice need be Europe and Middle East Affairs, at (202) Determination pursuant to section provided to any person subject to this 395–3320. 1(b) of Executive Order 13224 relating to determination who might have a SUPPLEMENTARY INFORMATION: the designation of Jam’at al Tawhid constitutional presence in the United wa’al-Jihad, also known as the States because to do so would render 1. Background Monotheism and Jihad Group, also ineffectual the measures authorized in Under section 2104 of the Trade Act known as the al-Zarqawi Network, also the Order. of 2002 (Trade Act) (19 U.S.C. 3804), for

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00072 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70499

agreements that will be approved and (b) Economic costs and benefits to the product(s) (with HTSUS numbers), implemented through trade promotion U.S. producers and consumers of service sector(s), or other subjects (such authority (TPA) procedures, the removal of tariffs and non-tariff barriers as investment, intellectual property, President must provide the Congress on articles traded with Oman. and/or government procurement) to be with at least 90 days’ written notice of (c) Treatment of specific goods discussed. A copy of the testimony must his intent to enter into negotiations and (described by HTSUS numbers) under accompany the notification. Remarks at must identify the specific objectives for the proposed agreements, including the hearing should be limited to no the negotiations. Before and after the comments on (1) product-specific more than five minutes to allow for submission of this notice, the President import or export interests or barriers, (2) possible questions from the TPSC. must consult with appropriate experience with particular measures Persons with mobility impairments who Congressional committees and the that should be addressed in the will need special assistance in gaining Congressional Oversight Group (COG) negotiations, and (3) in the case of access to the hearing should contact the regarding the negotiations. Under the articles for which immediate TPSC Executive Secretary. Trade Act of 1974, as amended, the elimination of tariffs is not appropriate, Interested persons, including persons President must (i) afford interested a recommended staging schedule for who participate in the hearing, may persons an opportunity to present their such elimination. submit written comments by noon, views regarding any matter relevant to (d) Adequacy of existing customs January 25, 2005. Written comments any proposed agreement, (ii) designate measures to ensure that imported goods may include rebuttal points an agency or inter-agency committee to originate from Oman, and appropriate demonstrating errors of fact or analysis hold a public hearing regarding any rules of origin for goods entering the not pointed out in the hearing. All proposed agreement, and (iii) seek the United States under the proposed written comments must state clearly the advice of the U.S. International Trade agreements. position taken, describe with Commission (ITC) regarding the (e) Existing sanitary and particularity the supporting rationale, probable economic effects on U.S. phytosanitary measures and technical and be in English. The first page of industries and consumers of the barriers to trade imposed by Oman that written comments must specify the removal of tariffs and non-tariff barriers should be addressed in the negotiations. subject matter, including, as applicable, on imports pursuant to any proposed (f) Existing barriers to trade in the product(s) (with HTSUS numbers), agreement. services between the United States and service sector(s), or other subjects (such as investment, intellectual property On November 15, 2004, after Oman that should be addressed in the and/or government procurement). consulting with relevant Congressional negotiations. (g) Relevant trade-related intellectual committees and the COG, the USTR 3. Requirements for Submissions property rights issues that should be notified the Congress that the President addressed in the negotiations. In order to facilitate prompt intends to initiate free trade agreement (h) Relevant investment issues that processing of submissions, the Office of negotiations with Oman and identified should be addressed in the negotiations. the United States Trade Representative specific objectives for the negotiations. (i) Relevant government procurement strongly urges and prefers electronic (e- In addition, the USTR has requested issues that should be addressed in the mail) submissions in response to this that the ITC provide its advice on negotiations. notice. In the event that an e-mail probable economic effects no later than (j) Relevant environmental and labor submission is impossible, submissions February 28, 2005. This notice solicits issues that should be addressed in the should be made by facsimile. views from the public on these negotiations. Persons making submissions by e- negotiations and provides information Comments identifying as present or mail should use the following subject on a hearing that will be conducted potential trade barriers laws or line: ‘‘United States-Oman Free Trade pursuant to the requirements of the regulations that are not primarily trade- Agreement,’’ followed by (as Trade Act of 1974. related should address the economic, appropriate) ‘‘Notice of Intent to 2. Public Comments and Testimony political, and social objectives of such Testify,’’ ‘‘Testimony,’’ or ‘‘Written regulations and the degree to which Comments.’’ Documents should be To assist the Administration as it they discriminate against producers of submitted as either WordPerfect, continues to develop its negotiating the other country. At a later date, the MSWord, or text (.TXT) files. objectives for the proposed agreements, USTR, through the TPSC, will publish Spreadsheets submitted as supporting the Chairman of the TPSC invites the notice of reviews regarding (a) the documentation are acceptable as written comments and/or oral testimony possible environmental effects of the Quattro Pro or Excel. If any document of interested persons at a public hearing. proposed agreements and the scope of submitted electronically contains Comments and testimony may address the U.S. environmental review of the business confidential information, the the reduction or elimination of tariffs or proposed agreements, and (b) the impact file name of the business confidential non-tariff barriers on any articles of the proposed agreements on U.S. version should begin with the characters provided for in the Harmonized Tariff employment and labor markets. ‘‘BC–,’’ and the file name of the public Schedule of the United States (HTSUS) A hearing will be held on January 14, version should begin with the characters that are products of Oman, any 2005, in Rooms 1 and 2, 1724 F Street, ‘‘P—.’’ The ‘‘P—’’ or ‘‘BC—’’ should be concession that should be sought by the NW., Washington, DC. Persons wishing followed by the name of the submitter. United States, or any other matter to testify at the hearing must provide Persons who make submissions by e- relevant to the proposed agreements. written notification of their intent to mail should not provide separate cover The TPSC invites comments and testify by January 5, 2005. The letters; information that might appear in testimony on all of these matters and, in notification should include: (1) The a cover letter should be included in the particular, seeks comments and name, address, and telephone number of submission itself. To the extent testimony addressed to: the person presenting the testimony; possible, any attachments to the (a) General and commodity-specific and (2) a short (one or two paragraphs) submission should be included in the negotiating objectives for the proposed summary of the presentation, including same file as the submission itself, and agreements. the subject matter and, as applicable, not as separate files.

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00073 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70500 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

Written comments, notice of notification of their intent to testify, as than February 28, 2005. This notice testimony, and testimony will be placed well as their testimony, by January 5, solicits views from the public on these in a file open to public inspection 2005. A hearing will be held in negotiations and provides information pursuant to 15 CFR 2003.5, except Washington, DC, on January 12, 2005. on a hearing that will be conducted business confidential information Written comments are due by noon, pursuant to the requirements of the exempt from public inspection in January 25, 2005. Trade Act of 1974. accordance with 15 CFR 2003.6. ADDRESSES: Submissions by electronic 2. Public Comments and Testimony Business confidential information mail: [email protected]. submitted in accordance with 15 CFR Submissions by facsimile: Gloria Blue, To assist the Administration as it 2003.6 must be clearly marked Executive Secretary, Trade Policy Staff continues to develop its negotiating ‘‘BUSINESS CONFIDENTIAL’’ at the top Committee, at (202) 395–6143. The objectives for the proposed agreement, of each page, including any cover letter public is strongly encouraged to submit the Chairman of the TPSC invites the or cover page, and must be accompanied documents electronically rather than by written comments and/or oral testimony by a non-confidential summary of the facsimile. (See requirements for of interested persons at a public hearing. confidential information. All public submissions below.) Comments and testimony may address documents and non-confidential FOR FURTHER INFORMATION CONTACT: For the reduction or elimination of tariffs or summaries shall be available for public procedural questions concerning written non-tariff barriers on any articles inspection in the USTR Reading Room. comments or participation in the public provided for in the Harmonized Tariff The USTR Reading Room is open to the hearing, contact Gloria Blue, Executive Schedule of the United States (HTSUS) public, by appointment only, from 10 Secretary, Trade Policy Staff Committee, that are products of the UAE, any a.m. to noon and 1 p.m. to 4 p.m., at (202) 395–3475. All other questions concession that should be sought by the Monday through Friday. An regarding the UAE should be directed to United States, or any other matter appointment to review the file must be Douglas Bell, Director for the Middle relevant to the proposed agreement. The scheduled at least 48 hours in advance East and North Africa, at (202) 395– TPSC invites comments and testimony and may be made by calling (202) 395– 4620. on all of these matters and, in particular, 6186. seeks comments and testimony SUPPLEMENTARY INFORMATION: General information concerning the addressed to: Office of the United States Trade 1. Background (a) General and commodity-specific Representative may be obtained by Under section 2104 of the Trade Act negotiating objectives for the proposed accessing its Internet Web site (http:// of 2002 (Trade Act) (19 U.S.C. 3804), for agreement. www.ustr.gov). agreements that will be approved and (b) Economic costs and benefits to Carmen Suro-Bredie, implemented through trade promotion U.S. producers and consumers of Chairman, Trade Policy Staff Committee. authority (TPA) procedures, the removal of tariffs and non-tariff barriers on articles traded with the UAE. [FR Doc. 04–26676 Filed 12–3–04; 8:45 am] President must provide the Congress with at least 90 days’ written notice of (c) Treatment of specific goods BILLING CODE 3190–W5–P his intent to enter into negotiations and (described by HTSUS numbers) under must identify the specific objectives for the proposed agreement, including OFFICE OF THE UNITED STATES the negotiations. Before and after the comments on TRADE REPRESENTATIVE submission of this notice, the President (1) Product-specific import or export must consult with appropriate interests or barriers, Request for Comments and Notice of Congressional committees and the (2) Experience with particular Public Hearing Concerning Proposed Congressional Oversight Group (COG) measures that should be addressed in Free Trade Agreement With the United regarding the negotiations. Under the the negotiations, and Arab Emirates (UAE) Trade Act of 1974, as amended, the (3) In the case of articles for which President must (i) afford interested immediate elimination of tariffs is not AGENCY: Office of the United States persons an opportunity to present their Trade Representative. appropriate, a recommended staging views regarding any matter relevant to schedule for such elimination. ACTION: Notice of intent to initiate any proposed agreement, (ii) designate (d) Adequacy of existing customs negotiations on a free trade agreement an agency or inter-agency committee to measures to ensure that imported goods with the UAE, request for comments, hold a public hearing regarding any originate from the UAE, and appropriate and notice of public hearing. proposed agreement, and (iii) seek the rules of origin for goods entering the advice of the U.S. International Trade SUMMARY: United States under the proposed The United States intends to Commission (ITC) regarding the agreement. initiate negotiations on a free trade probable economic effects on U.S. agreement with the UAE. The industries and consumers of the (e) Existing sanitary and interagency Trade Policy Staff removal of tariffs and non-tariff barriers phytosanitary measures and technical Committee (TPSC) will convene a on imports pursuant to any proposed barriers to trade imposed by the UAE public hearing and seek public agreement. that should be addressed in the comment to assist the United States On November 15, 2004, after negotiations. Trade Representative (USTR) in consulting with relevant Congressional (f) Existing barriers to trade in amplifying and clarifying negotiating committees and the COG, the USTR services between the United States and objectives for the proposed agreement notified the Congress that the President the UAE that should be addressed in the and to provide advice on how specific intends to initiate free trade agreement negotiations. goods and services and other matters negotiations with the UAE and (g) Relevant trade-related intellectual should be treated under the proposed identified specific objectives for the property rights issues that should be agreement. negotiations. In addition, the USTR has addressed in the negotiations. DATES: Persons wishing to testify orally requested that the ITC provide its advice (h) Relevant investment issues that at the hearing must provide written on probable economic effects no later should be addressed in the negotiations.

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00074 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70501

(i) Relevant government procurement strongly urges and prefers electronic (e- accessing its Internet Web site (http:// issues that should be addressed in the mail) submissions in response to this www.ustr.gov). negotiations. notice. In the event that an e-mail Carmen Suro-Bredie, (j) Relevant environmental and labor submission is impossible, submissions Chairman, Trade Policy Staff Committee. issues that should be addressed in the should be made by facsimile. negotiations. [FR Doc. 04–26677 Filed 12–3–04; 8:45 am] Comments identifying as present or Persons making submissions by e- BILLING CODE 3190–W5–P potential trade barriers laws or mail should use the following subject regulations that are not primarily trade- line: ‘‘United States-United Arab related should address the economic, Emirates Free Trade Agreement,’’ DEPARTMENT OF TRANSPORTATION political, and social objectives of such followed by (as appropriate) ‘‘Notice of regulations and the degree to which Intent to Testify,’’ ‘‘Testimony,’’ or Federal Transit Administration they discriminate against producers of ‘‘Written Comments.’’ Documents the other country. At a later date, the should be submitted as either United We Ride State Coordination Grants Announcement USTR, through the TPSC, will publish WordPerfect, MSWord, or text (.TXT) notice of reviews regarding (a) the files. Spreadsheets submitted as AGENCY: Federal Transit Administration possible environmental effects of the supporting documentation are (FTA), DOT. proposed agreement and the scope of acceptable as Quattro Pro or Excel. If ACTION: Notice. the U.S. environmental review of the any document submitted electronically proposed agreement, and (b) the impact contains business confidential SUMMARY: This notice identifies state of the proposed agreement on U.S. information, the file name of the agencies selected for United We Ride employment and labor markets. business confidential version should State Coordination Grants and provides A hearing will be held on January 12, instructions for applying for the grant begin with the characters ‘‘BC—,’’ and 2005, in Rooms 1 and 2, 1724 F Street, funds. NW., Washington, DC. Persons wishing the file name of the public version should begin with the characters ‘‘P—.’’ EFFECTIVE DATE: State agencies selected to testify at the hearing must provide for State Coordination Grants may begin written notification of their intent to The ‘‘P—’’ or ‘‘BC—’’ should be followed by the name of the submitter. application procedures upon receipt of testify by January 5, 2005. The letters from FTA Administrator Jennifer notification should include: (1) The Persons who make submissions by e- L. Dorn informing them of their name, address, and telephone number of mail should not provide separate cover selection. Applicants should submit the person presenting the testimony; letters; information that might appear in their electronic grant applications to and (2) a short (one or two paragraphs) a cover letter should be included in the FTA by February 28, 2005. Grant summary of the presentation, including submission itself. To the extent activities should be complete, with all the subject matter and, as applicable, possible, any attachments to the funds drawn down from the grant, by the product(s) (with HTSUS numbers), submission should be included in the February 28, 2006. service sector(s), or other subjects (such same file as the submission itself, and FOR FURTHER INFORMATION CONTACT: as investment, intellectual property, not as separate files. and/or government procurement) to be Applicants may contact the appropriate Written comments, notice of discussed. A copy of the testimony must FTA Regional Administrator (see testimony, and testimony will be placed accompany the notification. Remarks at Appendix A) for grant-specific issues; or the hearing should be limited to no in a file open to public inspection Elizabeth Solomon, 202–366–0242, for more than five minutes to allow for pursuant to 15 CFR 2003.5, except general information about the United possible questions from the TPSC. business confidential information We Ride State Coordination Grants. Persons with mobility impairments who exempt from public inspection in SUPPLEMENTARY INFORMATION: Those will need special assistance in gaining accordance with 15 CFR 2003.6. states selected for funding were found to access to the hearing should contact the Business confidential information meet the objective of the United We TPSC Executive Secretary. submitted in accordance with 15 CFR Ride initiative which is to implement Interested persons, including persons 2003.6 must be clearly marked the President’s Executive Order on who participate in the hearing, may ‘‘BUSINESS CONFIDENTIAL’’ at the top Human Service Transportation submit written comments by noon, of each page, including any cover letter Coordination by breaking down barriers January 25, 2005. Written comments or cover page, and must be accompanied among Federal programs to enhance may include rebuttal points by a non-confidential summary of the coordination of human service demonstrating errors of fact or analysis confidential information. All public transportation programs for individuals not pointed out in the hearing. All documents and non-confidential with disabilities, older adults, and lower written comments must state clearly the summaries shall be available for public income populations who depend on position taken, describe with inspection in the USTR Reading Room. transportation services to access employment, health, and other particularity the supporting rationale, The USTR Reading Room is open to the community services. The purpose of the and be in English. The first page of public, by appointment only, from 10 State Coordination Grants is to increase written comments must specify the a.m. to noon and 1 p.m. to 4 p.m., subject matter, including, as applicable, the overall capacity of states to deliver Monday through Friday. An comprehensive and coordinated human the product(s) (with HTSUS numbers), appointment to review the file must be service sector(s), or other subjects (such services transportation that meets the scheduled at least 48 hours in advance as investment, intellectual property needs of transportation-disadvantaged and may be made by calling (202) 395– and/or government procurement). individuals and to increase cross-agency 6186. collaboration to facilitate coordination, 3. Requirements for Submissions General information concerning the enhance services, and address In order to facilitate prompt Office of the United States Trade redundancies of programs and services. processing of submissions, the Office of Representative may be obtained by These grants may be used to assist states the United States Trade Representative in conducting a comprehensive state

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00075 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70502 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

assessment using the United We Ride Grant Selections. The solicitation required for these grants. Of the Framework for Action; developing a announcement for the United We Ride applicants, 38 are state DOTs and the comprehensive state action plan for state coordination grants called for remaining seven are various other state coordinating human services applications to be submitted by August agencies. We encourage these other state transportation; or, for those states that 23, 2004. FTA received 45 proposals, all applicants to partner with the state already have a comprehensive state of which were evaluated and approved DOTs for submittal of grant action plan, to implement one or more by an interagency team of reviewers. applications. of the elements identified in the Grants will be made for between Framework for Action. $19,000 and $35,000. No local match is

State Lead agency Amount

Alabama ...... Alabama Department of Senior Services ...... $35,000 Alaska ...... Alaska Department of Transportation and Public Facilities ...... 35,000 Arizona ...... Arizona Department of Transportation ...... 35,000 Arkansas ...... Arkansas State Highway and Transportation Department ...... 19,000 California ...... California Department of Transportation ...... 34,027 Colorado ...... Colorado Department of Transportation ...... 35,000 Connecticut ...... Connecticut Department of Transportation ...... 35,000 Delaware ...... Delaware Transit Corporation ...... 35,000 District of Columbia ...... Washington DC Department of Transportation ...... 35,000 Florida ...... Florida Commission for the Transportation Disadvantaged ...... 35,000 Georgia ...... Georgia Department of Transportation ...... 34,750 Idaho ...... Idaho Department of Transportation ...... 35,000 Illinois ...... Illinois Department of Transportation ...... 35,000 Iowa ...... Iowa Department of Transportation ...... 30,000 Kansas ...... Kansas Department of Transportation ...... 35,000 Kentucky ...... Kentucky Transportation Cabinet ...... 35,000 Louisiana ...... Louisiana Department of Transportation and Development ...... 34,984 Maine ...... Maine Department of Transportation ...... 35,000 Maryland ...... Maryland Transit Administration ...... 35,000 Massachusetts ...... Massachusetts Human Service Transportation Office ...... 35,000 Michigan ...... Michigan Department of Transportation ...... 35,000 Minnesota ...... Minnesota Department of Transportation ...... 35,000 Mississippi ...... Mississippi Division of Medicaid ...... 35,000 Missouri ...... Missouri Department of Transportation ...... 35,000 Montana ...... Office of the Governor ...... 25,450 Nebraska ...... Nebraska Department of Roads ...... 35,000 Nevada ...... Nevada Department of Transportation ...... 30,000 New Hampshire ...... New Hampshire Department of Transportation ...... 35,000 New Jersey ...... New Jersey Transit Corporation ...... 35,000 New Mexico ...... New Mexico State Highway and Transportation Department ...... 35,000 New York ...... New York Department of Transportation ...... 35,000 North Carolina ...... North Carolina Department of Health and Human Services ...... 35,000 Ohio ...... Ohio Department of Transportation ...... 28,700 Oklahoma ...... Oklahoma Department of Transportation ...... 35,000 Oregon ...... Oregon Department of Transportation ...... 35,000 Pennsylvania ...... Pennsylvania Department of Transportation ...... 35,000 South Carolina ...... South Carolina Department of Transportation ...... 35,000 Tennessee ...... Tennessee Department of Transportation ...... 35,000 Texas ...... Texas Department of Transportation ...... 35,000 Utah ...... Utah Department of Transportation ...... 35,000 Vermont ...... Vermont Agency of Transportation ...... 35,000 Virgin Islands ...... Virgin Islands Department of Public Works ...... 35,000 Virginia ...... Virginia Department of Rail and Public Transportation ...... 35,000 West Virginia ...... West Virginia Division of Public Transit ...... 35,000 Wisconsin ...... Wisconsin Bureau of Aging and Long Term Care ...... 29,816

Eligible Costs. Funds may be used to Planning Requirements. Because the Organizations (MPOs), including support personnel for planning, State Coordination grants are financed possible reference of their work training, coordination, and other with planning and research funds, they activities in the Unified Planning Work administrative activities required to are exempt from inclusion in the Program. In non-urbanized areas, States enhance coordination among and across Metropolitan Transportation are encouraged to share information on agencies within the state. Supplies, Improvement Programs (TIPs) and the proposed State Coordination Grant small equipment (computers, etc.), and State Transportation Improvement activities with local officials through travel are also eligible expenses. Programs (STIPs). However, FTA each State’s required consultation Ineligible Costs. Funds may not be encourages States to share information process with non-metropolitan local used for provision of transportation on their proposed work activities with officials regarding participation in services, such as for capital costs for affected local officials. In urbanized statewide transportation planning and large equipment, e.g. vehicles, or areas, States are encouraged to programming. FTA regards the operating costs. coordinate with Metropolitan Planning involvement of local officials as critical

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00076 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70503

to achieving effective coordination of grant applications must reflect the Issued on November 30, 2004. human services transportation. approved proposal. This application Jennifer L. Dorn, Pre-Award Authority. Costs may be does not require Department of Labor Administrator. incurred for activities in the approved Certification. Regional Office (Appendix Appendix A—FTA Regional Offices proposal prior to FTA approval. A) staff can advise how specific laws, However, in exercising pre-award regulations, Federal Register notices, Region I authority, applicants must comply with and Executive Orders may be obtained. Connecticut, Maine, Massachusetts, New all Federal requirements. Failure to do Payment Procedures. All FTA Hampshire, Rhode Island, and Vermont. so will render costs ineligible for FTA Richard Doyle, FTA Regional Administrator, financial assistance. Applicants must payments to grantees are made through Volpe National Transportation Systems consult the appropriate FTA regional the Electronic Clearing House Operation Center, Kendall Square, 55 Broadway, Suite office regarding the eligibility of the (ECHO) system. New grantees can work 920, Cambridge, MA 02142–1093, (617) 494– project for future FTA funds or the with regional staff to obtain an ECHO 2055. applicability of the conditions and account number and a password for Region II ECHO access. Grantees may transmit an Federal requirements. Pre-award New Jersey, New York, and Virgin Islands. spending authority is provided effective ECHO drawdown request message to Letitia Thompson, FTA Regional as of November 9, 2004, the date on FTA in order to receive funds necessary Administrator, One Bowling Green, Room which letters of project selection were to meet immediate cash disbursement 429, New York, NY 10004–1415, (212) 668– sent to applicants. needs. The ECHO system processes the 2170. Certification and Assurances. In grantee’s message and if no problems Region III accordance with 49 U.S.C. 5323(n), are noted by FTA, the amount requested certifications and assurances have been Delaware, District of Columbia, Maryland, is transmitted to Treasury. Treasury Pennsylvania, Virginia, and West Virginia. compiled for the various FTA programs. electronically transfers the payment to Susan Borinsky, FTA Regional Before FTA may award a Federal grant, the grantee’s financial institution within Administrator, 1760 Market Street, Suite 500, each successful applicant must provide 24 hours. Philadelphia, PA 19103–4124, (215) 656– to FTA all certifications and assurances Reporting Requirements. By October 7100. required by Federal laws and 31 each year, the state should submit to Region IV regulations applicable to itself and its FTA a milestone progress report and a project. A state providing certifications Alabama, Florida, Georgia, Kentucky, and assurances on behalf of its financial status report in TEAM for each Mississippi, North Carolina, Puerto Rico, prospective subrecipients should obtain active grant covering the 12-month South Carolina, and Tennessee. Hiram Walker, FTA Regional Administrator, 61 sufficient documentation from those period ending September 30 or the period from when the grant was Forsyth Street, SW., Suite 17T50, Atlanta, GA subrecipients needed to provide 30303, (404) 562–3500. informed certifications and assurances. awarded through September 30, and, All of the Federal requirements that upon completion of the grant project, Region V apply to State Coordination grant submit a final report. These reports are Illinois, Indiana, Michigan, Minnesota, applicants are included in those intended to meet at least the minimal Ohio, and Wisconsin. Joel Ettinger, FTA applicable to all grantees, so Category 1, program information needs at the Regional Administrator, 200 West Adams Required of Each Applicant, is the regional and national levels. Copies of Street, Suite 2410, Chicago, IL 60606–5232, category that State Coordination Grant planning documents or products (312) 353–2789. applicants will select. If FTA already developed from grant activities, if any, Region VI has the State applicant’s signed can be submitted as attachments in the Arkansas, Louisiana, New Mexico, certifications and assurances for the TEAM system. Grantees must also Oklahoma, and Texas. Robert Patrick, FTA current fiscal year and it has provided submit the Overall State Self- Regional Administrator, 819 Taylor Street, adequate certifications and assurances Assessment of the Framework for Room 8A36, Ft. Worth, TX 76102, (817) 978– to qualify for a State Coordination Action. Grantees can: access this 0550. Grant, the State applicant need not document at http://www.fta.dot.gov/ Region VII _ submit separate certifications and ccam/framework states.doc; copy the Iowa, Kansas, Missouri, and Nebraska. assurances for assistance. FTA’s (FY) Overall State Self-Assessment page near Mokhtee Ahmad, FTA Regional 2005 Certifications and Assurances the end of the document; and provide, Administrator, 901 Locust Street, Suite 404, Notice was published in the Federal in text, ratings for each of the six Kansas City, MO 64106, (816) 329–3920. Register on October 26, 2004. A copy of sections. The document can then be Region VIII that Federal Register notice can be saved as a text document and submitted Colorado, Montana, North Dakota, South found on the FTA Web site at http:// as an attachment in TEAM with an _ Dakota, Utah, and Wyoming. Lee Waddleton, www.fta.dot.gov/legal/federal register/ annual or final report. 2004/12174_16165_ENG_HTML.htm. FTA Regional Administrator, 12300 West Data Collection. United We Ride is Dakota, Suite 310, Lakewood, CO 80228– The document is also available on the 2583, (720) 963–3300. Main Menu of the Transportation targeted to simplify access to Electronic Award and Management transportation services, reduce Region IX (TEAM) Web site. Applicants that need duplication and increase cost American Samoa, Arizona, California, further assistance should contact the efficiencies. Too often, information to Guam, Hawaii, Nevada, and the Northern appropriate FTA regional office (see measure our progress in coordinating Mariana Islands. Leslie Rogers, FTA Regional Appendix A) for further information. human service transportation and Administrator, 201 Mission Street, Suite Applying for Funds. Applicants for achieving cost and service results is 2210, San Francisco, CA 94105–1839, (415) State Coordination funds will submit lacking. FTA will be providing guidance 744–3133. their applications electronically through to assist grantees with collecting data Region X TEAM, the Web-based FTA electronic regarding expenditures, costs and Alaska, Idaho, Oregon, and Washington. system that FTA uses for grant award benefits of coordinated transportation Richard F. Krochalis, FTA Regional and management. The content of these services. Administrator, Jackson Federal Building, 915

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00077 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70504 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

Second Avenue, Suite 3142, Seattle, WA SUPPLEMENTARY INFORMATION: Gelaendewagen MPVs that are the 98174–1002, (206) 220–7954. subject of this petition. In their petition Background [FR Doc. 04–26751 Filed 12–3–04; 8:45 am] for the 2001–2003 vehicles the Under 49 U.S.C. 30141(a)(1)(A), a BILLING CODE 4910–57–P petitioner stated that over a period of motor vehicle that was not originally ten years, NHTSA has granted import manufactured to conform to all eligibility to a number of Mercedes Benz DEPARTMENT OF TRANSPORTATION applicable Federal motor vehicle safety Gelaendewagen type 463 vehicles. standards shall be refused admission These include the 1990–1996 SWB National Highway Traffic Safety into the United States unless NHTSA version of the vehicle (assigned vehicle Administration has decided that the motor vehicle is eligibility number VCP–14) and the substantially similar to a motor vehicle 1996 through 2001 long wheel base [Docket No. NHTSA–2004–19737] originally manufactured for importation (LWB) version of the vehicle (assigned Notice of Receipt of Petition for into and sale in the United States, vehicle eligibility numbers VCP–11, 15, Decision That Nonconforming 2004 certified under 49 U.S.C. 30115, and of 16, 18, and 21). These eligibility Mercedes Benz Type 463 Short Wheel the same model year as the model of the decisions were based on petitions Base (SWB) Gelaendewagen motor vehicle to be compared, and is submitted by J.K. and another register capable of being readily altered to Multipurpose Passenger Vehicles importer, Europa International, Inc., conform to all applicable Federal motor (MPVs) Are Eligible for Importation claiming that the vehicles were capable vehicle safety standards. of being altered to comply with all AGENCY: National Highway Traffic Under 49 U.S.C. 30141(a)(1)(B), a applicable FMVSS. Because those Safety Administration, DOT. motor vehicle that was not originally vehicles were not manufactured for ACTION: Notice of receipt of petition for manufactured to conform to all importation into and sale in the United decision that nonconforming 2004 applicable Federal motor vehicle safety States, and were not certified by their Mercedes Benz type 463 SWB standards may also be granted original manufacturer (Daimler Benz), as Gelaendewagen MPVs are eligible for admission into the United States, even conforming to all applicable FMVSS, importation. if there is no substantially similar motor they cannot be categorized as vehicle of the same model year ‘‘substantially similar’’ to the 2004 SWB SUMMARY: This document announces originally manufactured for importation versions for purposes of establishing receipt by the National Highway Traffic into and sale in United States, if the import eligibility under 49 U.S.C. Safety Administration (NHTSA) of a safety features of the vehicle comply 30141(a)(1)(A). In addition, while there petition for a decision that 2004 with or are capable of being altered to are some similarities between the SWB Mercedes Benz type 463 SWB comply with those standards based on and LWB versions, NHTSA has decided Gelaendewagen MPVs that were not destructive test information or other that the 2002 through 2005 LWB originally manufactured to comply with evidence that NHTSA decides is versions of the vehicle that Mercedes all applicable Federal motor vehicle adequate. Benz has manufactured for importation safety standards are eligible for Petitions for eligibility decisions may into and sale in the United States cannot importation into the United States be submitted by either manufacturers or be categorized as substantially similar to because (1) they are substantially importers who have registered with the SWB versions for the purpose of similar to vehicles that were originally NHTSA pursuant to 49 CFR Part 592. As establishing import eligibility under manufactured for importation into and specified in 49 CFR 593.7, NHTSA section 30141(a)(1)(A). Therefore, we sale in the United States and that were publishes notice in the Federal Register will construe J.K.’s petition as a petition certified by their manufacturer as of each petition that it receives, and pursuant to 49 U.S.C. 30141(a)(1)(B). complying with the safety standards, affords interested persons an J.K. submitted information with its and (2) they are capable of being readily opportunity to comment on the petition. petition intended to demonstrate that altered to conform to the standards. At the close of the comment period, 2004 Type 463 SWB Gelaendewagen NHTSA decides, on the basis of the DATES: The closing date for comments MPVs, as originally manufactured, petition and any comments that it has on the petition is January 5, 2005. comply with many applicable FMVSS received, whether the vehicle is eligible and are capable of being modified to ADDRESSES: Comments should refer to for importation. The agency then comply with all other applicable the docket number and notice number, publishes this decision in the Federal standards to which they were not and be submitted to: Docket Register. originally manufactured to conform. Management, Room PL–401, 400 J.K. Motors of Baltimore, Maryland Specifically, the petitioner claims that Seventh St., SW, Washington, DC (‘‘J.K.’’) (Registered Importer 90–006) 2004 Type 463 SWB Gelaendewagen 20590. [Docket hours are from 9 am to has petitioned NHTSA to decide MPVs has safety features that comply 5 pm]. Anyone is able to search the whether 2004 Type 463 SWB with Standard Nos. 102 Transmission electronic form of all comments Gelaendewagen MPVs are eligible for Shift Lever Sequence, Starter Interlock, received into any of our dockets by the importation into the United States. J.K. and Transmission Braking Effect, 103 name of the individual submitting the has identified its petition as pertaining Windshield Defrosting and Defogging comment (or signing the comment, if to both the Cabriolet and the Three Door Systems, 104 Windshield Wiping and submitted on behalf of an association, versions of these vehicles. J.K. believes Washing Systems, 106 Brake Hoses, 113 business, labor union, etc.). You may that these vehicles can be made to Hood Latch System, 116 Motor Vehicle review DOT’s complete Privacy Act conform to all applicable Federal motor Brake Fluid, 119 New Pneumatic Tires Statement in the Federal Register vehicle safety standards (FMVSS). for Vehicles Other than Passenger Cars, published on April 11, 2000 (Volume In its petition, J.K. noted that NHTSA 124 Accelerator Control Systems, 135 65, Number 70; Pages 19477–78) or you has granted import eligibility to 2001– Passenger Car Brake Systems, 201 may visit http://dms.dot.gov. 2003 Mercedes Benz type 463 SWB Occupant Protection in Interior Impact, FOR FURTHER INFORMATION CONTACT: Gelaendewagen MPVs (VCP–25) that 202 Head Restraints, 204 Steering Coleman Sachs, Office of Vehicle Safety they claim are identical to the 2004 Control Rearward Displacement, 205 Compliance, NHTSA (202–366–3151). Mercedes Benz type 463 SWB Glazing Materials, 206 Door Locks and

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00078 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70505

Door Retention Components, 207 vehicles’ fuel systems must be modified Dates: Written comments should be Seating Systems, 209 Seat Belt with U.S.-model parts to meet U.S. received on or before January 5, 2005 to Assemblies, 210 Seat Belt Assembly Environmental Protection Agency (EPA) be assured of consideration. Anchorages, 212 Windshield Mounting, OBDII, Spit Back, and enhanced EVAP Financial Crimes Enforcement Network 214 Side Impact Protection, 216 Roof requirements. The petitioner claims that (FinCEN) Crush Resistance, 219 Windshield Zone as modified, these systems will control Intrusion, and 302 Flammability of all fuel leaks in the case of an impact. OMB Number: 1506–0013. Form Number: FinCEN 104 (Formerly Interior Materials. The petitioner also states that a Customs Form 4789). Petitioner also contends that the vehicle identification plate must be Type of Review: Revision. vehicles are capable of being able to affixed to the vehicle near the left meet the following standards, in the Title: Registration of Money Services windshield post and a reference and Business, 31 CFR 103.41. manner indicated: certification label must be affixed in the Standard No. 101 Controls and Description: Money services area of the left front door post to meet businesses file Form 107 to register with Displays: (a) Replacement of the the requirements of 49 CFR part 565. instrument cluster with the U.S.-model the Department of the Treasury component; (b) replacement of the Interested persons are invited to pursuant to 31 U.S.C. 5330 and 31 CFR cruise control lever with a U.S.-model submit comments on the petition 103.41. The information on the form is component on vehicles that are not so described above. Comments should refer used by criminal investigators, and equipped; (c) reprogramming and to the docket number and be submitted taxation and regulatory enforcement initialization of the vehicle control to: Docket Management, Room PL–401, authorities, during the course of system to integrate the new instrument 400 Seventh St., SW., Washington, DC investigations involving financial cluster and activate required warning 20590. [Docket hours are from 9 am to crimes. systems. 5 pm.] It is requested but not required Respondents: Business or other for- Standard No. 108 Lamps, Reflective that 10 copies be submitted. profit, Individuals or households, Not- Devices and Associated Equipment: (a) All comments received before the for-profit institutions. Installation of U.S.-model headlamps close of business on the closing date Estimated Number of Respondents/ and front sidemarker lights; (b) indicated above will be considered, and Recordkeepers: 17,000. installation of U.S.-model taillamp will be available for examination in the Estimated Burden Hours Per assemblies or modification of existing docket at the above address both before Respondent/Recordkeeper: 45 minutes. Frequency of Response: Other (as taillamps to conform to the standard; (c) and after that date. To the extent required). installation of U.S.-model sidemarker possible, comments filed after the Estimated Total Reporting/ lights. closing date will also be considered. Standard No. 111 Rearview Mirrors: Notice of final action on the petition Recordkeeping Burden: 17,600 hours. Clearance Officer: Steve Rudzinski, replacement of the passenger side will be published in the Federal (703) 905–3845, Financial Crimes rearview mirror with a U.S.-model Register pursuant to the authority Enforcement Network, 2070 Chain component or inscription of the indicated below. Bridge Road, Suite 200, Vienna, VA required warning statement on the Authority: 49 U.S.C. 30141(a)(1)(A) and 22182. mirror’s surface. (b)(1); 49 CFR 593.8; delegations of authority OMB Reviewer: Joseph F. Lackey, Jr., Standard No. 114 Theft Protection: at 49 CFR 1.50 and 501.8. (202) 395–7316, Office of Management reprogramming of the vehicle control and Budget, Room 10235, New systems to activate the required driver Claude H. Harris, Executive Office Building, Washington, warning. Director, Office of Vehicle Safety Compliance. Standard No. 118 Power-Operated [FR Doc. 04–26752 Filed 12–3–04; 8:45 am] DC 20503. Window, Partition, and Roof Panel BILLING CODE 4910–59–P Lois K. Holland, Systems: reprogramming of the vehicle Treasury PRA Clearance Officer. control systems to meet the [FR Doc. 04–26720 Filed 12–3–04; 8:45 am] requirements of this standard. BILLING CODE 4810–02–P Standard No. 120 Tire Selection and DEPARTMENT OF THE TREASURY Rims for Motor Vehicles Other than Submission for OMB Review; Passenger Cars: installation of a tire DEPARTMENT OF THE TREASURY information placard. Comment Request Standard No. 208 Occupant Crash November 29, 2004. Submission for OMB Review; Protection: programming of the vehicle Comment Request control systems to activate the required The Department of Treasury has seat belt warning system. The petitioner submitted the following public November 29, 2004. states that the vehicles are equipped information collection requirement(s) to The Department of Treasury has with driver’s and passenger’s air bags OMB for review and clearance under the submitted the following public and knee bolsters, and with Paperwork Reduction Act of 1995, information collection requirement(s) to combination lap and shoulder belts that Public Law 104–13. Copies of the OMB for review and clearance under the are self-tensioning and that release by submission(s) may be obtained by Paperwork Reduction Act of 1995, means of a single red push button at the calling the Treasury Bureau Clearance Public Law 104–13. Copies of the front and rear outboard seating Officer listed. Comments regarding this submission(s) may be obtained by positions. information collection should be calling the Treasury Bureau Clearance Standard No. 225 Child Restraint addressed to the OMB reviewer listed Officer listed. Comments regarding this Anchorage Systems: installation of U.S.- and to the Treasury Department information collection should be model child seat anchorage Clearance Officer, Department of the addressed to the OMB reviewer listed components. Treasury, Room 11000, 1750 and to the Treasury Department Standard No. 301 Fuel System Pennsylvania Avenue, NW., Clearance Officer, Department of the Integrity: The petitioner states that the Washington, DC 20220. Treasury, Room 11000, 1750

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00079 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70506 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

Pennsylvania Avenue, NW., Pennsylvania Avenue, NW., OTS at these addresses: Mark D. Washington, DC 20220. Washington, DC 20220. Menchik, Office of Information and Dates: Written comments should be Dates: Written comments should be Regulatory Affairs, Office of received on or before January 5, 2005 to received on or before January 5, 2005 to Management and Budget, Room 10236, be assured of consideration. be assured of consideration. New Executive Office Building, Washington, DC 20503, or e-mail to Financial Management Service (FMS) Internal Revenue Service (IRS) [email protected]; and OMB Number: 1510–0034. OMB Number: 1545–1753. Information Collection Comments, Chief Form Number: POD 315. Form Number: IRS Form 10574. Counsel’s Office, Office of Thrift Type of Review: Extension. Type of Review: Revision. Supervision, 1700 G Street, NW., Title: Depositor’s Application to Title: Community Based Outlet Washington, DC 20552, by fax to (202) Withdraw Postal Savings. Program. 906–6518, or by e-mail to Description: This form is prepared by Description: Form 10574 will be used [email protected]. the applicant for payment of a Postal by companies, businesses and OTS will post comments and the related Savings Account and is used to identify government agencies to indicate their index on the OTS Internet Site at http:/ the depositor and ensure that payment interest in participating in the IRS /www.ots.treas.gov. In addition, is made to the proper person. POD form Community Based Outlet Program. This interested persons may inspect was formerly used by the Post Office form will be returned to the CBOP comments at the Public Reading Room, Department for processing payments analyst by fax or mail for appropriate 1700 G Street, NW., by appointment. To when payments of accounts were their action. make an appointment, call (202) 906– responsibility. Respondents: Business or other for- 5922, send an e-mail to Respondents: Individuals or profit, State, Local or Tribal [email protected], or send a households. Government. facsimile transmission to (202) 906– Estimated Number of Respondents: Estimated Number of Respondents: 7755. 25. 700. Estimated Burden Hours Respondent: FOR FURTHER INFORMATION CONTACT: To Estimated Burden Hours Per 5 Minutes. obtain a copy of the submission to OMB, Respondent: 30 minutes. Frequency of response: On occasion. contact Marilyn K. Burton at Frequency of Response: On occasion. Estimated Total Reporting Burden: 2 [email protected], (202) Estimated Total Reporting Burden: hours. 906–6467, or facsimile number (202) 350 hours. Clearance Officer: R. Joseph Durbala, 906–6518, Regulations and Legislation Clearance Officer: Jiovannah L. Diggs, (202) 622–3634, Internal Revenue Division, Chief Counsel’s Office, Office (202) 874–7662, Financial Management Service, Room 6516, 1111 Constitution of Thrift Supervision, 1700 G Street, Service, Administrative Programs Avenue, NW., Washington, DC 20224. NW., Washington, DC 20552. Division, Records and Information OMB Reviewer: Joseph F. Lackey, Jr., SUPPLEMENTARY INFORMATION: OTS may Management Program, 3700 East West (202) 395–7316, Office of Management not conduct or sponsor an information Highway, Room 144, Hyattsville, MD and Budget, Room 10235, New collection, and respondents are not 20782. Executive Office Building, Washington, required to respond to an information OMB Reviewer: Joseph F. Lackey, Jr., DC 20503. collection, unless the information (202) 395–7316, Office of Management collection displays a currently valid and Budget, Room 10235, New Christopher Davis, OMB control number. As part of the Executive Office Building, Washington, Treasury PRA Assistant. approval process, we invite comments DC 20503. [FR Doc. 04–26722 Filed 12–3–04; 8:45 am] on the following information collection. BILLING CODE 4830–01–P Lois K. Holland, Title of Proposal: Deposits and Treasury PRA Clearance Officer. Savings Accounts by Office. [FR Doc. 04–26721 Filed 12–3–04; 8:45 am] DEPARTMENT OF THE TREASURY OMB Number: 1550–0004. Form Number: OTS Form 248. BILLING CODE 4810–35–P Office of Thrift Supervision Description: This information collection provides deposit data DEPARTMENT OF THE TREASURY Submission for OMB Review; essential for analysis of the market share Comment Request—Deposits and of deposits required to evaluate the Submission for OMB Review; Savings Accounts by Office competitive impact of mergers, Comment Request acquisitions, and branching applications AGENCY: Office of Thrift Supervision on which OTS must act. November 23, 2004. (OTS), Treasury. Type of Review: Renewal. The Department of the Treasury has ACTION: Notice and request for comment. Affected Public: Savings Associations. submitted the following public Estimated Number of Respondents: SUMMARY: information collection requirement(s) to The proposed information 833. OMB for review and clearance under the collection requirement described below Estimated Burden Hours per Paperwork Reduction Act of 1995, has been submitted to the Office of Response: .5 hours. Public Law 104–13. Copies of the Management and Budget (OMB) for Estimated Frequency of Response: submission(s) may be obtained by review, as required by the Paperwork Annually. calling the Treasury Bureau Clearance Reduction Act of 1995. OTS is soliciting Estimated Total Burden: 417 hours. Officer listed. Comments regarding this public comments on the proposal. Clearance Officer: Marilyn K. Burton, information collection should be DATES: Submit written comments on or (202) 906–6467, Office of Thrift addressed to the OMB reviewer listed before January 5, 2005. Supervision, 1700 G Street, NW., and to the Treasury Department ADDRESSES: Send comments, referring to Washington, DC 20552. Clearance Officer, Department of the the collection by title of the proposal or OMB Reviewer: Mark D. Menchik, Treasury, Room 11000, 1750 by OMB approval number, to OMB and (202) 395–3176, Office of Management

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00080 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70507

and Budget, Room 10236, New of Thrift Supervision, 1700 G Street, review, as required by the Paperwork Executive Office Building, Washington, NW., Washington, DC 20552. Reduction Act of 1995. OTS is soliciting DC 20503. SUPPLEMENTARY INFORMATION: OTS may public comments on the proposal. Dated: November 30, 2004. not conduct or sponsor an information DATES: Submit written comments on or By the Office of Thrift Supervision. collection, and respondents are not before January 5, 2005. James E. Gilleran, required to respond to an information ADDRESSES: Send comments, referring to collection, unless the information Director. the collection by title of the proposal or collection displays a currently valid by OMB approval number, to OMB and [FR Doc. 04–26760 Filed 12–3–04; 8:45 am] OMB control number. As part of the OTS at these addresses: Mark D. BILLING CODE 6720–01–P approval process, we invite comments Menchik, Office of Information and on the following information collection. Regulatory Affairs, Office of Title of Proposal: Financial DEPARTMENT OF THE TREASURY Management and Budget, Room 10236, Management Policies—Interest Rate New Executive Office Building, Office of Thrift Supervision Risk. Washington, DC 20503, or e-mail to OMB Number: 1550–0094. [email protected]; and Submission for OMB Review; Form Number: N/A. Information Collection Comments, Chief Comment Request—Financial Regulation requirement: 12 CFR Counsel’s Office, Office of Thrift Management Policies—Interest Rate 563.176. Supervision, 1700 G Street, NW., Risk Description: This information Washington, DC 20552, by fax to (202) collection requires that savings 906–6518, or by e-mail to AGENCY: Office of Thrift Supervision associations’ management establish [email protected]. (OTS), Treasury. policies and procedures for managing OTS will post comments and the related ACTION: Notice and request for comment. interest rate risk. These requirements index on the OTS Internet Site at provide OTS with the information www.ots.treas.gov. In addition, SUMMARY: The proposed information necessary for determining the safety and interested persons may inspect collection requirement described below soundness of the savings association. comments at the Public Reading Room, has been submitted to the Office of Type of Review: Renewal. 1700 G Street, NW., by appointment. To Management and Budget (OMB) for Affected Public: Savings Associations. make an appointment, call (202) 906– review, as required by the Paperwork Estimated Number of Respondents: 5922, send an e-mail to Reduction Act of 1995. OTS is soliciting 893. [email protected], or send a public comments on the proposal. Estimated Burden Hours per facsimile transmission to (202) 906– Response: 40 hours. 7755. DATES: Submit written comments on or Estimated Frequency of Response: before January 5, 2005. Annually. FOR FURTHER INFORMATION CONTACT: To ADDRESSES: Send comments, referring to Estimated Total Burden: 35,720 obtain a copy of the submission to OMB, the collection by title of the proposal or hours. contact Marilyn K. Burton at by OMB approval number, to OMB and Clearance Officer: Marilyn K. Burton, [email protected], (202) OTS at these addresses: Mark D. (202) 906–6467, Office of Thrift 906–6467, or facsimile number (202) Menchik, Office of Information and Supervision, 1700 G Street, NW., 906–6518, Regulations and Legislation Regulatory Affairs, Office of Washington, DC 20552. Division, Chief Counsel’s Office, Office Management and Budget, Room 10236, OMB Reviewer: Mark D. Menchik, of Thrift Supervision, 1700 G Street, New Executive Office Building, (202) 395–3176, Office of Management NW., Washington, DC 20552. Washington, DC 20503, or e-mail to and Budget, Room 10236, New SUPPLEMENTARY INFORMATION: OTS may [email protected]; and Executive Office Building, Washington, not conduct or sponsor an information Information Collection Comments, Chief DC 20503. collection, and respondents are not Counsel’s Office, Office of Thrift Dated: November 23, 2004. required to respond to an information Supervision, 1700 G Street, NW., By the Office of Thrift Supervision. collection, unless the information collection displays a currently valid Washington, DC 20552, by fax to (202) James E. Gilleran, 906–6518, or by e-mail to OMB control number. As part of the Director. [email protected]. approval process, we invite comments OTS will post comments and the related [FR Doc. 04–26761 Filed 12–3–04; 8:45 am] on the following information collection. index on the OTS Internet Site at BILLING CODE 6720–01–P Title of Proposal: Minimum Security http://www.ots.treas.gov. In addition, Devices and Procedures. OMB Number: 1550–0062. interested persons may inspect DEPARTMENT OF THE TREASURY comments at the Public Reading Room, Form Number: N/A. Regulation requirement: 12 CFR Part 1700 G Street, NW., by appointment. To Office of Thrift Supervision make an appointment, call (202) 906– 568 and Appendix B to Part 570. Description: The Bank Protection Act 5922, send an e-mail to Submission for OMB Review; and OTS implementing regulations [email protected], or send a Comment Request—Minimum Security require thrifts to establish security facsimile transmission to (202) 906– Devices and Procedures devices and procedures. Written 7755. AGENCY: Office of Thrift Supervision security programs allow OTS to evaluate FOR FURTHER INFORMATION CONTACT: To (OTS), Treasury. whether thrifts have adopted policies obtain a copy of the submission to OMB, ACTION: Notice and request for comment. and procedures to ensure compliance contact Marilyn K. Burton at with the law and regulations. The [email protected], (202) SUMMARY: The proposed information Federal Deposit Insurance Corporation, 906–6467, or facsimile number (202) collection requirement described below Office of the Comptroller of the 906–6518, Regulations and Legislation has been submitted to the Office of Currency, and Federal Reserve Board Division, Chief Counsel’s Office, Office Management and Budget (OMB) for have substantially similar regulations.

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00081 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 70508 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

Type of Review: Renewal. Clearance Officer: Marilyn K. Burton, Executive Office Building, Washington, Affected Public: Savings Associations. (202) 906–6467, Office of Thrift DC 20503. Estimated Number of Respondents: Supervision, 1700 G Street, NW., Dated: November 30, 2004. 893. Washington, DC 20552. Estimated Burden Hours per By the Office of Thrift Supervision. Response: 2 hours. OMB Reviewer: Mark D. Menchik, James E. Gilleran, Estimated Frequency of Response: (202) 395–3176, Office of Management Director. Annually. and Budget, Room 10236, New [FR Doc. 04–26762 Filed 12–3–04; 8:45 am] Estimated Total Burden: 1,786 hours. BILLING CODE 6720–01–P

VerDate jul<14>2003 15:43 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00082 Fmt 4703 Sfmt 4703 E:\FR\FM\06DEN1.SGM 06DEN1 Monday, December 6, 2004

Part II

Department of Energy Western Area Power Administration

The Central Valley Project, the California- Oregon Transmission Project, the Pacific Alternating Current Intertie, and Information on the Path 15 Transmission Upgrade-Rate Order No. WAPA–115; Notice

VerDate jul<14>2003 14:34 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\06DEN2.SGM 06DEN2 70510 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

DEPARTMENT OF ENERGY 95630–4710, (916) 353–4453, e-mail provisions of the Flood Control Act of [email protected]. 1962 (76 Stat. 1173, 1191–1192). Western Area Power Administration SUPPLEMENTARY INFORMATION: Under The Base Resource and First Amendment No. 4 to Delegation Order Preference power provisional formula The Central Valley Project, the rates use percentages to recover the California-Oregon Transmission No. 0204–108, the Administrator of Western approved the existing Rate estimated power revenue requirement Project, the Pacific Alternating Current for January through September 2005 of Intertie, and Information on the Path 15 Schedule CV–F10 for CVP firm power, Rate Schedules CV–FT4, CV–NFT4, CV– $30 million, of which $1,110,000 will be Transmission Upgrade-Rate Order No. recovered from the First Preference WAPA–115 TPT5, CV–NWT2, COTP–FT2, and COTP–NFT2 for transmission, and Rate Customers and $28,890,000 will be AGENCY: Western Area Power Schedules CV–RFS3, CV–EID3, CV– recovered from the Base Resource Administration, DOE. SPR3, and CV–SUR3 for CVP ancillary Customers. These rates also include services on April 14, 2001, (Rate Order pass-through language for Host Control ACTION: Notice of rate order. No. WAPA–95, April 27, 2001). The Area (HCA) and the Commission or Commission confirmed and approved other regulatory body credits or charges. SUMMARY: The Deputy Secretary of the rate schedules on August 14, 2001, Under the 2004 Power Marketing Energy confirmed and approved Rate in FERC Docket No. EF01–5011–000. Plan, a Customer’s load can be met Order No. WAPA–115, which includes The existing rate schedules are effective through First Preference, Base Resource, Rate Schedules CV–F11, CPP–1, CV–T1, from April 1, 2001, through December and/or Custom Product Power. Custom CV–NWT3, COTP–T1, PACI–T1, CV– 31, 2004. Product Power is power that is TPT6, CV–SPR3, CV–SUR3, CV–RFS3, The provisional rates include a new purchased to meet a Customer’s load and CV–EID3, placing formula rates for transmission service for the PACI (Rate and may include long- and short-term power, transmission, and ancillary Schedule PACI–T1). The Rate Order purchases at various rates. All costs services for the Central Valley Project also provides information on Western’s associated with Custom Product Power (CVP), transmission service on the entitlement on the Path 15 Transmission will be recovered through a formula rate California-Oregon Transmission Project Upgrade. Western intends to turn over in Rate Schedule CPP–1 that passes (COTP), transmission service on the operational control of Western’s through the cost of the purchase to a Pacific Alternating Current Intertie entitlement on the Path 15 Transmission specific Customer(s). (PACI), and third-party transmission Upgrade to the California Independent Rate Schedule CV–T1 supersedes Rate into effect on an interim basis. The Rate System Operator (CAISO). As a result, Schedules CV–FT4 and CV–NFT4, and Order also provides information on the the CAISO tariff and rates will apply to CV–NWT3 supersedes Rate Schedule Western Area Power Administration’s this service. CV–NWT2. The existing and provisional (Western) entitlement on the Path 15 The existing firm power Rate formula rates for CVP transmission Transmission Upgrade. The provisional Schedule CV–F10 is being superseded service include the costs for scheduling, formula rates will be in effect until the by Rate Schedule CV–F11. Under Rate system control and dispatch service, Federal Energy Regulatory Commission Schedule CV–F10, the energy rate is and reactive supply and voltage control (Commission) confirms, approves, and 24.97 per mills/kilowatthour (mills/ from generation sources service. places them into effect on a final basis kWh) and the capacity rate is $3.80 per Provisional formula rates developed for or until they are replaced by other rates. kilowattmonth (kWmonth). The CVP, COTP, and PACI transmission The provisional formula rates will composite rate is 30.83 mills/kWh. On services are consistent with FERC Order provide sufficient revenue to pay all December 31, 2004, the 1994 Power No. 888. annual costs, including interest Marketing Plan expires. The 2004 Power expense, and repayment of power Marketing Plan goes into effect January The third-party transmission service investment and irrigation aid, within 1, 2005, and does not offer the same rate schedule allows Western to pass the allowable periods. type of power service that is available through any costs it incurs for delivery of Western power over a third party’s DATES: Rate Schedules CV–F11, CPP–1, under the 1994 Power Marketing Plan. Under the 2004 Power Marketing transmission system. The provisional CV–T1, CV–NWT3, COTP–T1, PACI– formula rate for third-party transmission T1, CV–TPT6, CV–SPR3, CV–SUR3, Plan, each Preference Customer (except First Preference Customers) that has service in Rate Schedule CV–TPT6 is CV–RFS3, and CV–EID3 will be placed the same as the existing formula rate in into effect on January 1, 2005, and will signed a Base Resource contract is a Base Resource Customer and is CV–TPT5, with the exception of pass- be in effect until the Commission allocated a percentage of the Base through language for HCA and any confirms, approves, and places the rate Resource. Base Resource is primarily Commission or other regulatory body schedules in effect on a final basis CVP and Washoe Project power output charges or credits. through September 30, 2009, or until the remaining after meeting project use, On January 1, 2005, under the rate schedules are superseded. First Preference, and other operational provisional formula rate in Rate FOR FURTHER INFORMATION CONTACT: Mr. requirements. Schedule CV–T1, the CVP firm and non- James D. Keselburg, Regional Manager, A First Preference Customer is firm transmission rates are the same. A Sierra Nevada Customer Service Region, defined in the 2004 Power Marketing change from the existing to the Western Area Power Administration, Plan as a Preference Customer and/or a provisional formula rate is the pass- 114 Parkshore Drive, Folsom, CA Preference entity (an entity qualified to through of HCA charges or credits. A 95630–4710, (916) 353–4418, or Ms. use, but not using, Preference power) comparison of the estimated monthly Debbie Dietz, Rates Manager, Sierra within a county of origin (Trinity, and hourly rates from the provisional Nevada Customer Service Region, Calaveras, and Tuolumne) as specified formula rate to the existing firm and Western Area Power Administration, under the Trinity River Division Act (69 non-firm rates is shown in the table 114 Parkshore Drive, Folsom, CA Stat. 719) and the New Melones project below.

VerDate jul<14>2003 14:34 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4703 E:\FR\FM\06DEN2.SGM 06DEN2 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70511

COMPARISON OF EXISTING AND ESTIMATED RATES FROM THE PROVISIONAL FORMULA RATE CVP TRANSMISSION SERVICE

Estimated rates from the Existing provisional for- Percent rates mula rate (ef- change fective 1/1/05)

CVP Firm Transmission Rate ($/kWmonth) ...... $0.57 $1.03 81 CVP Non-Firm Transmission Rate (mills/kWh) ...... 1.00 1.40 40

The provisional formula rate for CVP On January 1, 2005, under the language for HCA credits or charges. A network integration transmission provisional formula rate in Rate comparison of the estimated monthly service (Rate Schedule CV–NWT3) is Schedule COTP–T1, the COTP firm and and hourly rates from the provisional the same as the existing formula rate for non-firm transmission rates are the formula rate to the existing firm and this service with the exception of the same. A change from the existing non-firm rates is provided in the table pass through of any HCA charges or formula rate to the provisional formula below. credits. rate is the inclusion of pass-through

COMPARISON OF EXISTING AND ESTIMATED RATES FROM THE PROVISIONAL FORMULA RATES COTP TRANSMISSION SERVICE

Estimated rates from the Existing provisional for- Percent rates mula rates (ef- change fective 1/1/05)

COTP Firm Transmission Rate ($/kWmonth): Spring ...... $0.73 $1.87 156 Summer ...... $0.53 $1.87 253 Winter ...... $0.66 $1.88 185 COTP Non-Firm Transmission Rate (mills/kWh): Spring ...... 1.00 2.55 155 Summer ...... 0.72 2.54 253 Winter ...... 0.91 2.59 185

PACI transmission service is a new Western has not developed a separate Rate Schedules CV–RFS3, CV–EID3, service. Under the provisional formula rate for Western’s entitlement on the CV–SPR3, and CV–SUR3 supersede Rate rate in Rate Schedule PACI–T1, the firm Path 15 Transmission Upgrade, as Schedules CV–RFS2, CV–EID2, CV– and non-firm transmission rates are the Western intends to turn over operational SPR2, and CV–SUR2, respectively. same and include pass-through language control of Western’s entitlement on the Provisional formula rates developed for for HCA and Commission or other Path 15 Transmission Upgrade to the the CVP ancillary services contain pass- regulatory body charges or credits. CAISO. The CAISO tariff and rates shall through language for HCA and Under the provisional formula rate, the apply to Western’s entitlement on the Commission or other regulatory body estimated monthly rates are $0.45/ Path 15 Transmission Upgrade. Western charges or credits. A comparison of kWmonth for spring, summer, and has provided information on the existing rates to the estimated rates from winter. The estimated hourly PACI treatment of revenue associated with its the provisional formula rates is shown transmission rates are 0.61 mills/kWh entitlement on the Path 15 Transmission in the table below. for spring and summer and 0.62 mills/ kWh for winter. Upgrade as part of this Rate Order.

COMPARISON OF EXISTING AND ESTIMATED RATES FROM THE PROVISIONAL FORMULA RATES CVP ANCILLARY SERVICES

Ancillary service type Existing rates Rate from the provisional formula rates Change

Scheduling and System Control Included in the appropriate transmission rates Included in the appropriate transmission rates N/A. and Dispatch Service. Reactive Supply and Voltage Con- Included in the appropriate transmission rates Included in the appropriate transmission rates N/A. trol Service. Spinning Reserve Service ...... $2.946 per kWmonth ...... Prices consistent with CAISO market ...... Varies. Non-Spinning Reserve Service ...... $2.491 per kWmonth ...... Prices consistent with CAISO market ...... Varies. Regulation and Frequency Re- $2.496 per kWmonth ...... $2.57 per kWmonth ...... 3%. sponse Service.

VerDate jul<14>2003 14:34 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4703 E:\FR\FM\06DEN2.SGM 06DEN2 70512 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

COMPARISON OF EXISTING AND ESTIMATED RATES FROM THE PROVISIONAL FORMULA RATES CVP ANCILLARY SERVICES—Continued

Ancillary service type Existing rates Rate from the provisional formula rates Change

Energy Imbalance Service ...... Within Limits of Deviation Band: Accumulated Within Limits of Deviation Band: There is no deviations are to be corrected or eliminated financial charge for deviations (energy) within 30 days. Any net deviations that are within the bandwidth. accumulated at the end of the month (positive or negative) are to be exchanged in like hours of energy or charged at the composite rate then in effect for CVP firm power. Outside Limits of Deviation Band: Positive Outside the Limits of the Deviation Band: Deviations (overdelivery)—the greater of no Positive Deviations (overdelivery)—for any charge, or any additional cost incurred. hourly average positive deviation, the Negative Deviations (underdelivery)—dur- amount of deviation outside the bandwidth ing on-peak hours the greater of three is lost to the system. Negative Deviations times the composite rate then in effect for (underdelivery)—for any hourly average CVP firm power or any additional cost in- negative deviation, the amount of deviation curred. During off-peak hours the greater of outside the bandwidth is charged at the the composite rate then in effect for CVP greater of 150 percent of market price or firm power or any additional cost incurred. actual cost.

This Rate Order also includes a Dated: November 18, 2004. adjustments (10 CFR 903) were change in the Revenue Adjustment Kyle E. McSlarrow, published on September 18, 1985. Clause (RAC) for the existing CVP Firm Deputy Secretary. Acronyms and Definitions Power Rate (CV–F10) that would allow Order Confirming, Approving, and As used in this Rate Order, the Western to make lump-sum payments to Placing the Central Valley Project Customers for their share of the fiscal following acronyms and definitions Power Rates, the Central Valley Project, apply: year (FY) 2004 RAC credit, if applicable. the California-Oregon Transmission 1994 Power Marketing Plan: The 1994 The change also delays calculation of Project, and the Pacific Alternating CVP Power Marketing Plan (57 FR the October through December 2004 Current Intertie Transmission Rates 45782 and 58 FR 34579). RAC until all unmet obligations under and the Central Valley Project existing contracts associated with 2004 Power Marketing Plan: The 2004 Ancillary Services Rates Into Effect on CVP Power Marketing Plan (64 FR business that occurred prior to January an Interim Basis, and Providing 1, 2005, are resolved. 34417) effective January 1, 2005. Information on the Path 15 Administrator: The Administrator of the By Delegation Order No. 00–037.00, Transmission Upgrade Western Area Power Administration. effective December 6, 2001, the This rate was established in Ancillary Services: Those services Secretary of Energy delegated: (1) The accordance with section 302 of the DOE necessary to support the transfer of authority to develop power and Organization Act, (42 U.S.C. 7152). This electricity while maintaining reliable transmission rates to Western’s Act transferred to and vested in the operation of the transmission Administrator, (2) the authority to Secretary of Energy the power marketing provider’s transmission system in confirm, approve, and place such rates functions of the Secretary of the accordance with standard utility into effect on an interim basis to the Department of the Interior and the practice. Deputy Secretary of Energy, and (3) the Bureau of Reclamation (Reclamation) Base Resource: The Central Valley and authority to confirm, approve, and place under the Reclamation Act of 1902 (ch. Washoe Project power output and into effect on a final basis to remand or 1093, 32 Stat. 388), as amended and existing power purchase contracts to disapprove such rates to the supplemented by subsequent laws, extending beyond 2004, as Commission. Existing DOE procedures particularly section 9(c) of the determined by Western to be available for public participation in power rate Reclamation Project Act of 1939, (43 for marketing, after meeting the adjustments (10 CFR 903) were U.S.C. 485h(c)), and other Acts that requirements of Project Use and First published on September 18, 1985. specifically apply to the project Preference Customers, and any involved. adjustments for maintenance, Under Delegation Order Nos. 00– By Delegation Order No. 00–037.00, reserves, transformation losses, and 037.00 and 00–001.00A, 10 CFR 903, effective December 6, 2001, the certain ancillary services. and 18 CFR 300, I hereby confirm, Secretary of Energy delegated: (1) The CAISO: The California Independent approve, and place Rate Order No. authority to develop power and System Operator is a Commission- WAPA–115, the CVP power, CVP transmission rates to Western’s regulated, State-chartered, nonprofit ancillary services, CVP, COTP, and Administrator, (2) the authority to corporation, and the control area PACI transmission service formula rates confirm, approve, and place such rates operator of most of California’s into effect on an interim basis. The new into effect on an interim basis to the transmission grid. Rate Schedules CV–F11, CPP–1, CV–T1, Deputy Secretary of Energy, and (3) the COI: The California-Oregon Intertie CV–TPT6, CV–NWT3, COTP–T1, PACI– authority to confirm, approve, and place consists of three 500-kilovolt lines T1, CV–RFS3, CV–EID3, CV–SPR3, and into effect on a final basis, to remand or linking California and Oregon, the CV–SUR3 will be promptly submitted to to disapprove such rates to the California-Oregon Transmission the Commission for confirmation and Commission. Existing DOE procedures Project, and the Pacific Alternating approval on a final basis. for public participation in power rate Current Intertie. The Western

VerDate jul<14>2003 14:34 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4703 E:\FR\FM\06DEN2.SGM 06DEN2 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70513

Electricity Coordinating Council HCA charges or credits cannot be FY: Fiscal Year. October 1 through establishes the seasonal transfer passed through to the appropriate September 30. capability for the California-Oregon Customer in the same manner HCA: Host Control Area. The control Intertie. Western is charged or credited, the area in which SNR has a contractual COI Rating Seasons: COI rating seasons charges or credits will be passed arrangement to operate as a Sub- are: summer, June through October; through using Component 1 of the Control Area. winter, November through March; and applicable formula rate. kV: Kilovolt. The electrical unit of spring, April through May. Composite Rate: The rate for firm power measure of electric potential that COTP: The California-Oregon that is the total annual revenue equals 1,000 volts. Transmission Project. A 500-kilovolt requirement for capacity and energy kW: Kilowatt. The electrical unit of transmission project in which divided by the total annual energy capacity that equals 1,000 watts. Western has part ownership. sales. It is expressed in mills/kWh kWh: Kilowatthour. The electrical unit CPPA: The Calaveras Public Power and used for comparison purposes. of energy that equals 1,000 watts in 1 Agency is a First Preference Customer Contract 2947A: Contract No. 14–06– hour. located in Calaveras County, 200–2947A, as amended, is Western’s kWmonth: Kilowattmonth. The California. contract with the Pacific Gas and electrical unit of the monthly amount CVP: The Central Valley Project is a Electric (PG&E), the Southern of capacity. Load: The amount of electric power or multipurpose Federal water California Edison, and the San Diego energy delivered or required at any development project extending from Gas and Electric (SDG&E) companies specified point(s) on a transmission or the Cascade Range in northern for extra high-voltage transmission California to the plains along the Kern distribution system. and exchange service. Mill: A monetary denomination of the River south of the city of Bakersfield, Contract 2948A: Contract No. 14–06– United States that equals one-tenth of California. 200–2948A is the Integration Contract Capacity: The electric capability of a a cent or one-thousandth of a dollar. between PG&E and Western. The Mills/kWh: Mills per kilowatthour. The generator, transformer, transmission contract provides for integrating circuit, or other equipment expressed unit of charge for energy. Western’s resources with PG&E’s and MW: Megawatt. The electrical unit of in kilowatts. requires PG&E to serve the combined capacity that equals 1 million watts or Capacity Rate: The rate which sets forth PG&E/Western load with the the charges for capacity. It is 1,000 kilowatts. integrated resource. The contract also NITS: Network Integrated Transmission expressed in dollars per kWmonth. requires PG&E to provide wheeling of Commission: The Federal Energy Service. the power to Western Customers on O&M: Operation and maintenance. Regulatory Commission. PG&E’s system. OATT: Open Access Transmission Component 1: Part of a formula rate Custom Product Power: Power Tariff. which is used to recover the costs for purchased by Western to meet a PACI: Pacific Alternating Current a specific service or product. Customer’s load. Intertie. A 500-kV transmission Component 2: Any charges or credits Customer: An entity with a contract that project of which Western owns a associated with the creation, receives service from the Western’s portion of the facilities. termination, or modification to any Sierra Nevada Customer Service Path 15 Transmission Upgrade: A tariff, contract, or rate schedule Region (SNR). transmission project consisting of accepted or approved by the DOE: United States Department of approximately 84 miles of new 500- Commission or other regulatory body Energy. kV transmission line in California’s that will be passed on to each DOE Order RA 6120.2: A DOE order western San Joaquin Valley, starting appropriate Customer. The outlining power marketing at the existing Los Banos Substation Commission or other regulatory body administration financial reporting and near Los Banos in Merced County and accepted or approved charges or ratemaking procedures. extending generally south credits apply to the service to which Energy Rate: The rate which sets forth southeastward to the existing Gates this rate methodology applies. When the charges for energy. It is expressed Substation near Coalinga in Fresno possible, Western will pass through in mills/kWh and applied to each County. directly to the appropriate Customer, kWh delivered to each Customer. PG&E: The Pacific Gas and Electric the Commission or other regulatory ETCs: Existing Transmission Contracts. Company. body accepted or approved charges or Long-term contracts for CVP Power: Capacity and energy. credits in the same manner Western is transmission between Western and Preference: The provisions of charged or credited. If the other parties, including contracts that Reclamation Law which require Commission or other regulatory body predate the Open Access Western to first make Federal power accepted or approved charges or Transmission Tariff (OATT) and available to certain entities. For credits cannot be passed through point-to-point transmission service example, section 9(c) of the directly to the appropriate Customer under the OATT. Reclamation Project Act of 1939 states in the same manner Western is FERC: The Federal Energy Regulatory that preference in the sale of Federal charged or credited, the charges or Commission (to be used when power shall be given to municipalities credits will be passed through using referencing Commission orders). and other public corporations or Component 1 of the applicable First Preference: A Customer or entity agencies and also to cooperatives and formula rate. qualified to use Preference power other nonprofit organizations Component 3: Any charges or credits within a county of origin (Trinity, financed in whole or in part by loans from the HCA applied to Western for Calaveras, and Tuolumne) as made under the Rural Electrification providing this service that will be specified under the Trinity River Act of 1936 (43 U.S.C. 485h(c)). passed through directly to the Division Act of August 12, 1955 (69 Provisional Rate: A rate which has been appropriate Customer in the same Stat. 719) and the Flood Control Act confirmed, approved, and placed into manner Western is charged or of 1962 (76 Stat. 1173, 1191–1192). effect on an interim basis by the credited, to the extent possible. If the FRN: Federal Register notice. Deputy Secretary.

VerDate jul<14>2003 14:34 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4703 E:\FR\FM\06DEN2.SGM 06DEN2 70514 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

PRS: Power repayment study. with Western’s responses on Western’s Department of Energy (via telephone), RAC: Revenue Adjustment Clause. A Web site at http://www.wapa.gov/sn/ August 10, 2004 provision in the existing CVP firm initiatives/post2004/rates/ in August 9. In addition to the above meetings, power rate schedule (CV–F10) that 2003. Western communicated clarifying compares actual net revenue to 3. On May 7, 2004, Western mailed information on the proposed rates with projected net revenue from the letters to all SNR Preference Customers the following Customers. This ratesetting PRS on an FY basis. and interested parties notifying them of information is included in the record. Rate Brochure: A document dated May the Proposed Rates Federal Register Calpine Corporation, California 2004 explaining the rationale and notice due to be published on or around City of Palo Alto, California background for the rates contained in May 13, 2004. City of Shasta Lake, California this Rate Order. 4. A Federal Register notice Duncan, Weinberg, Genzer and Reclamation: United States Department published on May 12, 2004 (69 FR Pembroke, PC, Washington, DC of the Interior, Bureau of Reclamation. 26370), announced the proposed rates East Contra Costa Irrigation District, Reclamation Law: A series of Federal for CVP, COTP, and PACI, began the California laws. Viewed as a whole, these laws public consultation and comment Energy Security Analysis, Inc., create the originating framework period, and announced the public Massachusetts under which Western markets power. information and public comment Lassen Municipal Utility District, SCA: Sub-Control Area. Western’s forums. California contract-based sub-control area within 5. On May 12, 2004, Western mailed Northern California Power Agency, the Sacramento Municipal Utility letters to all SNR Preference Customers California District’s control area. and interested parties transmitting the Redding Electric, California SCC: The Sierra Conservation Center is Federal Register notice (69 FR 26370) Roseville Electric, California a First Preference Customer located in and reiterating the dates and locations Sierra Conservation Center, California Tuolumne County, California. of the public information and comment Turlock Irrigation District, California SNR: The Sierra Nevada Customer forums. 10. On June 17, 2004, Western held a Service Region of Western. 6. On May 18, 2004, Western held a TPPA: The Tuolumne Public Power comment forum to give the public an public information forum at the Folsom opportunity to comment for the record. Agency is a First Preference Customer Community Center in Folsom, located in Tuolumne County, Eight individuals commented at this California. Western provided detailed forum. California. explanations of the proposed rates for TPUD: The Trinity Public Utilities 11. On July 28, 2004, Western CVP, COTP, and PACI and a list of published a letter updating the revenue District is a First Preference Customer issues that could change the proposed located in Trinity County, California. requirements for Component 1 of the rates. Western provided Rate brochures proposed formula rates for regulation Washoe Project: A Reclamation project and informational (slide) handouts. located in the Lahontan Basin in west- and frequency response and spinning 7. On June 3, 2004, Western mailed and non-spinning reserve services. This central Nevada and east-central letters to all SNR Preference Customers California. letter was sent to all interested parties and interested parties transmitting the by mail and electronic mail. The letter Effective Date Web site address to obtain copies of the was also posted on Western’s Web site The new interim rates will take effect slides used during the public at http://www.wapa.gov/sn/initiatives/ on January 1, 2005, and will remain in information forum and providing Post2004/rates/. effect until September 30, 2009, pending instructions on how to receive a copy of 12. Western received 27 comment approval by the Commission on a final the Rate Brochure. letters during the consultation and basis. 8. As a result of the public comment period, which ended on information forum, several Customers August 10, 2004. All comments received Public Notice and Comment requested meetings to ask clarifying prior to the close of the consultation and Western followed the Procedures for questions of the proposed rates. Western comment period have been considered Public Participation in Power and met with the following Customers and/ in preparing this Rate Order. All written Transmission Rate Adjustments and or their representatives on the dates comments received are posted on Extensions, 10 CFR 903, in developing indicated below. Notes from these Western’s Web site at http:// these rates. The steps Western took to meetings are included in the record. www.wapa.gov/sn/initiatives/Post2004/ involve interested parties in the rate Calaveras Public Power Agency, June 3, rates/. process were: 2004 Comments 1. The proposed rate adjustment City of Shasta Lake, June 17, 2004 process began April 25, 2003, when Northern California Power Agency Written comments were received from Western mailed a notice announcing an (representing cities of Palo Alto, the following organizations: informal meeting to all SNR Customers Roseville, Lodi, and Santa Clara (dba Alameda Power and Telecom, California and interested parties. Silicon Valley Power), Port of Bella Vista Water District, California 2. Western held an informal meeting Oakland, and Alameda Power and Bay Area Municipal Transmission on May 14, 2003, in Folsom, California. Telecom), June 3, 2004 Group, California At this informal meeting, Western Redding Electric, June 8, 2004 (via Calaveras Public Power Agency, explained the need for the rate telephone) and June 16, 2004 California adjustment, presented conceptual rate Roseville Electric, June 1, 2004 Calpine Corporation, California designs and methodologies, and Trinity Public Utility District, June 3, City of Biggs, California answered questions. As a result of this 2004 City of Gridley, California meeting, Western received more than Tuolumne Public Power Agency, June 3, City of Healdsburg, California 180 comments and questions from 2004 City of Lodi, California interested parties. Western publicly City of Santa Clara (dba Silicon Valley City of Lompoc, California posted these comments and questions Power), July 30, 2004 City of Palo Alto, California

VerDate jul<14>2003 14:34 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4703 E:\FR\FM\06DEN2.SGM 06DEN2 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70515

City of Santa Clara (dba Silicon Valley power system that covers about one- Western resources, have been integrated Power), California third of the State of California. with PG&E resources. PG&E serves the City of Ukiah, California Legislation set the purposes of the CVP combined PG&E/Western loads with the Lassen Municipal Utility District, in priority as: (1) Improvement of integrated resources. California navigation, (2) river regulation, (3) flood PG&E has informed Western that it Modesto Irrigation District, California control, (4) irrigation, and (5) power. plans to terminate Contract 2948A on Moffett Federal Airfield, California The CVP Improvement Act of 1992 December 31, 2004. In anticipation of NASA-Ames Research Center, California added fish and wildlife mitigation as a this eventuality, Western has worked Northern California Power Agency priority above power and added fish with its Customers to develop and (representing the Turlock Irrigation and wildlife enhancement as a priority implement the 2004 Power Marketing District, the Bay Area Rapid Transit equal to power. Plan. The 2004 Power Marketing Plan District, Placer County Water Agency, The CVP is within the Central Valley was published in the Federal Register, Truckee-Donner Public Utility and Trinity River basins of California. It (64 FR 34417) on June 25, 1999. It District, the Lassen Public Utility includes 18 dams and reservoirs with a established the criteria for marketing District, the Plumas-Sierra Rural total storage capacity of 13 million acre- CVP and Washoe Project power output Electric Cooperative, the Port of feet. The system includes 615 miles of for a 20-year period beginning on Oakland, and the cities of Alameda, canals, 7 pumping facilities, 11 January 1, 2005, and ending on Biggs, Gridley, Lodi, Redding, powerplants with a maximum operating December 31, 2024. Lompoc, Healdsburg, Ukiah, Palo capability of about 2,074 MW, about 852 The Base Resource is a fundamental Alto, and Roseville), California circuit-miles of high voltage component and the primary power Pittsburg Power Company, California transmission lines, 15 substations, and product marketed through the 2004 Plumas-Sierra Rural Electric 16 communication sites. Reclamation Power Marketing Plan. Under previous Cooperative, California operates the water control and delivery marketing plans, Preference Customers Port of Oakland, California and Water system and all of the powerplants received a fixed capacity and load Resources Pooling Authority except the San Luis Unit, which the factored energy allocation. Under the (representing the Arvin-Edison Water State of California operates for 2004 Power Marketing Plan, Preference Storage District, Banta-Carbona Reclamation. Customers (other than First Preference) Irrigation District, Byron-Bethany The Rivers and Harbors Act of 1937 receive an allocated percentage of the Irrigation District, Cawelo Water authorized Reclamation to build the Base Resource. The Base Resource is District, Glenn-Colusa Irrigation CVP, including Shasta and Keswick defined as the CVP and Washoe Project District, James Irrigation District, dams on the Sacramento River. The power output and any existing power Lower Tule River Irrigation District, initial authorization included purchase contracts extending beyond Princeton-Codora-Glenn Irrigation powerplants at Shasta and Keswick 2004, determined by Western to be District, Provident Irrigation District, dams along with high-voltage available for marketing after meeting the Reclamation District 108, Santa Clara transmission lines to transmit power requirements of project use and First Valley Water District, Sonoma County from Shasta and Keswick powerplants Preference Customers, and any Water Agency, West Stanislaus to the Tracy Pumping Plant and to adjustments for maintenance, reserves, Irrigation District, Westlands Water integrate Federal hydropower into other transformation losses, and certain District, and the West Side Irrigation electric systems. ancillary services. In 2000, each CVP Additional CVP facilities were District), California Customer (other than First Preference authorized by Congress through a series Redding Electric, California Customers) signed a contract with of laws. The American River Division Roseville Electric, California Western that specifies how Base was authorized in 1944 and includes the Sacramento Municipal Utility District, Resource power will be made available Folsom Dam and Powerplant and the California under the 2004 Power Marketing Plan. Nimbus Dam and Powerplant on the In marketing Federal hydroelectric Trinity Public Utility District, California American River. The Trinity Dam and power generated from the CVP, Western Tuolumne Public Power Agency, Powerplant, Judge Francis Carr currently has 77 Preference and 38 California Powerplant, and Whiskeytown Dam and project use Customers serving the Representatives of the following Spring Creek Powerplant were equivalent of the annual electrical needs organizations made oral comments: authorized as part of the Trinity River of 790,000 California households. Bay Area Municipal Transmission Division in 1955 and allocated up to 25 Power generated from the CVP is first Group (consisting of the cities of percent of the resulting energy to Trinity dedicated to project use. The remaining Alameda Power and Telecom, Silicon County for use within Trinity County. power is allocated to various Preference Valley Power, and the City of Palo The San Luis Unit authorized in 1960, Customers in California. Types of Alto), California includes the B. F. Sisk San Luis Dam, Preference Customers include: (1) City of Palo Alto, California San Luis Reservoir and William R. Irrigation and water districts, (2) public City of Roseville, California Gianelli Pump-Generating Plant, O’Neill utility districts, (3) municipalities, (4) City of Santa Clara (dba Silicon Valley Pump-Generating Plant, and Dos Federal agencies, (5) State agencies, (6) Power), California Amigos Pumping Plant. The Rivers and rural electric cooperatives, and (7) Power and Water Resources Pooling Harbors Act of 1962 authorized the New Native American tribes. Authority, California Melones Project and allocated up to 25 According to the 2004 Power Modesto Irrigation District, California percent of the resulting energy to Marketing Plan, Western will market the Redding Electric, California Calaveras and Tuolumne counties for Base Resource alone or in combination Sacramento Municipal Utility District, use within the counties. with custom products. One type of California Western’s SNR markets the surplus custom product is Custom Product hydropower generation of the CVP and Power, which is power supplied by Project Description Washoe Project. Since 1967, under the Western to meet a Customer’s load. Initially authorized by Congress in terms of Contract 2948A with PG&E, In 1964, Congress authorized 1935, the CVP is a large water and CVP resources, along with other construction of the 500-kV Pacific

VerDate jul<14>2003 14:34 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4703 E:\FR\FM\06DEN2.SGM 06DEN2 70516 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

Northwest-Pacific Southwest Existing and Provisional Power Rates Base Resource and First Preference Alternating Current Intertie. On July 31, and Revenue Requirement Customers. 1967, Reclamation (Western’s The 2004 Power Marketing Plan does The Base Resource and First predecessor), PG&E, the Southern not offer the same type of power service Preference power provisional formula California Edison Company, and SDG&E that was available under the 1994 Power rates recover a power revenue entered into Contract 2947A, an extra Marketing Plan. Under the 1994 Power requirement through percentages for high-voltage transmission service and Marketing Plan, each Customer was First Preference and Base Resource exchange agreement for the northern allocated a contract rate of delivery (an Customers. Base Resource Customer portion of the PACI. Under Contract amount of capacity) with associated percentages were established through 2947A, Western has a 400-MW energy, and the Customer was allowed the public process for the 2004 Power entitlement of transmission capacity on to use up to that amount of capacity in Marketing Plan. The First Preference the PACI. Contract 2947A terminates on any hour. The total monthly energy was Customers’ percentages to be used for December 31, 2004. A replacement determined based on the Customer’s billing purposes were developed as part agreement for Contract 2947A is being load factor. Under the 2004 Power of this rate process. developed in a Commission process. Marketing Plan, Base Resource and First The COTP is a jointly owned 342- Preference power is primarily CVP Under the 2004 Power Marketing mile, 500-kV transmission line that hydrogeneration available subject to Plan, a Customer’s load can be met connects the Captain Jack Substation in water conditions and operating through First Preference, Base Resource, southern Oregon to Tracy/Tesla constraints. and/or Custom Product Power. Custom Substation in central California. Under the 2004 Power Marketing Product Power may include long- and Operational since March 1993, COTP Plan, the power revenue requirement for short-term purchases at various rates. provides a third high-voltage intertie First Preference and Base Resource The existing rates do not have a parallel between the Pacific Northwest and power includes O&M, purchased power service. All costs associated with California. COTP owners other than for project use and First Preference Custom Product Power will be Western are non-Federal participants. Customer loads, interest expense, recovered through a formula rate that annual expenses (including any other passes through the cost of the purchase Power Repayment Study statutorily required costs or charges), to a specific Customer(s). Such costs Western prepares a PRS each FY to investment repayment for the CVP, and could include Western’s scheduling determine if revenues will be sufficient the Washoe Project annual power costs and Components 2 and 3, as well to repay, within the required time, all revenue requirement that remains after as the cost of the power. A further costs assigned to the commercial power project use loads are met. Revenues discussion of the power revenue function. Repayment criteria are based from project use, transmission, ancillary requirement and Custom Product Power on law, applicable policies including services, and other services are applied is provided in the power revenue DOE Order RA 6120.2, and authorizing to the total power revenue requirement, requirement discussion section later in legislation. and the remainder is collected from this document.

COMPARISON OF EXISTING RATES AND PROVISIONAL FORMULA RATES FOR WESTERN POWER

Power service Existing rate Provisional formula rate Percent change

Contract Rate of Delivery ...... 30.83 mills/kWh ...... N/A ...... N/A. Base Resource and First Preference ..... N/A ...... Percent of Annual Power Revenue Re- N/A. quirement. Custom Product Power ...... N/A ...... Pass Through ...... N/A.

Cost-of-Service Study lines) are included in the CVP transmission service are included in and generation revenue requirement and are recovered through the respective Western prepared a detailed cost-of- used in the regulation and frequency transmission system’s revenue service study to determine the revenue response service revenue requirement. requirement. requirement that will be recovered The costs associated with the CVP are CVP Transmission through the CVP regulation and allocated to the transmission and frequency response service formula rate generation functions, based on a ratio of The provisional formula rate for CVP and the CVP, COTP, and PACI transmission or generation plant to total firm and non-firm transmission service transmission service formula rates. This plant. results in an estimated monthly rate of combined cost-of-service study Western is using this study because it $1.03 per kWmonth for January through integrates all three transmission is more consistent with the September 2005. The provisional systems. Each CVP, COTP, and PACI methodology used in other Western formula rate for CVP transmission facility was researched in order to regions. The costs allocated through the includes three components: determine its functional use. The costs cost-of-service study include O&M, Component 1: for CVP, COTP, and PACI facilities that interest, and depreciation expenses. The support the transfer capability of the cost-of-service study contains forecasted transmission system (excluding O&M and historical financial CVP TRR generation ties and radial lines) are information, which is also in the PRS. TTc+ NITSc included in the respective transmission Western’s costs for scheduling, system Where: system’s revenue requirement; whereas, control and dispatch service, and TRR = Transmission revenue the cost for facilities that support the reactive supply and voltage control from requirement. generation capability of the CVP system generation sources service associated TTc = Total transmission capacity (including generation ties and radial with the CVP, COTP, and PACI under ETCs.

VerDate jul<14>2003 14:34 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4703 E:\FR\FM\06DEN2.SGM 06DEN2 EN06DE04.000 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70517

NITSc = Average of 12-month Component 1: 1 of this service. The provisional coincident peaks of NITS NITS Customer’s monthly costs = NITS formula rate for CVP NITS is based on Customers at the time of the Customer’s load ratio share times the same revenue requirement that is monthly CVP transmission system one-twelfth of the annual network used in the CVP firm and non-firm peak. For rate design purposes, TRR. transmission formula rate. The NITS Western’s use of the transmission Where: estimated monthly revenue requirement system to meet its statutory is subject to change prior to the rates obligations is treated as NITS. NITS Customer’s load ratio share = The NITS Customer’s hourly load taking effect. This formula rate also contains (including behind the meter Components 2 and 3. COTP Transmission The cost-of-service study determines generation minus the NITS the revenue requirement for Component Customer’s hourly Base Resource) The provisional formula rate results 1 of this service. The rates from coincident with the monthly CVP in estimated monthly rates for COTP Component 1 of the provisional formula transmission system peak minus the firm and non-firm point-to-point rate may be discounted for short-term coincident peak for all firm CVP transmission service of $1.87 per sales. The estimated rates from the (including reserved transmission kWmonth for spring and summer and provisional formula rate are subject to capacity) transmission service, $1.88 per kWmonth for winter. The change prior to the rate taking effect. expressed as a ratio. provisional formula rate for COTP firm Annual network TRR = Total CVP and non-firm point-to-point CVP NITS transmission revenue requirement transmission service consists of three The estimated monthly revenue less ETC revenues. components. requirement for NITS effective January This formula rate also contains 1, 2005, is $1,021,712. The provisional Components 2 and 3. Component 1: formula rate for CVP NITS includes The cost-of-service study determines three components: the revenue requirement for Component

COTP Seasonal Transmission Revenue Requirement Western’ s Share of COTP Seasonal Capacity

Component 1 is the ratio of the COTP service study identifies the costs PACI Transmission seasonal transmission revenue associated with the facilities that PACI firm and non-firm transmission requirement to Western’s share of the support the transfer capability of the services are new services. The estimated COTP seasonal capacity (subject to COTP transmission system only. The rates from the formula rate for PACI firm curtailment). Western will update the amount of COTP capacity used in and non-firm point-to-point rate resulting from Component 1 at least Component 1 of the formula rate will transmission are $0.45 per kWmonth for 15 days before the start of each COI change with the seasonal transfer spring, summer, and winter. The rating season. capability of the COI. The rates from provisional formula rate for PACI firm This formula rate also contains Component 1 of the provisional formula and non-firm point-to-point Components 2 and 3. rate may be discounted for short-term transmission service consists of three The cost-of-service study determines sales. The estimated rates from the components. the revenue requirement for Component provisional formula rate are subject to 1 of this service. The COTP cost-of- change prior to the rate taking effect. Component 1:

PACI Seasonal Transmission Revenue Requirement Western’ s PACI Seasonal Capacity

Component 1 is the ratio of the PACI existing contract. The amount of PACI formula rate also contains Components seasonal transmission revenue capacity used in Component 1 of the 2 and 3. requirement to Western’s share of the formula rate will change with the PACI seasonal capacity (subject to seasonal transfer capability of the COI. Path 15 Transmission Upgrade curtailment). Western will update the The rates resulting from Component 1 of Western is constructing the Path 15 rate resulting from Component 1 at least the provisional formula rate may be Transmission Upgrade in conjunction 15 days before the start of each COI discounted for short-term sales. The with PG&E and Trans-Elect, Inc. rating season. estimated rates from the provisional Western will turn over operational This formula rate also contains formula rate are subject to change prior control of its rights in the Path 15 Components 2 and 3. to the rate taking effect. The cost-of-service study determines Transmission Upgrade to the CAISO. the revenue requirement for Component Third-Party Transmission Recovery of the transmission revenue 1 of this service. The PACI cost-of- The provisional formula rate for third- requirement will be through the CAISO service study identifies the costs party transmission includes three tariff and rates. associated with the facilities that components. The first component is Existing and Provisional Transmission support the transfer capability of the equivalent to the existing formula rate Rates PACI transmission system. There are no and allows for Western to pass through existing rates for PACI transmission costs it incurs for using a third party’s A comparison of the existing rates and since it is currently covered under an transmission system. The provisional the estimated rates from the provisional

VerDate jul<14>2003 14:34 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4703 E:\FR\FM\06DEN2.SGM 06DEN2 EN06DE04.001 EN06DE04.002 70518 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

formula rates for CVP, COTP, and PACI transmission service follows:

COMPARISON OF EXISTING AND ESTIMATED RATES FROM THE PROVISIONAL FORMULA RATES CVP, COTP, AND PACI TRANSMISSION SERVICE

Estimated rates Existing rates from the provisional Percent (Note 1) formula rates change (effective 1/1/05)

CVP Firm Transmission Rate ($/kWmonth) ...... $0.57 $1.03 81 CVP Non-Firm Transmission Rate (mills/kWh) ...... 1.00 1.40 40 CVP NITS Monthly Revenue Requirement ...... N/A $1,021,712 N/A Third-Party Transmission Rate ...... Pass Through Pass Through N/A COTP Firm Transmission Rate ($/kWmonth): Spring ...... $0.73 $1.87 156 Summer ...... $0.53 $1.87 253 Winter ...... $0.66 $1.88 185 COTP Non-Firm Transmission Rate (mills/kWh): Spring ...... 1.00 2.55 155 Summer ...... 0.72 2.54 253 Winter ...... 0.91 2.59 185 PACI Firm Transmission Rate ($/kWmonth): Spring ...... N/A $0.45 N/A Summer ...... N/A $0.45 N/A Winter ...... N/A $0.45 N/A PACI Non-Firm Transmission Rate (mills/kWh): Spring ...... N/A 0.61 N/A Summer ...... N/A 0.61 N/A Winter ...... N/A 0.62 N/A Path 15 Transmission Upgrade ...... N/A Per CAISO Tariff N/A Note 1: NITS service not provided prior to 1/1/05.

The estimated rates from the ancillary services: (1) Scheduling, facility costs allocated to the service, as provisional formula rates are the same system control and dispatch and well as the cost of energy, capacity, or but are shown here as monthly and (2) reactive supply and voltage control foregone generation that support hourly rates for comparison to the service from generation sources, are regulation and frequency response existing firm and non-firm transmission included in the CVP, COTP, and PACI service. This formula rate also contains rates. The increase in CVP transmission transmission revenue requirements. The Components 2 and 3. rates from the existing rate is primarily remaining four ancillary services are Spinning and non-spinning reserves due to an increase in O&M costs and a (3) spinning reserve service, (4) non- change in Western’s use of the CVP will be sold at prices consistent with the spinning reserve service, (5) regulation CAISO market plus all costs incurred as transmission system under the 2004 and frequency response service, and a result of the sale, such as Western’s Power Marketing Plan. The increase in (6) energy imbalance service. COTP transmission rates is primarily scheduling costs and Components 2 and due to a decrease in Western’s COTP Western used the cost-of-service study 3. capacity available for sale. The decrease to set a revenue requirement for Component 1 of the regulation and Existing Rates and the Provisional in capacity occurs because of increased Ancillary Service Rates usage by DOE of a statutory entitlement frequency response service. The provisional formula rate for this service at a rate which recovers only O&M A comparison of the existing rates and is designed to recover only the costs costs. the estimated rates under the associated with providing the service. provisional formula rates for ancillary Cost-of-Service Study—Ancillary The revenue requirement for regulation services follows: Services and frequency response service includes Six ancillary services will be offered the CVP generation costs associated by Western. The costs for two of these with providing the service and the non-

COMPARISON OF EXISTING AND ESTIMATED RATES FROM THE PROVISIONAL FORMULA RATES CVP ANCILLARY SERVICES

Estimated rate under the provisional formula Ancillary service type Existing rates rates Change

Scheduling and System Control Included in the appropriate transmission rates Included in the appropriate transmission rates N/A and Dispatch Service. Reactive Supply Voltage Control Included in the appropriate transmission rates Included in the appropriate transmission rates N/A Service. Spinning Reserve Service ...... $2.946 per kWmonth ...... Prices consistent with CAISO market ...... Varies Non-Spinning Reserve Service ...... $2.491 per kWmonth ...... Prices consistent with CAISO market ...... Varies Regulation and Frequency Re- $2.496 per kWmonth ...... $2.57 per kWmonth ...... 3% sponse Service.

VerDate jul<14>2003 14:34 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4703 E:\FR\FM\06DEN2.SGM 06DEN2 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70519

COMPARISON OF EXISTING AND ESTIMATED RATES FROM THE PROVISIONAL FORMULA RATES CVP ANCILLARY SERVICES—Continued

Estimated rate under the provisional formula Ancillary service type Existing rates rates Change

Energy Imbalance Service ...... Within Limits of Deviation Band: Accumulated Within Limits of Deviation Band: There is no deviations are to be corrected or eliminated financial charge for deviations (energy) within 30 days. Any net deviations that are within the bandwidth. accumulated at the end of the month (positive or negative) are to be exchanged in like hours of energy or charged at the composite rate then in effect for CVP firm power. Outside Limits of Deviation Band: Positive Outside the Limits of the Deviation Band: Deviations (overdelivery)—the greater of no Positive Deviations (overdelivery)—for any charge, or any additional cost incurred. hourly average positive deviation, the Negative Deviations (underdelivery)—dur- amount of deviation outside the bandwidth ing on-peak hours the greater of three (MWh) is lost to the system. Negative Devi- times the composite rate then in effect for ations (underdelivery)—for any hourly aver- CVP firm power or any additional cost in- age negative deviation, the amount of devi- curred. During off-peak hours the greater of ation outside the bandwidth (MWh) is the composite rate then in effect for CVP charged at the greater of 150 percent of firm power or any additional cost incurred. market price or actual cost.

Certification of Rates expenses, other annual expenses, services, and other services are applied Western’s Administrator certified that interest expenses, and repayment of to the total power revenue requirement, the provisional formula rates for First power investment and irrigation aid. and the remainder is collected from Preference, Base Resource, Custom The power revenue requirement for Base Resource and First Preference Product Power, CVP, COTP, and PACI Base Resource and First Preference Customers. The power revenue transmission and CVP ancillary services power includes the following expenses: requirement includes Components 2 are the lowest possible rates consistent annual investment repayment, and 3. purchases to firm the Base Resource and with sound business principles. The Statement of Revenue and Related First Preference power deliveries for up provisional formula rates were Expenses developed following administrative to 2 hours, power purchased for project policies and applicable laws. use and First Preference Customers, The following table provides a interest expense, O&M expense summary of projected revenue and Power Revenue Requirement allocated to power, and the Washoe expense data from the PRS through the Discussion 3 Project annual power revenue 4 ⁄4-year provisional rate approval According to Reclamation Law, requirement that remains after project period. The table includes a comparison Western must establish rates sufficient use loads are met. Revenues from of existing rate data to provisional rate to recover O&M, purchased power project use, transmission, ancillary data and the difference.

PRS COMPARISON OF 43⁄4 YEAR RATE PERIOD (JAN 1, 2005–SEP 30, 2009), TOTAL REVENUES AND EXPENSES

Provisional Existing rate revenue re- Difference (Note 1) quirement ($000) ($000) ($000)

Total Revenues ...... N/A $812,165 N/A Revenue Distribution Annual Expenses: O&M ...... N/A 343,555 N/A Purchased Power ...... N/A 244,063 N/A Interest ...... N/A 30,786 N/A Other ...... N/A 139,315 N/A Total Annual Expenses ...... N/A 757,719 N/A Annual Principal Payments: Capitalized Expenses ...... N/A 0 N/A Original Project and Additions ...... N/A 41,050 N/A Replacements ...... N/A 13,396 N/A Irrigation Aid ...... N/A 0 N/A Total Principal Payments ...... N/A 54,446 N/A Total Revenue Distribution ...... N/A 812,165 N/A Note 1: The 2004 Power Marketing Plan does not offer the same type of power service that is available under the 1994 Power Marketing Plan; hence, the existing rates could not be used under the 2004 Power Marketing Plan.

Western will develop the power start of each FY. The power revenue March of each year (except March 2005). revenue requirement for First Preference requirement for the April through The review will analyze financial data and Base Resource power prior to the September period will be reviewed in from the October through February

VerDate jul<14>2003 14:34 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4703 E:\FR\FM\06DEN2.SGM 06DEN2 70520 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

period, to the extent information is dividing each 6-month power revenue Provisional Formula Rate for First available, as well as forecasted data for requirement by six. For the January Preference Power the March through September period. If through September 2005 period, a To have a consistent billing process there is a change of $5 million or more, power revenue requirement will be for Base Resource and First Preference the power revenue requirement for the calculated for a 9-month period instead Customers, a percentage will be April through September period will be of a year. developed for each First Preference recalculated. A monthly power revenue Customer before the start of each FY requirement will be calculated by based on the following formula:

FP Customer Load First Preference Customer’s % = Gen+− Power Purchases Pr oject Use

Where: relating to the power revenue For April through September, 75 FP Customer Load = A First requirement for October through percent of the Base Resource revenue Preference Customer’s forecasted February, to the extent it is available, as requirement will be collected. annual load (MWh). well as forecasted data for March Allocating the Base Resource revenue Gen = The forecasted annual CVP and through September. If, as a result of requirement in this manner aligns the Washoe Project generation (MWh). Western’s review, the power revenue base resource revenue requirement with Power Purchases = Forecasted power requirement changes by $5 million or the Base Resource availability during purchase for project use and First more, the April through September the two 6-month periods. CVP Preference loads (MWh). power revenue requirement will be generation is greater in the April Project Use = The forecasted annual revised. project use load (MWh). through September period than the The power revenue requirement for October through March period. The For January through September 2005, January through September 2005 will be shifting of the Base Resource revenue the same formula will be used with data divided by nine to determine a monthly requirement will help minimize for the 9-month period instead of annual power revenue requirement. Each First monthly per unit cost variations for the data. Preference Customer’s percentage will Customers. During March of each year (except be applied to the monthly power March 2005), each First Preference revenue requirement to determine each A Base Resource monthly revenue Customer’s percentage will be reviewed First Preference Customer’s monthly requirement is calculated by dividing by Western. The review will take into costs. The estimated power revenue the Base Resource estimated 6-month account the actual and estimated requirement for January through revenue requirement by six. A current FY data used in the First September 2005 is $30 million. The Customer’s Base Resource costs are Preference Customer’s percentage estimated First Preference Customers’ independent of the Base Resource formula. If Western’s review results in a revenue requirement for January received. Base Resource energy not used change in a First Preference Customer’s through September 2005 is $1,110,000 by any Preference Customer will be percentage of more than one-half of 1 (sum of all First Preference Customers’ sold, if possible, and the revenues will percent, the percentage will be revised estimated percentages of 3.7 percent reduce the Base Resource revenue for that First Preference Customer for multiplied by the power revenue requirement. The revenues from the sale the remainder of the current FY. The requirement for January through of surplus Base Resource will be applied review will not occur in March 2005 September 2005 of $30 million). The to the estimated annual Base Resource because the 2004 Power Marketing Plan estimated power revenue requirement revenue requirement for the following will have been in effect for a very short and First Preference Customers’ FY. period of time. percentages are subject to change prior The estimated power revenue Each First Preference Customer’s to the rates taking effect. monthly charges are determined by the requirement for January through following formula: Provisional Formula Rate for Base September 2005 is $30 million and the First Preference Customer’s monthly Resource estimated First Preference Customers’ costs = 6-month power revenue Base Resource Customer’s monthly cost revenue requirement is $1,110,000; requirement divided by six, times = Base Resource Customer’s therefore, the estimated Base Resource the First Preference Customer’s percentage times the Base Resource revenue requirement is $28,890,000. percentage. monthly revenue requirement. The Base Resource revenue requirement Starting with FY 2006, the First A Customer’s Base Resource will be allocated 25 percent to the 3- Preference Customers’ share of the percentage may be adjusted as provided month period from January through annual power revenue requirement is for in the contract; e.g., participation in March 2005 and 75 percent to the 6- divided into two 6-month revenue the exchange program. After the First month period, April through September requirements. The first 6-month revenue Preference Customers’ share of the 2005. For January through March 2005, requirement will be collected from annual power revenue requirement has the estimated Base Resource revenue October through March and the second been determined, the remainder of the requirement is $2,407,500 per month. 6-month revenue requirement will be annual power revenue requirement is For April through September 2005, the collected from April through September. recovered from the Base Resource estimated Base Resource revenue The estimated April through September Customers. The Base Resource revenue requirement is $3,611,250 per month. power revenue requirement will be requirement will be collected in two 6- The estimated Base Resource revenue reviewed by Western in March (with the month periods. For October through requirement for January through exception of March 2005). Western’s March, 25 percent of the Base Resource September 2005 may change prior to the review will analyze financial data revenue requirement will be collected. rate taking effect.

VerDate jul<14>2003 14:34 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4703 E:\FR\FM\06DEN2.SGM 06DEN2 EN06DE04.003 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70521

Provisional Formula Rate for Custom not affect the calculation of the FY 2004 average, 5-year rolling average, or a Product Power RAC or the determination of each single average water year. Response: Western considered these All costs associated with Custom Customer’s share of the FY 2004 RAC. comments, reviewed the alternatives Product Power will be recovered using For the October to December 2004 presented by the Customers, and a formula rate that passes through all RAC, Western is changing the existing evaluated several other scenarios that costs of the purchase to a specific process of calculating the RAC and might mitigate the financial impacts Customer(s). Such costs could include applying the resulting RAC credit or experienced by the First Preference Western’s scheduling costs and surcharge to the power bills issued from Customers. Western’s analysis Components 2 and 3, as well as the cost April through September 2005. Western determined that the financial impacts of the power. Under the 2004 Power will delay calculation of the October experienced by the First Preference Marketing Plan, Custom Product Power through December 2004 RAC so that any outstanding project use true-ups and Customers are similar to those is power supplied by Western to meet experienced by the Base Resource a Customer’s load. Western may make any unmet obligations under existing contracts associated with business that Customers. According to this analysis, Custom Product Power purchases for a the First Preference Customers do not group of Customers or for an individual occurred prior to January 1, 2005, can be included in the October through pay a larger per unit cost. As a means Customer. Costs for Custom Product of mitigating the First Preference Power purchases that are funded in December 2004 RAC. Once this data is available, Western will calculate the Customers’ concerns, Western reviewed advance by the Customer(s) will be estimated First Preference percentages passed through to that Customer(s) October through December 2004 RAC using the existing methodology. This in different hydrological years. As a based on the power forecasted to the result of this review, Western has Customer(s). Unless otherwise agreed to will likely delay the October through December 2004 RAC until sometime in determined a maximum percentage for by Western, Custom Product Power each First Preference Customer: SCC funded in advance that is surplus to the FY 2006. The resulting RAC credit or surcharge will be allocated among the 1.39 percent, CPPA 3.49 percent, TPUD load requirements of the Customer(s) 9.21 percent, and TPPA 3.42 percent. will be sold. If the Customer(s) fails to power Customers taking firm power during October through December 2004 The maximum percentages were have an account available to receive the determined based on a critically dry proceeds from the sale of surplus under the existing methodology. Western will initiate distribution of the year where there are hydrologic Custom Product Power, the proceeds are conditions that result in low CVP RAC credit or surcharge within 60 days forfeited to Western and will be applied generation and, consequently, low of completing the RAC calculation. If to the Custom Product Power purchase levels of Base Resource. These the result was a RAC credit, at Western’s cost for the Customer(s). maximum percentages are not used in discretion, Western will either credit the If the Custom Product Power purchase instances where individual First Customers’ power bills to the extent is funded through appropriations, Preference Customer percentages possible, or Western will make a lump- Federal reimbursable, or use of receipts increase due to load growth. If a sum payment to the Customers for their authority, the cost of the Custom maximum percentage is used for share of the RAC. If the result is a RAC Product Power is passed through to the determining a First Preference surcharge, at Western’s discretion, Customer(s) that have that power in Customer’s costs for more than 1 year, their final schedules. Custom Product Western could collect the payment in then Western will evaluate that First Power funded through appropriations, equal installments over 9 months or as Preference Customer’s percentage Federal reimbursable authority, or use a lump sum. resulting from the formula rate versus of receipts authority that is surplus to Comments the maximum percentage and make the load of the Customer(s) will be sold. adjustments as appropriate. Proceeds from the sale of surplus The comments and responses B. Comment: A First Preference Custom Product Power funded through regarding changes in RAC procedure for Customer requested that Western use of receipts authority, Federal CV-F10 and First Preference, Base consider converting its monthly fixed reimbursable authority, or Resource, and Custom Product Power payment obligation to a per kWh rate appropriations will be applied to the formula rates, paraphrased for brevity with periodic adjustments. This Custom Product Power purchase cost for when not affecting the meaning of the conversion would better parallel its cash the Customer(s). statement(s), are discussed below. Direct flow from its retail Customers. quotes from comment letters are used Response: While Western understands Change in RAC in Existing CVP Firm for clarification where necessary. the complexity of managing cash flow Power Rate Schedule CV–F10 A. Comment: Some of the First with a variable power product, as is Western is changing the RAC for FY Preference Customers expressed provided through the 2004 Power 2004. Under the existing CVP Firm concern that during several consecutive Marketing Plan, Western intends to Power Rate Schedule CV–F10, a RAC drought years, they would be paying for provide the Customer with sufficient credit for FY 2004 would be applied in all of Western’s costs that would information to calculate a per unit rate. equal amounts to the nine power bills normally be covered by revenues from Changing to a billing method using per issued by Western from January through the Base Resource. These Customers unit cost versus a fixed payment September 2005. Western is changing suggested an alternative methodology obligation would not change the First the RAC to allow Western to make that affected both the First Preference Preference Customer’s share of Western lump-sum payments to Customers for and Base Resource Customers. The power costs. As stated earlier, Western their share of the FY 2004 RAC credit, suggestion charged the First Preference will review the power revenue as opposed to issuing credits in equal Customers based on a percentage of requirement every 6 months. The power amounts to the power bills issued from repayment obligation as opposed to the revenue requirement will be changed in January through September 2005. This receipt of energy or Base Resource March only if it exceeds the $5 million change in the RAC will allow Western percentage. Western could base the threshold. As part of the record for the more flexibility as it moves to the 2004 percentage of repayment obligation on rate case, Western has provided Power Marketing Plan. This change will some sort of average; e.g., long-term estimated annual power revenue

VerDate jul<14>2003 14:34 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4703 E:\FR\FM\06DEN2.SGM 06DEN2 70522 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

requirements for January through system to meet its statutory costs allocated to transmission service, September 2005 and FY 2006 through obligations is treated as NITS. (3) CVP generation costs for providing 2009. Western has provided estimated This provisional formula rate also reactive supply and voltage control from percentages for all First Preference contains Components 2 and 3. generation sources, (4) Component 2, (5) Customers for January through The rate from Component 1 will be Component 3, (6) any other statutorily September 2005 and for FY 2006 so that used for CVP firm and non-firm required costs or charges, and (7) any the First Preference Customers could transmission service. Western will other costs associated with transmission use that data in developing their future revise the rate resulting from service, including uncollectible debt. budgets. Component 1 of the provisional formula Revenues from the sales of short-term C. Comment: Several Customers rate based on either of the following two transmission will offset the transmission expressed concern regarding the conditions: (a) Updated financial data revenue requirement. disposition of proceeds from the sale of available in March of each year, and (b) Component 1 of the provisional surplus Custom Product Power. The a change in the numerator or formula rate includes Western’s cost for proposed formula rate for Custom denominator that results in a rate transmission scheduling, system control Product Power indicated that the change of at least $0.05 per kWmonth. and dispatch service, and reactive proceeds are forfeited to Western if a The estimated monthly rate resulting supply and voltage control from Customer fails to have an account from Component 1 of the provisional generation sources service associated available to receive the proceeds from formula rate for January through with the transmission service. The such a sale. The Customers requested September 2005 has increased from provisional formula rate applies to that Western change this language to $0.93 per kWmonth to $1.03 per ETCs. allow for the proceeds to be applied to kWmonth. The increase is primarily due Provisional Formula Rate for CVP NITS future Custom Product Power purchases to a correction in the classification of on behalf of the Customer(s). Western’s rights on a third party’s The provisional formula rate for CVP Response: If Western receives the transmission system for CVP generation. NITS includes three components: proceeds from the sale of surplus The $1.03 per kWmonth rate is an 81 Component 1: Custom Product Power, they will be percent increase from the existing rate applied to the current Custom Product of $0.57 per kWmonth. NITS Customer’s monthly demand Power cost for the Customer(s). Under charge = NITS Customer’s load ratio The estimated hourly rate from 1 its trust authority, Western cannot use Component 1 of the provisional formula share times one-twelfth ( ⁄12) of the these proceeds to fund future Custom rate for CVP transmission service for annual network TRR. Product Power purchases. January through September 2005 has Where: D. Comment: A Customer indicated increased from 1.30 mills/kWh to 1.40 NITS Customer’s load ratio share = its support of Western’s intention to mills/kWh for the same reason stated The NITS Customer’s hourly load better align the Base Resource monthly above. The 1.40 mills/kWh is a 40 (including behind the meter revenue requirement with CVP percent increase from the existing CVP generation minus the NITS generation. The Customer thought this non-firm transmission service rate of Customer’s hourly Base Resource) procedure would help reduce monthly 1.00 mill/kWh. The percentage increase coincident with the monthly CVP per unit cost variations for Western’s for the estimated hourly rates is smaller transmission system peak minus the Customers. than the percentage increase for coincident peak for all firm CVP Response: Western notes the estimated monthly rates because the (including reserved transmission comment. capacity) transmission service, E. Comment: A Customer existing CVP non-firm transmission rate was rounded up to 1.00 mill/kWh. The expressed as a ratio. ‘‘applaud[ed] Western’s efforts to Annual network TRR = Total CVP separately track any costs associated increase in CVP transmission rates from the existing rate is primarily due to an transmission revenue requirement with supplemental or custom products less ETC revenues. to ensure no cost shifting occurs with increase in O&M costs and a change in the Base Resource.’’ Western’s use of the CVP transmission The Annual Network TRR will be Response: Western notes the system under the 2004 Power Marketing revised when the rate from Component comment. Plan. Under the 1994 Power Marketing 1 of the CVP transmission rate under Plan, Western was reserving Rate Schedule CV–T1 is revised. This Provisional Formula Rate for CVP Firm transmission capacity based on the provisional formula rate also contains and Non-Firm Transmission maximum output of directly connected Components 2 and 3. The provisional formula rate for CVP CVP generating plants under normal The provisional formula rate for CVP firm and non-firm transmission includes operating conditions. Under the 2004 NITS is based on a revenue requirement three components: Power Marketing Plan, Western’s use of that recovers: (1) The CVP transmission the CVP transmission system to meet its system costs for facilities associated Component 1 statutory obligations is treated as NITS with providing transmission service, (2) for rate design purposes. The rates from the non-facility costs allocated to CVP transmission revenue requirement Component 1 of the provisional formula transmission service, (3) CVP generation TTc+ NITSc rate may be discounted for short-term costs for providing reactive supply and Where: sales. The estimated rates from the voltage control from generation sources, TTc = Total transmission capacity provisional formula rate are subject to (4) Component 2, (5) Component 3, (6) under ETCs. change prior to the rate taking effect. any other statutorily required costs or NITSc = Average of 12-month The provisional formula rate for CVP charges, and (7) any other costs coincident peaks of NITS transmission service is based on a associated with transmission service, Customers at the time of the revenue requirement that recovers: (1) including uncollectible debt. For monthly CVP transmission system The CVP transmission system costs for January through September 2005, the peak. For rate design purposes, facilities associated with providing estimated NITS monthly revenue Western’s use of the transmission transmission service, (2) the non-facility requirement is $1,021,712. The

VerDate jul<14>2003 14:34 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4703 E:\FR\FM\06DEN2.SGM 06DEN2 EN06DE04.004 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70523

estimated monthly revenue requirement service, and reactive supply and voltage system to the requesting Customer. resulting from the provisional formula control from generation sources service Rates under this schedule are to be rate has increased to $1,021,712 from associated with the CVP NITS. The automatically adjusted as third-party the estimated monthly revenue NITS estimated monthly revenue transmission costs are adjusted. requirement in the proposed rates of requirement is subject to change prior to The formula rate for this service also $926,316. The increase is primarily due the rates taking effect. contains Components 2 and 3. to a correction in the classification of Western’s rights on a third party’s Provisional Formula Rate for Third- Provisional Formula Rate for COTP transmission system for CVP generation. Party Transmission Firm and Non-Firm Point-to-Point NITS was not provided prior to January The provisional formula rate for third- Transmission party transmission includes three 1, 2005, so there is no existing monthly The provisional formula rate for components: revenue requirement for NITS. COTP firm and non-firm transmission The provisional formula rate includes Component 1: Western will directly includes three components: Western’s cost for transmission pass through any costs it incurs for scheduling, system control and dispatch using a third party’s transmission Component 1:

COTP Seasonal Transmission Revenue Requirement Western’ s Share of COTP Seasonal Capacity

Component 1 is the ratio of the COTP season. The rate from Component 1 will provisional formula rate for COTP seasonal transmission revenue be used for COTP firm and non-firm point-to-point transmission service to requirement to Western’s share of the transmission service. the COTP firm point-to-point COTP seasonal capacity (subject to This formula rate for this service also transmission service existing rates are curtailment). Western will update the contains Component 2 and 3. shown in the table below. rate from Component 1 at least 15 days A comparison of the estimated before the start of each COI rating monthly rates from Component 1 of the

COMPARISON OF EXISTING RATES TO ESTIMATED RATES FROM COMPONENT 1 OF THE PROVISIONAL FORMULA RATE FOR COTP FIRM POINT-TO-POINT TRANSMISSION SERVICE

Estimated rates from the provisional Percent Season Existing rate formula rate increase

Spring ...... $0.73/kWmonth ...... $1.87/kWmonth ...... 156 Summer ...... $0.53/kWmonth ...... $1.87/kWmonth ...... 253 Winter ...... $0.66/kWmonth ...... $1.88/kWmonth ...... 185

A comparison of the estimated hourly point-to-point transmission service to transmission service existing rates are rates from Component 1 of the the COTP non-firm point-to-point shown in the table below. provisional formula rate for COTP

COMPARISON OF EXISTING RATES TO ESTIMATED RATES FROM COMPONENT 1 OF THE PROVISIONAL FORMULA RATE FOR COTP NON-FIRM POINT-TO-POINT TRANSMISSION SERVICE

Estimated rate from the provisional Percent Season Existing rate formula rate increase

Spring ...... 1.00 mill/kWh ...... 2.55 mills/kWh ...... 155 Summer ...... 0.72 mill/kWh ...... 2.54 mills/kWh ...... 253 Winter ...... 0.91 mill/kWh ...... 2.59 mills/kWh ...... 185

The minimal change in the estimated The provisional formula rate for associated with transmission service, rates from Component 1 of the COTP firm and non-firm point-to-point including uncollectible debt. provisional formula rate is due to the transmission service is based on a The provisional formula rate includes variance in the number of hours in the revenue requirement that recovers: (1) Western’s cost for transmission COI rating season. The increase in the The COTP transmission system costs for scheduling, system control and dispatch estimated rates from the provisional facilities associated with providing service, and reactive supply and voltage formula rate from the existing rates is transmission service, (2) the non-facility control from generation sources service primarily due to a decrease in Western’s costs allocated to transmission service, associated with COTP transmission. The COTP capacity available for sale. The (3) CVP generation costs for providing provisional formula rate applies to decrease in capacity occurs because of reactive supply and voltage control from COTP point-to-point transmission increased usage by the DOE of its generation sources service, (4) service. The rates from Component 1 of statutory entitlement at a rate which Component 2, (5) Component 3, (6) any the provisional formula rate may be recovers only O&M costs. other statutorily required costs or discounted for short-term sales. The charges, and (7) any other costs estimated rates from the provisional

VerDate jul<14>2003 14:34 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4703 E:\FR\FM\06DEN2.SGM 06DEN2 EN06DE04.005 70524 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

formula rate are subject to change prior Provisional Formula Rate for PACI Component 1 to the rate taking effect. Firm and Non-Firm Transmission The provisional formula rate for PACI firm and non-firm transmission includes three components:

PACI Seasonal Transmission Revenue Requirement Western’ s PACI Seasonal Capacity

Component 1 is the ratio of the PACI least 15 days before the start of each COI The estimated monthly and hourly seasonal transmission revenue rating season. The rate from Component rates resulting from Component 1 of the requirement to Western’s share of the 1 will be used for COTP firm and non- provisional formula rate for PACI PACI seasonal capacity. Western will firm transmission service. transmission service are shown in the update the rate from Component 1 at This formula rate for this service also table below. contains Components 2 and 3.

ESTIMATED RATES FROM COMPONENT 1 OF THE PROVISIONAL FORMULA RATE FOR PACI TRANSMISSION

Estimated hourly Season Estimated monthly rate rate

Spring ...... $0.45/kWmonth ...... 0.61 mill/kWh. Summer ...... $0.45/kWmonth ...... 0.61 mill/kWh. Winter ...... $0.45/kWmonth ...... 0.62 mill/kWh.

The minimal change in the estimated CAISO under Amendment No. 48 of the transmission costs and third-party seasonal rates from Component 1 of the CAISO Tariff. Transmission service for transmission costs for delivering Base provisional formula rate is due to the Western’s rights on the Path 15 Resource energy when developing the variance in the number of hours in the Transmission Upgrade must be obtained CVP transmission revenue requirement. COI rating season. There are no existing under the terms and conditions This consolidation would then allow for rates for PACI transmission since it is established by the CAISO. Under a sharing of costs between the currently covered under an existing Amendment No. 48, the CAISO remits Customers directly connected to the contract. The provisional formula rate to Western wheeling, congestion, and CVP transmission system, Customers for PACI transmission service is based Firm Transmission Rights auction that are not directly connected to the on a revenue requirement that recovers: revenues associated with Western’s CVP transmission system, and any other (1) The PACI transmission system costs rights on the Path 15 Transmission users of the CVP transmission system. for facilities associated with providing Upgrade. While Western is turning over Another alternative was provided in the transmission service, (2) the non-facility its rights on the Path 15 Transmission event that consolidation is not possible. costs allocated to transmission service, Upgrade under Amendment No. 48, That is, to provide the Customers that (3) CVP generation costs for providing Western desires to work with the CAISO are not connected to the CVP reactive supply and voltage control from to return revenues that are in excess of transmission system relief by removing generation sources service, (4) Western’s costs associated with the CVP transmission costs from their Component 2, (5) Component 3, (6) any Western’s use of the Path 15 Base Resource revenue requirement. By other statutorily required costs or Transmission Upgrade. As a result, if a sharing costs, the Customers felt that all charges, and (7) any other costs significant overcollection occurs, Customers would be treated equally and associated with transmission service, Western will work with the CAISO on the legislative intent of limited including uncollectible debt. the treatment of the overcollection. development of the Federal The provisional formula rate includes Comments transmission system would be Western’s cost for transmission preserved. Conversely, Western received The comments and responses scheduling, system control and dispatch several contrary opinions from regarding Western’s entitlement on the service, and reactive supply and voltage Customers directly connected to the Path 15 Transmission Upgrade, the CVP, control from generation sources service CVP transmission system. These COTP, and PACI firm and non-firm associated with PACI transmission. The Customers objected to the inequity of transmission, and CVP NITS formula provisional formula rate applies to PACI such a rate design. point-to-point transmission service. The rates, paraphrased for brevity when not rates from Component 1 of the affecting the meaning of the Response: The 2004 Power Marketing provisional formula rate may be statement(s), are discussed below. Direct Plan states that each entity is ultimately discounted for short-term sales. The quotes from comment letters are used responsible for obtaining its own estimated rates from the provisional for clarification where necessary. delivery arrangements to load. Western formula rate are subject to change prior A. Comment: A large number of believes payment of Base Resource to the rate taking effect. Customers indicated that Western delivery costs, including CVP and third- should consider developing party transmission, by the Customer Path 15 Transmission Upgrade transmission rates that result in receiving the Base Resource is Western intends to turn over comparable delivery costs for all Federal consistent with the 2004 Power operational control of its rights on the Customers. It was suggested that Marketing Plan and the appropriate Path 15 Transmission Upgrade to the Western consolidate both Federal method to recover such costs.

VerDate jul<14>2003 14:34 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4703 E:\FR\FM\06DEN2.SGM 06DEN2 EN06DE04.006 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70525

B. Comment: In Western’s original CVP transmission formula rate use a different type of transmission proposal provided in May 2003, certain determinant from forecasted CVP service for CVP generation and changes CAISO and PG&E charges were generation to ‘‘maximum output from the billing determinant in the formula originally included in the transmission the CVP Base Resource generation.’’ The rate. Under the OATT, Customers can service for the PACI. Western’s comment indicated that the proper choose the type of transmission service proposed rates presented in May 2004 recovery methodology for the capital that best fits its needs, NITS or point-to- excluded these costs from the PACI investment and ongoing O&M expenses point. revenue requirement. Since the associated with transmission facilities Commission process to negotiate the represents a capacity related investment Provisional Rates for Ancillary Services PG&E charges and potential credits for that is based upon a firm-peak delivery Western’s costs for providing Western’s transmission facilities is capability of facilities. transmission scheduling, system control expected to continue well after these Response: Western understands the and dispatch service, and reactive rates are implemented, and the Customers’ concerns. Using the supply and voltage control from Customer has no desire to have the rates maximum operating capacity of the CVP generation sources service are included increase as a result of these northern power plants under normal in the appropriate transmission revenue Commission-sponsored negotiations, the operating conditions (annual peak) was requirement. Customer suggests including the appropriate under the 1994 Power Provisional Formula Rate for Spinning potential credits in the revenue Marketing Plan, due to contractual Reserve requirement. obligations under Contract 2948A. The Response: Western understands the 2004 Power Marketing Plan does not The provisional formula rate for Customer’s concern regarding the offer the same type of power service that spinning reserve is the price consistent potential credits for Western’s is available under the 1994 Power with the CAISO market plus all costs transmission facilities that could Marketing Plan. Under the 2004 Power incurred as a result of the sale of decrease the costs for delivering Marketing Plan, Base Resource and First spinning reserves, such as Western’s Western power on the PG&E system. Preference power is primarily the scheduling costs and Components 2 and Western does not have a method to output of the CVP, which varies month 3. estimate the amount of potential credits to month. Under the 2004 Power For Customers that have a contractual and will not receive these credits unless Marketing Plan, Western has changed its obligation to provide reserves to they are approved by the Commission. use of the CVP transmission system for Western and do not fulfill that If Western were to reduce the third- the delivery of CVP northern power obligation, the penalty for party pass-through costs to reflect these plants generation from an annual peak nonperformance will be the greater of credits prior to the Commission’s to monthly peaks for rate design actual costs or 150 percent of the market approval, Western would not be purposes. Western’s treatment of its price. collecting the full cost being charged to statutory obligations in the CVP Revenues from spinning reserve sales Western by PG&E. transmission rate design is consistent will offset the power revenue C. Comment: A comment asserted that with the 2004 Power Marketing Plan requirement. The cost for spinning the intent of the Federal legislation and NITS under Western’s OATT. reserve required to firm CVP generation authorizing the PACI was that Western’s E. Comment: A Customer informed for the current hour and the following Customers would pay costs that would Western of the significant financial hour is included in the power revenue not exceed the cost of Federal impact the last increase in transmission requirement. construction. To ensure that all rates had on its company and asked that Based on comments received, Western Customers receive the benefit intended Western charge all transmission has modified its proposed rate to the by the Federal legislation authorizing Customers on the same basis to preserve provisional rate stated above. Western the PACI, certain Western power equity and fairness. The Customer believes this addresses the comments delivery costs should be included in the recommends that the proposed regarding the spinning reserve proposed PACI annual revenue requirement. The transmission rates be cost-based, formula rate and provides a benefit to Customer referred to Western’s original allocated on cost causation principles, all power Customers of the ancillary May 2003 informal rates proposal and recognize the transmission system services available from the CVP. containing this approach. investments made by Customers Response: When Western proposed connected to the CVP transmission Provisional Formula Rate for Non- including third-party transmission costs system. The Customer felt that Spinning Reserve in the PACI revenue requirement, PG&E Western’s proposal to allocate The provisional formula rate for non- had taken the position that Western’s transmission cost using a coincident spinning reserve is the price consistent end-use Customers would have to pay peak billing determinant was with the CAISO market plus all costs PG&E’s retail tariff costs (excluding discriminatory and unfairly shifted incurred as a result of the sale of non- energy costs) for delivery of Western costs to contract transmission spinning reserves, such as Western’s power. Under that scenario, Western Customers. scheduling costs and Components 2 and contemplated including third-party Response: Western in its last rate case, 3. transmission costs in the PACI revenue as in this rate case, uses a Commission- For Customers that have a contractual requirement. In March 2004, PG&E filed approved methodology of plant-based obligation to provide reserves to with the Commission a wholesale cost allocation. As demonstrated in the Western and do not fulfill that distribution tariff rate for delivery of Rate Brochure, NITS and ETC obligation, the penalty for Western power to Western’s end-use Customers pay the same per unit cost. nonperformance will be the greater of Customers. Western will pursue credit As mentioned in Western’s response to actual costs or 150 percent of the market for its facilities in the Commission the comment above, Western is price. proceedings on PG&E’s filing. marketing a different product under the Revenues from non-spinning reserve D. Comment: Several Customers 2004 Power Marketing Plan than was sales will offset the power revenue connected to the CVP transmission offered under the 1994 Power Marketing requirement. The cost for non-spinning system asked that Western change the Plan. This change requires Western to reserve required to firm CVP generation

VerDate jul<14>2003 14:34 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4703 E:\FR\FM\06DEN2.SGM 06DEN2 70526 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

for the current hour and the following Component 1: If there is an hourly restrictions. These Customers indicated hour is included in the power revenue average negative deviation that Western’s proposal to sell surplus requirement. Based on comments (underdelivery) outside the bandwidth, ancillary services at prices consistent received, Western has modified its the amount of the deviation outside of with CAISO markets is discriminatory proposed rate to the provisional rate the bandwidth will be charged at the to Customers not connected to the CVP stated above. Western believes this greater of 150 percent of market price or transmission system. Western’s addresses the comments regarding the actual cost. If there is an hourly average proposed formula rates allow for SCA non-spinning reserve proposed formula positive deviation outside the members to receive ancillary services at rate and provides a benefit to all power bandwidth, the amount of the deviation cost. These Customers that are not Customers of the ancillary services outside of the bandwidth is lost to the connected to the CVP transmission available from the CVP. system. system requested that Western remedy This formula rate also contains this discriminatory treatment of Provisional Formula Rate for Components 2 and 3. ancillary service sales to Customers not Regulation and Frequency Response Under the provisional formula rate, connected to the CVP transmission Service deviations outside the bandwidth are system by allowing proportionate access The provisional formula rate for energy calculations done on an average to these ancillary services to all of its regulation and frequency response hourly basis. There is no financial Customers at similar rates prior to service includes three components: charge for deviations within the selling to the market. bandwidth. The energy imbalance rate Response: Western has revised the Component 1 will apply to SCA members that have formula rate for spinning and non- signed an interconnected operations spinning reserve services from the Annual Revenue Requirement agreement with Western. The revenues proposed formula rates. As a result, Annual Regulating Capacity kW from energy imbalance service will be spinning and non-spinning reserves are sold at a price consistent with the The revenue requirement includes: (1) applied to the power revenue CAISO market regardless of whether a The CVP generation costs associated requirement. Customer is connected to the CVP with providing regulation and frequency Comments transmission system. Due to existing response service, (2) the non-facility The comments and responses scheduling constraints, Western is not costs allocated to regulation and regarding the spinning reserve, non- able to provide regulation and frequency frequency response service, (3) spinning reserve, regulation and response and energy imbalance to Component 2, (4) Component 3, (5) any frequency response service, and energy Western Customers outside of the SCA/ other statutorily required costs or imbalance service formula rates, HCA. charges, and (6) actual purchase costs. paraphrased for brevity when not D. Comment: A Customer suggested Western will revise the rate from affecting the meaning of the that Western should consider a higher Component 1 of the provisional formula statement(s), are discussed below. Direct penalty for underdeliveries for energy rate based on either of the following two quotes from comment letters are used imbalance service. The Customer conditions: (a) updated financial data for clarification where necessary. recommended that Western charge 300 available in March of each year, and (b) A. Comment: Several Customers percent of actual cost as opposed to the a change in the rate of at least $0.25 per indicated that the inclusion of greater of 150 percent of market price or kWmonth. purchases to support regulation and actual cost, as indicated in the proposed The annual regulating capacity is the spinning and non-spinning reserve formula rate for this service. total regulating capacity bandwidths service was inappropriate given how Response: Western understands the provided by Western under the Western expects to operate the SCA. concern expressed by the Customer. interconnected operations agreements Response: Western considered these Western believes that an increase to 300 with SCA members. The penalty for comments and removed the estimate for percent may be more punitive than nonperformance by an SCA member the purchases from the revenue necessary. Western believes that actual who has committed to self-provide its requirements. If actual purchase costs cost or 150 percent of market price is regulating capacity requirement will be are incurred to support these services, sufficient incentive for Customers to the greater of actual costs or 150 percent these costs will be recovered through remain inside the bandwidth. of the market price. the appropriate formula rate. E. Comment: A direct connected This formula rate also contains B. Comment: Several Customers generation Customer noticed that the Components 2 and 3. expressed concern about the formula proposed formula rates did not have any The regulation and frequency used to determine regulation capacity in crediting or offsetting mechanism for response service will be recovered from the proposed rates. According to reactive supply and voltage control. The SCA members that have signed an Western, this formula is used in practice Customer requested that to the extent interconnected operations agreement by other wholesale utilities. that Western compensates its own with Western. The revenues from Response: Western considered this generation for providing the above regulation and frequency response comment, and the formula for services, then other Western Customers service will be applied to the power determining regulation capacity is no with generation that provide the same revenue requirement. The estimated rate longer part of the regulation and service must also be compensated. from the provisional formula rate is frequency response service formula rate. Response: Western understands the subject to change prior to the rate taking Regulating capacity will be determined Customer’s concerns. The provisional effect. as provided for in the interconnected rates do not provide for a credit for operations agreement with Western. reactive supply and voltage control from Provisional Formula Rate for Energy C. Comment: A large number of generation sources to any party, Imbalance Service Customers commented that Western including Western. The provisional formula rate for should consider providing a Base F. Comment: One Customer that is energy imbalance service includes three Resource share of ancillary service connected to the CVP transmission components: benefits regardless of control area system requested that Western develop

VerDate jul<14>2003 14:34 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4703 E:\FR\FM\06DEN2.SGM 06DEN2 EN06DE04.007 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70527

provisions that would allow CVP interconnected operations agreement (see below). The Customer indicated transmission Customers to self-provide and has been taken out of the that Western had not provided any regulation and operating reserves. provisional rates. explanation why the rates rose so Response: Western had provisions in F. Comment: A Customer indicated dramatically since May 2003 and the proposed rates to allow crediting of that the current proposed rates are whether or not this volatility was self-provided ancillary services. Self- several times higher than rates expected to continue. provision is included in the presented in 2003 and provided a table

ANCILLARY SERVICE PER UNIT COST COMPARISON

Percent Service May 2003 per unit cost May 2004 per unit cost increase

Scheduling and System Control and Dispatch ...... $60.00/E-tag ...... By contract ...... N/A Reactive Power and Voltage Control ...... $0.07/kWmonth ...... Assigned by transmission sys- N/A tem. Operating Reserve—Spinning ...... $0.31/kWmonth ...... $3.30/kWmonth ...... 965 Operating Reserve—Supplemental Reserve Service (non-spin) $0.19/kWmonth ...... $2.52/kWmonth ...... 1226 Regulation and Frequency Response ...... $0.40/kWmonth ...... $6.33/kWmonth ...... 1483

Response: Western’s provisional rates addition, Western used a Reclamation regulation and frequency response for spinning and non-spinning reserve FY 2002 Ancillary Services Study to service. Western removed the purchase service are based on prices consistent estimate hourly capacity amounts costs for regulation and frequency with the CAISO markets. As such, the available from the CVP plants for response service, and the appropriate comparison above is no longer regulation and frequency response revenue requirement was adjusted. This applicable. For regulation and frequency service. These capacity amounts change in revenue requirement is response service, as Western explained translated into purchase costs that were documented in the table below. If during the public information forum included in the estimated revenue purchase costs are incurred in providing and accompanying slides, the increase requirements for the applicable services. of this service, these costs will be in comparative rates for regulation and In a letter to all interested parties on included in the next revision to the frequency response service was July 28, 2004, Western made a change revenue requirement. primarily due to increased O&M costs to the revenue requirement for used in the cost-of-service study. In Component 1 of the formula rate for

CHANGE IN REVENUE REQUIREMENT FOR REGULATION AND FREQUENCY RESPONSE SERVICE

Revised rev- Revenue re- enue require- Service quirement with ment without purchase purchase costs costs

Regulation with Frequency Response Service ...... $2,277,692 $905,613

Since the publication of this letter, the Direct quotes from comment letters are and frequency response service, which revenue requirement was further revised used for clarification where necessary. gives them some flexibility to determine their own costs. The operational to $972,405. The estimated revenue Operational Considerations requirement increased slightly as a decision regarding Western’s choice for result of an increase in the regulating A. Comment: A Customer was joining a control area was set in a capacity needed for SCA members. particularly concerned that an separate public process and is outside Based on the revised revenue ‘‘operational decision [regarding control the scope of this public process. requirement, a revised cost-of-service area participation] should not be made B. Comment: A number of Customers study, and the provisional formula rate without consideration of the rate and expressed an interest in Western for regulation and frequency response cost impacts on the Customers. One of initiating a process to find additional service, the estimated rate is now $2.57 the criteria used by Western to make its ways to enhance the Western SCA: to per kWmonth, which represents a 3 operational decision was cost ameliorate the uncertainty and percent increase from Western’s effectiveness.’’ The Customer did not ambiguities associated with the regulation and frequency response feel that the proposed rates termination of Contracts 2947A, 2948A, service existing rate. demonstrated that the SCA is cost and related contracts; to assess and effective and Customers should not be promote the ability to dynamically General Comments forced to pay costs higher than the schedule with the Western SCA load not CAISO. General comments and responses directly connected to the CVP Response: Rates for CVP power and transmission system; to investigate ways regarding operational considerations, power-related services are designed to to develop a ‘‘grid best’’ structure with power scheduling, and extension of the recover the costs associated with regard to Western and all its Customers; comment period, paraphrased for providing the service. Customers have and to explore mechanisms to assure brevity when not affecting the meaning the option to self-provide spinning and needed future capital expenditures for of the statement(s), are discussed below. non-spinning reserves and regulation transmission and power supply are

VerDate jul<14>2003 14:34 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4703 E:\FR\FM\06DEN2.SGM 06DEN2 70528 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

provided in a timely manner. Another used to develop the provisional rates, is F11, CPP–1, CV–T1, CV–TPT6, CV– Customer asked that Western recognize available for public review in the Sierra NWT3, COTP–T1, PACI–T1, CV–RFS3, that some Customers have existing Nevada Regional Office, Western Area CV–EID3, CV–SPR3, and CV–SUR3 for agreements, like a metered subsystem, Power Administration, located at 114 the Central Valley and the California- and should consider allowing these Parkshore Drive, Folsom, California. Oregon Transmission Projects, and the Customers to dynamically schedule Pacific Alternating Current Intertie of Regulatory Procedure Requirements their resources with the CAISO. the Western Area Power Response: These comments are Regulatory Flexibility Analysis Administration. The rate schedules outside the scope of this public process. The Regulatory Flexibility Act of 1980 shall remain in effect on an interim The termination of Contracts 2947A, (5 U.S.C. 601, et seq.) requires Federal basis, pending the Commission’s 2948A, and other related contracts is agencies to perform a regulatory confirmation and approval of them or being addressed in the Commission flexibility analysis if a final rule is likely substitute rates on a final basis through technical conferences with the affected to have a significant economic impact September 30, 2009. parties. on a substantial number of small entities Dated: November 18, 2004. Power Scheduling and there is a legal requirement to issue Kyle E. McSlarrow, a general notice of proposed A. Comment: A number of Customers Deputy Secretary. rulemaking. Western has determined not directly connected to the CVP that this action does not require a Rate Schedule CV–F11 (Supersedes transmission system stated that they regulatory flexibility analysis since it is Schedule CV–F10) expected Western to minimize its costs a rulemaking of particular applicability by scheduling the CVP generation Central Valley Project; Schedule of involving rates or services applicable to located in the CAISO’s control area to Rates for Base Resource and First public property. Customers in the CAISO control area. Preference Power Response: Western seeks to minimize Environmental Compliance Effective: January 1, 2005, through costs for all activities relating to In compliance with the National September 30, 2009. delivering Western power to its Environmental Policy Act (NEPA) of Available: Within the marketing area Customers. To the extent practicable, 1969, (42 U.S.C. 4321, et seq.); Council served by the Sierra Nevada Customer CVP generation in the CAISO control on Environmental Quality Regulations Service Region. area will be scheduled to project use, (40 CFR 1500–1508); and DOE NEPA Applicable: To the Base Resource (BR) First Preference, and Base Resource Regulations (10 CFR 1021), Western has and First Preference (FP) power Customers in the CAISO control area. determined that this action is Customers. Extension of the Comment Period categorically excluded from preparing Character and Conditions of Service: an environmental assessment or an A. Comment: Several Customers Alternating current, 60 hertz, three- environmental impact statement. requested an extension of the comment phase, delivered and metered at the period for this public process. These Determination Under Executive Order voltages and points established by requests were made primarily because 12866 contract. This service includes the Central Valley Project (CVP) entities are interested in evaluating the Western has an exemption from ancillary service formula rates in transmission, spinning, and non- centralized regulatory review under spinning reserve services. association with the recently signed Executive Order 12866; accordingly, no Sacramento Municipal Utility District clearance of this notice by the Office of Power Revenue Requirement: Western (SMUD) and Western interconnection Management and Budget is required. will develop the Power Revenue agreement and soon to be negotiated Requirement (PRR) prior to the start of intra-SCA agreements between Western Small Business Regulatory Enforcement each fiscal year (FY). The PRR will be and SCA members. Fairness Act divided into two 6-month periods, Response: Western understands the Western has determined that this rule October through March and April concern expressed by these Customers. is exempt from congressional through September. A monthly PRR will Western has committed to providing notification requirements under 5 U.S.C. be calculated by dividing each 6-month updated revenue requirement and/or 801 because the action is a rulemaking PRR by six. The PRR for the April rate information on or before December of particular applicability relating to through September period will be 1, 2004, for all rates except COTP and rates or services and involves matters of reviewed in March of each year (except PACI transmission. The COTP and PACI procedure. March 2005). The review will analyze transmission rate information will be financial data from the October through provided on or before December 15, Submission to the Federal Energy February period, to the extent 2004, when the winter COI rating Regulatory Commission information is available, as well as information should be available. The interim rates herein confirmed, forecasted data for the March through Western cannot afford a delay in this approved, and placed into effect, September period. If there is a change of rate process given that service must together with supporting documents, $5 million or more, the PRR for the begin January 1, 2005. will be submitted to the Commission for April through September period will be confirmation and final approval. recalculated. For the January through Availability of Information September 2005 period, a monthly PRR Information about this rate Order will be calculated by dividing the PRR adjustment, including power repayment In view of the foregoing and under the for that period by nine. studies, comments, letters, authority delegated to me, I confirm and memorandums, and other supporting approve on an interim basis, effective First Preference Power Formula Rate: material made and kept by Western and January 1, 2005, Rate Schedules CV– Component 1:

VerDate jul<14>2003 14:34 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4703 E:\FR\FM\06DEN2.SGM 06DEN2 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70529

FP Customer Load FP Customer Percentage = Gen+− Power Purchases Pr oject Use

FP Customer Charge = FP Customer FP CUSTOMERS’ MAXIMUM regulatory body accepted or approved Percentage × MRR PERCENTAGES charges or credits in the same manner Western is charged or credited. If the Where: Maximum FP Commission or other regulatory body FP Customer Load = An FP customer’s accepted or approved charges or credits Customer’s forecasted annual load FP customers percentage applied to the cannot be passed through directly to the in megawatthours (MWh). MRR appropriate Customer, the charges or Gen = The forecasted annual CVP and credits will be passed through using Washoe generation (MWh). Sierra Conservation Center .. 1.39 Component 1 of the FP power formula Calaveras Public Power rate. Power Purchases = Power purchases Agency ...... 3.49 for project use and FP loads (MWh). Trinity Public Utility District ... 9.21 Component 3 Tuolumne Public Power Any charges or credits from the Host Project Use = The forecasted annual Agency ...... 3.42 project use loads (MWh). Control Area (HCA) applied to Western MRR = Monthly Power Revenue Total ...... 17.51 for providing this service will be passed through directly to the appropriate Requirement. Below is a sample calculation for an Customer in the same manner Western Western will develop the FP FP Customer monthly charge for power. is charged or credited, to the extent Customer percentage prior to the start of possible. If the HCA costs or credits each FY. During March of each FY FP CUSTOMER MONTHLY CHARGE cannot be passed through to the (except March 2005), each FP SAMPLE CALCULATION appropriate Customer in the same Customer’s percentage will be reviewed. manner Western is charged or credited, If, as a result of the review, there is a Example: First preference the charges or credits will be passed change in the FP Customer’s percentage customer charge calculation through using Component 1 of the FP power formula rate. of more than one-half of 1 percent, the FP Customer Load—MWh ... 10,000 percentage will be revised for the April Washoe generation—MWh .. 2,500 BR Formula Rate through September period. CVP generation—MWh ...... 3,700,000 Project Use Load—MWh ...... 1,200,000 Component 1 The percentages in the table below are Project Use purchase—MWh 47,000 BR Customer Charges = (BR RR × BR %) the maximum percentages for each FP FP Customer percentage ..... 0.39% Customer that will be applied to the MRR ...... $3,333,333 Where: MRR. The maximum percentages were FP Customer monthly charge $13,000 BR RR = BR Monthly Revenue determined based on a critically dry Requirement year where there are hydrologic Component 2 BR % = BR percentage for each conditions that result in low CVP Any charges or credits associated with Customer as indicated in the BR generation and, consequently, low the creation, termination, or contract after adjustments for levels of BR. These maximum modification to any tariff, contract, or hourly exchange energy. percentages are not used in instances schedule accepted or approved by the BR Customers will pay for exchange where individual FP Customer Federal Energy Regulatory Commission energy by adjusting the BR percentage percentages increase due to load growth. (Commission) or other regulatory body that is applied to the BR RR. If these maximum percentages are used will be passed on to each appropriate Adjustments to a Customer’s BR for determining the FP Customer’s Customer. The Commission or other percentage for seasonal exchanges will charges for more than 1 year, then regulatory body accepted or approved be reflected in the Customer’s BR Western will evaluate their percentage charges or credits apply to the service to contract. from the formula rate versus the which this rate methodology applies. An illustration of the adjustment to a maximum percentage and make When possible, Western will pass Customer’s BR percentage for hourly through directly to the appropriate adjustments as appropriate. Exchange Energy (EE) is shown in the Customer, the Commission or other table below.

EXAMPLE OF BASE RESOURCE PERCENTAGE ADJUSTMENTS FOR EXCHANGE ENERGY

Customer’s BR delivered BR customer BR percentage Hourly BR = BR in excess Customers re- (adjusting for Revised BR from contract 30 MWh of load ceiving EE EE) percentage

Customer A ...... 20 6 3 0 3 10 Customer B ...... 10 3 0 1 4 13.33 Customer C ...... 70 21 0 2 23 76.67

Total ...... 100 30 3 3 30 100

After the FP Customers’ share of the annual power revenue requirement is collected in two 6-month periods. For annual power revenue requirement has recovered from the BR Customers. The October through March, 25 percent of been determined, the remainder of the BR revenue requirement will be the BR revenue requirement will be

VerDate jul<14>2003 14:34 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4703 E:\FR\FM\06DEN2.SGM 06DEN2 EN06DE04.008 70530 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

collected. For April through September, to the appropriate Customer in the same Custom Product Power. These costs will 75 percent of the BR revenue manner Western is charged or credited, be passed through to the Customer. The requirement will be collected. to the extent possible. If the HCA costs methodology used to calculate the A BR RR is calculated by dividing the or credits cannot be passed through to amount of the pass through will be BR 6-month revenue requirement by six. the appropriate Customer in the same based on the type of funding used to The revenues from the sale of surplus manner Western is charged or credited, purchase the Custom Product Power. BR will be applied to the annual BR RR the charges or credits will be passed Custom Product Power includes, but is for the following FY. through using Component 1 of the BR not limited to, supplemental power and For January through September 2005, formula rate. Base Resource (BR) firming power. the BR RR will be allocated 25 percent Billing: Billing for BR and FP power Advance Funding: Costs for Custom to the 3-month period from January will occur monthly using the respective Product Power funded in advance by through March 2005 and 75 percent to formula rate. the 6-month period, April through Adjustment for Losses: Losses will be the Customer(s) will be passed through September 2005. accounted for under this rate schedule to that Customer(s) based on the power forecasted for the Customer(s). Unless Component 2 as stated in the service agreement. Adjustment for Audit Adjustments: otherwise agreed to by Western, Custom Any charges or credits associated with Financial audit adjustments that apply Product Power funded in advance that the creation, termination, or to the revenue requirement under this is surplus to the load requirements of modification to any tariff, contract, or rate schedule will be evaluated on a the Customer(s) will be sold. If the schedule accepted or approved by the case-by-case basis to determine the Customer(s) fail to have an account Commission or other regulatory body appropriate treatment for repayment available to receive the proceeds from will be passed on to each appropriate and cash flow management. the sale of surplus Custom Product Customer. The Commission or other Power, the proceeds are forfeited to regulatory body accepted or approved Rate Schedule CPP–1 Western and will be applied to the charges or credits apply to the service to Central Valley Project; Schedule of Custom Product Power cost for the which this rate methodology applies. Rates for Custom Product Power Customer(s), to the extent possible. When possible, Western will pass through directly to the appropriate Effective: January 1, 2005, through The table below illustrates the pass Customer, the Commission or other September 30, 2009. through of the Custom Product Power regulatory body accepted or approved Available: Within the marketing area costs for three Customers and the charges or credits in the same manner served by the Sierra Nevada Customer treatment of proceeds from the sale of Western is charged or credited. If the Service Region. surplus Custom Product Power. As Commission or other regulatory body Applicable: To Customers that depicted in the table below, Customers accepted or approved charges or credits contract with the Western Area Power A, B, and C have payment responsibility cannot be passed through directly to the Administration (Western) for Custom for a Custom Product Power purchase appropriate Customer, the charges or Product Power. that was made for them as a group and credits will be passed through using Character and Conditions of Service: forecasted for them individually. Component 1 of the BR formula rate. Alternating current, 60 hertz, three- Customer C must pay for the 3 phase, delivered and metered at the megawatthours (MWh) even though the Component 3 voltages and points established by Custom Product Power could not be Any charges or credits from the HCA contract. used. The proceeds from the sale of the applied to Western for providing this Formula Rate: The Customer will pay surplus 3 MWh are deposited into service will be passed through directly all costs incurred in the provision of Customer C’s account.

CPP COST RECOVERY WITH PROCEEDS FROM SALES OF SURPLUS CPP ADVANCED CUSTOMER FUNDING WITH ACCOUNT [Western made a CPP purchase of 13 megawatts (MW) for the hour @ $10/MWh=$130]

Customer Proceeds from Proceeds de- CPP fore- charged for CPP RR Surplus CPP excess CPP posited into casted (MWh) CPP sales sales acct

Customer A ...... 6 $60 ...... 0 $0 $0 Customer B ...... 4 40 ...... 0 0 0 Customer C ...... 3 30 ...... 3 12 12

Total ...... 13 130 $130 3 12 12 Notes: 1. Western sold 3 MWh of CPP at $4/MWh=$12. 2. Proceeds are deposited into Customer C’s escrow account because Customer C’s CPP amount was surplus.

The table below illustrates the pass individually. Customer C must pay for the Custom Product Power are fully through of the Custom Product Power the 3 MWh even though the Custom recovered and proceeds remain from the costs for three Customers and the Product Power could not be used by sale of surplus Custom Product Power, treatment of proceeds from the sale of Customer C. The proceeds from the sale the remaining proceeds will be used to surplus Custom Product Power for the of the surplus 3 MWh are used to reduce reduce the power revenue requirement. Customer(s) that have not established an the Custom Product Power costs for the account. As depicted in the table below, group to the extent possible, since all Customers must pay for the Custom Customer C does not have an account Product Power forecasted for them available for the proceeds. If the costs of

VerDate jul<14>2003 14:59 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4703 E:\FR\FM\06DEN2.SGM 06DEN2 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70531

CPP COST RECOVERY WITH PROCEEDS FROM SALES OF SURPLUS CPP ADVANCED CUSTOMER FUNDING WITHOUT ACCOUNT [Western made a CPP purchase of 13 MW for the hour @ $10/MWh=$130]

Proceeds from CPP fore- CPP cost Surplus CPP excess CPP Charge per casted (MWh) sales customer

Customer A ...... 6 $60 0 ...... $54.46 Customer B ...... 4 40 0 ...... 36.31 Customer C ...... 3 30 3 ...... $27.23

Total ...... 13 130 3 $12 $118.00 Notes: 1. Western sold 3 MWh of surplus CPP at $4/MWh = $12. 2. Proceeds reduce the CPP cost because no account is available for the proceeds of the sale of surplus CPP. 3. Proceeds from surplus sales reduce CPP costs and are allocated to each Customer based on the amount of CPP forecasted.

Use of Receipts, Federal appropriations authority will be applied B are responsible for paying the full Reimbursable, or Appropriations to the Custom Product Power purchase costs of the Custom Product Power Authority: cost for the Customer(s) to the extent purchase made by Western (Total If the Custom Product Power is possible. If the cost of the Custom Custom Product Power revenue funded through appropriations, Federal Product Power is fully recovered and requirement is $130) because they are reimbursable, or use of receipts proceeds remain from the sale of the only Customers that had the Custom authority, the cost of the Custom surplus Custom Product Power, the Product Power in their final schedules. Product Power is passed through to the remaining proceeds will be used to The Custom Product Power revenue Customer(s) that have this power in reduce the power revenue requirement. requirement of $130 is reduced by the their final schedule. Custom Product The table below illustrates the pass sales of $12, which reduces the Custom Power funded through appropriations, through of the Custom Product Power Product Power revenue requirement to Federal reimbursable, or use of receipts costs to each Customer and the $118. Therefore, the reduced Custom authority that is surplus to the load treatment of proceeds from the sale of requirements of the Customer(s) will be surplus Custom Product Power funded Product Power revenue requirement of sold. Proceeds from the sale of surplus through appropriations, Federal $118 is prorated to each Customer based Custom Product Power funded through reimbursable, or use of receipts on the amount of Custom Product Power use of receipts, Federal reimbursable, or authority. As shown, Customers A and in their final schedules.

CPP COST RECOVERY WITH PROCEEDS FROM SALES OF SURPLUS CPP USE OF RECEIPTS, FEDERAL REIMBURSABLE, OR APPROPRIATIONS AUTHORITY [Western made a CPP purchase of 13 MW for the hour @ $10/MWh = $130]

CPP pur- Proceeds from chased CPP used CPP costs Surplus CPP excess CPP CPP customer (MWh) (MWh) sold sales charges

Customer A ...... 6 6 ...... 0 ...... $70.80 Customer B ...... 4 4 ...... 0 ...... 47.20 Customer C ...... 3 0 ...... 3 ...... 0.00

Total ...... 13 10 $130 3 $12 118.00 Notes: 1. Western sold 3 MWh of CPP at $4/MWh = $12. 2. Proceeds from the sale of surplus CPP reduce the CPP Costs prorated based on the amount of CPP used.

Western will charge $31.07 per Adjustments for Losses: All losses Rate Schedule CV–T1 (Supersedes schedule per day to cover its incurred for delivery of Custom Product Schedules CV–FT4 and CV–NFT4) administrative costs for procuring and Power under this rate schedule shall be Central Valley Project; Schedule of Rate scheduling Custom Product Power if the the responsibility of the Customer that for Transmission Service Customer has not contracted with has contracted for this service. Effective: January 1, 2005, through Western for this type of service through Adjustment for Audit Adjustments: other agreements. If the actual number September 30, 2009. Financial audit adjustments that apply Available: Within the marketing area of schedules for the month is not to the revenue requirement under this served by the Sierra Nevada Customer available, Western will estimate the rate schedule will be evaluated on a Service Region. number of schedules for the month and case-by-case basis to determine the Applicable: To Customers receiving apply the $31.07 per schedule charge to appropriate treatment for repayment Central Valley Project (CVP) firm and/or the estimated number of schedules. and cash flow management. non-firm transmission service. Billing: Billing for Custom Product Character and Conditions of Service: Power will occur monthly using the Transmission service for three-phase, formula rate. alternating current at 60 hertz, delivered

VerDate jul<14>2003 14:59 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4703 E:\FR\FM\06DEN2.SGM 06DEN2 70532 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

and metered at the voltages and points in the same manner Western is charged service, and reactive supply and voltage of delivery or receipt, adjusted for or credited. If the Commission or other control from generation sources service losses, and delivered to points of regulatory body accepted or approved needed to support the transmission delivery. This service includes charges or credits cannot be passed service. scheduling, system control and dispatch through directly to the appropriate Formula Rate: The formula rate for service, and reactive supply and voltage Customer in the same manner Western CVP NITS includes three components: control from generation sources service is charged or credited, the charges or Component 1 needed to support the transmission credits will be passed through using service. Component 1 of the CVP transmission NITS Customer’s monthly demand Formula Rate: The formula rate for service formula rate. charge = NITS Customer’s load ratio CVP firm and non-firm transmission share times one-twelfth (1/12) of the Component 3 service includes three components: Annual Network TRR. Any charges or credits from the Host Where: Component 1 Control Area (HCA) applied to Western NITS Customer’s load ratio share = for providing this service will be passed The NITS Customer’s hourly load CVP TRR through directly to the appropriate (including behind the meter TTc+ NITSc Customer in the same manner Western generation minus the NITS Customer’s hourly Base Resource) Where: is charged or credited, to the extent coincident with the monthly CVP CVP TRR = Transmission Revenue possible. If the HCA costs or credits transmission system peak minus the Requirement is the costs associated cannot be passed through to the coincident peak for all firm CVP with facilities that support the appropriate Customer in the same (including reserved transmission transfer capability of the CVP manner Western is charged or credited, capacity) transmission service, transmission system, excluding the charges or credits will be passed expressed as a ratio. generation facilities and radial through using Component 1 of the CVP Annual Network TRR = Total CVP lines. transmission service formula rate. transmission revenue requirement, TTc = Total Transmission Capacity is Billing: The formula rate above less revenues from long-term the total transmission capacity applies to the maximum amount of contracts for CVP transmission under long-term contract between capacity reserved for periods ranging between the Western Area Power the Western Area Power from 1 hour to 1 month, payable Administration (Western) and other Administration (Western) and other whether used or not. Billing will occur parties. parties. monthly. NITSc = Average 12-month coincident Adjustment for Losses: Losses The Annual Network TRR will be peaks of network integrated incurred for service under this rate revised when the rate from Component transmission service (NITS) schedule will be accounted for as agreed 1 of the CVP transmission rate under Customers at the time of the to by the parties in accordance with the Rate Schedule CV–T1 is revised. monthly CVP transmission system service agreement. Component 2 Adjustment for Audit Adjustments: peak. For rate design purposes, Any charges or credits associated with Western’s use of the transmission Financial audit adjustments that apply to the revenue requirement under this the creation, termination, or system to meet its statutory modification to any tariff, contract, or obligations is treated as NITS. rate schedule will be evaluated on a case-by-case basis to determine the rate schedule accepted or approved by Western will revise the rate from the Commission or other regulatory Component 1 based on either of the appropriate treatment for repayment and cash flow management. body will be passed on to each following two conditions: (a) Updated appropriate Customer. The Commission financial data available in March of each Rate Schedule CV–NWT3 (Supersedes accepted or approved charges or credits year, and (b) a change in the numerator Schedule CV–NWT2) apply to the service to which this rate or denominator that results in a rate Central Valley Project; Schedule of Rate methodology applies. change of at least $0.05 per for Network Integration Transmission When possible, Western will pass kilowattmonth. Rate change Service through directly to the appropriate notifications will be posted on the Open Customer, the Commission or other Access Same-Time Information System. Effective: January 1, 2005, through regulatory body accepted or approved September 30, 2009. Component 2 charges or credits in the same manner Available: Within the marketing area Western is charged or credited. If the Any charges or credits associated with served by the Sierra Nevada Customer Commission or other regulatory body the creation, termination, or Service Region. accepted or approved charges or credits modification to any tariff, contract, or Applicable: To Customers who cannot be passed through directly to the rate schedule accepted or approved by receive Central Valley Project (CVP) appropriate Customer in the same the Federal Energy Regulatory Network Integration Transmission manner Western is charged or credited, Commission (Commission) or other Service (NITS), to points of delivery and the charges or credits will be passed regulatory body will be passed on to receipt as specified in the service through using Component 1 of the CVP each appropriate Customer. The agreement. NITS formula rate. Commission or other regulatory body Character and Conditions of Service: accepted or approved charges or credits Transmission service for three-phase, Component 3 apply to the service to which this rate alternating current at 60 hertz, delivered Any charges or credits from the Host methodology applies. When possible, and metered at the voltages and points Control Area (HCA) applied to Western Western will pass through directly to of delivery or receipt, adjusted for for providing this service will be passed the appropriate Customer, the losses, and delivered to points of through directly to the appropriate Commission or other regulatory body delivery. This service includes Customer in the same manner Western accepted or approved charges or credits scheduling, system control and dispatch is charged or credited, to the extent

VerDate jul<14>2003 14:34 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4703 E:\FR\FM\06DEN2.SGM 06DEN2 En06de04.009 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70533

possible. If the HCA charges or credits under the then current California- to the revenue requirement under this cannot be passed through to the Oregon Intertie (COI) transfer rate schedule will be evaluated on a appropriate Customer in the same capability for the season. Seasonal case-by-case basis to determine the manner Western is charged or credited, definitions for summer, winter, and appropriate treatment for repayment the charges or credits will be passed spring are June through October, and cash flow management. through using Component 1 of the CVP November through March, and Rate Schedule PACI–T1 NITS formula rate. April through May, respectively. Billing: NITS will be billed monthly Western will update the rate from Pacific Alternating Current Intertie under the formula rate. Component 1 of the formula rate for Project; Schedule of Rate for Adjustment for Losses: Losses COTP firm transmission service at least Transmission Service incurred for service under this rate 15 days before the start of each COI Effective: January 1, 2005, through schedule will be accounted for as agreed rating season. Rate change notifications September 30, 2009. to by the parties in accordance with the will be posted on the Open Access Available: Within the marketing area service agreement. Same-Time Information System. served by the Sierra Nevada Customer Adjustment for Audit Adjustments: Component 2 Service Region. Financial audit adjustments that apply Applicable: To Customers receiving to the revenue requirement under this Any charges or credits associated with the Pacific Alternating Current Intertie rate schedule will be evaluated on a the creation, termination, or (PACI) firm and/or non-firm case-by-case basis to determine the modification to any tariff, contract, or transmission service. appropriate treatment for repayment rate schedule accepted or approved by Character and Conditions of Service: and cash flow management. the Federal Energy Regulatory Transmission service for three-phase, Commission (Commission) or other Rate Schedule COTP–T1 (Supersedes alternating current at 60 hertz, delivered regulatory body will be passed on to and metered at the voltages and points Schedules COTP–FT2 and COTP NFT– each appropriate Customer. The 2) of delivery or receipt, adjusted for Commission accepted or approved losses, and delivered to points of California-Oregon Transmission charges or credits apply to the service to delivery. This service includes Project; Schedule of Rate for which this rate methodology applies. scheduling, system control and dispatch When possible, Western will pass Transmission Service service, and reactive supply and voltage through directly to the appropriate Effective: January 1, 2005, through control from generation sources service Customer, the Commission or other September 30, 2009. needed to support the transmission regulatory body accepted or approved Available: Within the marketing area service. charges or credits in the same manner served by the Sierra Nevada Customer Formula Rate: The formula rate for Western is charged or credited. If the Service Region. PACI firm and non-firm transmission Commission or other regulatory body Applicable: To Customers receiving service includes three components: accepted or approved charges or credits California-Oregon Transmission Project cannot be passed through directly to the Component 1 (COTP) firm and/or non-firm appropriate Customer in the same transmission service. manner Western is charged or credited, Character and Conditions of Service: PACI TRR the charges or credits will be passed Transmission service for three-phase, Western’s PACI Seasonal Capacity through using Component 1 of the alternating current at 60 hertz, delivered COTP transmission service formula rate. Where: and metered at the voltages and points PACI TRR = PACI Seasonal of delivery or receipt, adjusted for Component 3 Transmission Revenue losses, and delivered to points of Any charges or credits from the Host Requirement, the Western Area delivery. This service includes Control Area (HCA) applied to Western Power Administration’s (Western) scheduling, system control and dispatch for providing this service will be passed costs associated with facilities that service, and reactive supply and voltage through directly to the appropriate support the transfer capability of control from generation sources service Customer in the same manner Western the PACI. needed to support the transmission is charged or credited, to the extent Western’s PACI Seasonal Capacity = service. possible. If the HCA charges or credits Western’s share of PACI capacity Formula Rate: The formula rate for cannot be passed through to the (subject to curtailment) under the COTP firm and non-firm transmission appropriate Customer in the same then current California-Oregon service includes three components: manner Western is charged or credited, Intertie (COI) transfer capability for Component 1 the charges or credits will be passed the season. Seasonal definitions for through using Component 1 of the summer, winter, and spring are June through October, November COTP TRR COTP transmission service formula rate. Billing: The formula rate above through March, and April through Western’s COTP Seasonal Capacity applies to the maximum amount of May, respectively. Where: capacity reserved for periods ranging Western will update the rate from COTP TRR = COTP Seasonal from 1 hour to 1 month, payable Component 1 of the formula rate for Transmission Revenue Requirement whether used or not. Billing will occur PACI firm transmission service at least (the Western Area Power monthly. 15 days before the start of each COI Administration’s (Western) costs Adjustment for Losses: Losses rating season. Rate change notifications associated with facilities that incurred for service under this rate will be posted on the Open Access support the transfer capability of schedule will be accounted for as agreed Same-Time Information System. the COTP). to by the parties in accordance with the Western’s share of COTP Seasonal service agreement. Component 2 Capacity = Western’s share of COTP Adjustment for Audit Adjustments: Any charges or credits associated with capacity (subject to curtailment) Financial audit adjustments that apply the creation, termination, or

VerDate jul<14>2003 14:34 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4703 E:\FR\FM\06DEN2.SGM 06DEN2 EN06DE04.010 EN06DE04.011 70534 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

modification to any tariff, contract, or power service Customers who require Adjustment for Audit Adjustments: rate schedule accepted or approved by transmission service by a third party to Financial audit adjustments that apply the Federal Energy Regulatory receive power sold by Western. to the revenue requirement under this Commission (Commission) or other Character and Conditions of Service: rate schedule will be evaluated on a regulatory body will be passed on to Transmission service for three-phase, case-by-case basis to determine the each appropriate Customer. The alternating current at 60 hertz, delivered appropriate treatment for repayment Commission accepted or approved and metered at the voltages and points and cash flow management. charges or credits apply to the service to of delivery or receipt, adjusted for losses, and delivered to points as agreed Rate Schedule CV–SPR3 (Supersedes which this rate methodology applies. Schedule CV–SPR2) When possible, Western will pass to by the parties. Central Valley Project; Schedule of Rate through directly to the appropriate Formula Rate Customer, the Commission or other for Spinning Reserve Service regulatory body accepted or approved Component 1 Effective: January 1, 2005, through charges or credits in the same manner When Western uses transmission September 30, 2009. Western is charged or credited. If the facilities other than its own in Available: Within the marketing area Commission or other regulatory body supplying Western power, and costs are served by the Sierra Nevada Customer accepted or approved charges or credits incurred by Western for the use of such Service Region. cannot be passed through directly to the facilities, the Customer will pay all Applicable: To Customers receiving appropriate Customer in the same costs, including transmission losses, spinning reserve service. manner Western is charged or credited, incurred in the delivery of such power. Character and Conditions of Service: the charges or credits will be passed Spinning reserve service supplies Component 2 through using Component 1 of the PACI capacity that is available immediately to transmission service formula rate. Any charges or credits associated with take load and is synchronized with the the creation, termination, or power system. Component 3 modification to any tariff, contract, or Formula Rate: The provisional Any charges or credits from the Host rate schedule accepted or approved by formula rate for spinning reserve service Control Area (HCA) applied to Western the Federal Energy Regulatory is the price consistent with the for providing this service will be passed Commission (Commission) or other California Independent System through directly to the appropriate regulatory body will be passed on to Operator’s market plus all costs Customer in the same manner Western each appropriate Customer. The incurred as a result of the sale of is charged or credited, to the extent Commission accepted or approved spinning reserves, such as: (1) The possible. If the HCA costs or credits charges or credits apply to the service to Western Area Power Administration’s cannot be passed through to the which this rate methodology applies. (Western) scheduling costs, (2) any appropriate Customer, the charges or When possible, Western will pass charges or credits associated with the credits will be passed through using through directly to the appropriate creation, termination, or modification to Component 1 of the PACI transmission Customer, the Commission or other any tariff, contract, or rate schedule service formula rate. regulatory body accepted or approved accepted or approved by the Federal Billing: The formula rate above charges or credits in the same manner Energy Regulatory Commission applies to the maximum amount of Western is charged or credited. If the (Commission) or other regulatory body capacity reserved for periods ranging Commission or other regulatory body to which this rate methodology applies, from 1 hour to 1 month, payable accepted or approved charges or credits and (3) any charges or credits from the whether used or not. Billing will occur cannot be passed through directly to the Host Control Area applied to Western monthly. appropriate Customer in the same for providing this service. For Customers that have a contractual Adjustment for Losses: Losses manner Western is charged or credited, obligation to provide spinning reserve incurred for service under this rate the charges or credits will be passed service to Western and do not fulfill that schedule will be accounted for as agreed through using Component 1 of the third- obligation, the penalty for to by the parties in accordance with the party transmission service formula rate. nonperformance will be the greater of service agreement. Component 3 actual costs or 150 percent of the market Adjustment for Audit Adjustments: Any charges or credits from the Host price. Financial audit adjustments that apply Control Area (HCA) applied to Western Billing: The formula rate above will be to the revenue requirement under this for providing this service will be passed applied to the amount of spinning rate schedule will be evaluated on a through directly to the appropriate reserve sold. Billing will occur monthly. case-by-case basis to determine the Customer in the same manner Western Adjustment for Audit Adjustments: appropriate treatment for repayment is charged or credited, to the extent Financial audit adjustments that apply and cash flow management. possible. If the HCA charges or credits to formula rate in this rate schedule will Rate Schedule CV–TPT6 (Supersedes cannot be passed through to the be evaluated on a case-by-case basis to CV–TPT5) appropriate Customer, the charges or determine the appropriate treatment for repayment and cash flow management. Central Valley Project; Schedule of Rate credits will be passed through using for Transmission of Western Power by Component 1 of the third-party Rate Schedule CV–SUR3 (Supersedes Others transmission service formula rate. Schedule CV–SUR2) Billing: Third-party transmission will Effective: January 1, 2005, through be billed monthly under the formula Central Valley Project; Schedule of Rate September 30, 2009. rate. for Non-Spinning Reserve Service Available: Within the marketing area Adjustments for Losses: All losses Effective: January 1, 2005, through served by the Sierra Nevada Customer incurred for delivery of power under September 30, 2009. Service Region. this rate schedule shall be the Available: Within the marketing area Applicable: To the Western Area responsibility of the Customer that served by the Sierra Nevada Customer Power Administration’s (Western) received the power. Service Region.

VerDate jul<14>2003 14:34 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4703 E:\FR\FM\06DEN2.SGM 06DEN2 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices 70535

Applicable: To Customers receiving Component 1 bandwidth contained in the service non-spinning reserve service. agreement. Billing will occur monthly. Character and Conditions of Service: Annual Revenue Requirement Adjustment for Audit Adjustments: Non-spinning reserve service supplies Annual Regulating Capacity kW Financial audit adjustments that apply capacity that is available within the first The annual regulating capacity is the to the revenue requirement under this 10 minutes to take load and is total regulating capacity bandwidths rate schedule will be evaluated on a synchronized with the power system. provided by the Western Area Power case-by-case basis to determine the Formula Rate: The provisional Administration (Western) under the appropriate treatment for repayment formula rate for non-spinning reserve interconnected operations agreements and cash flow management. service is the price consistent with the with sub-control area (SCA) members. Rate Schedule CV–EID3 (Supersedes California Independent System The penalty for nonperformance by an Schedule CV–EID2) Operator’s market plus all costs SCA Customer that has committed to Central Valley Project Schedule of Rate incurred as a result of the sale of self-provision for its regulating capacity for Energy Imbalance Service spinning reserves, such as: (1) The requirement will be the greater of actual Western Area Power Administration’s costs or 150 percent of the market price. Effective: January 1, 2005, through (Western) scheduling costs, (2) any Western will revise the rate resulting September 30, 2009. charges or credits associated with the from Component 1 based on either of Available: Within the marketing area creation, termination, or modification to the following two conditions: (a) served by the Sierra Nevada Customer any tariff, contract, or rate schedule updated financial data available in Service Region. accepted or approved by the Federal March of each year, and (b) a change in Applicable: To Customers receiving Energy Regulatory Commission or other the numerator or denominator that energy imbalance service. regulatory body to which this rate results in a rate change of at least $0.25 methodology applies, and (3) any per kilowattmonth. Character and Conditions of Service: charges or credits from the Host Control Energy imbalance service is provided Area applied to Western for providing Component 2 when a difference occurs between the this service. Any charges or credits associated with scheduled and the actual delivery of For Customers with a contractual the creation, termination, or energy to a load or from a generation obligation to provide non-spinning modification to any tariff, contract, or resource over an hour. The hourly reserve service to Western and who do rate schedule accepted or approved by deviation, in megawatts, is the net not fulfill that obligation, the penalty for the Federal Energy Regulatory scheduled amount of energy for the nonperformance will be the greater of Commission (Commission) or other hour minus the hourly net metered actual costs or 150 percent of the market regulatory body will be passed on to (actual delivered) amount. price. each appropriate Customer. The Energy imbalance service uses the Billing: The formula rate above will be Commission accepted or approved regulating capacity bandwidth that is applied to the amount of non-spinning charges or credits apply to the service to established in the service agreement. reserve sold. Billing will occur monthly. which this rate methodology applies. Formula Rate: The formula rate for When possible, Western will pass Adjustment for Audit Adjustments: Energy Imbalance Service has three through directly to the appropriate Financial audit adjustments that apply components: Customer, the Commission or other to formula rate under this rate schedule regulatory body accepted or approved Component 1 will be evaluated on a case-by-case basis charges or credits in the same manner to determine the appropriate treatment An hourly average negative deviation Western is charged or credited. If the for repayment and cash flow (underdelivery) outside the regulating Commission or other regulatory body management. capacity bandwidth will be charged the accepted or approved charges or credits greater of 150 percent of market price or cannot be passed through directly to the Rate Schedule CV–RFS3 (Supersedes actual cost. An hourly average positive appropriate Customer in the same Schedule CV–RFS2) deviation (overdelivery) outside the manner Western is charged or credited, Central Valley Project; Schedule of Rate bandwidth is lost to the system. for Regulation and Frequency Response the charges or credits will be passed Component 2 Service through using Component 1 of the regulation and frequency response Any charges or credits associated with Effective: January 1, 2005, through service formula rate. the creation, termination, or September 30, 2009. Component 3 modification to any tariff, contract, or Available: Within the marketing area Any charges or credits from the Host rate schedule accepted or approved by served by the Sierra Nevada Customer the Federal Energy Regulatory Service Region. Control Area (HCA) applied to Western for providing this service will be passed Commission (Commission) or other Applicable: To Customers receiving through directly to the appropriate regulatory body will be passed on to Regulation and Frequency Response Customer in the same manner Western each appropriate Customer. The Service (Regulation). is charged or credited, to the extent Commission accepted or approved Character and Conditions of Service: possible. If the HCA charges or credits charges or credits apply to the service to Regulation is necessary to provide for cannot be passed through to the which this rate methodology applies. the continuous balancing of resources appropriate Customer in the same To the extent possible, the Western and interchange with load and for manner Western is charged or credited, Area Power Administration (Western) maintaining scheduled interconnection the charges or credits will be passed will pass through directly to the frequency at 60 cycles per second. through using Component 1 of the appropriate Customer, the Commission Formula Rate: The provisional Regulation formula rate. or other regulatory body accepted or formula rate for Regulation includes Billing: The formula rate above will be approved charges or credits in the same three components: applied to the regulating capacity manner Western is charged or credited.

VerDate jul<14>2003 14:34 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4703 E:\FR\FM\06DEN2.SGM 06DEN2 EN06DE04.012 70536 Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Notices

Component 3 is charged or credited, to the extent to the formula rate under this rate possible. schedule will be evaluated on a case-by- Any charges or credits from the Host Billing: Billing for average hourly case basis to determine the appropriate Control Area applied to Western for negative deviations outside the treatment for repayment and cash flow providing this service will be passed bandwidth will occur monthly. management. through directly to the appropriate [FR Doc. 04–26628 Filed 12–3–04; 8:45 am] Customer in the same manner Western Adjustment for Audit Adjustments: Financial audit adjustments that apply BILLING CODE 6450–01–P

VerDate jul<14>2003 14:34 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4703 E:\FR\FM\06DEN2.SGM 06DEN2 i

Reader Aids Federal Register Vol. 69, No. 233 Monday, December 6, 2004

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING DECEMBER

Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. 70202, 70204 Presidential Documents 3 CFR 71...... 70208 Executive orders and proclamations 741–6000 Proclamations: The United States Government Manual 741–6000 7850...... 70351 15 CFR 7851...... 70353 Other Services 750...... 69814 Executive Orders: Electronic and on-line services (voice) 741–6020 13286 (See EO 18 CFR Privacy Act Compilation 741–6064 13362) ...... 70173 Proposed Rules: Public Laws Update Service (numbers, dates, etc.) 741–6043 13289 (See EO Ch. 1 ...... 70077 TTY for the deaf-and-hard-of-hearing 741–6086 13363) ...... 70175 13303 (Amended by 21 CFR ELECTRONIC RESEARCH EO 13364)...... 70177 510...... 70053 World Wide Web 13315 (See EO 520...... 70053 13364) ...... 70177 522...... 70054, 70055 Full text of the daily Federal Register, CFR and other publications 13350 (See EO 558...... 70056 is located at: http://www.gpoaccess.gov/nara/index.html 13364) ...... 70177 Proposed Rules: Federal Register information and research tools, including Public 13362...... 70173 165...... 70082 Inspection List, indexes, and links to GPO Access are located at: 13363...... 70175 http://www.archives.gov/federallregister/ 13364...... 70177 23 CFR E-mail Administrative Orders: 655...... 69815 Memorandums: FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is Memorandum of 24 CFR an open e-mail service that provides subscribers with a digital October 21, 2004 ...... 70349 form of the Federal Register Table of Contents. The digital form Proposed Rules: 206...... 70244 of the Federal Register Table of Contents includes HTML and 5 CFR PDF links to the full text of each document. 3280...... 70016 317...... 70355 To join or leave, go to http://listserv.access.gpo.gov and select 352...... 70355 25 CFR Online mailing list archives, FEDREGTOC-L, Join or leave the list 359...... 70355 Proposed Rules: (or change settings); then follow the instructions. 451...... 70355 542...... 69847 PENS (Public Law Electronic Notification Service) is an e-mail 530...... 70355 service that notifies subscribers of recently enacted laws. 531...... 70355 26 CFR 534...... 70355 31...... 69819 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 575...... 70355 and select Join or leave the list (or change settings); then follow Proposed Rules: 841...... 69805 26...... 70404 the instructions. 842...... 69805 FEDREGTOC-L and PENS are mailing lists only. We cannot 843...... 69805 29 CFR respond to specific inquiries. 6 CFR 1926...... 70373 Reference questions. Send questions and comments about the 4011...... 69820 Federal Register system to: [email protected] Proposed Rules: 4022...... 69820 5...... 70402 The Federal Register staff cannot interpret specific documents or 4044...... 69821 regulations. 7 CFR 33 CFR 1464...... 70367 117 ...... 70057, 70059, 70373 FEDERAL REGISTER PAGES AND DATE, DECEMBER Proposed Rules: 165...... 70374 69805–70050...... 1 929...... 69996 Proposed Rules: 117...... 70091, 70209 70051–70178...... 2 9 CFR 70179–70350...... 3 165...... 70211 166...... 70179 70351–70536...... 6 430...... 70051 36 CFR 13...... 70061 13 CFR 242...... 70074 121...... 70180 Proposed Rules: 37 CFR 121...... 70197 201...... 70377 253...... 69822 14 CFR 39 ...... 69807, 69810, 70368 40 CFR 71 ...... 70053, 70185, 70371, 52...... 69823 70372 Proposed Rules: Proposed Rules: 52...... 69863 39 ...... 69829, 69832, 69834, 60...... 69864 69836, 69838, 69842, 69844, 63...... 69864

VerDate jul 14 2003 17:05 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00001 Fmt 4712 Sfmt 4712 E:\FR\FM\06DECU.LOC 06DECU ii Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Reader Aids

721...... 70404 65...... 70185 101...... 70378 635...... 70396 67...... 70191, 70192 63...... 70316 679...... 69828 41 CFR 47 CFR 50 CFR Proposed Rules: Proposed Rules: 17...... 69878, 70412 51-2...... 70214 0...... 70316 14...... 70379 51-3...... 70214 1...... 70378 17...... 70382 229...... 70094 51-4...... 70214 4...... 70316 100...... 70074 648...... 70414 27...... 70378 222...... 69826 44 CFR 74...... 70378 223...... 69826 64...... 70377 90...... 70378 622...... 70196

VerDate jul 14 2003 17:05 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00002 Fmt 4712 Sfmt 4712 E:\FR\FM\06DECU.LOC 06DECU Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Reader Aids iii

REMINDERS de Havilland; published 10- crab; comments due by comments until further The items in this list were 21-04 12-13-04; published 10- notice; published 10-1-03 editorially compiled as an aid TREASURY DEPARTMENT 29-04 [FR 04-24103] [FR 03-24818] to Federal Register users. Comptroller of the Currency Caribbean, Gulf, and South ENVIRONMENTAL Inclusion or exclusion from Atlantic fisheries— PROTECTION AGENCY Corporate activities: this list has no legal Gulf of Mexico reef fish; Air quality implementation significance. National banks— comments due by 12- plans; approval and Operating sudsidiaries; 16-04; published 11-16- promulgation; various annual report; published 04 [FR 04-25429] States: RULES GOING INTO 11-5-04 Magnuson-Stevens Act California; comments due by EFFECT DECEMBER 6, provisions— 12-16-04; published 11- 2004 COMMENTS DUE NEXT Pacific Coast groundfish; 16-04 [FR 04-25301] WEEK fishing capacity Illinois; comments due by AGRICULTURE reduction program.; 12-13-04; published 11- DEPARTMENT comments due by 12- 12-04 [FR 04-24916] Animal and Plant Health AGRICULTURE 16-04; published 11-16- DEPARTMENT Iowa; comments due by 12- Inspection Service 04 [FR 04-25428] 13-04; published 11-12-04 Interstate transportation of Agricultural Marketing Marine mammals: [FR 04-24918] Service animals and animal products Taking and importation— Environmental statements; (quarantine): Beef promotion and research; Kodiak Island, AK; rocket availability, etc.: comments due by 12-13-04; Brucellosis in cattle, bison, launches at Kodiak Coastal nonpoint pollution published 11-12-04 [FR 04- and swine— Launch Complex; control program— 25198] Fluorescence polarization pinnipeds; comments Minnesota and Texas; assay; official test Cotton classing, testing and due by 12-13-04; Open for comments addition; published 11- standards: published 10-29-04 [FR until further notice; 4-04 Classification services to 04-24234] published 10-16-03 [FR ENVIRONMENTAL growers; 2004 user fees; COURT SERVICES AND 03-26087] PROTECTION AGENCY Open for comments until OFFENDER SUPERVISION Pesticides; tolerances in food, Air quality implementation further notice; published AGENCY FOR THE animal feeds, and raw plans; approval and 5-28-04 [FR 04-12138] DISTRICT OF COLUMBIA agricultural commodities: promulgation; various AGRICULTURE Semi-annual agenda; Open for Mepanipyrim; comments due States: DEPARTMENT comments until further by 12-13-04; published Virginia; published 10-6-04 Rural Business-Cooperative notice; published 12-22-03 10-13-04 [FR 04-22963] Wisconsin; published 10-5- Service [FR 03-25121] Toxic substances: 04 Special programs: ENERGY DEPARTMENT Enzymes and proteins; Hazardous waste program Farm Security and Rural Meetings: nomenclature inventory; authorizations: Investment Act of 2002; Environmental Management comments due by 12-15- Delaware; published 10-7-04 implementation— Site-Specific Advisory 04; published 11-15-04 Board— [FR 04-25307] FEDERAL Renewable Energy COMMUNICATIONS Systems and Energy Oak Ridge Reservation, Water pollution control: COMMISSION Efficiency TN; Open for comments National Pollutant Discharge Digital television stations; table Improvements, Grant, until further notice; Elimination System— of assignments: Guaranteed Loan, and published 11-19-04 [FR Various States; permits Wisconsin; published 10-28- Direct Loan Program; 04-25693] for discharges from 04 comments due by 12- ENERGY DEPARTMENT concentrated animal HOMELAND SECURITY 15-04; published 11-15- Energy Efficiency and feeding operations; DEPARTMENT 04 [FR 04-25239] Renewable Energy Office Open for comments Coast Guard COMMERCE DEPARTMENT Commercial and industrial until further notice; published 12-7-04 [FR Drawbridge operations: Industry and Security equipment; energy efficiency program: 04-26817] New York; published 11-23- Bureau Test procedures and Water pollution; effluent 04 Export administration efficiency standards— guidelines for point source INTERIOR DEPARTMENT regulations: Commercial packaged categories: Knowledge and red flags; Fish and Wildlife Service boilers; Open for Meat and poultry products definition and guidance Endangered and threatened comments until further processing facilities; Open revisions; safe harbor; species: notice; published 10-21- for comments until further comments due by 12-15- Florida manatee; protection 04 [FR 04-17730] notice; published 9-8-04 areas— 04; published 11-15-04 [FR 04-12017] [FR 04-25309] ENERGY DEPARTMENT Additions; published 12-6- Federal Energy Regulatory FARM CREDIT COMMERCE DEPARTMENT 04 Commission ADMINISTRATION National Oceanic and PERSONNEL MANAGEMENT Alaska Natural Gas Pipeline Farm credit system: Atmospheric Administration OFFICE Act: Borrower rights; comments Senior Executive Service: Civil procedures; comments Conduct of open seasons due by 12-16-04; Pay and performance due by 12-13-04; published for natural gas published 11-16-04 [FR awards; aggregate 10-12-04 [FR 04-22598] transportation projects; 04-25397] limitation on pay; Fishery conservation and comments due by 12-17- FEDERAL published 12-6-04 management: 04; published 11-23-04 COMMUNICATIONS TRANSPORTATION Alaska; fisheries of [FR 04-25933] COMMISSION DEPARTMENT Exclusive Economic Electric rate and corporate Radio stations; table of Federal Aviation Zone— regulation filings: assignments: Administration Bering Sea and Aleutian Virginia Electric & Power Alabama and Mississippi; Airworthiness directives: Islands king and tanner Co. et al.; Open for comments due by 12-13-

VerDate jul 14 2003 17:05 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00003 Fmt 4712 Sfmt 4711 E:\FR\FM\06DECU.LOC 06DECU iv Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Reader Aids

04; published 11-17-04 Recovery plans— Country Practices Review, Compressed oxygen, [FR 04-25511] Paiute cutthroat trout; and previously deferred other oxidizing gases, Minnesota and Oklahoma; Open for comments product decisions; and chemical oxygen comments due by 12-16- until further notice; petitions disposition; Open generators on aircraft; 04; published 11-10-04 published 9-10-04 [FR for comments until further comments due by 12- [FR 04-25058] 04-20517] notice; published 7-6-04 13-04; published 8-4-04 Oklahoma and Texas; Endangered and threatened [FR 04-15361] [FR 04-17747] comments due by 12-16- species: TRANSPORTATION TREASURY DEPARTMENT 04; published 11-10-04 Critical habitat DEPARTMENT Internal Revenue Service [FR 04-25061] designations— Economic regulations: Income taxes: Wyoming; comments due by Buena Vista Lake shrew; Commuter air carrier Purchase price allocation in 12-16-04; published 11- comments due by 12- registrations; elimination; deemed and actual asset 10-04 [FR 04-25057] 15-04; published 11-30- comments due by 12-13- acquisitions; nuclear HEALTH AND HUMAN 04 [FR 04-26472] 04; published 10-28-04 decommissioning funds SERVICES DEPARTMENT Southwestern willow [FR 04-23859] treatment; cross-reference; Food and Drug flycatcher; comments TRANSPORTATION comments due by 12-15- Administration due by 12-13-04; DEPARTMENT 04; published 9-16-04 [FR 04-20915] Food additives: published 10-12-04 [FR Federal Aviation 04-22394] Mannitol; comments due by Administration 12-15-04; published 11- Ute ladies’-tresses orchid; Airmen certification: LIST OF PUBLIC LAWS 15-04 [FR 04-25243] five-year review; comments due by 12-13- Second-in-command pilot Reports and guidance type rating; comments This is a continuing list of 04; published 10-12-04 public bills from the current documents; availability, etc.: [FR 04-22735] due by 12-16-04; Evaluating safety of published 11-16-04 [FR session of Congress which INTERIOR DEPARTMENT antimicrobial new animal 04-25415] have become Federal laws. It may be used in conjunction drugs with regard to their Surface Mining Reclamation Airworthiness directives: microbiological effects on and Enforcement Office with ‘‘PLUS’’ (Public Laws Airbus; comments due by Update Service) on 202–741– bacteria of human health Abandoned mine land 12-17-04; published 11- concern; Open for reclamation: 6043. This list is also 22-04 [FR 04-25793] available online at http:// comments until further Coal production fees and Boeing; comments due by notice; published 10-27-03 fee allocation www.archives.gov/ 12-13-04; published 10- federal register/public laws/ [FR 03-27113] Republication; comments — — 29-04 [FR 04-24220] public laws.html. due by 12-16-04; — Medical devices— Dornier; comments due by published 11-29-04 [FR The text of laws is not Dental noble metal alloys 12-13-04; published 11- 04-26195] published in the Federal and base metal alloys; 12-04 [FR 04-25192] Class II special NUCLEAR REGULATORY Register but may be ordered EXTRA Flugzeugbau GmbH; in ‘‘slip law’’ (individual controls; Open for COMMISSION comments due by 12-15- comments until further Environmental statements; pamphlet) form from the 04; published 11-12-04 Superintendent of Documents, notice; published 8-23- availability, etc.: [FR 04-25193] 04 [FR 04-19179] U.S. Government Printing Fort Wayne State Gippsland Aeronautics Pty. Office, Washington, DC 20402 HOMELAND SECURITY Developmental Center; Ltd.; comments due by (phone, 202–512–1808). The DEPARTMENT Open for comments until 12-15-04; published 11-8- text will also be made Coast Guard further notice; published 04 [FR 04-24819] available on the Internet from 5-10-04 [FR 04-10516] Anchorage regulations: Glaser-Dirks Flugzeugbau GPO Access at http:// Maryland; comments due by PERSONNEL MANAGEMENT GmbH; comments due by www.gpoaccess.gov/plaws/ 12-13-04; published 10- OFFICE 12-13-04; published 11-8- index.html. Some laws may 12-04 [FR 04-22745] Post-employment restrictions; 04 [FR 04-24818] not yet be available. Drawbridge operations: notification; comments due Gulfstream; comments due H.R. 1113/P.L. 108–417 Delaware; comments due by by 12-14-04; published 10- by 12-17-04; published 15-04 [FR 04-23194] 10-18-04 [FR 04-23027] To authorize an exchange of 12-13-04; published 10- land at Fort Frederica National POSTAL RATE COMMISSION 12-04 [FR 04-22850] Hartzell Propeller Inc.; Monument, and for other HOUSING AND URBAN Practice and procedure: comments due by 12-13- purposes. (Nov. 30, 2004; 118 DEVELOPMENT Postal service; definition; 04; published 10-14-04 Stat. 2339) comments due by 12-15- [FR 04-22728] DEPARTMENT H.R. 1284/P.L. 108–418 04; published 11-18-04 McDonnell Douglas; Mortgage and loan insurance To amend the Reclamation [FR 04-25567] comments due by 12-13- programs: Projects Authorization and 04; published 10-27-04 Federal National Mortgage SMALL BUSINESS Adjustment Act of 1992 to [FR 04-24032] Association (Fannie Mae) ADMINISTRATION increase the Federal share of and Federal Home Loan Disaster loan areas: Class D airspace; comments the costs of the San Gabriel Mortgage Corporation Maine; Open for comments due by 12-15-04; published Basin demonstration project. (Freddie Mac)— until further notice; 11-8-04 [FR 04-24848] (Nov. 30, 2004; 118 Stat. Government-sponsored published 2-17-04 [FR 04- VOR Federal airways; 2340) enterprises housing 03374] comments due by 12-13-04; H.R. 1417/P.L. 108–419 published 10-28-04 [FR 04- goals (2005-2008 CYs); OFFICE OF UNITED STATES Copyright Royalty and 24146] comments due by 12- TRADE REPRESENTATIVE Distribution Reform Act of 17-04; published 11-2- Trade Representative, Office TRANSPORTATION 2004 (Nov. 30, 2004; 118 04 [FR 04-24100] of United States DEPARTMENT Stat. 2341) INTERIOR DEPARTMENT Generalized System of Research and Special H.R. 1446/P.L. 108–420 Fish and Wildlife Service Preferences: Programs Administration California Missions Endangered and threatened 2003 Annual Product Hazardous materials: Preservation Act (Nov. 30, species permit applications Review, 2002 Annual Transportation— 2004; 118 Stat. 2372)

VerDate jul 14 2003 17:05 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00004 Fmt 4712 Sfmt 4711 E:\FR\FM\06DECU.LOC 06DECU Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Reader Aids v

H.R. 1964/P.L. 108–421 H.R. 4794/P.L. 108–425 H.R. 5245/P.L. 108–428 listserv.gsa.gov/archives/ Highlands Conservation Act To amend the Tijuana River To extend the liability publaws-l.html (Nov. 30, 2004; 118 Stat. Valley Estuary and Beach indemnification regime for the 2375) Sewage Cleanup Act of 2000 commercial space Note: This service is strictly H.R. 3936/P.L. 108–422 to extend the authorization of transportation industry. (Nov. for E-mail notification of new Veterans Health Programs appropriations, and for other 30, 2004; 118 Stat. 2432) laws. The text of laws is not Improvement Act of 2004 purposes. (Nov. 30, 2004; 118 Last List November 26, 2004 available through this service. (Nov. 30, 2004; 118 Stat. Stat. 2420) 2379) PENS cannot respond to H.R. 4516/P.L. 108–423 H.R. 5163/P.L. 108–426 specific inquiries sent to this Department of Energy High- Norman Y. Mineta Research Public Laws Electronic address. End Computing Revitalization and Special Programs Notification Service Act of 2004 (Nov. 30, 2004; Improvement Act (Nov. 30, (PENS) 118 Stat. 2400) 2004; 118 Stat. 2423) H.R. 4593/P.L. 108–424 H.R. 5213/P.L. 108–427 Lincoln County Conservation, PENS is a free electronic mail Recreation, and Development Research Review Act of 2004 notification service of newly Act of 2004 (Nov. 30, 2004; (Nov. 30, 2004; 118 Stat. enacted public laws. To 118 Stat. 2403) 2430) subscribe, go to http://

VerDate jul 14 2003 17:05 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00005 Fmt 4712 Sfmt 4711 E:\FR\FM\06DECU.LOC 06DECU vi Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Reader Aids

CFR CHECKLIST Title Stock Number Price Revision Date 13 ...... (869–052–00038–8) ...... 55.00 Jan. 1, 2004 This checklist, prepared by the Office of the Federal Register, is 14 Parts: published weekly. It is arranged in the order of CFR titles, stock 1–59 ...... (869–052–00039–6) ...... 63.00 Jan. 1, 2004 numbers, prices, and revision dates. 60–139 ...... (869–052–00040–0) ...... 61.00 Jan. 1, 2004 An asterisk (*) precedes each entry that has been issued since last 140–199 ...... (869–052–00041–8) ...... 30.00 Jan. 1, 2004 week and which is now available for sale at the Government Printing 200–1199 ...... (869–052–00042–6) ...... 50.00 Jan. 1, 2004 Office. 1200–End ...... (869–052–00043–4) ...... 45.00 Jan. 1, 2004 A checklist of current CFR volumes comprising a complete CFR set, 15 Parts: also appears in the latest issue of the LSA (List of CFR Sections 0–299 ...... (869–052–00044–2) ...... 40.00 Jan. 1, 2004 Affected), which is revised monthly. 300–799 ...... (869–052–00045–1) ...... 60.00 Jan. 1, 2004 800–End ...... (869–052–00046–9) ...... 42.00 Jan. 1, 2004 The CFR is available free on-line through the Government Printing Office’s GPO Access Service at http://www.access.gpo.gov/nara/cfr/ 16 Parts: index.html. For information about GPO Access call the GPO User 0–999 ...... (869–052–00047–7) ...... 50.00 Jan. 1, 2004 Support Team at 1-888-293-6498 (toll free) or 202-512-1530. 1000–End ...... (869–052–00048–5) ...... 60.00 Jan. 1, 2004 The annual rate for subscription to all revised paper volumes is 17 Parts: $1195.00 domestic, $298.75 additional for foreign mailing. 1–199 ...... (869–052–00050–7) ...... 50.00 Apr. 1, 2004 Mail orders to the Superintendent of Documents, Attn: New Orders, 200–239 ...... (869–052–00051–5) ...... 58.00 Apr. 1, 2004 P.O. Box 371954, Pittsburgh, PA 15250–7954. All orders must be 240–End ...... (869–052–00052–3) ...... 62.00 Apr. 1, 2004 accompanied by remittance (check, money order, GPO Deposit 18 Parts: Account, VISA, Master Card, or Discover). Charge orders may be 1–399 ...... (869–052–00053–1) ...... 62.00 Apr. 1, 2004 telephoned to the GPO Order Desk, Monday through Friday, at (202) 400–End ...... (869–052–00054–0) ...... 26.00 Apr. 1, 2004 512–1800 from 8:00 a.m. to 4:00 p.m. eastern time, or FAX your charge orders to (202) 512-2250. 19 Parts: 1–140 ...... (869–052–00055–8) ...... 61.00 Apr. 1, 2004 Title Stock Number Price Revision Date 141–199 ...... (869–052–00056–6) ...... 58.00 Apr. 1, 2004 1, 2 (2 Reserved) ...... (869–052–00001–9) ...... 9.00 4Jan. 1, 2004 200–End ...... (869–052–00057–4) ...... 31.00 Apr. 1, 2004 3 (2003 Compilation 20 Parts: and Parts 100 and 1–399 ...... (869–052–00058–2) ...... 50.00 Apr. 1, 2004 101) ...... (869–052–00002–7) ...... 35.00 1 Jan. 1, 2004 400–499 ...... (869–052–00059–1) ...... 64.00 Apr. 1, 2004 4 ...... (869–052–00003–5) ...... 10.00 Jan. 1, 2004 500–End ...... (869–052–00060–9) ...... 63.00 Apr. 1, 2004 5 Parts: 21 Parts: 1–699 ...... (869–052–00004–3) ...... 60.00 Jan. 1, 2004 1–99 ...... (869–052–00061–2) ...... 42.00 Apr. 1, 2004 700–1199 ...... (869–052–00005–1) ...... 50.00 Jan. 1, 2004 100–169 ...... (869–052–00062–1) ...... 49.00 Apr. 1, 2004 1200–End ...... (869–052–00006–0) ...... 61.00 Jan. 1, 2004 170–199 ...... (869–052–00063–9) ...... 50.00 Apr. 1, 2004 200–299 ...... (869–052–00064–7) ...... 17.00 Apr. 1, 2004 6 ...... (869–052–00007–8) ...... 10.50 Jan. 1, 2004 300–499 ...... (869–052–00065–5) ...... 31.00 Apr. 1, 2004 7 Parts: 500–599 ...... (869–052–00066–3) ...... 47.00 Apr. 1, 2004 1–26 ...... (869–052–00008–6) ...... 44.00 Jan. 1, 2004 600–799 ...... (869–052–00067–1) ...... 15.00 Apr. 1, 2004 27–52 ...... (869–052–00009–4) ...... 49.00 Jan. 1, 2004 800–1299 ...... (869–052–00068–0) ...... 58.00 Apr. 1, 2004 53–209 ...... (869–052–00010–8) ...... 37.00 Jan. 1, 2004 1300–End ...... (869–052–00069–8) ...... 24.00 Apr. 1, 2004 210–299 ...... (869–052–00011–6) ...... 62.00 Jan. 1, 2004 22 Parts: 300–399 ...... (869–052–00012–4) ...... 46.00 Jan. 1, 2004 1–299 ...... (869–052–00070–1) ...... 63.00 Apr. 1, 2004 400–699 ...... (869–052–00013–2) ...... 42.00 Jan. 1, 2004 300–End ...... (869–052–00071–0) ...... 45.00 Apr. 1, 2004 700–899 ...... (869–052–00014–1) ...... 43.00 Jan. 1, 2004 900–999 ...... (869–052–00015–9) ...... 60.00 Jan. 1, 2004 23 ...... (869–052–00072–8) ...... 45.00 Apr. 1, 2004 1000–1199 ...... (869–052–00016–7) ...... 22.00 Jan. 1, 2004 24 Parts: 1200–1599 ...... (869–052–00017–5) ...... 61.00 Jan. 1, 2004 0–199 ...... (869–052–00073–6) ...... 60.00 Apr. 1, 2004 1600–1899 ...... (869–052–00018–3) ...... 64.00 Jan. 1, 2004 200–499 ...... (869–052–00074–4) ...... 50.00 Apr. 1, 2004 1900–1939 ...... (869–052–00019–1) ...... 31.00 Jan. 1, 2004 500–699 ...... (869–052–00075–2) ...... 30.00 Apr. 1, 2004 1940–1949 ...... (869–052–00020–5) ...... 50.00 Jan. 1, 2004 700–1699 ...... (869–052–00076–1) ...... 61.00 Apr. 1, 2004 1950–1999 ...... (869–052–00021–3) ...... 46.00 Jan. 1, 2004 1700–End ...... (869–052–00077–9) ...... 30.00 Apr. 1, 2004 2000–End ...... (869–052–00022–1) ...... 50.00 Jan. 1, 2004 25 ...... (869–052–00078–7) ...... 63.00 Apr. 1, 2004 8 ...... (869–052–00023–0) ...... 63.00 Jan. 1, 2004 26 Parts: 9 Parts: §§ 1.0–1–1.60 ...... (869–052–00079–5) ...... 49.00 Apr. 1, 2004 1–199 ...... (869–052–00024–8) ...... 61.00 Jan. 1, 2004 §§ 1.61–1.169 ...... (869–052–00080–9) ...... 63.00 Apr. 1, 2004 200–End ...... (869–052–00025–6) ...... 58.00 Jan. 1, 2004 §§ 1.170–1.300 ...... (869–052–00081–7) ...... 60.00 Apr. 1, 2004 10 Parts: §§ 1.301–1.400 ...... (869–052–00082–5) ...... 46.00 Apr. 1, 2004 1–50 ...... (869–052–00026–4) ...... 61.00 Jan. 1, 2004 §§ 1.401–1.440 ...... (869–052–00083–3) ...... 62.00 Apr. 1, 2004 51–199 ...... (869–052–00027–2) ...... 58.00 Jan. 1, 2004 §§ 1.441–1.500 ...... (869–052–00084–1) ...... 57.00 Apr. 1, 2004 200–499 ...... (869–052–00028–1) ...... 46.00 Jan. 1, 2004 §§ 1.501–1.640 ...... (869–052–00085–0) ...... 49.00 Apr. 1, 2004 500–End ...... (869–052–00029–9) ...... 62.00 Jan. 1, 2004 §§ 1.641–1.850 ...... (869–052–00086–8) ...... 60.00 Apr. 1, 2004 §§ 1.851–1.907 ...... (869–052–00087–6) ...... 61.00 Apr. 1, 2004 11 ...... (869–052–00030–2) 41.00 Feb. 3, 2004 §§ 1.908–1.1000 ...... (869–052–00088–4) ...... 60.00 Apr. 1, 2004 12 Parts: §§ 1.1001–1.1400 ...... (869–052–00089–2) ...... 61.00 Apr. 1, 2004 1–199 ...... (869–052–00031–1) ...... 34.00 Jan. 1, 2004 §§ 1.1401–1.1503–2A .... (869–052–00090–6) ...... 55.00 Apr. 1, 2004 200–219 ...... (869–052–00032–9) ...... 37.00 Jan. 1, 2004 §§ 1.1551–End ...... (869–052–00091–4) ...... 55.00 Apr. 1, 2004 220–299 ...... (869–052–00033–7) ...... 61.00 Jan. 1, 2004 2–29 ...... (869–052–00092–2) ...... 60.00 Apr. 1, 2004 300–499 ...... (869–052–00034–5) ...... 47.00 Jan. 1, 2004 30–39 ...... (869–052–00093–1) ...... 41.00 Apr. 1, 2004 500–599 ...... (869–052–00035–3) ...... 39.00 Jan. 1, 2004 40–49 ...... (869–052–00094–9) ...... 28.00 Apr. 1, 2004 600–899 ...... (869–052–00036–1) ...... 56.00 Jan. 1, 2004 50–299 ...... (869–052–00095–7) ...... 41.00 Apr. 1, 2004 900–End ...... (869–052–00037–0) ...... 50.00 Jan. 1, 2004 300–499 ...... (869–052–00096–5) ...... 61.00 Apr. 1, 2004

VerDate jul 14 2003 17:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00001 Fmt 4721 Sfmt 4721 E:\FR\FM\06DECL.LOC 06DECL Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Reader Aids vii

Title Stock Number Price Revision Date Title Stock Number Price Revision Date 500–599 ...... (869–052–00097–3) ...... 12.00 5Apr. 1, 2004 72–80 ...... (869–052–00151–1) ...... 62.00 July 1, 2004 600–End ...... (869–052–00098–1) ...... 17.00 Apr. 1, 2004 81–85 ...... (869–052–00152–0) ...... 60.00 July 1, 2004 27 Parts: 86 (86.1–86.599–99) ...... (869–052–00153–8) ...... 58.00 July 1, 2004 86 (86.600–1–End) ...... 1–199 ...... (869–052–00099–0) ...... 64.00 Apr. 1, 2004 (869–052–00154–6) 50.00 July 1, 2004 ...... (869–052–00155–4) ...... 60.00 July 1, 2004 200–End ...... (869–052–00100–7) ...... 21.00 Apr. 1, 2004 87–99 100–135 ...... (869–052–00156–2) ...... 45.00 July 1, 2004 28 Parts: ...... 136–149 ...... (869–052–00157–1) ...... 61.00 July 1, 2004 0–42 ...... (869–052–00101–5) ...... 61.00 July 1, 2004 150–189 ...... (869–052–00158–9) ...... 50.00 July 1, 2004 43–End ...... (869–052–00102–3) ...... 60.00 July 1, 2004 190–259 ...... (869–052–00159–7) ...... 39.00 July 1, 2004 29 Parts: 260–265 ...... (869–052–00160–1) ...... 50.00 July 1, 2004 0–99 ...... (869–052–00103–1) ...... 50.00 July 1, 2004 266–299 ...... (869–052–00161–9) ...... 50.00 July 1, 2004 100–499 ...... (869–052–00104–0) ...... 23.00 July 1, 2004 300–399 ...... (869–052–00162–7) ...... 42.00 July 1, 2004 8 500–899 ...... (869–052–00105–8) ...... 61.00 July 1, 2004 400–424 ...... (869–052–00163–5) ...... 56.00 July 1, 2004 900–1899 ...... (869–052–00106–6) ...... 36.00 July 1, 2004 425–699 ...... (869–052–00164–3) ...... 61.00 July 1, 2004 1900–1910 (§§ 1900 to 700–789 ...... (869–052–00165–1) ...... 61.00 July 1, 2004 1910.999) ...... (869–052–00107–4) ...... 61.00 July 1, 2004 790–End ...... (869–052–00166–0) ...... 61.00 July 1, 2004 1910 (§§ 1910.1000 to 41 Chapters: end) ...... (869–052–00108–2) ...... 46.00 8July 1, 2004 1, 1–1 to 1–10 ...... 13.00 3 July 1, 1984 1911–1925 ...... (869–052–00109–1) ...... 30.00 July 1, 2004 1, 1–11 to Appendix, 2 (2 Reserved) ...... 13.00 3 July 1, 1984 1926 ...... (869–052–00110–4) ...... 50.00 July 1, 2004 3–6 ...... 14.00 3 July 1, 1984 1927–End ...... (869–052–00111–2) ...... 62.00 July 1, 2004 7 ...... 6.00 3 July 1, 1984 8 ...... 4.50 3 July 1, 1984 30 Parts: 9 ...... 13.00 3 July 1, 1984 1–199 ...... (869–052–00112–1) ...... 57.00 July 1, 2004 10–17 ...... 9.50 3 July 1, 1984 200–699 ...... (869–052–00113–9) ...... 50.00 July 1, 2004 18, Vol. I, Parts 1–5 ...... 13.00 3 July 1, 1984 700–End ...... (869–052–00114–7) ...... 58.00 July 1, 2004 18, Vol. II, Parts 6–19 ...... 13.00 3 July 1, 1984 31 Parts: 18, Vol. III, Parts 20–52 ...... 13.00 3 July 1, 1984 0–199 ...... (869–052–00115–5) ...... 41.00 July 1, 2004 19–100 ...... 13.00 3 July 1, 1984 200–End ...... (869–052–00116–3) ...... 65.00 July 1, 2004 1–100 ...... (869–052–00167–8) ...... 24.00 July 1, 2004 32 Parts: 101 ...... (869–052–00168–6) ...... 21.00 July 1, 2004 1–39, Vol. I ...... 15.00 2 July 1, 1984 102–200 ...... (869–052–00169–4) ...... 56.00 July 1, 2004 1–39, Vol. II ...... 19.00 2 July 1, 1984 201–End ...... (869–052–00170–8) ...... 24.00 July 1, 2004 1–39, Vol. III ...... 18.00 2 July 1, 1984 42 Parts: 1–190 ...... (869–052–00117–1) ...... 61.00 July 1, 2004 1–399 ...... (869–050–00169–1) ...... 60.00 Oct. 1, 2003 191–399 ...... (869–052–00118–0) ...... 63.00 July 1, 2004 400–429 ...... (869–052–00172–4) ...... 63.00 Oct. 1, 2004 400–629 ...... (869–052–00119–8) ...... 50.00 8July 1, 2004 430–End ...... (869–050–00171–3) ...... 64.00 Oct. 1, 2003 630–699 ...... (869–052–00120–1) ...... 37.00 7July 1, 2004 700–799 ...... (869–052–00121–0) ...... 46.00 July 1, 2004 43 Parts: 800–End ...... (869–052–00122–8) ...... 47.00 July 1, 2004 1–999 ...... (869–050–00172–1) ...... 55.00 Oct. 1, 2003 1000–end ...... (869–050–00173–0) ...... 62.00 Oct. 1, 2003 33 Parts: 1–124 ...... (869–052–00123–6) ...... 57.00 July 1, 2004 44 ...... (869–050–00174–8) ...... 50.00 Oct. 1, 2003 125–199 ...... (869–052–00124–4) ...... 61.00 July 1, 2004 45 Parts: 200–End ...... (869–052–00125–2) ...... 57.00 July 1, 2004 1–199 ...... (869–052–00177–5) ...... 60.00 Oct. 1, 2004 34 Parts: 200–499 ...... (869–052–00178–3) ...... 34.00 Oct. 1, 2004 1–299 ...... (869–052–00126–1) ...... 50.00 July 1, 2004 500–1199 ...... (869–050–00177–2) ...... 50.00 Oct. 1, 2003 300–399 ...... (869–052–00127–9) ...... 40.00 July 1, 2004 1200–End ...... (869–050–00178–1) ...... 60.00 Oct. 1, 2003 400–End ...... (869–052–00128–7) ...... 61.00 July 1, 2004 46 Parts: 35 ...... (869–052–00129–5) ...... 10.00 6July 1, 2004 1–40 ...... (869–050–00179–9) ...... 46.00 Oct. 1, 2003 41–69 ...... (869–050–00180–2) ...... 39.00 Oct. 1, 2003 36 Parts 70–89 ...... (869–050–00181–1) ...... 14.00 Oct. 1, 2003 1–199 ...... (869–052–00130–9) ...... 37.00 July 1, 2004 90–139 ...... (869–050–00182–9) ...... 44.00 Oct. 1, 2003 200–299 ...... (869–052–00131–7) ...... 37.00 July 1, 2004 140–155 ...... (869–052–00185–6) ...... 25.00 Oct. 1, 2004 300–End ...... (869–052–00132–5) ...... 61.00 July 1, 2004 156–165 ...... (869–050–00184–5) ...... 34.00 Oct. 1, 2003 37 ...... (869–052–00133–3) ...... 58.00 July 1, 2004 166–199 ...... (869–050–00185–3) ...... 46.00 Oct. 1, 2003 200–499 ...... (869–050–00186–1) ...... 39.00 Oct. 1, 2003 38 Parts: 500–End ...... (869–050–00187–0) ...... 25.00 Oct. 1, 2003 0–17 ...... (869–052–00134–1) ...... 60.00 July 1, 2004 18–End ...... (869–052–00135–0) ...... 62.00 July 1, 2004 47 Parts: 0–19 ...... (869–050–00188–8) ...... 61.00 Oct. 1, 2003 39 ...... (869–052–00136–8) ...... 42.00 July 1, 2004 20–39 ...... (869–050–00189–6) ...... 45.00 Oct. 1, 2003 40 Parts: 40–69 ...... (869–050–00190–0) ...... 39.00 Oct. 1, 2003 1–49 ...... (869–052–00137–6) ...... 60.00 July 1, 2004 70–79 ...... (869–050–00191–8) ...... 61.00 Oct. 1, 2003 50–51 ...... (869–052–00138–4) ...... 45.00 July 1, 2004 80–End ...... (869–050–00192–6) ...... 61.00 Oct. 1, 2003 52 (52.01–52.1018) ...... (869–052–00139–2) ...... 60.00 July 1, 2004 48 Chapters: 52 (52.1019–End) ...... (869–052–00140–6) ...... 61.00 July 1, 2004 1 (Parts 1–51) ...... (869–050–00193–4) ...... 63.00 Oct. 1, 2003 53–59 ...... (869–052–00141–4) ...... 31.00 July 1, 2004 1 (Parts 52–99) ...... (869–050–00194–2) ...... 50.00 Oct. 1, 2003 60 (60.1–End) ...... (869–052–00142–2) ...... 58.00 July 1, 2004 2 (Parts 201–299) ...... (869–050–00195–1) ...... 55.00 Oct. 1, 2003 60 (Apps) ...... (869–052–00143–1) ...... 57.00 July 1, 2004 3–6 ...... (869–050–00196–9) ...... 33.00 Oct. 1, 2003 61–62 ...... (869–052–00144–9) ...... 45.00 July 1, 2004 7–14 ...... (869–050–00197–7) ...... 61.00 Oct. 1, 2003 63 (63.1–63.599) ...... (869–052–00145–7) ...... 58.00 July 1, 2004 15–28 ...... (869–050–00198–5) ...... 57.00 Oct. 1, 2003 63 (63.600–63.1199) ...... (869–052–00146–5) ...... 50.00 July 1, 2004 29–End ...... (869–050–00199–3) ...... 38.00 9Oct. 1, 2003 63 (63.1200–63.1439) .... (869–052–00147–3) ...... 50.00 July 1, 2004 63 (63.1440–63.8830) .... (869–052–00148–1) ...... 64.00 July 1, 2004 49 Parts: 64–71 ...... (869–052–00150–3) ...... 29.00 July 1, 2004 1–99 ...... (869–050–00200–1) ...... 60.00 Oct. 1, 2003

VerDate jul 14 2003 17:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00002 Fmt 4721 Sfmt 4721 E:\FR\FM\06DECL.LOC 06DECL viii Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Reader Aids

Title Stock Number Price Revision Date 100–185 ...... (869–050–00201–9) ...... 63.00 Oct. 1, 2003 186–199 ...... (869–050–00202–7) ...... 20.00 Oct. 1, 2003 200–399 ...... (869–050–00203–5) ...... 64.00 Oct. 1, 2003 400–599 ...... (869–050–00204–3) ...... 63.00 Oct. 1, 2003 600–999 ...... (869–052–00207–1) ...... 19.00 Oct. 1, 2004 1000–1199 ...... (869–050–00206–0) ...... 26.00 Oct. 1, 2003 1200–End ...... (869–048–00207–8) ...... 33.00 Oct. 1, 2003 50 Parts: 1–16 ...... (869–050–00208–6) ...... 11.00 Oct. 1, 2003 17.1–17.95 ...... (869–050–00209–4) ...... 62.00 Oct. 1, 2003 17.96–17.99(h) ...... (869–050–00210–8) ...... 61.00 Oct. 1, 2003 17.99(i)–end ...... (869–050–00211–6) ...... 50.00 Oct. 1, 2003 18–199 ...... (869–050–00212–4) ...... 42.00 Oct. 1, 2003 200–599 ...... (869–050–00213–2) ...... 44.00 Oct. 1, 2003 600–End ...... (869–050–00214–1) ...... 61.00 Oct. 1, 2003 CFR Index and Findings Aids ...... (869–052–00049–3) ...... 62.00 Jan. 1, 2004 Complete 2004 CFR set ...... 1,342.00 2004 Microfiche CFR Edition: Subscription (mailed as issued) ...... 325.00 2004 Individual copies ...... 2.00 2004 Complete set (one-time mailing) ...... 298.00 2003 Complete set (one-time mailing) ...... 298.00 2002 1 Because Title 3 is an annual compilation, this volume and all previous volumes should be retained as a permanent reference source. 2 The July 1, 1985 edition of 32 CFR Parts 1–189 contains a note only for Parts 1–39 inclusive. For the full text of the Defense Acquisition Regulations in Parts 1–39, consult the three CFR volumes issued as of July 1, 1984, containing those parts. 3 The July 1, 1985 edition of 41 CFR Chapters 1–100 contains a note only for Chapters 1 to 49 inclusive. For the full text of procurement regulations in Chapters 1 to 49, consult the eleven CFR volumes issued as of July 1, 1984 containing those chapters. 4 No amendments to this volume were promulgated during the period January 1, 2003, through January 1, 2004. The CFR volume issued as of January 1, 2002 should be retained. 5 No amendments to this volume were promulgated during the period April 1, 2000, through April 1, 2004. The CFR volume issued as of April 1, 2000 should be retained. 6 No amendments to this volume were promulgated during the period July 1, 2000, through July 1, 2004. The CFR volume issued as of July 1, 2000 should be retained. 7 No amendments to this volume were promulgated during the period July 1, 2002, through July 1, 2004. The CFR volume issued as of July 1, 2002 should be retained. 8 No amendments to this volume were promulgated during the period July 1, 2003, through July 1, 2004. The CFR volume issued as of July 1, 2003 should be retained. 9 No amendments to this volume were promulgated during the period October 1, 2001, through October 1, 2003. The CFR volume issued as of October 1, 2001 should be retained.

VerDate jul 14 2003 17:06 Dec 03, 2004 Jkt 205001 PO 00000 Frm 00003 Fmt 4721 Sfmt 4721 E:\FR\FM\06DECL.LOC 06DECL