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i II Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004
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Contents Federal Register Vol. 69, No. 248
Tuesday, December 28, 2004
Agricultural Marketing Service Comptroller of the Currency RULES RULES Fish and shellfish; mandatory country of origin labeling, Fair and Accurate Credit Transactions Act; implementation: 77609 Consumer information; proper disposal, 77610–77621
Agriculture Department Copyright Office, Library of Congress See Agricultural Marketing Service RULES See Foreign Agricultural Service Copyright office and procedures: See Forest Service Registration refusal reconsideration procedures, 77636– See Rural Housing Service 77637 NOTICES Agency information collection activities; proposals, Defense Department submissions, and approvals, 77707–77708 See Army Department See Engineers Corps RULES Army Department Federal Acquisition Regulation (FAR): See Engineers Corps Free trade agreements— PROPOSED RULES Australia and Morocco, 77869–77879 Freedom of Information Act Program; implementation, Introduction, 77869–77870 77835–77868 Small entity compliance guide, 77878–77879 NOTICES NOTICES Privacy Act: Arms sales notification; transmittal letter, etc., 77735–77739 Systems of records, 77741–77744 Meetings: President’s Information Technology Advisory Committee, Centers for Disease Control and Prevention 77739 NOTICES Science Board task forces, 77739–77741 Grant and cooperative agreement awards: National Cancer Prevention and Control Program, 77755 Economic Development Administration Organization, functions, and authority delegations: NOTICES Global Migration and Quarantine Division, National Grants and cooperative agreements; availability, etc.: Center for Infectious Diseases, 77756 Economic development assistance programs, 77714– 77716 Children and Families Administration National Technical Assistance Program, 77716–77718 RULES University Center Program, 77718–77720 Child Support Enforcement Program: Child support orders review and adjustment; reasonable Education Department quantitative standard, 77659–77661 NOTICES Agency information collection activities; proposals, Civil Rights Commission submissions, and approvals, 77745–77747 NOTICES Energy Department Meetings; Sunshine Act, 77713–77714 See Federal Energy Regulatory Commission NOTICES Coast Guard Meetings: PROPOSED RULES Environmental Management Site-Specific Advisory Ports and waterways safety: Board— Fifth Coast Guard District; safety zone, 77684–77687 Fernald Site, OH, 77747 High Energy Physics Advisory Panel, 77747–77748 Commerce Department Nuclear Energy Research Advisory Committee, 77748 See Economic Development Administration See Industry and Security Bureau Engineers Corps See International Trade Administration NOTICES See National Institute of Standards and Technology Environmental statements; notice of intent: See National Oceanic and Atmospheric Administration Hackensack Meadowlands Ecosystem Restoration Project, See Patent and Trademark Office NJ, 77744 NOTICES Passaic River Ecosystem Restoration Project, NJ, 77744– Agency information collection activities; proposals, 77745 submissions, and approvals, 77714 Environmental Protection Agency Commodity Futures Trading Commission RULES NOTICES Air quality implementation plans; approval and Meetings: promulgation; various States: Global Markets Advisory Committee, 77734–77735 District of Columbia, 77639–77650
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Practice and procedure: Fiscal Service Environmental Appeals Board; clarification of address for NOTICES documents filed, 77637–77639 Agency information collection activities; proposals, PROPOSED RULES submissions, and approvals, 77831–77832 Air quality implementation plans; approval and Surety and reinsuring companies: promulgation; various States: Application and renewal fees, 77832–77833 District of Columbia, 77687–77690 Solid waste: Hazardous waste; identification and listing— Fish and Wildlife Service Exclusions, 77690–77700 PROPOSED RULES NOTICES Endangered and threatened species: Meetings: Critical habitat designations— Environmental Laboratory Advisory Board, 77753–77754 California and Southern Oregon; vernal pool Environmental Policy and Technology National Advisory crustaceans and plants, 77700–77703 Council, 77754 Fish slough milk-vetch, 77703–77706 NOTICES Executive Office of the President Endangered and threatened species: NOTICES Recovery plans— Meetings: Otay tarplant, 77770–77771 Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction Commission, 77754– Food and Drug Administration 77755 RULES Medical devices: Federal Aviation Administration Gastroenterology-urology devices— PROPOSED RULES External penile rigidity devices; classification, 77621– Airworthiness directives: 77623 Boeing, 77675–77676 Obstetrical and gynecological devices— CFM International, 77677–77678 Assisted reproduction laser system; classification, 77623–77624 Federal Deposit Insurance Corporation NOTICES RULES Reports and guidance documents; availability, etc.: Fair and Accurate Credit Transactions Act; implementation: Medical devices— Consumer information; proper disposal, 77610–77621 Assisted reproduction laser systems; Class II special controls, 77756–77757 Federal Emergency Management Agency External penile rigidity devices; Class II special RULES controls, 77757–77758 National Flood Insurance Program: Communities eligible for sale, 77650–77659 Foreign Agricultural Service Federal Energy Regulatory Commission NOTICES Trade adjustment assistance eligibility determination NOTICES petitions: Electric rate and corporate regulation filings, 77750–77752 Louisiana Shrimp Association, 77708 Meetings: Freebird Gas Storage, L.L.C.; site visit, 77752–77753 Organized Seafood Association of Alabama, Inc., 77708– Off-the-record communications, 77753 77709 Applications, hearings, determinations, etc.: Cameron LNG, LLC, 77748–77749 Forest Service Destin Pipeline Company, L.L.C., 77749 NOTICES Enbridge Pipelines (KPC), 77749 Agency information collection activities; proposals, Southern Star Central Gas Pipeline, Inc., 77750 submissions, and approvals, 77709 Environmental statements; notice of intent: Federal Motor Carrier Safety Administration Coconino National Forest, AZ, 77709–77711 NOTICES Meetings: Reports and guidance documents; availability, etc.: Eastern Washington Cascades Provincial Advisory Motor Carrier Safety Improvement Act of 1999, Section Committee, 77711 222; policy statement clarification, 77828–77830 Northwest Sacramento Provincial Advisory Committee, 77711–77712 Federal Reserve System Opal Creek Scenic Recreation Area Advisory Council, RULES 77712 Fair and Accurate Credit Transactions Act; implementation: Resource Advisory Committees— Consumer information; proper disposal, 77610–77621 Glenn/Colusa County, 77712 NOTICES Ketchikan, 77713 Meetings; Sunshine Act, 77755 Shasta County, 77713 Tehama County, 77712 Financial Management Service Privacy Act: See Fiscal Service System of records, 77713
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General Services Administration Stainless steel plate in coils from— RULES Belgium, 77727 Acquisition regulations: Antidumping proceedings involving non-market economy Federal Procurement Data System; direct access by non- countries; separate rates practice, 77722–77726 governmental entities, 77661–77663 Meetings: Federal Acquisition Regulation (FAR): United States Travel and Tourism Promotion Advisory Free trade agreements— Board, 77727–77728 Australia and Morocco, 77869–77879 Introduction, 77869–77870 International Trade Commission Small entity compliance guide, 77878–77879 NOTICES Geological Survey Import investigations: Carbazole violet pigment 23 from— NOTICES China and India, 77776 Meetings: Lens-fitted film packages, 77776 Scientific Earthquake Studies Advisory Committee, 77771 Purple protective gloves, 77776–77777 Health and Human Services Department Shirts with pucker-free seams and methods of producing See Centers for Disease Control and Prevention same, 77777–77778 See Children and Families Administration U.S.-Central America Free Trade Agreement; potential See Food and Drug Administration economywide and selected sectoral effects, 77778– See National Institutes of Health 77779 See Substance Abuse and Mental Health Services Wooden bedroom furniture from— Administration China, 77779
Homeland Security Department Land Management Bureau See Coast Guard NOTICES See Federal Emergency Management Agency Meetings: See U.S. Citizenship and Immigration Services Resource Advisory Councils— Arizona, 77771 Housing and Urban Development Department NOTICES Agency information collection activities; proposals, Library of Congress submissions, and approvals, 77768–77769 See Copyright Office, Library of Congress
Industry and Security Bureau National Aeronautics and Space Administration NOTICES RULES Agency information collection activities; proposals, Federal Acquisition Regulation (FAR): submissions, and approvals, 77720–77722 Free Trade Agreements— Australia and Morocco, 77869–77879 Interior Department Introduction, 77869–77870 See Fish and Wildlife Service Small entity compliance guide, 77878–77879 See Geological Survey See Land Management Bureau See National Park Service National Highway Traffic Safety Administration NOTICES RULES Meetings: Fuel economy standards: Delaware and Lehigh National Heritage Corridor Credits and fines; manufacturer rights and Commission, 77769–77770 responsibilities in corporate relationships changes Exxon Valdez Oil Spill Public Advisory Committee, context, 77663–77672 77770 National Institute of Standards and Technology Internal Revenue Service NOTICES RULES Meetings: Income taxes: Weights and Measures National Conference, 77728–77730 New markets tax credit, 77625–77636 PROPOSED RULES Income taxes: National Institutes of Health Pension plan distributions under a phased retirement NOTICES program; correction, 77678–77679 Meetings: NOTICES National Cancer Institute, 77758–77759 Agency information collection activities; proposals, National Center for Complementary and Alternative submissions, and approvals, 77833 Medicine, 77759–77760 National Heart, Lung, and Blood Institute, 77760 International Trade Administration National Institute of Allergy and Infectious Diseases, NOTICES 77760–77761 Antidumping: National Institute of Mental Health, 77761–77762 Bulk aspirin from— National Library of Medicine, 77762–77763 China, 77726–77727 Scientific Review Center, 77763
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National Oceanic and Atmospheric Administration Securities and Exchange Commission RULES NOTICES Fishery conservation and management: Securities: Northeastern United States fisheries— Suspension of trading— Summer flounder, 77674 Artec, Inc., 77788 International fisheries regulations: Self-regulatory organizations; proposed rule changes: Northwest Atlantic Fisheries Organization Regulatory American Stock Exchange LLC, 77788–77789 Area; U.S. fish quotas and effort allocation, 77672– Chicago Board Options Exchange, Inc., 77790–77795 77674 Chicago Stock Exchange, Inc., 77796–77802 NOTICES Depository Trust Co., 77802–77804 Endangered and threatened species: New York Stock Exchange, Inc. and National Association Anadromous fish take— of Securities Dealers, Inc., 77804–77816 Lower Columbia Fisheries Enhancement Group; Applications, hearings, determinations, etc.: salmonid, 77730 Merrill Lynch Life Insurance Group, et al., 77782–77788 Meetings: Mid-Atlantic Fishery Management Council, 77730–77731 Small Business Administration New England Fishery Management Council, 77731 NOTICES Permits: Interest rates; quarterly determinations, 77816 Endangered and threatened species, 77731–77732 Marine mammals, 77732 Social Security Administration NOTICES National Park Service Privacy Act: NOTICES Systems of records, 77816–77826 Environmental statements; availability, etc.: Big Thicket National Preserve, TX, 77771–77772 State Department Big Thicket National Preserve, TX; plan of operations and NOTICES floodplain and wetlands statements; correction, Art objects; importation for exhibition: 77771 Jacques-Louis David: Empire to Exile, 77826–77827 First Ladies National Historic Site, OH, 77772 Renaissance and Baroque Bronzes from the Collection of Isle Royale National Park, MI; wilderness and the Fitzwilliam Museum, University of Cambridge, backcountry management plan, 77772–77773 77827 Point Reyes National Seashore, CA, 77773 Meetings: Rio Grande Wild and Scenic River, TX, 77773–77774 Cultural Diplomacy Advisory Committee, 77827 Environmental statements; record of decision: Cultural Property Advisory Committee, 77827–77828 Arlington County Virginia Potomac Interceptor Sewer System, VA, 77774 Substance Abuse and Mental Health Services Pictured Rocks National Lakeshore, MI, 77774–77775 Administration Meetings: NOTICES Acadia National Park Advisory Commission, 77775 Agency information collection activities; proposals, Chesapeake and Ohio Canal National Historical Park submissions, and approvals, 77763–77764 Advisory Commission, 77775 Flight 93 National Memorial Advisory Commission, Surface Transportation Board 77775–77776 NOTICES Nuclear Regulatory Commission Rail carriers: Control exemptions— NOTICES Meetings; Sunshine Act, 77781–77782 Broe, Patrick D., et al., 77830–77831 Applications, hearings, determinations, etc.: Railroad operation, acquisition, construction, etc.: Army Department; Research Development and Kettle Falls International Railway, LLC, 77831 Engineering Command, 77779–77781 Thrift Supervision Office Patent and Trademark Office RULES NOTICES Fair and Accurate Credit Transactions Act; implementation: Agency information collection activities; proposals, Consumer information; proper disposal, 77610–77621 submissions, and approvals, 77732–77734 Transportation Department Pension Benefit Guaranty Corporation See Federal Aviation Administration PROPOSED RULES See Federal Motor Carrier Safety Administration Electronic filing; annual and actuarial information, 77679– See National Highway Traffic Safety Administration 77684 See Surface Transportation Board NOTICES Public Debt Bureau Aviation proceedings: See Fiscal Service Agreements filed; weekly receipts, 77828 Certificates of public convenience and necessity and foreign Rural Housing Service air carrier permits; weekly applications, 77828 RULES Multi-family housing programs: Treasury Department Direct multi-family housing loans and grants, 77609– See Comptroller of the Currency 77610 See Fiscal Service
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See Internal Revenue Service Separate Parts In This Issue See Thrift Supervision Office Part II U.S. Citizenship and Immigration Services Defense Department, Army Department, 77835–77868 NOTICES Agency information collection activities; proposals, Part III submissions, and approvals, 77764–77767 Defense Department; General Services Administration; Immigration: National Aeronautics and Space Administration, Direct mail program— 77869–77879 Adjustment of status application, employment authorization, and travel authorization; filing address; correction, 77768 Reader Aids Consult the Reader Aids section at the end of this issue for Veterans Affairs Department phone numbers, online resources, finding aids, reminders, NOTICES and notice of recently enacted public laws. Compensation, pension, burial, and related benefits: Outer burial receptacle use in VA national cemetery, To subscribe to the Federal Register Table of Contents private purchase allowance, 77833–77834 LISTSERV electronic mailing list, go to http:// Inventions, Government-owned; availability for licensing, listserv.access.gpo.gov and select Online mailing list 77834 archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
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CFR PARTS AFFECTED IN THIS ISSUE
A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.
7 CFR 5...... 77870 60...... 77609 6...... 77870 1806...... 77609 9...... 77870 1822...... 77609 12...... 77870 1902...... 77609 14...... 77870 1925...... 77609 17...... 77870 1930...... 77609 22...... 77870 1940...... 77609 25...... 77870 1942...... 77609 52...... 77870 1944...... 77609 504...... 77661 1951...... 77609 49 CFR 1955...... 77609 534...... 77663 1956...... 77609 1965...... 77609 50 CFR 3560...... 77609 300...... 77672 3565...... 77609 648...... 77674 12 CFR Proposed Rules: 30...... 77610 17 (2 documents) ...... 77703, 41...... 77610 77706 208...... 77610 211...... 77610 222...... 77610 225...... 77610 334...... 77610 364...... 77610 568...... 77610 570...... 77610 571...... 77610 14 CFR Proposed Rules: 39 (2 documents) ...... 77675, 77677 21 CFR 876...... 77621 884...... 77623 26 CFR 1...... 77625 602...... 77625 Proposed Rules: 1 (2 documents) ...... 77678, 77679 29 CFR Proposed Rules: 4000...... 77679 4010...... 77679 32 CFR Proposed Rules: 518...... 77836 33 CFR Proposed Rules: 165...... 77684 37 CFR 202...... 77636 211...... 77636 212...... 77636 40 CFR 22...... 77637 52 (4 documents) ...... 77639, 77642, 77645, 77647 Proposed Rules: 52 (4 documents) ...... 77687, 77688, 77689, 77690 261...... 77690 44 CFR 64...... 77650 45 CFR 303...... 77659 48 CFR Ch. 1 (2 documents) ...... 77870, 77879
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Rules and Regulations Federal Register Vol. 69, No. 248
Tuesday, December 28, 2004
This section of the FEDERAL REGISTER Service (AMS), USDA; STOP 0249; 1400 comment period 30 days until February contains regulatory documents having general Independence Avenue, SW., 2, 2005. applicability and legal effect, most of which Washington, DC 20250–0249, or by Authority: 7 U.S.C. 1621 et seq. are keyed to and codified in the Code of facsimile to (202) 720–3499, or by e- Federal Regulations, which is published under mail to [email protected]. Comments Dated: December 22, 2004. 50 titles pursuant to 44 U.S.C. 1510. received will be posted to the AMS Web A.J. Yates, The Code of Federal Regulations is sold by site at: http://www.ams.usda.gov/cool/. Administrator, Agricultural Marketing the Superintendent of Documents. Prices of Comments sent to the above location Service. new books are listed in the first FEDERAL that specifically pertain to the [FR Doc. 04–28349 Filed 12–27–04; 8:45 am] REGISTER issue of each week. information collection and BILLING CODE 3410–02–M recordkeeping requirements should also be sent to the Desk Officer for DEPARTMENT OF AGRICULTURE Agriculture, Office of Information and DEPARTMENT OF AGRICULTURE Regulatory Affairs, Office of Agricultural Marketing Service Rural Housing Service Management and Budget (OMB), New Executive Office Building, 725 17th 7 CFR Part 60 7 CFR Parts 1806, 1822, 1902, 1925, Street, NW., Room 725, Washington, DC 1930, 1940, 1942, 1944, 1951, 1955, [No. LS–03–04] 20503. 1956, 1965, 3560, and 3565 RIN 0581–AC26 FOR FURTHER INFORMATION CONTACT: William Sessions, Associate Deputy RIN 0575–AC13 Mandatory Country of Origin Labeling Administrator, Livestock and Seed Reinvention of the Sections 514, 515, of Fish and Shellfish Program, AMS, USDA, by telephone on 516 and 521 Multi-Family Housing (202) 720–5707, or via e-mail to: AGENCY: Agricultural Marketing Service, Programs [email protected]. USDA. AGENCY: Rural Housing Service, USDA. ACTION: Interim final rule; extension of SUPPLEMENTARY INFORMATION: The Farm comment period. Bill and the Appropriations Act ACTION: Interim final rule; extension of amended the Act to direct the Secretary comment period. SUMMARY: On October 5, 2004, the of Agriculture to promulgate regulations SUMMARY: The comment period for the Agricultural Marketing Service (AMS) by September 30, 2004, requiring interim final rule is being extended an published an interim final rule (69 FR retailers to notify their customers of the additional 30 days from December 27, 59708) for the mandatory country of country of origin of covered 2004, in order to provide opportunities origin labeling (COOL) program for fish commodities. The FY 2004 for further comment on this rule and its and shellfish as mandated by the Farm Consolidated Appropriations Act criteria. This interim final rule was Security and Rural Investment Act of (Public Law 108–199) delayed the published in the Federal Register on 2002 (Farm Bill) and the 2002 applicability of mandatory COOL for all November 26, 2004, (69 FR 69032). Supplemental Appropriations Act covered commodities except wild and (Appropriations Act), which amended farm-raised fish and shellfish until DATES: Comments on the interim final the Agricultural Marketing Act of 1946 September 30, 2006. rule must be received on or before (Act) to direct the Secretary of On October 5, 2004, AMS published January 26, 2005, to be assured of Agriculture to promulgate regulations an interim final rule (69 FR 59708) for consideration. by September 30, 2004, requiring the mandatory country of origin labeling ADDRESSES: You may submit comments retailers to notify their customers of the program for fish and shellfish. The to this rule by any of the following country of origin of covered comment period was originally methods: commodities. The FY 2004 scheduled to end on January 3, 2005. • Agency Web Site: http:// Consolidated Appropriations Act However, two industry trade rdinit.usda.gov/regs/. Follow the (Public Law 108–199) delayed the organizations have requested additional instructions for submitting comments applicability of mandatory COOL for all time for retailers to examine their on the Web site. covered commodities except wild and systems in light of the requirements of • E-Mail: [email protected]. farm-raised fish and shellfish until the interim final rule in order to provide Include the RIN number (0575-AC13) in September 30, 2006. AMS is extending more meaningful comments. Further, the subject line of the message. the comment period to February 2, the Food and Drug Administration • Federal eRulemaking Portal: http:// 2005, at the request of industry trade (FDA) recently published the final rule www.regulations.gov. Follow the associations to provide interested to implement the Bioterrorism Act’s instructions for submitting comments. parties with additional time to file recordkeeping requirements and more • Mail: Submit written comments via comments. time is needed for the industry to Federal Express Mail or another mail DATES: Comments must be submitted on compare the FDA regulation courier service requiring a street address or before February 2, 2005, to be assured recordkeeping requirements with the to the Branch Chief, Regulations and of consideration. recordkeeping requirements under the Paperwork Management Branch, U.S. ADDRESSES: Send written comments to: COOL interim final rule. Therefore, Department of Agriculture, 300 7th Country of Origin Labeling Program, AMS has determined that there is Street, SW, 7th Floor, Suite 701, Room 2092–S; Agricultural Marketing sufficient justification for extending the Washington, DC 20024.
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All written comments will be DEPARTMENT OF THE TREASURY Board: Donna L. Parker, Supervisory available for public inspection during Financial Analyst, Division of regular work hours at the 300 7th Street, Office of the Comptroller of the Supervision & Regulation, (202) 452– SW., address listed above. Currency 2614; Joshua H. Kaplan, Attorney, Legal Division, (202) 452–2249; Minh-Duc T. FOR FURTHER INFORMATION CONTACT: Sue 12 CFR Parts 30 and 41 Le or Ky Tran-Trong, Senior Attorneys, Harris-Green, Deputy Director, Multi- [Docket No. 04–13] Division of Consumer and Community Family Housing Direct Loan Division, Affairs, (202) 452–3667. Rural Housing Service, U.S. Department RIN 1557–AC84 FDIC: Jeffrey M. Kopchik, Senior of Agriculture, Room 1241, South Policy Analyst, Division of Supervision Building, Stop 0781, 1400 FEDERAL RESERVE SYSTEM and Consumer Protection, (202) 898– Independence Avenue, SW., 3872; Kathryn M. Weatherby, Washington, DC 20250–0781, telephone 12 CFR Parts 208, 211, 222, and 225 Examination Specialist, Division of (202) 720–1660. [Docket No. R–1199] Supervision and Consumer Protection, (202) 898–6793; Robert A. Patrick, SUPPLEMENTARY INFORMATION: In the FEDERAL DEPOSIT INSURANCE Counsel, Legal Division, (202) 898– Federal Register dated November 26, CORPORATION 3757; Janet V. Norcom, Counsel, Legal 2004, the Rural Housing Service (RHS) Division, (202) 898–8886. published an interim final rule which 12 CFR Parts 334 and 364 OTS: Glenn Gimble, Senior Project had the intent of streamlining and Manager, Thrift Policy, (202) 906–7158; RIN 3064–AC77 reengineering its regulations, as well as Lewis C. Angel, Senior Project Manager, utilizing several private sector processes DEPARTMENT OF THE TREASURY Technology Risk Management, (202) and techniques in the administration of 906–5645; Richard Bennett, Counsel the origination, management, servicing, Office of Thrift Supervision (Banking and Finance), Regulations and and preservation of its Multi-Family Legislation Division, (202) 906–7409. Housing programs. These programs 12 CFR Parts 568, 570, and 571 SUPPLEMENTARY INFORMATION: include the section 515 Rural Rental [No. 2004–56] I. Introduction Housing (RRH) loan program, the section 514/516 Farm Labor Housing RIN 1550–AB87 Section 216 of the Fair and Accurate Credit Transactions Act of 2003 (FACT loan and grant program, and the section Proper Disposal of Consumer Act or the Act) adds a new section 628 521 Rental Assistance (RA) program. Information Under the Fair and to the Fair Credit Reporting Act (FCRA), This interim final rule combines the Accurate Credit Transactions Act of at 15 U.S.C. 1681w, that, in general, is provisions of the Streamlining and 2003 designed to protect a consumer against Consolidation of the sections 514, 515, the risks associated with unauthorized 516, and 521 Multi-Family Housing AGENCIES: Office of the Comptroller of access to information about the (MFH) Programs Proposed Rule the Currency, Treasury (OCC); Board of consumer contained in a consumer published on June 2, 2003, and the Governors of the Federal Reserve report, such as fraud and related crimes Operating Assistance for Off-Farm System (Board); Federal Deposit including identity theft. Section 216 of Migrant Farmworker Projects Proposed Insurance Corporation (FDIC); and the Act requires each of the Agencies to Rule published on November 2, 2000. Office of Thrift Supervision, Treasury adopt a regulation with respect to the (OTS). Due to the complex nature of the entities that are subject to its ACTION: Final rule. changes in the regulation, it is in the enforcement authority ‘‘requiring any best interest of the public to extend the SUMMARY: The OCC, Board, FDIC, and person that maintains or otherwise period of time in which comments will OTS (the Agencies) are adopting a final possesses consumer information, or any be accepted. Initially, the comment rule to implement section 216 of the compilation of consumer information, period was to end on December 27, Fair and Accurate Credit Transactions derived from consumer reports for a 2004. The revised ending date for the Act of 2003 by amending the business purpose to properly dispose of any such information or compilation.’’ receipt of comments is now January 26, Interagency Guidelines Establishing Pub. L. 108–159, 117 Stat. 1985–86. The 2005. Standards for Safeguarding Customer Information. The final rule generally FACT Act mandates that the Agencies Dated: December 16, 2004. requires each financial institution to ensure that their respective regulations Gilbert Gonzalez, develop, implement, and maintain, as are consistent with the requirements Acting Under Secretary, Rural Development. part of its existing information security issued pursuant to the Gramm-Leach- [FR Doc. 04–28240 Filed 12–27–04; 8:45 am] program, appropriate measures to Bliley Act (GLB Act) (Pub. L. 106–102), as well as other provisions of Federal BILLING CODE 3410–XV–U properly dispose of consumer information derived from consumer law. On June 8, 2004, the Agencies reports to address the risks associated published a proposal to amend the with identity theft. Interagency Guidelines Establishing EFFECTIVE DATE: July 1, 2005. Standards for Safeguarding Customer FOR FURTHER INFORMATION CONTACT: Information (Guidelines) to require OCC: Aida Plaza Carter, Director, Bank financial institutions to implement Information Technology, (202) 874– controls designed to ensure the proper 4740; Amy Friend, Assistant Chief disposal of ‘‘consumer information’’ Counsel, (202) 874–5200; or Deborah within the meaning of section 216.1 A Katz, Senior Counsel, Legislative and Regulatory Activities Division, (202) 1 69 FR 31913 (June 8, 2004). The Guidelines are 874–5090. codified at 12 CFR parts 30, app. B (OCC); 208, app.
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total of 68 comments on the proposal the respective agencies are consistent require a financial institution to were submitted to the Agencies, some of and comparable. properly dispose of ‘‘consumer which were submitted to more than one information’’ derived from a consumer II. Background of the Agencies. Most of these report in a manner consistent with a comments were submitted by financial On February 1, 2001, the Agencies financial institution’s existing institutions and associations that issued the Guidelines pursuant to obligations under the Guidelines to represent them. A few comments were sections 501 and 505 of the GLB Act (15 properly dispose of customer submitted by trade associations from the U.S.C. 6801 and 6805).3 The Guidelines information. Although the Guidelines information destruction industry.2 establish standards relating to the currently address an institution’s In general, commenters expressed development and implementation of obligations to properly dispose of support for the Agencies’ proposal administrative, technical, and physical customer information, the amendments because the new requirements would safeguards to protect the security, now state this obligation more directly allow financial institutions sufficient confidentiality, and integrity of and combine it with the new latitude to adopt controls that suit their customer information. The Guidelines requirement to properly dispose of particular circumstances. Commenters apply to the financial institutions consumer information. subject to the Agencies’ respective offered revisions to several aspects of The Agencies have incorporated this jurisdictions. As mandated by section the proposal, notably the definitions new requirement into the Guidelines by: 501(b) of the GLB Act, the Guidelines and compliance deadlines, and the (1) Adding a definition of ‘‘consumer require each financial institution to Agencies have considered each of these information,’’ including illustrations of develop a written information security suggestions. the information covered by the new program that is designed to: (1) Ensure term; (2) adding an objective (in The Agencies also proposed to amend the security and confidentiality of paragraph II) regarding the proper their respective regulations that customer information; (2) protect disposal of customer information and implement the FCRA by adding a new against any anticipated threats or consumer information; and (3) adding a provision setting forth the duties of hazards to the security or integrity of provision (in paragraph III) that requires users of consumer reports regarding such information; and (3) protect against a financial institution to implement identity theft. The proposed provision unauthorized access to or use of such appropriate measures to properly would require a financial institution to information that could result in dispose of customer information and properly dispose of consumer substantial harm or inconvenience to consumer information in accordance information in accordance with the any customer.4 The Guidelines direct with each of the requirements in standards set forth in the Guidelines. financial institutions to assess the risks paragraph III. The Agencies also proposed to amend to their customer information and The final rule requires each financial their respective FCRA regulations by customer information systems and, in institution to implement the appropriate incorporating a rule of construction, turn, implement appropriate security measures to properly dispose of which generally provides that the duty measures to control those risks.5 For ‘‘consumer information’’ by July 1, to properly dispose of consumer example, under the risk-assessment 2005. The Agencies believe that any information shall not be construed to framework currently imposed by the changes to an institution’s existing require a financial institution to Guidelines, each financial institution information security program likely will maintain or destroy any record must evaluate whether the controls the be minimal because many of the pertaining to a consumer that is not institution has developed sufficiently measures that an institution already imposed under any other law or alter protect its customer information from uses to dispose of ‘‘customer any requirement under any other law to unauthorized access, misuse, or information’’ can be adapted to properly maintain or destroy such a record. This alteration when the institution disposes dispose of ‘‘consumer information.’’ rule of construction closely tracks of the information.6 Nevertheless, a few of the comments section 628(b) of the FCRA, as added by noted that the proposed period for III. Proper Disposal of Consumer section 216 of the FACT Act. In general, compliance would be relatively short in Information and Customer Information commenters supported the Agencies’ light of the work required to locate and proposal to amend their FCRA To implement section 216 of the track all ‘‘consumer information’’ in a regulations and, in particular, urged the FACT Act, the Agencies are adopting financial institution’s existing Agencies to retain the rule of amendments to the Guidelines 7 that information systems. Accordingly, the construction in the final rule. require each financial institution to Agencies have determined that financial In accordance with section 216 of the develop and maintain, as part of its institutions should be afforded a six- Act, the Agencies have consulted with information security program, month period to adjust their systems the FTC, the National Credit Union appropriate controls designed to ensure and controls. Administration, and the Securities and that the institution properly disposes of A discussion of each proposed Exchange Commission to ensure that, to ‘‘consumer information.’’ The amendment to the Guidelines and the the extent possible, the rules adopted by amendments to the Guidelines generally addition of cross-references to the Guidelines in the Agencies’ FCRA 3 D–2 and 225, app. F (Board); 364, app. B (FDIC); 66 FR 8616 (Feb. 1, 2001). regulations follows. 570, app. B (OTS). Citations to the Guidelines omit 4 Guidelines, II.B. references to titles and publications and give only 5 See generally, III.B. and III.C. Consumer Information the appropriate paragraph or section number. 6 See 66 FR 8618. (‘‘Under the final Guidelines, The proposal defined ‘‘consumer 2 Individual consumers and organizations a financial institution’s responsibility to safeguard representing consumers submitted comments on the customer information continues through the information’’ to mean ‘‘any record about proposed rule issued by the Federal Trade disposal process.’’) an individual, whether in paper, Commission (FTC), which was substantively similar 7 The Agencies are renaming the ‘‘Interagency electronic, or other form, that is a to the Agencies’ proposal. 69 FR 21388 (April 20, Guidelines Establishing Standards for Safeguarding consumer report or is derived from a 2004); see http://www.ftc.gov/os/comments/ Customer Information’’ to read ‘‘Interagency disposal/index.htm. The Agencies have reviewed Guidelines Establishing Standards for Information consumer report and that is maintained these and other comments submitted to the FTC in Security’’ to make clear that the Guidelines or otherwise possessed by or on behalf connection with this final rule. encompass the disposal of consumer information. of the [institution] for a business
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purpose.’’ ‘‘Consumer information’’ also not apply to aggregate information, such reporting agency lawfully may furnish a was defined to mean ‘‘a compilation of as the mean credit score that is derived consumer report to a person which it such records.’’ from a group of consumer reports, or has reason to believe ‘‘otherwise has a Commenters generally supported the blind data, such as a series of credit legitimate business need for the Agencies’ proposed definition of this scores that do not identify the subjects information in connection with a term, but argued that the Agencies of the consumer reports from which business transaction that is initiated by should include statements or those scores are derived. The Agencies the consumer.’’ 10 If used in whole or in illustrations to clarify the nature and have included examples of records that part to establish a consumer’s eligibility scope of ‘‘consumer information.’’ illustrate this aspect of the Guidelines, for a business transaction that is Several commenters found the proposed but have not rigidly defined the nature initiated by the consumer, such as an phrase ‘‘about an individual’’ to be and scope of personally identifiable application for a small business loan ambiguous and urged the Agencies to information. The Agencies note that that is initiated by a sole proprietor, adopt a definition expressly stating that there are a variety of types of then that information could be a ‘‘consumer information’’ only includes information apart from an individual’s consumer report. Accordingly, a information that identifies a particular name, account number, or address that, financial institution that maintains individual. depending on the circumstances or information derived from a consumer Similarly, some commenters when used in combination, could report for a business purpose including supported the Agencies’ explanation in identify the individual. a consumer report originally obtained in the proposal that ‘‘consumer A few commenters argued that the connection with a ‘‘business transaction information’’ does not include term ‘‘consumer information’’ should that is initiated by the consumer,’’ information derived from a consumer exclude non-sensitive information about would be subject to the requirement to report that does not identify any a consumer, such as names and properly dispose of such information, particular consumer, such as the mean addresses that are publicly available. pursuant to section 216 of the FACT credit score derived from a group of These commenters urged the Agencies Act. consumer reports. These commenters to limit ‘‘consumer information’’ to As discussed in the proposal, the suggested that the Agencies include this information about an individual’s Agencies note that the scope of example (or similar examples) in the specific financial characteristics, such information covered by the terms definition. as payment history or account numbers, ‘‘consumer information’’ and ‘‘customer In the final rule, as in the proposed or personal characteristics, such as information’’ will sometimes overlap, rule, the Agencies have continued to driver’s license information. In their but will not always coincide. The define ‘‘consumer information’’ to mean view, only sensitive, non-public definition of ‘‘consumer information’’ is ‘‘any record about an individual, information should be subject to the drawn from the term ‘‘consumer’’ in whether in paper, electronic, or other requirements of the rule because section 603(c) of the FCRA, which form, that is a consumer report or is unauthorized access to or misuse of that defines a ‘‘consumer’’ as an individual, derived from a consumer report and that information poses the greatest threats of without elaboration. 15 U.S.C. 1681a(c). is maintained or otherwise possessed by identity theft against consumers. The By contrast, ‘‘customer information’’ or on behalf of the [institution] for a Agencies believe that there is no basis under the Guidelines, means nonpublic business purpose.’’ In addition, the to exclude certain classes of relatively personal information about a Agencies have continued to define non-sensitive information from the ‘‘customer,’’ namely, an individual who ‘‘consumer information’’ to mean ‘‘a scope of ‘‘consumer information’’ under obtains a financial product or service to compilation of such records,’’ as section 216 of the Act. be used primarily for personal, family, proposed. Some commenters urged the Agencies or household purposes and who has a The Agencies have modified the term to eliminate references to business- continuing relationship with the ‘‘consumer information,’’ however, to related transactions in the discussion of financial institution.11 expressly exclude from the definition the definition of ‘‘consumer The relationship between ‘‘consumer ‘‘any record that does not identify an information.’’ These commenters argued information’’ and ‘‘customer individual.’’ The Agencies believe that that the FCRA defines a ‘‘consumer information’’ can be illustrated through qualifying the term ‘‘consumer report’’ only with respect to information the following examples. Payment information’’ to cover only personally used to determine a consumer’s history information from a consumer identifiable information appropriately eligibility for ‘‘credit or insurance to be report about an individual, who is a focuses on the information derived from used primarily for personal, family, or financial institution’s customer, will be a consumer report that, if improperly household purposes.’’ 8 Thus, these both ‘‘consumer information’’ because it disposed, could be used to commit commenters recommended that the comes from a consumer report and fraud or identity theft against a Agencies remove references to business ‘‘customer information’’ because it is consumer. The Agencies believe that transactions that, in their view, would nonpublic personal information about a limiting ‘‘consumer information’’ to be inconsistent with the scope of the customer. In some circumstances, information that identifies a consumer FCRA. The Agencies note that the FCRA ‘‘customer information’’ will be broader is consistent with the current law defines a ‘‘consumer report’’ as than ‘‘consumer information.’’ For relating to the scope of the term encompassing a communication by a instance, information about a financial ‘‘consumer report’’ under the FCRA and consumer reporting agency of institution’s own transactions with its the purposes of section 216 of the FACT information about a consumer that, in customer is ‘‘customer information’’ but Act. general, is used as a factor in is not ‘‘consumer information’’ because Under the final rule, a financial establishing the consumer’s eligibility it does not come from a consumer institution must implement measures to for ‘‘any other purpose authorized under report. In other circumstances, properly dispose of ‘‘consumer section 604 [of the FCRA].’’ 9 Among ‘‘consumer information’’ will be broader information’’ that identifies a consumer, other permissible purposes, a consumer than ‘‘customer information.’’ such as the consumer’s name and the credit score derived from a consumer 8 15 U.S.C. 1681a(d)(1)(A). 10 15 U.S.C. 1681b(a)(3)(F))i). report. However, this requirement does 9 15 U.S.C. 1681a(d)(1)(C). 11 I.C.2.b.
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‘‘Consumer information’’ includes without regard to whether the person already is part of a financial institution’s information from a consumer report that actually knows that it possesses such obligation in designing and maintaining an institution obtains about an information. its information security program under individual who applies for but does not The Agencies note that the proposed the Guidelines, the inclusion of receive a loan, an individual who definition of ‘‘consumer information’’ ‘‘customer information’’ in the objective guarantees a loan (including a loan to a includes the qualification ‘‘for a does not impose a new requirement on business entity), an employee or a business purpose,’’ as set forth in an institution’s compliance with the prospective employee, or an individual section 216 of the Act. The Agencies Guidelines. in connection with a loan to the believe that the phrase ‘‘for a business The general objective to ‘‘[e]nsure the individual’s sole proprietorship. In each purpose’’ encompasses any commercial proper disposal of customer information of these instances, the consumer reports purpose for which a financial institution and consumer information’’ replaces the are not ‘‘customer information’’ because might maintain or possess ‘‘consumer proposed provision that would require the information is not about a information.’’ Commenters did not raise an institution to develop controls ‘‘in a ‘‘customer’’ within the meaning of the concerns about this interpretation. manner consistent with the disposal of Guidelines. Some commenters urged the Agencies customer information.’’ The Agencies The Agencies believe that the phrase to define the term ‘‘disposal’’ to clarify believe that setting forth the obligation ‘‘derived from consumer reports’’ covers whether the sale, donation, or transfer of in this manner more directly states a all of the information about a consumer any medium containing ‘‘consumer financial institution’s obligation to that is taken from a consumer report, information’’ is covered by the develop and maintain risk-based including information that results in requirements imposed under the measures to dispose of both types of whole or in part from manipulation of Guidelines. A few other commenters, information properly and is consistent information from a consumer report or however, disagreed with this suggestion with the Guidelines and the Act. information from a consumer report that and supported the Agencies’ proposal, The Agencies continue to believe that has been combined with other types of which was silent with respect to this imposing this additional objective in information. Consequently, a financial particular term. The Agencies believe paragraph II.B is important because this institution that possesses any of this that there is no need to adopt a disposal requirement applies to a information must properly dispose of it. definition of the term ‘‘disposal’’ financial institution’s ‘‘consumer For example, any record about a because, in the context of the duty information’’ maintained or otherwise consumer derived from a consumer imposed under section 216 of the FACT in the possession of the institution’s report, such as the consumer’s name Act, the ordinary meaning of that term service providers. The Guidelines and credit score, that is shared among applies. The Agencies note that any require, in part, that a financial affiliates must be disposed of properly sale, lease, or other transfer of any institution ‘‘[r]equire its service by each affiliate that possesses that medium containing ‘‘consumer providers by contract to implement information.12 Similarly, a consumer information’’ constitutes disposal of the appropriate measures designed to meet report that is shared among affiliated information insofar as the information the objectives of these Guidelines.’’ 14 companies after the consumer has been itself is not the subject of the sale, lease, By expressly incorporating a given a notice and has elected not to opt or other transfer between the parties. By provision in paragraph II.B., each out of that sharing, and therefore is no contrast, the sale, lease, or other transfer financial institution must contractually longer a ‘‘consumer report’’ under the of consumer information from a require its service providers to develop FCRA,13 would still be ‘‘consumer financial institution to another party appropriate measures for the proper information.’’ Accordingly, an affiliate (which may be subject to limitations disposal of consumer information and, that receives ‘‘consumer information’’ imposed under other laws) can be where warranted, to monitor its service under these circumstances must distinguished from the act of throwing providers to confirm that they have properly dispose of the information. out or getting rid of consumer satisfied their contractual obligations. A few commenters suggested that the information, and accordingly, does not As several commenters observed, the Agencies modify this provision to limit constitute ‘‘disposal’’ that is subject to particular contractual arrangements that the obligation of a financial institution the Agencies’ rule. an institution may negotiate with a to properly dispose of consumer New Objective for an Information service provider may take varied forms information only when the institution Security Program or use general terms. As a result, some knows that the information has been institutions may have existing contracts derived from a consumer report. The The Agencies proposed to add a new that cover the proper disposal of Agencies believe that implementing objective regarding the proper disposal customer information and consumer such a limitation is unwarranted in light of consumer information in paragraph information. The Agencies continue to of the general duty established in II.B. of the Guidelines. A few believe that the parties should be section 216 of the Act which applies to commenters expressed objections to this allowed substantial latitude in ‘‘any person that maintains or otherwise aspect of the proposal, mainly insofar as negotiating the contractual terms possesses consumer information,’’ this provision relates to service appropriate to their arrangement in any providers. manner that satisfies the objectives of 12 An affiliate subject to the jurisdiction of the Under the final rule, a financial the Guidelines. Accordingly, the OCC, Board, FDIC, or OTS must properly dispose institution must design its information Agencies have not prescribed any of consumer information that it possesses or security program to satisfy the general particular standards that relate to this maintains in accordance with the agency’s rule. An objective to ‘‘[e]nsure the proper affiliate subject to the jurisdiction of the FTC or the contract requirement. SEC must properly dispose of consumer disposal of customer information and The Agencies have made a technical information that it possesses or maintains in consumer information.’’ The added amendment to the definition of ‘‘service accordance with the FTC’s or SEC’s final rules, as reference to ‘‘customer information’’ provider’’ in paragraph I.C.2. to include applicable, which are consistent and comparable to more directly states an institution’s this final rule. Savings associations and savings a reference to ‘‘consumer information’’ association subsidiaries that are not functionally overall duties with respect to disposing regulated are subject to the OTS’s Guidelines. of information. However, because 14 III.D.2. This requirement applies to service 13 15 U.S.C. 1681a(d)(2)(A)(iii). proper disposal of customer information providers located domestically and abroad.
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in addition to ‘‘customer information.’’ the disposal of customer information.’’ (FFIEC),15 the Agencies expect Thus the amended definition of service Commenters generally supported this institutions to have appropriate disposal provider is ‘‘any person or entity that provision because a financial institution procedures for records maintained in maintains, processes, or otherwise is would be permitted to develop and paper-based or electronic form. The permitted access to customer implement risk-based protections, rather Agencies note that an institution’s information or consumer information than adopt particular methods for information security program should through its provision of services directly disposing of consumer information that ensure that paper records containing to the bank.’’ Consistent with section would comply with a prescriptive either customer or consumer 216 and the amendments to the standard. information should be rendered Guidelines, a financial institution’s Under the final rule, an institution unreadable as indicated by the obligation with respect to a service must adopt procedures and controls to institution’s risk assessment, such as by provider that has access to consumer properly dispose of ‘‘consumer shredding or any other means. information is limited to ensuring that information’’ and ‘‘customer Institutions also should recognize that the service provider properly disposes information.’’ Instead of describing a computer-based records present unique of consumer information. financial institution’s obligation to disposal problems. Residual data The Agencies also have amended dispose of ‘‘consumer information’’ in frequently remains on media after paragraph III.G.2. to allow a financial relation to the standard for ‘‘customer erasure. Since that data can be institution a reasonable period of time, information’’ (which is currently set recovered, additional disposal after the final regulations are issued, to forth in discrete provisions of the techniques should be applied to amend its contracts with its service Guidelines), the Agencies have sensitive electronic data.16 providers to incorporate the necessary determined that the obligation should requirements in connection with the be stated directly and generally. A Proposed Amendments to the Agencies’ proper disposal of consumer provision that requires each financial FCRA Regulations information. After reviewing the institution to develop and maintain risk- As set forth in the proposal, the comments on this provision of the based measures to properly dispose of Agencies’ final rules create a cross- proposal, which uniformly advocated a customer information and consumer reference to the Guidelines in their longer period of time for modifying information more clearly states an respective regulations that implement contracts with service providers if institution’s responsibilities to properly the FCRA 17 by adding a provision necessary, the Agencies have dispose of both classes of information setting forth the duties of users of determined that financial institutions and is consistent with the Guidelines consumer reports regarding identity must modify any affected contracts not and the Act. theft. Commenters generally agreed with later than July 1, 2006. Under this provision of the final rule, the Agencies’ proposal to create the a financial institution must broaden the New Provision To Implement Measures cross-reference. In particular, scope of its risk assessment to include commenters supported the Agencies’ To Properly Dispose of Consumer an assessment of the reasonably Information proposal to make explicit in the foreseeable internal and external threats regulations the rule of construction in The Agencies have amended associated with the methods it uses to the statute stating that the requirement paragraph III.C. (Manage and Control dispose of ‘‘consumer information,’’ and pertaining to proper disposal under the Risk) of the Guidelines by adding a new adjust its risk assessment in light of the FCRA shall not be construed as provision to require a financial relevant changes relating to such requiring a person to maintain or institution to develop, implement, and threats. By expressly adding this new destroy a record containing consumer maintain, as part of its information provision, the Agencies are requiring a information and does not alter any security program, appropriate measures financial institution to integrate into its requirement imposed under other law to to properly dispose of customer information security program each of maintain or destroy such a record. information and consumer information. those risk-based measures in connection The new provision requires a Like the provision described in the with the disposal of ‘‘consumer financial institution to properly dispose proposal, this new provision requires an information,’’ as set forth in paragraph of consumer information in accordance institution to implement these measures III. of the Guidelines. with the standards set forth in the ‘‘in accordance with each of the Some commenters urged the Agencies Guidelines. This provision applies to an requirements in this paragraph III.’’ of to adopt a detailed standard for the institution to the extent that the the Guidelines. destruction of information or criteria institution is covered by the scope of the Paragraph III. of the Guidelines that define ‘‘proper’’ methods or levels Guidelines.18 The provision also presently requires a financial institution of disposal, rather than a provision that to undertake measures to design, tracks the general obligation imposed 15 See FFIEC Information Technology implement, and maintain its under section 216 of the FACT Act. Examination Handbook, Information Security information security program to protect Other commenters favored the approach Booklet, page 63 at: http://www.ffiec. gov/ _ customer information and customer set forth in the proposal and argued that ffiecinfobase/ booklets/information security/ information_ security.pdf. information systems. Because ‘‘customer the general duty to ‘‘properly dispose of 16 See id. information systems’’ is defined to consumer information’’ is appropriately 17 12 CFR part 41 (OCC); 12 CFR part 222 (Board); include any methods used to dispose of suited to the varying circumstances that 12 CFR part 334 (FDIC); and 12 CFR part 571 (OTS). customer information, a financial financial institutions confront. Several of the Agencies proposed establishing new institution presently must use risk- After reviewing the comments, the parts to house their respective regulations implementing the FCRA in a notice of proposed based measures to protect customer Agencies continue to believe that it is rulemaking titled ‘‘Fair Credit Reporting Medical information in the course of disposing not necessary to propose a prescriptive Information Regulations.’’ See 69 FR 23380 (April of it. Building on this provision in the rule describing proper methods of 28, 2004). As these regulations are not yet final, the Guidelines, the Agencies proposed a disposal. Nonetheless, consistent with new parts are established in this final rule. 18 Bank holding companies will be subject to the provision in paragraph III.C. that would interagency guidance previously issued FTC’s disposal rule (16 CFR part 682) and require a financial institution to develop through the Federal Financial functionally regulated subsidiaries of financial controls ‘‘in a manner consistent with Institutions Examination Council institutions will be subject to the SEC’s disposal
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incorporates a rule of construction that certain types of ‘‘consumer OCC and OTS Unfunded Mandates closely tracks the terms of section 628(b) information,’’ developing appropriate Reform Act of 1995 Determination of the FCRA, as added by section 216 of measures to properly dispose of that 19 Under Section 202 of the Unfunded the FACT Act. information likely would require only a Mandates Reform Act of 1995, Pub. L. minor modification of an institution’s IV. Regulatory Analysis 104–4 (2 U.S.C. 1532) (Unfunded existing information security program. Mandates Act), the OCC and OTS must Because some ‘‘consumer Paperwork Reduction Act prepare budgetary impact statements information’’ will be ‘‘customer before promulgating any rule likely to In accordance with the Paperwork information’’ and because segregating Reduction Act of 1995 (44 U.S.C. 3501 particular records for special treatment result in a federal mandate that may et seq.) and its implementing may entail considerable costs, the result in the expenditure by state, local, regulations at 5 CFR part 1320, Agencies believe that many banks and and tribal governments, in the aggregate, including Appendix A.1, the Agencies savings associations, including small or by the private sector of $100 million have reviewed the final rules and institutions, already are likely to have or more in any one year. If a budgetary determined that they contain no implemented measures to properly impact statement is required, under collections of information. The Board dispose of both ‘‘customer’’ and section 205 of the Unfunded Mandates made this determination under ‘‘consumer’’ information. In addition, Act, the OCC and OTS must identify authority delegated by the Office of the Agencies, through the Federal and consider a reasonable number of Management and Budget. Financial Institutions Examination regulatory alternatives before promulgating a rule. Regulatory Flexibility Act Council (FFIEC), already have issued guidance regarding their expectations For the reasons outlined earlier, the In accordance with the Regulatory concerning the proper disposal of all of OCC and OTS have determined that this Flexibility Act, each agency must an institution’s paper and electronic proposal will not result in expenditures publish a final regulatory flexibility records. See FFIEC Information by state, local, and tribal governments, analysis with its final rule, unless the Technology Examination Handbook, or by the private sector, of $100 million agency certifies that the rule will not Information Security Booklet, December or more, in any one year. Accordingly, have a significant economic impact on 2002, p. 63.21 Therefore, the rules do not a budgetary impact statement is not a substantial number of small entities. (5 require any significant changes for required under section 202 of the U.S.C. 601–612). Each of the Agencies institutions that currently have Unfunded Mandates Reform Act of 1995 hereby certifies that its final rule does procedures and systems designed to and this rulemaking requires no further not have a significant economic impact comply with this guidance. analysis under the Unfunded Mandates on a substantial number of small The Agencies anticipate that, in light Act. entities. of current practices relating to the List of Subjects The rules require a financial disposal of information in accordance institution subject to the jurisdiction of with the Guidelines and the guidance 12 CFR Part 30 the appropriate agency to implement issued by the FFIEC, the final rules will Banks, Banking, Consumer protection, appropriate controls designed to ensure not impose undue costs on financial National banks, Privacy, Reporting and the proper disposal of ‘‘consumer institutions. Therefore, the Agencies recordkeeping requirements. information.’’ A financial institution believe that the controls that small must develop and maintain these financial institutions will develop and 12 CFR Part 41 controls as part of implementing its implement, if any, to comply with the Banks, Banking, Consumer protection, existing information security program rules likely pose a minimal economic National Banks, Reporting and for ‘‘customer information,’’ as required impact on those entities. recordkeeping requirements. under the Guidelines.20 Any modifications to a financial FDIC—Small Business Regulatory 12 CFR Part 208 Enforcement Fairness Act institution’s information security Banks, Banking, Consumer protection, program needed to address the proper The Small Business Regulatory Information, Privacy, Reporting and disposal of ‘‘consumer information’’ Enforcement Fairness Act of 1996 recordkeeping requirements. could be incorporated through the (SBREFA) (Pub. L. 104–121, 110 Stat. process the institution presently uses to 857) provides generally for agencies to 12 CFR Part 211 adjust its program under paragraph III.E. report rules to Congress and for Exports, Foreign banking, Holding of the Guidelines, particularly because Congress to review these rules. The companies, Reporting and of the similarities between customer reporting requirement is triggered in recordkeeping requirements. information and consumer information instances where the FDIC issues a final 12 CFR Part 222 and the measures commonly used to rule as defined by the Administrative properly dispose of both types of Procedure Act (APA) (5 U.S.C. 551, et Banks, Banking, Holding companies, information. To the extent that these seq.). Because the FDIC is issuing a final State member banks. rules impose new requirements for rule as defined by the APA, the FDIC 12 CFR Part 225 will file the reports required by rule (17 CFR part 248) or the FTC’s disposal rule, SBREFA. Banks, Banking, Holding companies, as applicable. Reporting and recordkeeping 19 The OTS is making additional conforming OCC and OTS Executive Order 12866 requirements. changes to its regulations at 12 CFR 568.1 and Determination 568.5, as well. 12 CFR Part 334 20 In 2001, the Agencies issued final Guidelines The OCC and OTS each have requiring financial institutions to develop and determined that this rule is not a Administrative practice and maintain an information security program, ‘‘significant regulatory action’’ under procedure, Bank deposit insurance, including procedures to dispose of customer information, and each agency provided a final Executive Order 12866. Banks, Banking, Reporting and regulatory flexibility analysis at that time. See 66 recordkeeping requirements, Safety and FR 8625–32 (Feb. 1, 2001). 21 See footnote 15, supra. Soundness.
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12 CFR Part 364 Customer Information’’ to read that may be used for developing credit scoring models or for other purposes. Administrative practice and ‘‘Standards for Information Security’’; I g. Removing in paragraph II.B.2. the c. Consumer report has the same meaning procedure, Bank deposit insurance, as set forth in the Fair Credit Reporting Act, Banks, Banking, Reporting and word ‘‘and’’ at the end of the sentence; I h. Removing in paragraph II.B.3. the 15 U.S.C. 1681a(d). recordkeeping requirements, Safety and period at the end of the sentence and * * * * * Soundness. replacing it with ‘‘; and;’’ g. Service provider means any person or 12 CFR Part 568 I i. Adding a new paragraph II.B.4.; entity that maintains, processes, or otherwise I j. Adding a new paragraph III.C.4.; and is permitted access to customer information Consumer protection, Privacy, or consumer information through its I k. Adding new paragraphs III.G.3. and Reporting and recordkeeping provision of services directly to the bank. 4. to read as follows: requirements, Savings associations, * * * * * Security measures. Appendix B to Part 30—Interagency II. * * * Guidelines Establishing Information 12 CFR Part 570 Security Standards B. * * * Accounting, Administrative practice 4. Ensure the proper disposal of customer * * * * * information and consumer information. and procedure, Bank deposit insurance, I. Introduction Consumer protection, Holding The Interagency Guidelines Establishing III. * * * companies, Privacy, Reporting and Information Security Standards (Guidelines) C. * * * recordkeeping requirements, Safety and set forth standards pursuant to section 39 of 4. Develop, implement, and maintain, as soundness, Savings associations. the Federal Deposit Insurance Act (section part of its information security program, 39, codified at 12 U.S.C. 1831p–1), and appropriate measures to properly dispose of 12 CFR Part 571 sections 501 and 505(b), codified at 15 U.S.C. customer information and consumer Consumer protection, Credit, Fair 6801 and 6805(b) of the Gramm-Leach Bliley information in accordance with each of the Credit Reporting Act, Privacy, Reporting Act. These Guidelines address standards for requirements of this paragraph III. and recordkeeping requirements, developing and implementing * * * * * administrative, technical, and physical Savings associations. G. Implement the Standards. * * * safeguards to protect the security, 3. Effective date for measures relating to Department of the Treasury confidentiality, and integrity of customer the disposal of consumer information. Each information. These Guidelines also address Office of the Comptroller of the bank must satisfy these Guidelines with standards with respect to the proper disposal respect to the proper disposal of consumer Currency of consumer information, pursuant to information by July 1, 2005. sections 621 and 628 of the Fair Credit 12 CFR CHAPTER I 4. Exception for existing agreements with Reporting Act (15 U.S.C. 1681s and 1681w). service providers relating to the disposal of Authority and Issuance A. Scope. * * * The Guidelines also apply consumer information. Notwithstanding the to the proper disposal of consumer I For the reasons discussed in the joint requirement in paragraph III.G.3., a bank’s information by or on behalf of such entities. contracts with its service providers that have preamble, the Office of the Comptroller * * * * * access to consumer information and that may of the Currency amends chapter V of title C. Definitions. *** dispose of consumer information, entered 12 of the Code of Federal Regulations by 2. * * *b. Consumer information means into before July 1, 2005, must comply with amending 12 CFR part 30 and adding a any record about an individual, whether in the provisions of the Guidelines relating to new part 41 as follows: paper, electronic, or other form, that is a the proper disposal of consumer information consumer report or is derived from a by July 1, 2006. PART 30—SAFETY AND SOUNDNESS consumer report and that is maintained or I 3. Add part 41 to read as follows: STANDARDS otherwise possessed by or on behalf of the bank for a business purpose. Consumer PART 41—FAIR CREDIT REPORTING I 1. The authority citation for part 30 is information also means a compilation of such revised to read as follows: records. The term does not include any Subpart A—General Provisions record that does not identify an individual. Authority: 12 U.S.C. 93a, 1818, 1831–p and i. Examples. (1) Consumer information Sec. 3102(b); 15 U.S.C. 1681s, 1681w, 6801, and includes: 41.1 Purpose. 6805(b)(1). (A) A consumer report that a bank obtains; 41.2 [Reserved] I 2. Appendix B to part 30 is amended (B) Information from a consumer report 41.3 Definitions. by: that the bank obtains from its affiliate after I a. Revising the heading for Appendix the consumer has been given a notice and has Subparts B–H—[Reserved] B to part 30 entitled ‘‘Interagency elected not to opt out of that sharing; Guidelines Establishing Standards for (C) Information from a consumer report Subpart I—Duties of Users of that the bank obtains about an individual Safeguarding Customer Information’’ to Consumer Reports Regarding Identity who applies for but does not receive a loan, Theft read ‘‘Interagency Guidelines including any loan sought by an individual Establishing Information Security for a business purpose; § 41.80–82 [Reserved] Standards’’ wherever it appears in Title (D) Information from a consumer report 12, Chapter 2, part 30; that the bank obtains about an individual § 41.83 Disposal of consumer information I who guarantees a loan (including a loan to b. Revising paragraph I. Introduction; Authority: 12 U.S.C. 1 et seq., 24 (Seventh), I c. Revising paragraph I.A. by adding a a business entity); or (E) Information from a consumer report 93a, 481, 484, and 1818; 15 U.S.C. 1681s, new sentence at the end of the paragraph; 1681w, 6801 and 6805. I d. Redesignating paragraphs I.C.2.b. that the bank obtains about an employee or through e. as paragraphs I.C.2.d. through prospective employee. (2) Consumer information does not Subpart A—General Provisions g., respectively; I include: § 41.1 Purpose. e. Adding new paragraphs I.C.2.b. and (A) Aggregate information, such as the c., and amending redesignated paragraph mean credit score, derived from a group of (a) Purpose. The purpose of this part g.; consumer reports; or is to establish standards for national I f. Revising the heading for paragraph (B) Blind data, such as payment history on banks regarding consumer report II. entitled ‘‘Standards for Safeguarding accounts that are not personally identifiable, information. In addition, the purpose of
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this part is to specify the extent to PART 208—MEMBERSHIP OF STATE I f. At the end of paragraph II.B.2. the which national banks may obtain, use, BANKING INSTITUTIONS IN THE word ‘‘and’’ is removed. or share certain information. This part FEDERAL RESERVE SYSTEM I g. At the end of paragraph II.B.3 the also contains a number of measures (REGULATION H) period is removed and replaced with ‘‘; national banks must take to combat and’’. I consumer fraud and related crimes, 1. The authority citation for 12 CFR I h. In section II.B. a new paragraph 4. part 208 is revised to read as follows: including identity theft. is added. Authority: 12 U.S.C. 24, 36, 92a, 93a, I i. In section III.C., Manage and Control (b) [Reserved] 248(a), 248(c), 321–338a, 371d, 461, 481–486, Risk, a new paragraph 4. is added. § 41.2 [Reserved] 601, 611, 1814, 1816, 1820(d)(9), 1823(j), I j. In section III.G., Implement the 1828(o), 1831, 1831o, 1831p–1, 1831r–1, Standards, new paragraphs 3. and 4. are § 41.3 Definitions. 1831w, 1831x, 1835a, 1882, 2901–2907, added. 3105, 3310, 3331–3351, and 3906–3909, 15 As used in this part, unless the U.S.C. 78b, 78l(b), 78l(g), 78l(i), 78o–4(c)(5), Appendix D–2 to Part 208—Interagency context requires otherwise: 78q, 78q–1, 78w, 1681s, 1681w, 6801 and Guidelines Establishing Information 6805; 31 U.S.C. 5318, 42 U.S.C. 4012a, 4104a, Security Standards (a)–(d) [Reserved] 4104b, 4106, and 4128. * * * * * (e) Consumer means an individual. I 2. In § 208.3 revise paragraph (d)(1) to I. * * * (f)–(n) [Reserved] read as follows: * * * These Guidelines also address standards with respect to the proper disposal Subparts B–H—[Reserved] § 208.3 Application and conditions for of consumer information, pursuant to membership in the Federal Reserve System. sections 621 and 628 of the Fair Credit Reporting Act (15 U.S.C. 1681s and 1681w). Subpart I—Duties of Users of * * * * * (d) Conditions of membership. (1) A. Scope. * * * These Guidelines also Consumer Reports Regarding Identity apply to the proper disposal of consumer Theft Safety and soundness. Each member information by or on behalf of such entities. bank shall at all times conduct its § 41.80–82 [Reserved] business and exercise its powers with * * * * * C. * * * due regard to safety and soundness. § 41.83 Disposal of consumer information. 2. * * * Each member bank shall comply with b. Consumer information means any record (a) Definitions as used in this section. the Interagency Guidelines Establishing about an individual, whether in paper, (1) Bank means national banks, Federal Standards for Safety and Soundness electronic, or other form, that is a consumer branches and agencies of foreign banks, prescribed pursuant to section 39 of the report or is derived from a consumer report and their respective operating FDI Act (12 U.S.C. 1831p–1), set forth in and that is maintained or otherwise possessed by or on behalf of the bank for a subsidiaries. appendix D–1 to this part, and the Interagency Guidelines Establishing business purpose. Consumer information also (b) In general. Each bank must Information Security Standards means a compilation of such records. The properly dispose of any consumer term does not include any record that does prescribed pursuant to sections 501 and not identify an individual. information that it maintains or 505 of the Gramm-Leach-Bliley Act (15 otherwise possesses in accordance with i. Examples. (1) Consumer information U.S.C. 6801 and 6805) and section 216 includes: the Interagency Guidelines Establishing of the Fair and Accurate Credit (A) A consumer report that a bank obtains; Information Security Standards, as set Transactions Act of 2003 (15 U.S.C. (B) Information from a consumer report forth in appendix B to 12 CFR part 30, 1681w), set forth in appendix D–2 to that the bank obtains from its affiliate after to the extent that the bank is covered by this part. the consumer has been given a notice and has the scope of the Guidelines. elected not to opt out of that sharing; * * * * * (C) Information from a consumer report I (c) Rule of construction. Nothing in 3. Amend Appendix D–2 to part 208, that the bank obtains about an individual this section shall be construed to: as follows: who applies for but does not receive a loan, (1) Require a bank to maintain or I a. The heading for Appendix D–2 to including any loan sought by an individual destroy any record pertaining to a Part 208 entitled ‘‘Interagency for a business purpose; consumer that is not imposed under any Guidelines Establishing Standards for (D) Information from a consumer report that the bank obtains about an individual other law; or Safeguarding Customer Information’’ is revised to read ‘‘Interagency Guidelines who guarantees a loan (including a loan to (2) Alter or affect any requirement Establishing Information Security a business entity); or imposed under any other provision of (E) Information from a consumer report Standards’’ wherever it appears in Title that the bank obtains about an employee or law to maintain or destroy such a 12, chapter 2, part 208; record. prospective employee. I b. In section I., Introduction, a new (2) Consumer information does not Dated: December 16, 2004. sentence is added at the end of the include: Julie L. Williams, introductory paragraph. (A) Aggregate information, such as the I c. In section I.A., Scope, a new mean credit score, derived from a group of Acting Comptroller of the Currency. sentence is added at the end of the consumer reports; or Federal Reserve System paragraph. (B) Blind data, such as payment history on I d. In section I.C.2., paragraphs b. accounts that are not personally identifiable, 12 CFR Chapter II that may be used for developing credit through f. are redesignated as paragraphs scoring models or for other purposes. Authority and Issuance 2.d. through 2.h., respectively, new c. Consumer report has the same meaning paragraphs 2.b. and 2.c. are added and as set forth in the Fair Credit Reporting Act, I For the reasons set forth in the joint redesignated paragraph g. is amended. 15 U.S.C. 1681a(d). preamble, parts 208, 211, 222, and 225 of I e. In paragraph II. the heading entitled * * * * * chapter II of title 12 of the Code of ‘‘Standards for Safeguarding Customer g. Service provider means any person or Federal regulations are amended as Information’’ is revised to read entity that maintains, processes, or otherwise follows: ‘‘Standards for Information Security’’. is permitted access to customer information
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or consumer information through its § 211.24 Approval of offices of foreign (1) Require you to maintain or destroy provision of services directly to the bank. banks; procedures for applications; any record pertaining to a consumer that standards for approval; representative- * * * * * is not imposed under any other law; or office activities and standards for approval; (2) Alter or affect any requirement II. * * * preservation of existing authority. B. * * * imposed under any other provision of 4. Ensure the proper disposal of customer * * * * * law to maintain or destroy such a information and consumer information. (i) Protection of customer information record. and consumer information. An * * * * * uninsured state-licensed branch or PART 225—BANK HOLDING III. * * * agency of a foreign bank shall comply COMPANIES AND CHANGE IN BANK C. * * * with the Interagency Guidelines CONTROL (REGULATION Y) 4. Develop, implement, and maintain, as Establishing Information Security part of its information security program, Standards prescribed pursuant to I 10. In section 225.4, revise paragraph appropriate measures to properly dispose of sections 501 and 505 of the Gramm- (h) to read as follows: customer information and consumer information in accordance with each of the Leach-Bliley Act (15 U.S.C. 6801 and § 225.4 Corporate practices. requirements in this paragraph III. 6805) and, with respect to the proper disposal of consumer information, * * * * * (h) Protection of customer information * * * * * section 216 of the Fair and Accurate and consumer information. A bank G. * * * Credit Transactions Act of 2003 (15 holding company shall comply with the 3. Effective date for measures relating to U.S.C. 1681w), set forth in appendix D– the disposal of consumer information. Each Interagency Guidelines Establishing 2 to part 208 of this chapter. bank must satisfy these Guidelines with Information Security Standards, as set respect to the proper disposal of consumer PART 222—FAIR CREDIT REPORTING forth in appendix F of this part, information by July 1, 2005. (REGULATION V) prescribed pursuant to sections 501 and 4. Exception for existing agreements with 505 of the Gramm-Leach-Bliley Act (15 service providers relating to the disposal of I 7. The authority citation for part 222 is U.S.C. 6801 and 6805). A bank holding consumer information. Notwithstanding the revised to read as follows: company shall properly dispose of requirement in paragraph III.G.3., a bank’s Authority: 15 U.S.C. 1681, 1681b, 1681s, consumer information in accordance contracts with its service providers that have 1681s-2, and 1681w. with the rules set forth at 16 CFR part access to consumer information and that may I 8. In § 222.1(b)(2)(i) remove the phrase 682. dispose of consumer information, entered * * * * * into before July 1, 2005, must comply with ‘‘paragraph (b)(2)’’ and add in its place I the provisions of the Guidelines relating to the word ‘‘part’’. 11. Amend Appendix F to part 225, as the proper disposal of consumer information I 9. Add a new subpart I to read as follows: I by July 1, 2006. follows: a. The heading for Appendix F to Part 225 entitled ‘‘Interagency Guidelines PART 211—INTERNATIONAL Subparts B–H—[Reserved] Establishing Standards for Safeguarding BANKING OPERATIONS Customer Information’’ is revised to read (REGULATION K) Subpart I—Duties of Users of ‘‘Interagency Guidelines Establishing Consumer Reports Regarding Identity Information Security Standards’’ I 4. The authority citation for part 211 is Theft wherever it appears in Title 12, Chapter 2, Part 225. revised to read as follows: § 222.80–82 [Reserved] By order of the Board of Governors of the Authority: 12 U.S.C. 221 et seq., 1818, § 222.83 Disposal of consumer Federal Reserve System, December 16, 2004. 1835a, 1841 et seq., 3101 et seq., and 3901 information. Jennifer J. Johnson, et seq.; 15 U.S.C. 1681s, 1681w, 6801 and 6805. (a) Definitions as used in this section. Secretary of the Board. (1) You means member banks of the Federal Deposit Insurance Corporation I 5. In § 211.5, revise paragraph (l) to Federal Reserve System (other than read as follows: national banks) and their respective 12 CFR Chapter III operating subsidiaries, branches and § 211.5 Edge and agreement corporations. Authority and Issuance agencies of foreign banks (other than * * * * * Federal branches, Federal agencies and I For the reasons set forth in the joint (l) Protection of customer information insured State branches of foreign banks), preamble, the Federal Deposit Insurance and consumer information. An Edge or commercial lending companies owned Corporation amends parts 334 and 364 of agreement corporation shall comply or controlled by foreign banks, and chapter III of title 12 of the Code of with the Interagency Guidelines organizations operating under section Federal Regulations to read as follows: Establishing Information Security 25 or 25A of the Federal Reserve Act (12 PART 334—FAIR CREDIT REPORTING Standards prescribed pursuant to U.S.C. 601 et seq., 611 et seq.). sections 501 and 505 of the Gramm- (b) In general. You must properly Subparts A–H—[Reserved] Leach-Bliley Act (15 U.S.C. 6801 and dispose of any consumer information 6805) and, with respect to the proper that you maintain or otherwise possess I 1. The authority citation for part 334 disposal of consumer information, in accordance with the Interagency reads as follows: section 216 of the Fair and Accurate Guidelines Establishing Information Authority: 12 U.S.C. 1818 and 1819 Credit Transactions Act of 2003 (15 Security Standards, as required under (Tenth); 15 U.S.C. 1681b, 1681s, and 1681w. sections 208.3(d) (Regulation H), U.S.C. 1681w), set forth in appendix D– I 2. Add a new subpart I to read as 211.5(l) and 211.24(i) (Regulation K) of 2 to part 208 of this chapter. follows: * * * * * this chapter, to the extent that you are covered by the scope of the Guidelines. Subpart I—Duties of Users of Consumer I 6. In § 211.24, revise paragraph (i) to (c) Rule of construction. Nothing in Reports Regarding Identity Theft read as follows: this section shall be construed to: Sec.
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334.80–334.82 [Reserved] I 5. In Appendix B to part 364: business purpose. Consumer information also 334.83 Disposal of consumer information. I a. The heading for Appendix B to part means a compilation of such records. The 364 entitled ‘‘Interagency Guidelines term does not include any record that does Subpart I—Duties of Users of Establishing Standards for Safeguarding not personally identify an individual. Consumer Reports Regarding Identity Customer Information’’ is revised to read i. Examples: (1) Consumer information Theft includes: ‘‘Interagency Guidelines Establishing (A) A consumer report that a bank obtains; § 334.80–334.82 [Reserved] Information Security Standards’’ (B) information from a consumer report wherever it appears in Title 12, Chapter that the bank obtains from its affiliate after § 334.83 Disposal of consumer 2, part 364. the consumer has been given a notice and has information. I b. In the Introduction, the first elected not to opt out of that sharing; (a) In general. You must properly sentence is revised and a new sentence (C) information from a consumer report dispose of any consumer information is added at the end of the introductory that the bank obtains about an individual that you maintain or otherwise possess paragraph. who applies for but does not receive a loan, in accordance with the Interagency I c. In section I.A., Scope, the first including any loan sought by an individual for a business purpose; Guidelines Establishing Information sentence is revised. (D) information from a consumer report I Security Standards, as set forth in d. In section I.C.2., Definitions, that the bank obtains about an individual appendix B to part 364 of this chapter, paragraphs 2.b. through 2.e. are who guarantees a loan (including a loan to prescribed pursuant to section 216 of redesignated as paragraphs 2.d. through a business entity); or the Fair and Accurate Credit 2.g., respectively, new paragraphs 2.b. (E) information from a consumer report Transactions Act of 2003 (15 U.S.C. and 2.c. are added and redesignated that the bank obtains about an employee or 1681w) and section 501(b) of the paragraph g. is revised. prospective employee. Gramm-Leach-Bliley Act (15 U.S.C. I e. In paragraph II. the heading entitled (2) Consumer information does not ‘‘Standards for Safeguarding Customer include: 6801(b)), to the extent the Guidelines (A) aggregate information, such as the are applicable to you. Information’’ is revised to read mean score, derived from a group of (b) Rule of construction. Nothing in ‘‘Standards for Information Security’’. consumer reports; or this section shall be construed to: I f. At the end of paragraph II.B.2. the (B) blind data, such as payment history on (1) Require you to maintain or destroy word ‘‘and’’ is removed. accounts that are not personally identifiable, any record pertaining to a consumer that I g. At the end of paragraph II.B.3 the that may be used for developing credit is not imposed under any other law; or period is removed and replaced with ‘‘; scoring models or for other purposes. (2) Alter or affect any requirement and’’. c. Consumer report has the same meaning imposed under any other provision of I h. In section II.B. a new paragraph 4. as set forth in the Fair Credit Reporting Act, law to maintain or destroy such a is added. 15 U.S.C. 1681a(d). record. I i. In section III.C., Manage and Control * * * * * Risk, a new paragraph 4. is added. g. Service provider means any person or PART 364—STANDARDS FOR SAFETY I j. In section III.G, Implement the entity that maintains, processes, or otherwise AND SOUNDNESS is permitted access to customer information Standards, new paragraphs 3. and 4. are or consumer information through its added. I 3. The authority citation for part 364 is provision of services directly to the bank. revised to read as follows: Appendix B to Part 364—Interagency * * * * * Guidelines Establishing Information II. * * * Authority: 12 U.S.C. 1819(Tenth), 1831p– Security Standards B. Objectives. *** 1; 15 U.S.C. 1681s, 1681w, 6801(b), 4. Ensure the proper disposal of customer 6805(b)(1). * * * * * information and consumer information. I 4. Revise § 364.101(b) to read as I. Introduction III. * * * follows: The Interagency Guidelines Establishing C. * * * Information Security Standards (Guidelines) 4. Develop, implement, and maintain, as § 364.101 Standards for safety and set forth standards pursuant to section 39 of part of its information security program, soundness. the Federal Deposit Insurance Act, 12 U.S.C. appropriate measures to properly dispose of * * * * * 1831p–1, and sections 501 and 505(b), 15 customer information and consumer (b) Interagency Guidelines U.S.C. 6801 and 6805(b), of the Gramm- information in accordance with each of the requirements of this paragraph III. Establishing Information Security Leach-Bliley Act. * * * These Guidelines also address standards with respect to the III. * * * Standards. The Interagency Guidelines G. * * * Establishing Information Security proper disposal of consumer information pursuant to sections 621 and 628 of the Fair 3. Effective date for measures relating to Standards prescribed pursuant to Credit Reporting Act (15 U.S.C. 1681s and the disposal of consumer information. Each section 39 of the Federal Deposit 1681w). bank must satisfy these Guidelines with Insurance Act (12 U.S.C. 1831p–1), and A. Scope. The Guidelines apply to respect to the proper disposal of consumer sections 501 and 505(b) of the Gramm- customer information maintained by or on information by July 1, 2005. Leach-Bliley Act (15 U.S.C. 6801, behalf of, and to the disposal of consumer 4. Exception for existing agreements with 6805(b)), and with respect to the proper information by or on behalf of, entities over service providers relating to the disposal of consumer information. Notwithstanding the disposal of consumer information which the Federal Deposit Insurance Corporation (FDIC) has authority. * * * requirement in paragraph III.G.3., a bank’s requirements pursuant to section 628 of contracts with its service providers that have the Fair Credit Reporting Act (15 U.S.C. * * * * * access to consumer information and that may 1681w), as set forth in appendix B to I. * * * dispose of consumer information, entered this part, apply to all insured state C. * * * into before July 1, 2005, must comply with nonmember banks, insured state 2. * * * the provisions of the Guidelines relating to b. Consumer information means any record licensed branches of foreign banks, and the proper disposal of consumer information about an individual, whether in paper, by July 1, 2006. any subsidiaries of such entities (except electronic, or other form, that is a consumer brokers, dealers, persons providing report or is derived from a consumer report By order of the Board of Directors. insurance, investment companies, and and that is maintained or otherwise Dated at Washington, DC this 7th day of investment advisers). possessed by or on behalf of the bank for a December, 2004.
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Federal Deposit Insurance Corporation. I 8. Amend § 570.1(c) by removing the and that is maintained or otherwise Robert E. Feldman, phrase ‘‘Interagency Guidelines possessed by you or on your behalf for a Executive Secretary. Establishing Standards for Safeguarding business purpose. Consumer information also Customer Information, and adding the means a compilation of such records. The Office of Thrift Supervision term does not include any record that does phrase ‘‘Interagency Guidelines 12 CFR Chapter V not identify an individual. Establishing Information Security i. Examples. (1) Consumer information Authority and Issuance Standards’’ in its place. includes: I 9. Amend § 570.2(a) by removing the (A) A consumer report that a savings I For the reasons set forth in the joint phrase ‘‘Interagency Guidelines association obtains; preamble, the Office of Thrift Establishing Standards for Safeguarding (B) Information from a consumer report Supervision amends chapter V of title 12 Customer Information’’ and adding the that you obtain from your affiliate after the of the Code of Federal Regulations by phrase ‘‘Interagency Guidelines consumer has been given a notice and has amending parts 568 and 570 and adding Establishing Information Security elected not to opt out of that sharing; a new part 571 as follows: Standards’’ in its place. (C) Information from a consumer report I 10. Amend Appendix B to part 570 by: that you obtain about an individual who PART 568—SECURITY PROCEDURES I a. Revising the heading; applies for but does not receive a loan, I including any loan sought by an individual I 1. The authority citation for part 568 is b. Revising the introductory paragraph for a business purpose; revised to read as follows: of section I. Introduction; (D) Information from a consumer report I c. Adding a new sentence to the end that you obtain about an individual who Authority: 12 U.S.C. 1462a, 1463, 1464, of paragraph I.A. Scope; guarantees a loan (including a loan to a 1467a, 1828, 1831p–1, 1881–1884; 15 U.S.C. I d. Redesignating paragraphs 2.a. business entity); or 1681s and 1681w; 15 U.S.C. 6801 and 6805(b)(1). through 2.d. of paragraph I.C.2. (E) Information from a consumer report Definitions as paragraphs 2.c. through that you obtain about an employee or I 2. Revise the part heading for part 568 2.f., respectively, adding new paragraphs prospective employee. to read as shown above. 2.a. and 2.b., and amending redesignated (2) Consumer information does not I 3. Revise the first sentence of § 568.1(a) paragraph f.; include: to read as follows: I (A) Aggregate information, such as the e. Revising the heading for section II.; mean credit score, derived from a group of I § 568.1 Authority, purpose, and scope. f. Removing the word ‘‘and’’ at the end consumer reports; or (a) This part is issued by the Office of of paragraph II.B.2.; (B) Blind data, such as payment history on I Thrift Supervision (OTS) under section g. Removing the period at the end of accounts that are not personally identifiable, 3 of the Bank Protection Act of 1968 (12 paragraph II.B.3 and replacing it with ‘‘; that may be used for developing credit U.S.C 1882), sections 501 and 505(b)(1) and’’; scoring models or for other purposes. of the Gramm-Leach-Bliley Act (15 I h. Adding a new paragraph II.B.4.; b. Consumer report has the same meaning I i. Adding a new paragraph 4. to as set forth in the Fair Credit Reporting Act, U.S.C. 6801 and 6805(b)(1)), and 15 U.S.C. 1681a(d). sections 621 and 628 of the Fair Credit paragraph III.C. Manage and Control Reporting Act (15 U.S.C. 1681s and Risk; and * * * * * I f. Service provider means any person or 1681w). * * * j. Adding new paragraphs 3. and 4. to paragraph III.G. Implement the entity that maintains, processes, or otherwise * * * * * Standards. is permitted access to customer information I 4. Revise § 568.5 to read as follows: or consumer information, through its Appendix B to Part 570—Interagency provision of services directly to you. § 568.5 Protection of customer information. Guidelines Establishing Information II. Standards for Information Security * * * Security Standards Savings associations and their B. Objectives. *** subsidiaries (except brokers, dealers, * * * * * 4. Ensure the proper disposal of customer persons providing insurance, I. Introduction information and consumer information. investment companies, and investment The Interagency Guidelines Establishing III. * * * advisers) must comply with the Information Security Standards (Guidelines) C. Manage and Control Risk. *** Interagency Guidelines Establishing set forth standards pursuant to section 39(a) 4. Develop, implement, and maintain, as of the Federal Deposit Insurance Act (12 part of your information security program, Information Security Standards set forth U.S.C. 1831p–1), and sections 501 and 505(b) appropriate measures to properly dispose of in appendix B to part 570 of this of the Gramm-Leach-Bliley Act (15 U.S.C. customer information and consumer chapter. 6801 and 6805(b)). These Guidelines address information in accordance with each of the standards for developing and implementing requirements in this paragraph III. PART 570—SAFETY AND SOUNDNESS administrative, technical, and physical * * * * * GUIDELINES AND COMPLIANCE safeguards to protect the security, G. Implement the Standards. *** PROCEDURES confidentiality, and integrity of customer 3. Effective date for measures relating to information. These Guidelines also address the disposal of consumer information. You I 6. The authority citation for part 570 is standards with respect to the proper disposal revised to read as follows: must satisfy these Guidelines with respect to of consumer information, pursuant to the proper disposal of consumer information Authority: 12 U.S.C. 1462a, 1463, 1464, sections 621 and 628 of the Fair Credit by July 1, 2005. 1467a, 1828, 1831p–1, 1881–1884; 15 U.S.C. Reporting Act (15 U.S.C. 1681s and 1681w). 4. Exception for existing agreements with 1681s and 1681w; 15 U.S.C. 6801 and A. Scope. * * * These Guidelines also service providers relating to the disposal of 6805(b)(1). apply to the proper disposal of consumer consumer information. Notwithstanding the information by or on behalf of such entities. I 7. Amend § 570.1(b) by removing the requirement in paragraph III.G.3., your phrase ‘‘Interagency Guidelines * * * * * contracts with service providers that have C. Definitions. *** access to consumer information and that may Establishing Standards for Safeguarding 2. * * * dispose of consumer information, entered Customer Information’’ and adding the a. Consumer information means any record into before July 1, 2005, must comply with phrase ‘‘Interagency Guidelines about an individual, whether in paper, the provisions of the Guidelines relating to Establishing Information Security electronic, or other form, that is a consumer the proper disposal of consumer information Standards’’ in its place. report or is derived from a consumer report by July 1, 2006.
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I 11. Add a new part 571 to read as Subparts B–H [Reserved] Radiological Health (HFZ–470), Food follows: and Drug Administration, 9200 Subpart I—Duties of Users of Corporate Blvd., Rockville, MD 20850, PART 571—FAIR CREDIT REPORTING Consumer Reports Regarding Identity 301–594–2194. Theft SUPPLEMENTARY INFORMATION: Subpart A—General Provisions Sec. § 571.80–82 [Reserved] I. Background 571.1 Purpose and scope. § 571.83 Disposal of consumer The Federal Food, Drug, and Cosmetic 571.2 [Reserved] information. Act (the act) (21 U.S.C. 301 et seq.) as 571.3 Definitions. (a) In general. You must properly amended by the Medical Device Amendments of 1976 (the 1976 Subparts B–H [Reserved] dispose of any consumer information that you maintain or otherwise possess amendments) (Public Law 94–295), the Subpart I—Duties of Users of Consumer in accordance with the Interagency Safe Medical Devices Act of 1990 Reports Regarding Identity Theft (Public Law 101–629), the Food and Guidelines Establishing Information Drug Administration Modernization Act 571.80–82 [Reserved] Security Standards, as set forth in of 1997 (FDAMA) (Public Law 105– § 571.83 Disposal of consumer information. appendix B to part 570, to the extent 115), and the Medical Device User Fee that you are covered by the scope of the Authority: 12 U.S.C. 1462a, 1463, 1464, and Modernization Act of 2002 (Public 1467a, 1828, 1831p–1, 1881–1884; 15 U.S.C. Guidelines. (b) Rule of construction. Nothing in Law 107–250), established a 1681s and 1681w; 15 U.S.C. 6801 and comprehensive system for the regulation 6805(b)(1). this section shall be construed to: (1) Require you to maintain or destroy of medical devices intended for human Subpart A—General Provisions any record pertaining to a consumer that use. Section 513 of the act (21 U.S.C. is not imposed under any other law; or 360c) established three categories § 571.1 Purpose and scope. (2) Alter or affect any requirement (classes) of devices, depending on the imposed under any other provision of regulatory controls needed to provide (a) Purpose. The purpose of this part reasonable assurance of their safety and is to establish standards regarding law to maintain or destroy such a record. effectiveness. The three categories of consumer report information. In devices are class I (general controls), addition, the purpose of this part is to By the Office of Thrift Supervision, class II (special controls), and class III specify the extent to which you may Dated: November 30, 2004. (premarket approval). obtain, use, or share certain information. James E. Gilleran, Under section 513 of the act, FDA This part also contains a number of Director. refers to devices that were in measures you must take to combat [FR Doc. 04–27962 Filed 12–27–04; 8:45 am] commercial distribution before May 28, consumer fraud and related crimes, BILLING CODE 4819–13–P;6210–10–P;6714–01–P;6720– 1976 (the date of enactment of the 1976 including identity theft. 01–P amendments), as ‘‘preamendments devices.’’ FDA classifies these devices (b) Scope. after the agency takes the following (1) [Reserved] DEPARTMENT OF HEALTH AND steps: (1) Receives a recommendation (2) Institutions covered. (i) Except as HUMAN SERVICES from a device classification panel (an otherwise provided in this paragraph FDA advisory committee); (2) publishes (b)(2), this part applies to savings Food and Drug Administration the panel’s recommendation for associations whose deposits are insured comment, along with a proposed 21 CFR Part 876 by the Federal Deposit Insurance regulation classifying the device; and (3) Corporation (and federal savings [Docket No. 1998N–1111] publishes a final regulation classifying the device. FDA has classified most association operating subsidiaries in Gastroenterology-Urology Devices; preamendments devices under these accordance with § 559.3(h)(1) of this procedures. chapter). Classification for External Penile Rigidity Devices FDA refers to devices that were not in (ii) [Reserved] commercial distribution before May 28, AGENCY: Food and Drug Administration, (iii) [Reserved] 1976, as ‘‘postamendments devices.’’ HHS. These devices are classified § 571.2 [Reserved] ACTION: Final rule. automatically by statute (section 513(f) of the act into class III without any FDA § 571.3 Definitions. SUMMARY: The Food and Drug rulemaking process. These devices Administration (FDA) is classifying remain in class III and require As used in this part, unless the external penile rigidity devices intended context requires otherwise: premarket approval, unless and until to create or maintain sufficient penile FDA initiates the following procedures: (a)–(d) [Reserved] rigidity for sexual intercourse into class (1) FDA reclassifies the device into class (e) Consumer means an individual. II (special controls). FDA also is I or II; (2) FDA issues an order exempting these devices from premarket (f)–(n) [Reserved] classifying the device into class I or II notification requirements. Elsewhere in in accordance with new section (o) You means savings associations this issue of the Federal Register, FDA 513(f)(2) of the act, as amended by whose deposits are insured by the is announcing the availability of the FDAMA; or (3) FDA issues an order Federal Deposit Insurance Corporation guidance document that will serve as finding the device to be substantially and federal savings association the special control for the device. equivalent, under section 513(i) of the operating subsidiaries. DATES: This rule is effective January 27, act, to a predicate device that does not 2005. require premarket approval. FOR FURTHER INFORMATION CONTACT: The agency determines whether new Janine Morris, Center for Devices and devices are substantially equivalent to
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predicate devices by means of the (special controls). FDA is codifying the distributive impacts, and equity). The premarket notification procedures in classification of external penile rigidity agency believes that this final rule is not section 510(k) of the act (21 U.S.C. devices by adding § 876.5020. The a significant regulatory action under the 360(k)) and part 807 of the regulations agency is also exempting these devices Executive order. (21 CFR part 807). from premarket notification The Regulatory Flexibility Act Consistent with the act and the requirements. The guidance document requires agencies to analyze regulatory regulations, FDA consulted with the entitled ‘‘Class II Special Controls options that would minimize any Gastroenterology and Urology Devices Guidance Document: External Penile significant impact of a rule on small Panel (the panel), an FDA advisory Rigidity Devices’’ will serve as the entities. This final rule will relieve a committee, regarding the classification special control for external penile burden and simplify marketing by of this device. rigidity devices. Following the effective exempting the devices from premarket FDAMA added a new section 510(m) date of the final classification rule, notification requirements. The guidance to the act (21 U.S.C. 360(m)). New manufacturers will need to address the document is based on existing review section 510(m) of the act provides that issues covered in this special control practices and will not impose new a class II device may be exempted from guidance. However, the manufacturer burdens on manufacturers of these the premarket notification requirements need only show that its device meets the devices. The agency, therefore, certifies under section 510(k) of the act, if the recommendations of the guidance or in that this final rule will not have a agency determines that premarket some other way provides equivalent significant economic impact on a notification is not necessary to assure assurances of safety and effectiveness. substantial number of small entities. the safety and effectiveness of the For the convenience of the reader, in Section 202(a) of the Unfunded device. FDA has determined that part 876 (21 CFR part 876) FDA is also Mandates Reform Act of 1995 requires premarket notification is not necessary adding § 876.1(e) to inform the reader that agencies prepare a written to assure the safety and effectiveness of where to find guidance documents statement, which includes an external penile rigidity devices. referenced in that part. assessment of anticipated costs and FDA believes that for devices of a type benefits, before proposing any rule that IV. Analysis of Comments and FDA’s generally exempt from premarket includes any Federal mandate that may Response notification, certain modifications to result in the expenditure by State, local, these devices may change the intended FDA received no comments on the and tribal governments, in the aggregate, use of these devices to an intended use proposed rule. Therefore, under section or by the private sector, of $100 million that is of substantial importance in 513 of the act, FDA is adopting the or more (adjusted annually for inflation) preventing impairment of human summary of reasons for the panel’s in any 1 year. The current threshold health, or may cause these devices to recommendation and the summary of after adjustment for inflation is $110 present unreasonable risks of illness or data upon which the panel’s million. FDA does not expect this final injury. Accordingly, devices changed in recommendation is based. FDA is also rule to result in any 1-year expenditure this manner would require premarket adopting the assessment of the risks to that would meet or exceed this amount. notification. For example, FDA public health stated in the proposed considers a class II device to be subject rule published on March 17, 2004. FDA VII. Federalism to premarket notification requirements is issuing this final rule which classifies FDA has analyzed the final rule in if the device operates using a different the generic type of device, external accordance with the principles set forth fundamental scientific technology than penile rigidity devices, into class II in Executive Order 13132. FDA has that used by a legally marketed device (special controls). In addition, FDA, on determined that the rule does not in that generic type. its own initiative, is exempting external contain policies conferring substantial penile rigidity devices from premarket direct effects on the States, on the II. Regulatory History of the Device notification requirements. relationship between the National In the Federal Register of March 17, Government and the States, or on the V. Environmental Impact 2004 (69 FR 12598), FDA proposed to distribution of power and classify external penile rigidity devices The agency has determined under 21 responsibilities among the various intended to create or maintain sufficient CFR 25.34(b) that this action is of a type levels of government. Accordingly, the penile rigidity for sexual intercourse that does not individually or agency has concluded that the rule does into class II (special controls). FDA also cumulatively have a significant effect on not contain policies that have proposed to exempt the devices from the human environment. Therefore, federalism implications as defined in premarket notification requirements. neither an environmental assessment the Executive order. As a result, a Also in the Federal Register of March nor an environmental impact statement federalism summary impact statement is 17, 2004 (69 FR 26398), FDA announced is required. not required. the availability of a draft guidance VI. Analysis of Impacts document that FDA intended to serve as VIII. Paperwork Reduction Act of 1995 the special control for external penile FDA has examined the impacts of the FDA concludes that this rule contains rigidity devices. FDA invited interested final rule under Executive Order 12866, no collection of information that is persons to comment on the draft the Regulatory Flexibility Act (5 U.S.C. subject to review by the Office of guidance document and invited 601–612), and the Unfunded Mandates Management and Budget under the comment on the proposed regulation by Reform Act of 1995 (Public Law 104–4). Paperwork Reduction Act of 1995. June 15, 2004. FDA received no Executive Order 12866 directs agencies IX. References comments on the proposed rule or draft to assess all costs and benefits of guidance. available regulatory alternatives and, The following references have been when regulation is necessary, to select placed on display in the Division of III. Summary of Final Rule regulatory approaches that maximize Dockets Management (HFA–305), Food In accordance with 21 CFR net benefits (including potential and Drug Administration, 5630 Fishers 860.84(g)(2), FDA is classifying external economic, environmental, public health Lane, rm. 1061, Rockville, MD 20852. penile rigidity devices into class II and safety and other advantages, These references may be seen by
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interested persons between 9 a.m. and 4 DEPARTMENT OF HEALTH AND devices by means of premarket p.m., Monday through Friday. HUMAN SERVICES notification procedures in section 510(k) 1. Gastroenterology and Urology Devices of the act (21 U.S.C. 360(k)) and part 807 Panel of the Medical Devices Advisory Food and Drug Administration (21 CFR part 807) of FDA’s regulations. Committee transcript, August 7, 1997. Section 513(f)(2) of the act provides 2. Lewis J.H. et al., ‘‘A Way to Help Your 21 CFR Part 884 that any person who submits a Patients Who Use Vacuum Devices,’’ premarket notification under section [Docket No. 2004N–0530] Contemporary Urology, vol. 3, No. 12: 15–24, 510(k) of the act for a device that has not 1991. 3. Montague, D.K. et al., ‘‘Clinical Medical Devices; Obstetrical and previously been classified may, within Guidelines Panel on Erectile Dysfunction: Gynecological Devices; Classification 30 days after receiving an order Summary Report on the Treatment of Erectile of the Assisted Reproduction Laser classifying the device in class III under Dsyfunction,’’ Journal of Urology, 156: 2007– System section 513(f)(1) of the act, request FDA 2011, 1996. to classify the device under the criteria 4. NIH Consensus Statement, ‘‘Impotence,’’ AGENCY: Food and Drug Administration, set forth in section 513(a)(1) of the act. National Institutes of Health, vol. 10, No. 4, HHS. FDA shall, within 60 days of receiving 1992. ACTION: Final rule. such a request, classify the device by List of Subjects in 21 CFR Part 876 written order. This classification shall SUMMARY: The Food and Drug be the initial classification of the device. Medical devices. Administration (FDA) is classifying the Within 30 days after the issuance of an Therefore, under the Federal Food, assisted reproduction laser system into order classifying the device, FDA must Drug, and Cosmetic Act and under class II (special controls). The special publish a document in the Federal authority delegated to the Commissioner control that will apply to the device is Register announcing such classification of Food and Drugs, 21 CFR part 876 is the guidance document entitled ‘‘Class (section 513(f)(2) of the act). amended as follows: II Special Controls Guidance Document: In accordance with section 513(f)(1) of Assisted Reproduction Laser Systems.’’ the act, FDA issued a document on PART 876—GASTROENTEROLOGY- The agency is classifying this device August 10, 2004, classifying the UROLOGY DEVICES into class II (special controls) in order Hamilton Thorne Zona Infrared Laser 1. The authority citation for 21 CFR to provide a reasonable assurance of Optical System (ZILOS-tkr) into class part 876 continues to read as follows: safety and effectiveness of the device. III, because it was not substantially Elsewhere in this issue of the Federal equivalent to a device that was Authority: 21 U.S.C. 351, 360, 360c, 360e, introduced or delivered for introduction 360j, 360l, 371. Register, FDA is publishing a notice of into interstate commerce for commercial 2. Section 876.1 is amended by availability of the guidance document distribution before May 28, 1976, or a adding paragraph (e) to read as follows: that is the special control for this device. device which was subsequently § 876.1 Scope. reclassified into class I or class II. On DATES: This rule is effective January 27, August 25, 2004, Hamilton Thorne * * * * * 2005. The classification was effective Biosciences, Inc., submitted a petition (e) Guidance documents referenced in November 4, 2004. requesting classification of this device this part are available on the Internet at FOR FURTHER INFORMATION CONTACT: http://www.fda.gov/cdrh/guidance.html. under section 513(f)(2) of the act. The Michael Bailey, Center for Devices and manufacturer recommended that the 3. Section 876.5020 is added to Radiological Health (HFZ–400), Food subpart F to read as follows: device be classified into class II (Ref. 1). and Drug Administration, 9200 In accordance with section 513(f)(2) of § 876.5020 External penile rigidity devices. Corporate Blvd., Rockville, MD 20850, the act, FDA reviewed the petition in 301–594–1180, ext. 130. (a) Identification. External penile order to classify the device under the rigidity devices are devices intended to SUPPLEMENTARY INFORMATION: criteria for classification set forth in 513(a)(1) of the act. Devices are to be create or maintain sufficient penile I. Background rigidity for sexual intercourse. External classified into class II if general penile rigidity devices include vacuum In accordance with section 513(f)(1) of controls, by themselves, are insufficient pumps, constriction rings, and penile the Federal Food, Drug, and Cosmetic to provide reasonable assurance of splints which are mechanical, powered, Act (the act) (21 U.S.C. 360c(f)(1)), safety and effectiveness, but there is or pneumatic devices. devices that were not in commercial sufficient information to establish (b) Classification. Class II (special distribution before May 28, 1976, the special controls to provide reasonable controls). The devices are exempt from date of enactment of the Medical Device assurance of the safety and effectiveness the premarket notification procedures in Amendments of 1976 (the amendments), of the device for its intended use. After subpart E of part 807 of this chapter generally referred to as postamendments review of the information submitted in subject to the limitations in § 876.9. The devices, are classified automatically by the petition, FDA has determined that special control for these devices is the statute into class III without any FDA the device can be classified in class II FDA guidance document entitled ‘‘Class rulemaking process. These devices with the establishment of special II Special Controls Guidance Document: remain in class III and require controls. FDA believes that class II External Penile Rigidity Devices.’’ See premarket approval, unless and until special controls, in addition to general § 876.1(e) for the availability of this the device is classified or reclassified controls, will provide reasonable guidance document. into class I or II or FDA issues an order assurance of the safety and effectiveness finding the device to be substantially of the device. Dated: December 15, 2004. equivalent, in accordance with section The device is assigned the generic Linda S. Kahan, 513(i) of the act, to a predicate device name assisted reproduction laser system Deputy Director, Center for Devices and that does not require premarket and it is identified as a device that Radiological Health. approval. The agency determines images, targets, and controls the power [FR Doc. 04–28252 Filed 12–27–04; 8:45 am] whether new devices are substantially and pulse duration of a laser beam used BILLING CODE 4160–01–S equivalent to previously marketed to ablate a small tangential hole in, or
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to thin, the zona pellucida of an embryo III. Analysis of Impacts V. Paperwork Reduction Act of 1995 for assisted hatching or other assisted FDA has examined the impacts of the This final rule contains no collections reproduction procedures. final rule under Executive Order 12866, The potential risks to health of information. Therefore, clearance by the Regulatory Flexibility Act (5 U.S.C. associated with the device are: (1) the Office of Management and Budget 601–612), and the Unfunded Mandates Damage to the embryo, (2) ineffective under the Paperwork Reduction Act of Reform Act of 1995 (Public Law 104–4). treatment, (3) hazards associated with 1995 is not required. Executive Order 12866 directs agencies electrical equipment, and (4) to assess all costs and benefits of electromagnetic interference and VI. Reference available regulatory alternatives and, electrostatic discharge hazards. The when regulation is necessary, to select The following reference has been special controls guidance document regulatory approaches that maximize placed on display in the Division of entitled ‘‘Class II Special Controls Dockets Management (HFA–305), Food Document: Assisted Reproduction Laser net benefits (including potential and Drug Administration, 5630 Fishers Systems’’ aids in mitigating the risks by economic, environmental, public health Lane, rm. 1061, Rockville, MD 20852, recommending performance and safety, and other advantages; characteristics, safety testing, and distributive impacts; and equity). The and may be seen by interested persons appropriate labeling. agency believes that this final rule is not between 9 a.m. and 4 p.m., Monday Thus, in addition to the general a significant regulatory action under the through Friday. controls of the act, an assisted Executive Order. 1. Petition from Hamilton Thorne reproduction laser system, is subject to The Regulatory Flexibility Act Biosciences, Inc., dated August 25, 2004. requires agencies to analyze regulatory the special controls guidance document. List of Subjects in 21 CFR Part 884 FDA believes that following the class II options that would minimize any special controls guidance document significant impact of a rule on small Medical devices. generally addresses the risks to health entities. Because classification of this I identified in the previous paragraph. On device type into class II will relieve Therefore, under the Federal Food, November 4, 2004, FDA issued an order manufacturers of the device of the cost Drug, and Cosmetic Act and under to the petitioner classifying the device of complying with the premarket authority delegated to the Commissioner as described previously into class II and approval requirements of section 515 of of Food and Drugs, 21 CFR part 884 is is codifying this classification by adding the act (21 U.S.C. 360e), and may permit amended as follows: 21 CFR 884.6200. small potential competitors to enter the Following the effective date of this marketplace by lowering their costs, the PART 884–OBSTETRICAL AND final classification rule, any firm agency certifies that the final rule will GYNECOLOGICAL DEVICES submitting a 510(k) (premarket not have a significant impact on a notification) will need to address the substantial number of small entities. I 1. The authority citation for 21 CFR issues covered in the special controls Section 202(a) of the Unfunded part 884 continues to read as follows: guidance. However, the firm need only Mandates Reform Act of 1995 requires that agencies prepare a written Authority: 21 U.S.C. 351, 360, 360c, 360e, show that its device meets the 360j, 371. recommendations of the guidance or in statement, which includes an some other way provides equivalent assessment of anticipated costs and I 2. Section 884.6200 is added to subpart assurances of safety and effectiveness. benefits, before proposing ‘‘any rule that G to read as follows: Section 510(m) of the act provides includes any Federal mandate that may that FDA may exempt a class II device result in the expenditure by State, local, § 884.6200 Assisted reproduction laser from the premarket notification and tribal governments, in the aggregate, system. requirements under section 510(k) of the or by the private sector, of $100,000,000 (a) Identification. The assisted act, if FDA determines that premarket or more (adjusted annually for inflation) reproduction laser system is a device notification is not necessary to provide in any one year.’’ The current threshold that images, targets, and controls the reasonable assurance of the safety and after adjustment for inflation is $110 power and pulse duration of a laser effectiveness of the device. For this type million. FDA does not expect this final beam used to ablate a small tangential of device, FDA has determined that rule to result in any 1-year expenditure hole in, or to thin, the zona pellucida of that would meet or exceed this amount. premarket notification is necessary to an embryo for assisted hatching or other provide reasonable assurance of the IV. Federalism assisted reproduction procedures. safety and effectiveness; therefore, the device is not exempt from premarket FDA has analyzed this final rule in (b) Classification. Class II (special notification requirements. Thus, persons accordance with the principles set forth controls). The special control is FDA’s who intend to market this type of device in Executive Order 13132. FDA has guidance document entitled ‘‘Class II must submit to FDA a premarket determined that the rule does not Special Controls Guidance Document: notification, prior to marketing the contain policies that have substantial Assisted Reproduction Laser Systems.’’ device, which contains information direct effects on the States, on the See § 884.1(e) for the availability of this about the device they intend to market. relationship between the National guidance document. Government and the States, or on the II. Environmental Impact distribution of power and Dated: December 15, 2004. The agency has determined under 21 responsibilities among the various Linda S. Kahan, CFR 25.34(b) that this action is of a type levels of government. Accordingly, the Deputy Director, Center for Devices and that does not individually or agency has concluded that the rule does Radiological Health. cumulatively have a significant effect on not contain policies that have [FR Doc. 04–28251 Filed 12–27–04; 8:45 am] the human environment. Therefore, federalism implications as defined in BILLING CODE 4160–01–S neither an environmental assessment the Executive order and, consequently, nor an environmental impact statement a federalism summary impact statement is required. is not required.
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DEPARTMENT OF THE TREASURY the Internal Revenue Service, Attn: IRS Explanation of Provisions Reports Clearance Officer, General Overview Internal Revenue Service SE:W:CAR:MP:T:T:SP Washington, DC 20224, and to the Office of Management Taxpayers may claim a new markets 26 CFR Parts 1 and 602 and Budget, Attn: Desk Officer for the tax credit on a credit allowance date in an amount equal to the applicable [TD 9171] Department of the Treasury, Office of Information and Regulatory Affairs, percentage of the taxpayer’s qualified RINs 1545–AY87; 1545–BC03 Washington, DC 20503. equity investment in a qualified Books or records relating to this community development entity (CDE). New Markets Tax Credit collection of information must be The credit allowance date for any qualified equity investment is the date AGENCY: Internal Revenue Service (IRS), retained as long as their contents may Treasury. become material in the administration on which the investment is initially of any internal revenue law. Generally, made and each of the 6 anniversary ACTION: Final regulations. tax returns and tax return information dates thereafter. The applicable SUMMARY: These regulations finalize the are confidential, as required by 26 percentage is 5 percent for the first 3 rules relating to the new markets tax U.S.C. 6103. credit allowance dates and 6 percent for the remaining credit allowance dates. credit under section 45D and replace the Background temporary regulations which expire on A CDE is any domestic corporation or December 23, 2004. A taxpayer making This document amends 26 CFR part 1 partnership if: (1) The primary mission a qualified equity investment in a to provide rules relating to the new of the entity is serving or providing qualified community development markets tax credit under section 45D of investment capital for low-income entity that has received a new markets the Internal Revenue Code (Code). On communities or low-income persons; (2) the entity maintains accountability to tax credit allocation may claim a 5- December 26, 2001, the IRS published in the Federal Register temporary and residents of low-income communities percent tax credit with respect to the proposed regulations (the 2001 through their representation on any qualified equity investment on each of temporary regulations) (66 FR 66307, 66 governing board of the entity or on any the first 3 credit allowance dates and a FR 66376). On March 11, 2004, the IRS advisory board to the entity; and (3) the 6-percent tax credit with respect to the published in the Federal Register entity is certified by the Secretary for qualified equity investment on each of temporary and proposed regulations purposes of section 45D as being a CDE. the remaining 4 credit allowance dates. revising and clarifying the 2001 The new markets tax credit may be DATES: Effective Date: These regulations temporary regulations (the 2004 claimed only for a qualified equity are effective December 22, 2004. temporary regulations) (69 FR 11507; 69 investment in a CDE. A qualified equity Date of Applicability: For date of FR 11561). On March 14, 2002, and June investment is any equity investment in applicability see § 1.45D–1(h). 2, 2004, the IRS and Treasury a CDE for which the CDE has received FOR FURTHER INFORMATION CONTACT: Paul Department held public hearings on the an allocation from the Secretary if, F. Handleman or Lauren R. Taylor, (202) 2001 temporary regulations and the among other things, the CDE uses 622–3040 (not a toll-free number). 2004 temporary regulations, substantially all of the cash from the SUPPLEMENTARY INFORMATION: respectively. Written and electronic investment to make qualified low- comments responding to the temporary income community investments. Under Paperwork Reduction Act regulations and notices of proposed a safe harbor, the substantially-all The collection of information rulemaking were received. After requirement is treated as met if at least contained in these final regulations has consideration of all the comments, the 85 percent of the aggregate gross assets been reviewed and approved by the proposed regulations are adopted as of the CDE are invested in qualified low- Office of Management and Budget in amended by this Treasury decision, and income community investments. accordance with the Paperwork the corresponding temporary Qualified low-income community Reduction Act (44 U.S.C. 3507) under regulations are removed. The revisions investments consist of: (1) Any capital control number 1545–1765. Responses are discussed below. or equity investment in, or loan to, any to this collection of information are Section 45D was added to the Code by qualified active low-income community mandatory so that a taxpayer may claim section 121(a) of the Community business; (2) the purchase from another a new markets tax credit on each credit Renewal Tax Relief Act of 2000 (Pub. L. CDE of any loan made by such entity allowance date during the 7-year credit 106–554). The Secretary has delegated that is a qualified low-income period and report compliance with the certain administrative, application, community investment; (3) financial requirements of section 45D to the allocation, monitoring, and other counseling and other services to Secretary. programmatic functions relating to the businesses located in, and residents of, An agency may not conduct or new markets tax credit program to the low-income communities; and (4) sponsor, and a person is not required to Under Secretary (Domestic Finance), certain equity investments in, or loans respond to, a collection of information who in turn has delegated those to, a CDE. unless the collection of information functions to the Community In general, a qualified active low- displays a valid control number Development Financial Institutions income community business is a assigned by the Office of Management Fund. corporation or a partnership if for the and Budget. Sections 221 and 223 of the American taxable year: (1) At least 50 percent of The estimated annual burden per Jobs Creation Act of 2004 (Pub. L. 108– the total gross income of the entity is respondent varies from 15 minutes to 5 357) amended the definition of a low- derived from the active conduct of a hours, depending on individual income community under section qualified business within any low- circumstances, with an estimated 45D(e). This document does not provide income community; (2) a substantial average of 2.5 hours. guidance on these amendments. The IRS portion of the use of the tangible Comments concerning the accuracy of and Treasury Department are studying property of the entity is within any low- this burden estimate and suggestions for the amendments for guidance in the income community; (3) a substantial reducing this burden should be sent to near future. portion of the services performed for the
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entity by its employees is performed in include fees paid to third parties to amend this rule with respect to a any low-income community; (4) less protect against loss of all or a portion of nonprofit corporation by providing that than 5 percent of the average of the the principal of, or interest on, on a loan the nonprofit corporation must be aggregate unadjusted bases of the that is a qualified low-income engaged in an activity that furthers its property of the entity is attributable to community investment. purpose as a nonprofit corporation certain collectibles; and (5) less than 5 within the 3-year period. Qualified Active Low-Income percent of the average of the aggregate Under § 1.45D–1T(d)(4)(i)(E), an Community Business unadjusted bases of the property of the entity is a qualified active low-income entity is attributable to certain As indicated above, qualified low- community business only if, among nonqualified financial property. income community investments include other requirements, less than 5 percent A recapture event requiring an any capital or equity investment in, or of the average of the aggregate investor to recapture credits previously loan to, any qualified active low-income unadjusted bases of the property of such taken occurs for an equity investment in community business. Under § 1.45D– entity is attributable to nonqualified a CDE if the CDE: (1) Ceases to be a CDE; 1T(d)(4)(i)(B), an entity is a qualified financial property (as defined in section (2) ceases to use substantially all of the active low-income community business 1397C(e)). Section 1397C(e)(1) contains proceeds of the equity investment for only if, among other requirements, at an exception to the definition of qualified low-income community least 40 percent of the use of the nonqualified financial property for investments; or (3) redeems the tangible property of such entity reasonable amounts of working capital investor’s equity investment. In (whether owned or leased) is within any held in cash, cash equivalents, or debt addition, the investor’s basis in any low-income community. In response to instruments with a term of 18 months or qualified equity investment is reduced comments, the final regulations provide less. The final regulations provide that, by the amount of the new markets tax an example of how the tangible property for these purposes, the proceeds of a credit. test applies to property that is used both capital or equity investment or loan by outside and inside a low-income a CDE that will be expended on Substantially All community. The example demonstrates construction of real property within 12 As indicated above, a CDE must use that use is measured based on the months after the date the investment or substantially all of the cash from a entity’s business hours of operation and loan is made qualify as a reasonable qualified equity investment to make does not include non-business hours. amount of working capital. qualified low-income community Under section 45D(d)(2)(C), a Section 45D(d)(3)(A) provides that the investments. Section 1.45D–1T(c)(5)(i) qualified active low-income community rental to others of real property located provides that the substantially-all business includes any trade or business in any low-income community is treated requirement is treated as satisfied for an that would qualify as a qualified active as a qualified business only if, among annual period if either the direct-tracing low-income community business if such other requirements, there are substantial calculation under § 1.45D–1T(c)(5)(ii), trade or business were separately improvements located on such property. or the safe harbor calculation under incorporated. Commentators requested Commentators requested clarification of § 1.45D–1T(c)(5)(iii), is performed every clarification of how this rules applies. the term substantial improvements. The six months and the average of the two The final regulations provide that a final regulations provide that the term calculations for the annual period is at CDE may treat any trade or business (or substantial improvements means least 85 percent. The final regulations portion thereof) as a qualified active improvements the cost basis of which clarify that a CDE may choose the same low-income community business if the equals or exceeds 50 percent of the cost two testing dates for all qualified equity trade or business (or portion thereof) basis of the land on which the investments regardless of the date each would meet the requirements to be a improvements are located and the costs qualified equity investment was initially qualified active low-income community of which are incurred after the date the made. To conform the annual testing business if the trade or business (or CDE makes the investment or loan. In requirement with the 12-month time portion thereof) were separately addition, the final regulations provide limit for making qualified low-income incorporated and a complete and that a CDE’s investment in or loan to a community investments, the final separate set of books and records is business engaged in the rental of real regulations provide that for the first maintained for that trade or business (or property is not a qualified low-income annual period, the substantially-all portion thereof). The final regulations community investment to the extent any calculation may be performed on a further provide, however, that under lessee of the real property is not a single testing date. The final regulations this rule a CDE’s capital or equity qualified business. also amend the beginning of the 12- investment or loan is not a qualified month period for making qualified low- low-income community investment to Recapture income community investments to the extent the proceeds of the As indicated above, there is a provide that the 12-month period begins investment or loan are not used for the recapture event with respect to an on the same date as the beginning of the trade or business (or portion thereof) equity investment in a CDE if such first annual period of the 7-year credit that is treated as a qualified active low- investment is redeemed by the CDE. period. income community business. Commentators requested clarification of Section 1.45D–1T(d)(3) provides that Section § 1.45D–1T(d)(4)(iv) provides when distributions by a CDE to its reserves (not in excess of 5 percent of that an entity will be treated as engaged investors will be treated as redemptions. the taxpayer’s cash investment under in the active conduct of a trade or The final regulations provide guidance § 1.45D–1T(b)(4)) maintained by the business if, at the time the CDE makes on when a distribution by a CDE that is CDE for loan losses or for additional a capital or equity investment in, or loan a corporation for Federal tax purposes investments in existing qualified low- to, the entity, the CDE reasonably will be treated as a redemption. income community investments are expects that the entity will generate Some commentators suggested that, in treated as invested in a qualified low- revenues (or, in the case of a nonprofit the case of a CDE that is treated as a income community investment. In corporation, receive donations) within 3 partnership for Federal tax purposes, a response to comments, the final years after the date the investment or redemption should be limited to regulations provide that reserves loan is made. The final regulations purchases by the CDE of a partner’s
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capital interest. Alternatively, section 42 and the exclusion from gross 26 CFR Part 602 commentators requested guidance on income under section 103). The final Reporting and recordkeeping how to distinguish between a return of regulations do not prohibit a CDE from requirements. capital and a distribution of profits if a purchasing tax-exempt bonds because return of capital is treated as a tax-exempt financing provides a subsidy Adoption of Amendments to the redemption. In response to comments, to borrowers and not bondholders. Regulations the final regulations provide a safe However, the final regulations provide I Accordingly, 26 CFR parts 1 and 602 harbor under which cash distributions that if a CDE makes a capital or equity are amended as follows: by a partnership will not be treated as investment or loan with respect to a a redemption. Under the safe harbor, a qualified low-income building under PART 1—INCOME TAXES pro rata cash distribution by the CDE to section 42, the investment or loan is not its partners based on each partner’s a qualified low-income community I Paragraph 1. The authority citation for capital interest in the CDE during the investment to the extent the building’s part 1 continues to read in part as taxable year will not be treated as a eligible basis under section 42(d) is follows: redemption if the distribution does not financed by the proceeds of the Authority: 26 U.S.C. 7805 * * * exceed the CDE’s operating income (as investment or loan. defined in the final regulations) for the Section 1.45D–1 also issued under 26 U.S.C. 45D(i); * * * taxable year. In addition, a non-pro rata Effective Dates de minimis cash distribution by a CDE The final regulations are effective I Par. 2. Section 1.45D–1 is added to to a partner or partners during the December 22, 2004, and may be applied read as follows: taxable year will be not treated as a by taxpayers before December 22, 2004. § 1.45D–1 New markets tax credit. redemption. A non-pro rata de minimis However, both the definition of the term cash distribution may not exceed the substantial improvements and the (a) Table of contents. This paragraph lesser of 5 percent of the CDE’s requirement that each lessee be a lists the headings that appear in operating income for that taxable year or qualified business apply to qualified § 1.45D–1. 10 percent of the partner’s capital low-income community investments (a) Table of contents interest in the CDE. made on or after February 22, 2005. (b) Allowance of credit Commentators suggested that cure (1) In general periods be provided to enable CDEs to Special Analyses (2) Credit allowance date correct any noncompliance with the It has been determined that this (3) Applicable percentage requirements under section 45D. One Treasury decision is not a significant (4) Amount paid at original issue (c) Qualified equity investment commentator suggested that a cure regulatory action as defined in period be provided to allow an (1) In general Executive Order 12866. Therefore, a (2) Equity investment investment that no longer qualifies as a regulatory assessment is not required. It (3) Equity investments made prior to qualified low-income community also has been determined that section allocation investment to be replaced with a 553(b) of the Administrative Procedure (i) In general qualifying investment by the end of the Act (5 U.S.C. chapter 5) does not apply (ii) Exceptions calendar year following the year the to these regulations. It is hereby (A) Allocation applications submitted by original investment lost its status as a certified that the collection of August 29, 2002 qualified low-income community information in these regulations will not (B) Other allocation applications investment. Other commentators (iii) Failure to receive allocation have a significant economic impact on (iv) Initial investment date suggested that, if a qualified equity a substantial number of small entities. investment fails the substantially-all (4) Limitations This certification is based upon the fact (i) In general requirement, the failure should not be a that any burden on taxpayers is (ii) Allocation limitation recapture event if the CDE corrects the minimal. Accordingly, a Regulatory (5) Substantially all failure within 6 months after the date Flexibility Analysis under the (i) In general the CDE discovers (or reasonably should Regulatory Flexibility Act (5 U.S.C. (ii) Direct-tracing calculation have discovered) the failure. The final chapter 6) is not required. Pursuant to (iii) Safe harbor calculation regulations provide that, if a qualified section 7805(f) of the Code, the notices (iv) Time limit for making investments (v) Reduced substantially-all percentage equity investment fails the of proposed rulemaking preceding these substantially-all requirement, the failure (vi) Examples regulations were submitted to the Chief (6) Aggregation of equity investments is not a recapture event if the CDE Counsel for Advocacy of the Small corrects the failure within 6 months (7) Subsequent purchasers Business Administration for comment (d) Qualified low-income community after the date the CDE becomes aware on their impact on small business. investments (or reasonably should have become (1) In general aware) of the failure. Only one Drafting Information (i) Investment in a qualified active low- correction is permitted for each The principal author of these income community business qualified equity investment during the regulations is Paul F. Handleman, Office (ii) Purchase of certain loans from CDEs 7-year credit period. (A) In general of the Associate Chief Counsel (B) Certain loans made before CDE Other Issues (Passthroughs and Special Industries), certification Section 45D(i)(1) authorizes the IRS. However, other personnel from the (C) Intermediary CDEs Secretary to prescribe regulations as IRS and Treasury Department (D) Examples may be appropriate to carry out section participated in their development. (iii) Financial counseling and other services (iv) Investments in other CDEs 45D including regulations that limit the List of Subjects (A) In general new markets tax credit for investments 26 CFR Part 1 (B) Examples that are directly or indirectly subsidized (2) Payments of, or for, capital, equity or by other Federal tax benefits (including Income taxes, Reporting and principal the low-income housing credit under recordkeeping requirements. (i) In general
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(ii) Subsequent reinvestments (1) In general nonqualified preferred stock as defined (iii) Special rule for loans (2) Exception for certain provisions in section 351(g)(2)) in an entity that is (iv) Example (b) Allowance of credit—(1) In a corporation for Federal tax purposes (3) Special rule for reserves and any capital interest in an entity that (4) Qualified active low-income community general. For purposes of the general business business credit under section 38, a is a partnership for Federal tax (i) In general taxpayer holding a qualified equity purposes. See §§ 301.7701–1 through (A) Gross-income requirement investment on a credit allowance date 301.7701–3 of this chapter for rules (B) Use of tangible property which occurs during the taxable year governing when a business entity, such (1) In general may claim the new markets tax credit as a business trust or limited liability (2) Example determined under section 45D and this company, is classified as a corporation (C) Services performed or a partnership for Federal tax (D) Collectibles section for such taxable year in an amount equal to the applicable purposes. (E) Nonqualified financial property (3) Equity investments made prior to (1) In general percentage of the amount paid to a (2) Construction of real property qualified community development allocation—(i) In general. Except as (ii) Proprietorships entity (CDE) for such investment at its provided in paragraph (c)(3)(ii) of this (iii) Portions of business original issue. Qualified equity section, an equity investment in an (A) In general investment is defined in paragraph (c) of entity is not eligible to be designated as (B) Examples this section. Credit allowance date is a qualified equity investment if it is (iv) Active conduct of a trade or business made before the entity enters into an (A) Special rule defined in paragraph (b)(2) of this section. Applicable percentage is allocation agreement with the Secretary. (B) Example An allocation agreement is an (5) Qualified business defined in paragraph (b)(3) of this (i) In general section. A CDE is a qualified community agreement between the Secretary and a (ii) Rental of real property development entity as defined in CDE relating to a new markets tax credit (iii) Exclusions section 45D(c). The amount paid at allocation under section 45D(f)(2). (A) Trades or businesses involving original issue is determined under (ii) Exceptions. Notwithstanding intangibles paragraph (b)(4) of this section. paragraph (c)(3)(i) of this section, an (B) Certain other trades or businesses (2) Credit allowance date. The term equity investment in an entity is eligible (C) Farming to be designated as a qualified equity (6) Qualifications credit allowance date means, with respect to any qualified equity investment under paragraph (c)(1)(iii) of (i) In general this section if— (ii) Control investment— (i) The date on which the investment (A) Allocation applications submitted (A) In general by August 29, 2002. (B) Definition of control is initially made; and (1) The equity investment is made on (C) Disregard of control (ii) Each of the 6 anniversary dates of or after April 20, 2001; (7) Financial counseling and other services such date thereafter. (8) Special rule for certain loans (2) The designation of the equity (3) Applicable percentage. The investment as a qualified equity (i) In general applicable percentage is 5 percent for (ii) Example investment is made for a credit (e) Recapture the first 3 credit allowance dates and 6 allocation received pursuant to an (1) In general percent for the other 4 credit allowance allocation application submitted to the (2) Recapture event dates. Secretary no later than August 29, 2002; (3) Redemption (4) Amount paid at original issue. The and (i) Equity investment in a C corporation amount paid to the CDE for a qualified (3) The equity investment otherwise (ii) Equity investment in an S corporation equity investment at its original issue satisfies the requirements of section 45D (iii) Capital interest in a partnership consists of all amounts paid by the (4) Bankruptcy and this section; or taxpayer to, or on behalf of, the CDE (B) Other allocation applications. (5) Waiver of requirement or extension of (including any underwriter’s fees) to time (1) The equity investment is made on (i) In general purchase the investment at its original or after the date the Secretary publishes (ii) Manner for requesting a waiver or issue. a Notice of Allocation Availability extension (c) Qualified equity investment—(1) In (NOAA) in the Federal Register; (iii) Terms and conditions general. The term qualified equity (2) The designation of the equity (6) Cure period investment means any equity investment as a qualified equity (7) Example investment (as defined in paragraph investment is made for a credit (f) Basis reduction (c)(2) of this section) in a CDE if— allocation received pursuant to an (1) In general (i) The investment is acquired by the allocation application submitted to the (2) Adjustment in basis of interest in taxpayer at its original issue (directly or partnership or S corporation Secretary under that NOAA; and (g) Other rules through an underwriter) solely in (3) The equity investment otherwise (1) Anti-abuse exchange for cash; satisfies the requirements of section 45D (2) Reporting requirements (ii) Substantially all (as defined in and this section. (i) Notification by CDE to taxpayer paragraph (c)(5) of this section) of such (iii) Failure to receive allocation. For (A) Allowance of new markets tax credit cash is used by the CDE to make purposes of paragraph (c)(3)(ii)(A) of (B) Recapture event qualified low-income community this section, if the entity in which the (ii) CDE reporting requirements to Secretary investments (as defined in paragraph equity investment is made does not (iii) Manner of claiming new markets tax (d)(1) of this section); and receive an allocation pursuant to an credit (iii) The investment is designated for allocation application submitted no (iv) Reporting recapture tax (3) Other Federal tax benefits purposes of section 45D and this section later than August 29, 2002, the equity (i) In general by the CDE on its books and records investment will not be eligible to be (ii) Low-income housing credit using any reasonable method. designated as a qualified equity (4) Bankruptcy of CDE (2) Equity investment. The term equity investment. For purposes of paragraph (h) Effective dates investment means any stock (other than (c)(3)(ii)(B) of this section, if the entity
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in which the equity investment is made qualified equity investment was initially aggregate cost basis determined under does not receive an allocation under the made under paragraph (b)(2)(i) of this section 1012 in all of its assets. For NOAA described in paragraph section, provided the testing dates are purposes of this paragraph (c)(5)(iii), (c)(3)(ii)(B)(1) of this section, the equity six months apart. The use of the direct- cost basis includes the cost basis of any investment will not be eligible to be tracing calculation under paragraph qualified low-income community designated as a qualified equity (c)(5)(ii) of this section (or the safe investment that becomes worthless. See investment. harbor calculation under paragraph paragraph (d)(2) of this section for the (iv) Initial investment date. If an (c)(5)(iii) of this section) for an annual treatment of amounts received by a CDE equity investment is designated as a period does not preclude the use of the in payment of, or for, capital, equity or qualified equity investment in safe harbor calculation under paragraph principal with respect to a qualified accordance with paragraph (c)(3)(ii) of (c)(5)(iii) of this section (or the direct- low-income community investment. this section, the investment is treated as tracing calculation under paragraph (iv) Time limit for making initially made on the effective date of (c)(5)(ii) of this section) for another investments. The taxpayer’s cash the allocation agreement between the annual period, provided that a CDE that investment received by a CDE is treated CDE and the Secretary. switches to a direct-tracing calculation as invested in a qualified low-income (4) Limitations—(i) In general. The must substantiate that the taxpayer’s community investment as defined in term qualified equity investment does investment is directly traceable to paragraph (d)(1) of this section only to not include— qualified low-income community the extent that the cash is so invested (A) Any equity investment issued by investments from the time of the CDE’s within the 12-month period beginning a CDE more than 5 years after the date initial investment in a qualified low- on the date the cash is paid by the the CDE enters into an allocation income community investment. For taxpayer (directly or through an agreement (as defined in paragraph purposes of this paragraph (c)(5)(i), the underwriter) to the CDE. (c)(3)(i) of this section) with the 7-year credit period means the period of (v) Reduced substantially-all Secretary; and 7 years beginning on the date the percentage. For purposes of the (B) Any equity investment by a CDE qualified equity investment is initially substantially-all requirement (including in another CDE, if the CDE making the made. See paragraph (c)(6) of this the direct-tracing calculation under investment has received an allocation section for circumstances in which a paragraph (c)(5)(ii) of this section and under section 45D(f)(2). CDE may treat more than one equity the safe harbor calculation under (ii) Allocation limitation. The investment as a single qualified equity paragraph (c)(5)(iii) of this section), 85 maximum amount of equity investments investment. percent is reduced to 75 percent for the issued by a CDE that may be designated (ii) Direct-tracing calculation. The seventh year of the 7-year credit period under paragraph (c)(1)(iii) of this section substantially-all requirement is satisfied (as defined in paragraph (c)(5)(i) of this by the CDE may not exceed the portion if at least 85 percent of the taxpayer’s section). of the limitation amount allocated to the investment is directly traceable to (vi) Examples. The following CDE by the Secretary under section qualified low-income community examples illustrate an application of 45D(f)(2). investments as defined in paragraph this paragraph (c)(5): (5) Substantially all—(i) In general. (d)(1) of this section. The direct-tracing Except as provided in paragraph Example 1. X is a partnership and a CDE calculation is a fraction the numerator that has received a $1 million new markets (c)(5)(v) of this section, the term of which is the CDE’s aggregate cost substantially all means at least 85 tax credit allocation from the Secretary. On basis determined under section 1012 in September 1, 2004, X uses a line of credit percent. The substantially-all all of the qualified low-income from a bank to fund a $1 million loan to Y. requirement must be satisfied for each community investments that are directly The loan is a qualified low-income annual period in the 7-year credit traceable to the taxpayer’s cash community investment under paragraph period using either the direct-tracing investment, and the denominator of (d)(1) of this section. On September 5, 2004, calculation under paragraph (c)(5)(ii) of which is the amount of the taxpayer’s A pays $1 million to acquire a capital interest this section, or the safe harbor cash investment under paragraph (b)(4) in X. X uses the proceeds of A’s equity investment to pay off the $1 million line of calculation under paragraph (c)(5)(iii) of of this section. For purposes of this this section. For the first annual period, credit that was used to fund the loan to Y. paragraph (c)(5)(ii), cost basis includes X’s aggregate gross assets consist of the $1 the substantially-all requirement is the cost basis of any qualified low- million loan to Y and $100,000 in other treated as satisfied if either the direct- income community investment that assets. A’s equity investment in X does not tracing calculation under paragraph becomes worthless. See paragraph (d)(2) satisfy the substantially-all requirement (c)(5)(ii) of this section, or the safe- of this section for the treatment of under paragraph (c)(5)(i) of this section using harbor calculation under paragraph amounts received by a CDE in payment the direct-tracing calculation under (c)(5)(iii) of this section, is performed on of, or for, capital, equity or principal paragraph (c)(5)(ii) of this section because the a single testing date and the result of the with respect to a qualified low-income cash from A’s equity investment is not used to make X’s loan to Y. However, A’s equity calculation is at least 85 percent. For community investment. each annual period other than the first investment in X satisfies the substantially-all (iii) Safe harbor calculation. The requirement using the safe harbor calculation annual period, the substantially-all substantially-all requirement is satisfied under paragraph (c)(5)(iii) of this section requirement is treated as satisfied if if at least 85 percent of the aggregate because at least 85 percent of X’s aggregate either the direct-tracing calculation gross assets of the CDE are invested in gross assets are invested in qualified low- under paragraph (c)(5)(ii) of this section, qualified low-income community income community investments. or the safe harbor calculation under investments as defined in paragraph Example 2. X is a partnership and a CDE paragraph (c)(5)(iii) of this section, is (d)(1) of this section. The safe harbor that has received a new markets tax credit performed every six months and the calculation is a fraction the numerator allocation from the Secretary. On August 1, average of the two calculations for the 2004, A pays $100,000 for a capital interest of which is the CDE’s aggregate cost in X. On August 5, 2004, X uses the proceeds annual period is at least 85 percent. For basis determined under section 1012 in of A’s equity investment to make an equity example, the CDE may choose the same all of its qualified low-income investment in Y. X controls Y within the two testing dates for all qualified equity community investments, and the meaning of paragraph (d)(6)(ii)(B) of this investments regardless of the date each denominator of which is the CDE’s section. For the annual period ending July
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31, 2005, Y is a qualified active low-income investment in Y, a qualified active low- (1) At the time the loan was made; or community business (as defined in paragraph income community business (as defined in (2) At the time the ultimate CDE (d)(4) of this section). Thus, for that period, paragraph (d)(4) of this section). X has no purchases the loan. A’s equity investment satisfies the assets other than its investment in Y. X (B) Certain loans made before CDE determines whether A’s and B’s equity substantially-all requirement under certification. For purposes of paragraph paragraph (c)(5)(i) of this section using the investments satisfy the substantially-all direct-tracing calculation under paragraph requirement under paragraph (c)(5)(i) of this (d)(1)(ii)(A) of this section, a loan by an (c)(5)(ii) of this section. For the annual period section on December 31, 2004. The entity is treated as made by a CDE, ending July 31, 2006, Y no longer is a calculation for A’s and B’s equity notwithstanding that the entity was not qualified active low-income community investments is 85 percent using either the a CDE at the time it made the loan, if business. Thus, for that period, A’s equity direct-tracing calculation under paragraph the entity is a CDE at the time it sells investment does not satisfy the substantially- (c)(5)(ii) of this section or the safe harbor the loan. all requirement using the direct-tracing calculation under paragraph (c)(5)(iii) of this (C) Intermediary CDEs. For purposes section. Therefore, for the annual periods calculation. However, during the entire of paragraph (d)(1)(ii)(A) of this section, annual period ending July 31, 2006, X’s ending October 31, 2005, and November 30, remaining assets are invested in qualified 2005, A’s and B’s equity investments, the purchase of a loan by the ultimate low-income community investments with an respectively, satisfy the substantially-all CDE from a CDE that did not make the aggregate cost basis of $900,000. requirement under paragraph (c)(5)(i) of this loan (the second CDE) is treated as a Consequently, for the annual period ending section. For the subsequent annual period, X purchase of the loan by the ultimate July 31, 2006, at least 85 percent of X’s performs its calculations on December 31, CDE from the CDE that made the loan aggregate gross assets are invested in 2005, and June 30, 2006. The average of the (the originating CDE) if— qualified low-income community two calculations on December 31, 2005, and (1) The second CDE purchased the June 30, 2006, is 85 percent using either the investments. Thus, for the annual period loan from the originating CDE (or from ending July 31, 2006, A’s equity investment direct-tracing calculation under paragraph (c)(5)(ii) of this section or the safe harbor another CDE); and satisfies the substantially-all requirement (2) Each entity that sold the loan was using the safe harbor calculation under calculation under paragraph (c)(5)(iii) of this paragraph (c)(5)(iii) of this section. section. Therefore, for the annual periods a CDE at the time it sold the loan. Example 3. X is a partnership and a CDE ending October 31, 2006, and November 30, (D) Examples. The following that has received a new markets tax credit 2006, A’s and B’s equity investments, examples illustrate an application of allocation from the Secretary. On August 1, respectively, satisfy the substantially-all this paragraph (d)(1)(ii): 2004, A and B each pay $100,000 for a capital requirement under paragraph (c)(5)(i) of this section. Example 1. X is a partnership and a CDE interest in X. X does not treat A’s and B’s that has received a new markets tax credit equity investments as one qualified equity (6) Aggregation of equity investments. allocation from the Secretary. Y, a investment under paragraph (c)(6) of this A CDE may treat any qualified equity corporation, made a $500,000 loan to Z in section. On September 1, 2004, X uses the investments issued on the same day as 1999. In January of 2004, Y is certified as a proceeds of A’s equity investment to make an one qualified equity investment. If a CDE. On September 1, 2004, X purchases the equity investment in Y and X uses the CDE aggregates equity investments loan from Y. At the time X purchases the proceeds of B’s equity investment to make an loan, Z is a qualified active low-income equity investment in Z. X has no assets other under this paragraph (c)(6), the rules in this section shall be construed in a community business under paragraph than its investments in Y and Z. X controls (d)(4)(i) of this section. Accordingly, the loan Y and Z within the meaning of paragraph manner consistent with that treatment. (7) Subsequent purchasers. A purchased by X from Y is a qualified low- (d)(6)(ii)(B) of this section. For the annual income community investment under period ending July 31, 2005, Y and Z are qualified equity investment includes paragraphs (d)(1)(ii)(A) and (B) of this qualified active low-income community any equity investment that would (but section. businesses (as defined in paragraph (d)(4) of for paragraph (c)(1)(i) of this section) be Example 2. The facts are the same as in this section). Thus, for the annual period a qualified equity investment in the Example 1 except that on February 1, 2004, ending July 31, 2005, A’s and B’s equity hands of the taxpayer if the investment Y sells the loan to W and on September 1, investments satisfy the substantially-all was a qualified equity investment in the 2004, W sells the loan to X. W is a CDE. requirement under paragraph (c)(5)(i) of this Under paragraph (d)(1)(ii)(C) of this section, section using either the direct-tracing hands of a prior holder. (d) Qualified low-income community X’s purchase of the loan from W is treated calculation under paragraph (c)(5)(ii) of this as the purchase of the loan from Y. section or the safe harbor calculation under investments—(1) In general. The term qualified low-income community Accordingly, the loan purchased by X from paragraph (c)(5)(iii) of this section. For the W is a qualified low-income community annual period ending July 31, 2006, Y, but investment means any of the following: investment under paragraphs (d)(1)(ii)(A) and not Z, is a qualified active low-income (i) Investment in a qualified active (C) of this section. community business. Thus, for the annual low-income community business. Any Example 3. The facts are the same as in period ending July 31, 2006— capital or equity investment in, or loan Example 2 except that W is not a CDE. (1) X does not satisfy the substantially-all to, any qualified active low-income Because W was not a CDE at the time it sold requirement using the safe harbor calculation community business (as defined in the loan to X, the purchase of the loan by X under paragraph (c)(5)(iii) of this section; from W is not a qualified low-income (2) A’s equity investment satisfies the paragraph (d)(4) of this section). (ii) Purchase of certain loans from community investment under paragraphs substantially-all requirement using the (d)(1)(ii)(A) and (C) of this section. direct-tracing calculation because A’s equity CDEs—(A) In general. The purchase by investment is directly traceable to Y; and a CDE (the ultimate CDE) from another (iii) Financial counseling and other (3) B’s equity investment does not satisfy CDE (whether or not that CDE has services. Financial counseling and other the substantially-all requirement because B’s received an allocation from the services (as defined in paragraph (d)(7) equity investment is traceable to Z. Secretary under section 45D(f)(2)) of any of this section) provided to any Example 4. X is a partnership and a CDE loan made by such entity that is a qualified active low-income community that has received a new markets tax credit qualified low-income community business, or to any residents of a low- allocation from the Secretary. On November investment. A loan purchased by the income community (as defined in 1, 2004, A pays $100,000 for a capital interest in X. On December 1, 2004, B pays $100,000 ultimate CDE from another CDE is a section 45D(e)). for a capital interest in X. On December 31, qualified low-income community (iv) Investments in other CDEs—(A) In 2004, X uses $85,000 from A’s equity investment if it qualifies as a qualified general. Any equity investment in, or investment and $85,000 from B’s equity low-income community investment loan to, any CDE (the second CDE) by investment to make a $170,000 equity either— a CDE (the primary CDE), but only to the
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extent that the second CDE uses the qualified low-income community investment cost basis exceeds the amount proceeds of the investment or loan— because X does not use proceeds of W’s determined to be continuously invested (1) In a manner— equity investment in a manner described in in a qualified low-income community (i) That is described in paragraph paragraph (d)(1)(iv)(A)(1) of this section. investment. (d)(1)(i) or (iii) of this section; and (2) Payments of, or for, capital, equity (iii) Special rule for loans. Periodic (ii) That would constitute a qualified or principal—(i) In general. Except as amounts received during a calendar year low-income community investment if it otherwise provided in this paragraph as repayment of principal on a loan that were made directly by the primary CDE; (d)(2), amounts received by a CDE in is a qualified low-income community (2) To make an equity investment in, payment of, or for, capital, equity or investment are treated as continuously or loan to, a third CDE that uses such principal with respect to a qualified invested in a qualified low-income proceeds in a manner described in low-income community investment community investment if the amounts paragraph (d)(1)(iv)(A)(1) of this section; must be reinvested by the CDE in a are reinvested in another qualified low- or qualified low-income community income community investment by the (3) To make an equity investment in, investment no later than 12 months end of the following calendar year. or loan to, a third CDE that uses such from the date of receipt to be treated as (iv) Example. The application of proceeds to make an equity investment continuously invested in a qualified paragraphs (d)(2)(i) and (ii) of this in, or loan to, a fourth CDE that uses low-income community investment. If section is illustrated by the following such proceeds in a manner described in the amounts received by the CDE are example: paragraph (d)(1)(iv)(A)(1) of this section. equal to or greater than the cost basis of Example. On April 1, 2003, A, B, and C (B) Examples. The following the original qualified low-income each pay $100,000 to acquire a capital examples illustrate an application of community investment (or applicable interest in X, a partnership. X is a CDE that paragraph (d)(1)(iv)(A) of this section: portion thereof), and the CDE reinvests, has received a new markets tax credit in accordance with this paragraph allocation from the Secretary. X treats the 3 Example 1. X is a partnership and a CDE (d)(2)(i), an amount at least equal to partnership interests as one qualified equity that has received a new markets tax credit investment under paragraph (c)(6) of this allocation from the Secretary. On September such original cost basis, then an amount section. In August 2003, X uses the $300,000 1, 2004, X uses $975,000 to make an equity equal to such original cost basis will be to make a qualified low-income community investment in Y. Y is a corporation and a treated as continuously invested in a investment under paragraph (d)(1) of this CDE. On October 1, 2004, Y uses $950,000 qualified low-income community section. In August 2005, the qualified low- from X’s equity investment to make a loan to investment. In addition, if the amounts income community investment is redeemed Z. Z is a qualified active low-income received by the CDE are equal to or for $250,000. In February 2006, X reinvests community business under paragraph greater than the cost basis of the original $230,000 of the $250,000 in a second (d)(4)(i) of this section. Of X’s equity qualified low-income community qualified low-income community investment investment in Y, $950,000 is a qualified low- investment (or applicable portion and uses the remaining $20,000 for operating income community investment under thereof), and the CDE reinvests, in expenses. Under paragraph (d)(2)(i) of this paragraph (d)(1)(iv)(A)(1) of this section. section, $280,000 of the proceeds of the Example 2. W is a partnership and a CDE accordance with this paragraph (d)(2)(i), qualified equity investment is treated as that has received a new markets tax credit an amount less than such original cost continuously invested in a qualified low- allocation from the Secretary. On September basis, then only the amount so income community investment. In December 1, 2004, W uses $975,000 to make an equity reinvested will be treated as 2008, X sells the second qualified low- investment in X. On October 1, 2004, X uses continuously invested in a qualified income community investment and receives $950,000 from W’s equity investment to low-income community investment. If $400,000. In March 2009, X reinvests make an equity investment in Y. X and Y are the amounts received by the CDE are $320,000 of the $400,000 in a third qualified corporations and CDEs. On October 5, 2004, less than the cost basis of the original low-income community investment. Under Y uses $925,000 from X’s equity investment qualified low-income community paragraphs (d)(2)(i) and (ii) of this section, to make a loan to Z. Z is a qualified active investment (or applicable portion $280,000 of the proceeds of the qualified low-income community business under equity investment is treated as continuously paragraph (d)(4)(i) of this section. Of W’s thereof), and the CDE reinvests an invested in a qualified low-income equity investment in X, $925,000 is a amount in accordance with this community investment ($40,000 is treated as qualified low-income community investment paragraph (d)(2)(i), then the amount invested in another qualified low-income under paragraph (d)(1)(iv)(A)(2) of this treated as continuously invested in a community investment in March 2009). section because X uses proceeds of W’s qualified low-income community equity investment to make an equity investment will equal the excess (if any) (3) Special rule for reserves. Reserves investment in Y, which uses $925,000 of the of such original cost basis over the (not in excess of 5 percent of the proceeds in a manner described in paragraph amounts received by the CDE that are taxpayer’s cash investment under (d)(1)(iv)(A)(1) of this section. not so reinvested. Amounts received by paragraph (b)(4) of this section) Example 3. U is a partnership and a CDE a CDE in payment of, or for, capital, maintained by the CDE for loan losses that has received a new markets tax credit or for additional investments in existing allocation from the Secretary. On September equity or principal with respect to a 1, 2004, U uses $975,000 to make an equity qualified low-income community qualified low-income community investment in V. On October 1, 2004, V uses investment during the seventh year of investments are treated as invested in a $950,000 from U’s equity investment to make the 7-year credit period (as defined in qualified low-income community an equity investment in W. On October 5, paragraph (c)(5)(i) of this section) do not investment under paragraph (d)(1) of 2004, W uses $925,000 from V’s equity have to be reinvested by the CDE in a this section. Reserves include fees paid investment to make an equity investment in qualified low-income community to third parties to protect against loss of X. On November 1, 2004, X uses $900,000 investment in order to be treated as all or a portion of the principal of, or from W’s equity investment to make an continuously invested in a qualified interest on, a loan that is a qualified equity investment in Y. V, W, X, and Y are low-income community investment. corporations and CDEs. On November 5, low-income community investment. 2004, Y uses $875,000 from X’s equity (ii) Subsequent reinvestments. In (4) Qualified active low-income investment to make a loan to Z. Z is a applying paragraph (d)(2)(i) of this community business—(i) In general. The qualified active low-income community section to subsequent reinvestments, the term qualified active low-income business under paragraph (d)(4)(i) of this original cost basis is reduced by the community business means, with section. U’s equity investment in V is not a amount (if any) by which the original respect to any taxable year, a
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corporation (including a nonprofit (including time in the parking lot). The cost definition of a qualified active low- corporation) or a partnership engaged in basis under section 1012 of each truck is income community business); or the active conduct of a qualified $25,000. During non-business hours, the (ii) Debt instruments described in business (as defined in paragraph (d)(5) trucks are parked in the lot. Only X’s 10-hour section 1221(a)(4). of this section), if the requirements in business days are used in calculating the use of tangible property percentage under (2) Construction of real property. For paragraphs (d)(4)(i)(A), (B), (C), (D), and paragraph (d)(4)(i)(B)(1) of this section. Thus, purposes of paragraph (d)(4)(i)(E)(1)(i) of (E) of this section are met. Solely for the numerator of the tangible property this section, the proceeds of a capital or purposes of this section, a nonprofit calculation is $600,000 (4⁄10 of $1,000,000 equity investment or loan by a CDE that corporation will be deemed to be (the $25,000 cost basis of each truck times 40 will be expended for construction of engaged in the active conduct of a trade trucks) plus $200,000 (the cost basis of the real property within 12 months after the or business if it is engaged in an activity building and parking lot)) and the date the investment or loan is made are that furthers its purpose as a nonprofit denominator is $1,200,000 (the total cost treated as a reasonable amount of corporation. basis of the trucks, building, and parking lot), resulting in 50 percent of the use of X’s working capital. (A) Gross-income requirement. At (ii) Proprietorships. Any business least 50 percent of the total gross tangible property being within a low-income community. Consequently, X satisfies the 40 carried on by an individual as a income of such entity is derived from percent use of tangible property test under proprietor is a qualified active low- the active conduct of a qualified paragraph (d)(4)(i)(B)(1) of this section. income community business if the business (as defined in paragraph (d)(5) business would meet the requirements (C) Services performed. At least 40 of this section) within any low-income of paragraph (d)(4)(i) of this section if percent of the services performed for community (as defined in section the business were incorporated. 45D(e)). An entity is deemed to satisfy such entity by its employees are (iii) Portions of business—(A) In this paragraph (d)(4)(i)(A) if the entity performed in a low-income community. general. A CDE may treat any trade or meets the requirements of either This percentage is determined based on business (or portion thereof) as a paragraph (d)(4)(i)(B) or (C) of this a fraction the numerator of which is the qualified active low-income community section, if ‘‘50 percent’’ is applied total amount paid by the entity for instead of 40 percent. In addition, an employee services performed in a low- business if the trade or business (or entity may satisfy this paragraph income community during the taxable portion thereof) would meet the (d)(4)(i)(A) based on all the facts and year and the denominator of which is requirements of paragraph (d)(4)(i) of circumstances. See paragraph (d)(4)(iv) the total amount paid by the entity for this section if the trade or business (or of this section for certain circumstances employee services during the taxable portion thereof) were separately in which an entity will be treated as year. If the entity has no employees, the incorporated and a complete and engaged in the active conduct of a trade entity is deemed to satisfy this separate set of books and records is or business. paragraph (d)(4)(i)(C), and paragraph maintained for that trade or business (or (B) Use of tangible property—(1) In (d)(4)(i)(A) of this section, if the entity portion thereof). However, the CDE’s general. At least 40 percent of the use meets the requirement of paragraph capital or equity investment or loan is of the tangible property of such entity (d)(4)(i)(B) of this section if ‘‘85 not a qualified low-income community (whether owned or leased) is within any percent’’ is applied instead of 40 investment under paragraph (d)(1)(i) of low-income community. This percent. this section to the extent the proceeds percentage is determined based on a of the investment or loan are not used (D) Collectibles. Less than 5 percent of for the trade or business (or portion fraction the numerator of which is the the average of the aggregate unadjusted average value of the tangible property thereof) that is treated as a qualified bases of the property of such entity is active low-income community business owned or leased by the entity and used attributable to collectibles (as defined in by the entity during the taxable year in under this paragraph (d)(4)(iii)(A). section 408(m)(2)) other than (B) Examples. The following a low-income community and the collectibles that are held primarily for denominator of which is the average examples illustrate an application of sale to customers in the ordinary course paragraph (d)(4)(iii) of this section: value of the tangible property owned or of business. leased by the entity and used by the (E) Nonqualified financial property— Example 1. X is a partnership and a CDE entity during the taxable year. Property that receives a new markets tax credit (1) In general. Less than 5 percent of the owned by the entity is valued at its cost allocation from the Secretary. A pays $1 average of the aggregate unadjusted basis as determined under section 1012. million for a capital interest in X. Z is a bases of the property of such entity is Property leased by the entity is valued corporation that operates a supermarket that attributable to nonqualified financial at a reasonable amount established by is not in a low-income community (as property. For purposes the preceding defined in section 45D(e)). X uses the the entity. sentence, the term nonqualified proceeds of A’s equity investment to make a (2) Example. The application of financial property means debt, stock, loan to Z that Z will use to construct a new paragraph (d)(4)(i)(B)(1) of this section partnership interests, options, futures supermarket in a low-income community. Z is illustrated by the following example: contracts, forward contracts, warrants, will maintain a complete and separate set of Example. X is a corporation engaged in the books and records for the new supermarket. notional principal contracts, annuities, The proceeds of X’s loan to Z will be used business of moving and hauling scrap metal. and other similar property except that X operates its business from a building and exclusively for the new supermarket. Assume an adjoining parking lot that X owns. The such term does not include— that Z’s new supermarket in the low-income building and the parking lot are located in a (i) Reasonable amounts of working community would meet the requirements to low-income community (as defined in capital held in cash, cash equivalents, or be a qualified active low-income community section 45D(e)). X’s cost basis under section debt instruments with a term of 18 business under paragraph (d)(4)(i) of this 1012 for the building and parking lot is months or less (because the definition of section if it were separately incorporated. Pursuant to paragraph (d)(4)(iii)(A) of this $200,000. During the taxable year, X operates nonqualified financial property its business 10 hours a day, 6 days a week. section, X treats Z’s new supermarket as the X owns and uses 40 trucks in its business, includes debt instruments with a term qualified active low-income community which, on average, are used 6 hours a day in excess of 18 months, banks, credit business. Accordingly, X’s loan to Z is a outside a low-income community and 4 unions, and other financial institutions qualified low-income community investment hours a day inside a low-income community are generally excluded from the under paragraph (d)(1)(i) of this section.
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Example 2. X is a partnership and a CDE (B) Example. The application of the close of the taxable year of the that receives a new markets tax credit paragraph (d)(4)(iv)(A) of this section is taxpayer conducting such trade or allocation from the Secretary. A pays $1 illustrated by the following example: business, the sum of the aggregate million for a capital interest in X. Z is a Example. X is a partnership and a CDE that unadjusted bases (or, if greater, the fair corporation that operates a liquor store in a market value) of the assets owned by the low-income community (as defined in receives a new markets tax credit allocation section 45D(e)). A liquor store is not a from the Secretary on July 1, 2004. X makes taxpayer that are used in such a trade or qualified business under paragraph a ten-year loan to Y. Y is a newly formed business, and the aggregate value of the (d)(5)(iii)(B) of this section. X uses the entity that will own and operate a shopping assets leased by the taxpayer that are proceeds of A’s equity investment to make a center to be constructed in a low-income used in such a trade or business, loan to Z that Z will use to construct a community. Y has no revenues but X exceeds $500,000. For purposes of this restaurant next to the liquor store. Z will reasonably expects that Y will generate paragraph (d)(5)(iii)(C), two or more maintain a complete and separate set of revenues beginning in December 2005. Under trades or businesses will be treated as a books and records for the new restaurant. paragraph (d)(4)(iv)(A) of this section, Y is treated as engaged in the active conduct of single trade or business under rules The proceeds of X’s loan to Z will be used similar to the rules of section 52(a) and exclusively for the new restaurant. Assume a trade or business for purposes of paragraph (d)(4)(i) of this section. (b). that Z’s restaurant would meet the (6) Qualifications—(i) In general. requirements to be a qualified active low- (5) Qualified business—(i) In general. Except as provided in paragraph income community business under Except as otherwise provided in this (d)(6)(ii) of this section, an entity is paragraph (d)(4)(i) of this section if it were paragraph (d)(5), the term qualified separately incorporated. Pursuant to treated as a qualified active low-income business means any trade or business. community business for the duration of paragraph (d)(4)(iii) of this section, X treats There is no requirement that employees Z’s restaurant as the qualified active low- the CDE’s investment in the entity if the income community business. Accordingly, of a qualified business be residents of a CDE reasonably expects, at the time the X’s loan to Z is a qualified low-income low-income community. CDE makes the capital or equity community investment under paragraph (ii) Rental of real property. The rental investment in, or loan to, the entity, that (d)(1)(i) of this section. to others of real property located in any the entity will satisfy the requirements Example 3. X is a partnership and a CDE low-income community (as defined in to be a qualified active low-income that receives a new markets tax credit section 45D(e)) is a qualified business if community business under paragraph allocation from the Secretary. A pays $1 and only if the property is not (d)(4)(i) of this section throughout the million for a capital interest in X. Z is a residential rental property (as defined in corporation that operates an insurance entire period of the investment or loan. section 168(e)(2)(A)) and there are (ii) Control—(A) In general. If a CDE company in a low-income community (as substantial improvements located on the defined in section 45D(e)). Five percent or controls or obtains control of an entity more of the average of the aggregate real property. For purposes of the at any time during the 7-year credit unadjusted bases of Z’s property is preceding sentence, the term substantial period (as defined in paragraph (c)(5)(i) attributable to nonqualified financial improvements means improvements the of this section), the entity will be treated property under paragraph (d)(4)(i)(E) of this cost basis of which equals or exceeds 50 as a qualified active low-income section. Z’s insurance operations include percent of the cost basis of the land on community business only if the entity different operating units including a claims which the improvements are located satisfies the requirements of paragraph processing unit. X uses the proceeds of A’s and the costs of which are incurred after (d)(4)(i) of this section throughout the equity investment to make a loan to Z for use the date the CDE makes the investment entire period the CDE controls the in Z’s claims processing operations. Z will or loan. However, a CDE’s investment in maintain a complete and separate set of entity. books and records for the claims processing or loan to a business engaged in the (B) Definition of control. Control unit. The proceeds of X’s loan to Z will be rental of real property is not a qualified means, with respect to an entity, direct used exclusively for the claims processing low-income community investment or indirect ownership (based on value) unit. Assume that Z’s claims processing unit under paragraph (d)(1)(i) of this section or control (based on voting or would meet the requirements to be a to the extent any lessee of the real management rights) of more than 50 qualified active low-income community property is not a qualified business percent of the entity. For purposes of business under paragraph (d)(4)(i) of this under this paragraph (d)(5). the preceding sentence, the term section if it were separately incorporated. (iii) Exclusions—(A) Trades or management rights means the power to Pursuant to paragraph (d)(4)(iii) of this businesses involving intangibles. The influence the management policies or section, X treats Z’s claims processing unit as term qualified business does not include the qualified active low-income community investment decisions of the entity. business. Accordingly, X’s loan to Z is a any trade or business consisting (C) Disregard of control. For purposes qualified low-income community investment predominantly of the development or of paragraph (d)(6)(ii)(A) of this section, under paragraph (d)(1)(i) of this section. holding of intangibles for sale or license. the acquisition of control of an entity by (B) Certain other trades or businesses. a CDE is disregarded during the 12- (iv) Active conduct of a trade or The term qualified business does not month period following such business—(A) Special rule. For include any trade or business consisting acquisition of control (the 12-month purposes of paragraph (d)(4)(i) of this of the operation of any private or period) if— section, an entity will be treated as commercial golf course, country club, (1) The CDE’s capital or equity engaged in the active conduct of a trade massage parlor, hot tub facility, suntan investment in, or loan to, the entity met or business if, at the time the CDE facility, racetrack or other facility used the requirements of paragraph (d)(6)(i) makes a capital or equity investment in, for gambling, or any store the principal of this section when initially made; or loan to, the entity, the CDE business of which is the sale of (2) The CDE’s acquisition of control of reasonably expects that the entity will alcoholic beverages for consumption off the entity is due to financial difficulties generate revenues (or, in the case of a premises. of the entity that were unforeseen at the nonprofit corporation, engage in an (C) Farming. The term qualified time the investment or loan described in activity that furthers its purpose as a business does not include any trade or paragraph (d)(6)(ii)(C)(1) of this section nonprofit corporation) within 3 years business the principal activity of which was made; and after the date the investment or loan is is farming (within the meaning of (3) If the acquisition of control occurs made. section 2032A(e)(5)(A) or (B)) if, as of before the seventh year of the 7-year
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credit period (as defined in paragraph community investment under paragraph its partners based on each partner’s (c)(5)(i) of this section), either— (d)(1)(i) of this section. Accordingly, under capital interest in the CDE during the (i) The entity satisfies the paragraph (d)(1)(ii)(A) of this section, X’s taxable year will not be treated as a requirements of paragraph (d)(4) of this purchase of the loan from Y is a qualified redemption for purposes of paragraph low-income community investment in the section by the end of the 12-month amount of $850,000. (e)(2)(iii) of this section if the period; or distribution does not exceed the CDE’s (ii) The CDE sells or causes to be (e) Recapture—(1) In general. If, at operating income for the taxable year. In redeemed the entire amount of the any time during the 7-year period addition, a non-pro rata de minimis cash investment or loan described in beginning on the date of the original distribution by a CDE to a partner or paragraph (d)(6)(ii)(C)(1) of this section issue of a qualified equity investment in partners during the taxable year will not and, by the end of the 12-month period, a CDE, there is a recapture event under be treated as a redemption. A non-pro reinvests the amount received in respect paragraph (e)(2) of this section with rata de minimis cash distribution may of the sale or redemption in a qualified respect to such investment, then the tax not exceed the lesser of 5 percent of the low-income community investment imposed by Chapter 1 of the Internal CDE’s operating income for that taxable under paragraph (d)(1) of this section. Revenue Code for the taxable year in year or 10 percent of the partner’s For this purpose, the amount treated as which the recapture event occurs is capital interest in the CDE. For purposes continuously invested in a qualified increased by the credit recapture of this paragraph (e)(3)(iii), with respect low-income community investment is amount under section 45D(g)(2). A to any taxable year, operating income is determined under paragraphs (d)(2)(i) recapture event under paragraph (e)(2) the sum of: and (ii) of this section. of this section requires recapture of (A) The CDE’s taxable income as (7) Financial counseling and other credits allowed to the taxpayer who determined under section 703, except services. The term financial counseling purchased the equity investment from that— and other services means advice the CDE at its original issue and to all (1) The items described in section provided by the CDE relating to the subsequent holders of that investment. 703(a)(1) shall be aggregated with the organization or operation of a trade or (2) Recapture event. There is a non-separately stated tax items of the business. recapture event with respect to an partnership; and (8) Special rule for certain loans—(i) equity investment in a CDE if— (2) Any gain resulting from the sale of In general. For purposes of paragraphs (i) The entity ceases to be a CDE; a capital asset under section 1221(a) or (ii) The proceeds of the investment (d)(1)(i), (ii), and (iv) of this section, a section 1231 property shall not be cease to be used in a manner that loan is treated as made by a CDE to the included in taxable income; satisfies the substantially-all extent the CDE purchases the loan from (B) Deductions under section 165, but requirement of paragraph (c)(1)(ii) of the originator (whether or not the only to the extent the losses were this section; or realized from qualified low-income originator is a CDE) within 30 days after (iii) The investment is redeemed or the date the originator makes the loan if, community investments under otherwise cashed out by the CDE. paragraph (d)(1) of this section; at the time the loan is made, there is a (3) Redemption—(i) Equity investment legally enforceable written agreement (C) Deductions under sections 167 in a C corporation. For purposes of and 168, including the additional first- between the originator and the CDE paragraph (e)(2)(iii) of this section, an which— year depreciation under section 168(k); equity investment in a CDE that is (D) Start-up expenditures amortized (A) Requires the CDE to approve the treated as a C corporation for Federal tax under section 195; and making of the loan either directly or by purposes is redeemed when section (E) Organizational expenses amortized imposing specific written loan 302(a) applies to amounts received by under section 709. underwriting criteria; and the equity holder. An equity investment (4) Bankruptcy. Bankruptcy of a CDE (B) Requires the CDE to purchase the is treated as cashed out when section is not a recapture event. loan within 30 days after the date the 301(c)(2) or section 301(c)(3) applies to (5) Waiver of requirement or extension loan is made. amounts received by the equity holder. of time—(i) In general. The (ii) Example. The application of An equity investment is not treated as Commissioner may waive a requirement paragraph (d)(8)(i) of this section is cashed out when only section 301(c)(1) or extend a deadline if such waiver or illustrated by the following example: applies to amounts received by the extension does not materially frustrate Example. (i) X is a partnership and a CDE equity holder. the purposes of section 45D and this that has received a new markets tax credit (ii) Equity investment in an S section. allocation from the Secretary. On October 1, corporation. For purposes of paragraph (ii) Manner for requesting a waiver or 2004, Y enters into a legally enforceable (e)(2)(iii) of this section, an equity extension. A CDE that believes it has written agreement with W. Y and W are investment in a CDE that is an S good cause for a waiver or an extension corporations but only Y is a CDE. The corporation is redeemed when section may request relief from the agreement between Y and W provides that Y will purchase loans (or portions thereof) from 302(a) applies to amounts received by Commissioner in a ruling request. The W within 30 days after the date the loan is the equity holder. An equity investment request should set forth all the relevant made by W, and that Y will approve the in an S corporation is treated as cashed facts and include a detailed explanation making of the loans. out when a distribution to a shareholder describing the event or events relating to (ii) On November 1, 2004, W makes a described in section 1368(a) exceeds the the request for a waiver or an extension. $825,000 loan to Z pursuant to the agreement accumulated adjustments account For further information on the between Y and W. Z is a qualified active low- determined under § 1.1368–2 and any application procedure for a ruling, see income community business under accumulated earnings and profits of the Rev. Proc. 2005–1 (2005–1 I.R.B. 1) or paragraph (d)(4) of this section. On S corporation. its successor revenue procedure (see November 15, 2004, Y purchases the loan from W for $840,000. On December 31, 2004, (iii) Capital interest in a partnership. § 601.601(d)(2) of this chapter). X purchases the loan from Y for $850,000. In the case of an equity investment that (iii) Terms and conditions. The (iii) Under paragraph (d)(8)(i) of this is a capital interest in a CDE that is a granting of a waiver or an extension to section, the loan to Z is treated as made by partnership for Federal tax purposes, a a CDE under this section may require Y. Y’s loan to Z is a qualified low-income pro rata cash distribution by the CDE to adjustments of the CDE’s requirements
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under section 45D and this section as partnership or S corporation (as the case (3) Other Federal tax benefits—(i) In may be appropriate. may be). general. Except as provided in (6) Cure period. If a qualified equity (g) Other rules—(1) Anti-abuse. If a paragraph (g)(3)(ii) of this section, the investment fails the substantially-all principal purpose of a transaction or a availability of Federal tax benefits does requirement under paragraph (c)(5)(i) of series of transactions is to achieve a not limit the availability of the new this section, the failure is not a result that is inconsistent with the markets tax credit. Federal tax benefits recapture event under paragraph purposes of section 45D and this that do not limit the availability of the (e)(2)(ii) of this section if the CDE section, the Commissioner may treat the new markets tax credit include, for corrects the failure within 6 months transaction or series of transactions as example: after the date the CDE becomes aware causing a recapture event under (A) The rehabilitation credit under (or reasonably should have become paragraph (e)(2) of this section. section 47; aware) of the failure. Only one (2) Reporting requirements—(i) correction is permitted for each Notification by CDE to taxpayer—(A) (B) All deductions under sections 167 qualified equity investment during the Allowance of new markets tax credit. A and 168, including the additional first- 7-year credit period under this CDE must provide notice to any year depreciation under section 168(k), paragraph (e)(6). taxpayer who acquires a qualified equity and the expense deduction for certain (7) Example. The application of this investment in the CDE at its original depreciable property under section 179; paragraph (e) is illustrated by the issue that the equity investment is a and following example: qualified equity investment entitling the (C) All tax benefits relating to certain taxpayer to claim the new markets tax Example. In 2003, A and B acquire designated areas such as empowerment credit. The notice must be provided by separate qualified equity investments in X, a zones and enterprise communities partnership. X is a CDE that has received a the CDE to the taxpayer no later than 60 days after the date the taxpayer makes under sections 1391 through 1397D, the new markets tax credit allocation from the District of Columbia Enterprise Zone Secretary. X uses the proceeds of A’s the investment in the CDE. The notice qualified equity investment to make a must contain the amount paid to the under sections 1400 through 1400B, qualified low-income community investment CDE for the qualified equity investment renewal communities under sections in Y, and X uses the proceeds of B’s qualified at its original issue and the taxpayer 1400E through 1400J, and the New York equity investment to make a qualified low- identification number of the CDE. Liberty Zone under section 1400L. income community investment in Z. Y and (B) Recapture event. If, at any time Z are not CDEs. X controls both Y and Z (ii) Low-income housing credit. If a within the meaning of paragraph (d)(6)(ii)(B) during the 7-year period beginning on CDE makes a capital or equity of this section. In 2003, Y and Z are qualified the date of the original issue of a investment or a loan with respect to a active low-income community businesses. In qualified equity investment in a CDE, qualified low-income building under 2007, Y, but not Z, is a qualified active low- there is a recapture event under section 42, the investment or loan is not income community business and X does not paragraph (e)(2) of this section with a qualified low-income community satisfy the substantially-all requirement using respect to such investment, the CDE investment under paragraph (d)(1) of the safe harbor calculation under paragraph must provide notice to each holder, (c)(5)(iii) of this section. A’s equity this section to the extent the building’s including all prior holders, of the eligible basis under section 42(d) is investment satisfies the substantially-all investment that a recapture event has requirement of paragraph (c)(1)(ii) of this financed by the proceeds of the occurred. The notice must be provided section using the direct-tracing calculation of investment or loan. paragraph (c)(5)(ii) of this section because A’s by the CDE no later than 60 days after equity investment is traceable to Y. However, the date the CDE becomes aware of the (4) Bankruptcy of CDE. The B’s equity investment fails the substantially- recapture event. bankruptcy of a CDE does not preclude all requirement using the direct-tracing (ii) CDE reporting requirements to a taxpayer from continuing to claim the calculation because B’s equity investment is Secretary. Each CDE must comply with new markets tax credit on the remaining traceable to Z. Therefore, under paragraph such reporting requirements to the credit allowance dates under paragraph (e)(2)(ii) of this section, there is a recapture Secretary as the Secretary may (b)(2) of this section. event for B’s equity investment (but not A’s equity investment). prescribe. (h) Effective dates—(1) In general. (iii) Manner of claiming new markets Except as provided in paragraph (h)(2) (f) Basis reduction—(1) In general. A tax credit. A taxpayer may claim the of this section, this section applies on or taxpayer’s basis in a qualified equity new markets tax credit for each after December 22, 2004, and may be investment is reduced by the amount of applicable taxable year by completing applied by taxpayers before December any new markets tax credit determined Form 8874, ‘‘New Markets Credit,’’ and 22, 2004. The provisions that apply under paragraph (b)(1) of this section by filing Form 8874 with the taxpayer’s before December 22, 2004, are contained with respect to the investment. A basis Federal income tax return. in § 1.45D–1T (see 26 CFR part 1 revised reduction occurs on each credit (iv) Reporting recapture tax. If there is as of April 1, 2003, and April 1, 2004). allowance date under paragraph (b)(2) of a recapture event with respect to a this section. This paragraph (f) does not taxpayer’s equity investment in a CDE, (2) Exception for certain provisions. apply for purposes of sections 1202, the taxpayer must include the credit Paragraph (d)(5)(ii) of this section as it 1400B, and 1400F. recapture amount under section relates to the definition of the term (2) Adjustment in basis of interest in 45D(g)(2) on the line for recapture taxes substantial improvements and the partnership or S corporation. The on the taxpayer’s Federal income tax requirement that each lessee must be a adjusted basis of either a partner’s return for the taxable year in which the qualified business applies to qualified interest in a partnership, or stock in an recapture event under paragraph (e)(2) low-income community investments S corporation, must be appropriately of this section occurs (or on the line for made on or after February 22, 2005. adjusted to take into account total tax, if there is no such line for adjustments made under paragraph recapture taxes) and write NMCR (new § 1.45D–1T [Removed] (f)(1) of this section in the basis of a markets credit recapture) next to the I Par. 3. Section 1.45D–1T is removed. qualified equity investment held by the entry space.
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PART 602—OMB CONTROL NUMBERS reconsideration procedures are also and 212 of 37 CFR, chapter II in the UNDER THE PAPERWORK made applicable to the Office’s refusals manner set forth below: REDUCTION ACT to register mask works and vessel hull designs. PART 202—REGISTRATION OF I Par. 4. The authority citation for part EFFECTIVE DATE: January 27, 2005. CLAIMS TO COPYRIGHT 602 continues to read as follows: FOR FURTHER INFORMATION CONTACT: I 1. The authority citation for part 202 Authority: 26 U.S.C. 7805. Marilyn J. Kretsinger, Associate General continues to read as follows: I Par. 5. In § 602.101, paragraph (b) is Counsel, or Renee Coe, Senior Attorney Authority: 17 U.S.C. 702. amended by removing the entry for at this address: Copyright GC/I&R, P.O. ‘‘1.45D–1T’’ from the table. Box 70400, Washington, DC 20024– I 2. Add § 202.5 to read as follows: I Par. 6. In § 602.101, paragraph (b) is 0400. Telephone: (202) 707–8380. § 202.5 Reconsideration Procedure for amended by adding an entry to the table Telefax: (202) 707–8366. Refusals to Register. in numerical order to read as follows: SUPPLEMENTARY INFORMATION: On July (a) General. This section prescribes 13, 2004, the Copyright Office published § 602.101 OMB Control numbers. rules pertaining to procedures for a notice of proposed rulemaking seeking administrative review of the Copyright * * * * * comment on its proposed revision of Office’s refusal to register a claim to (b) * * * parts 202, 211 and 212 of subchapter A copyright, a mask work, or a vessel hull of Chapter II, 37 CFR. The purpose of design upon a finding by the Office that Current this notice is to announce the final rule. CFR part or section where OMB control the application for registration does not identified and described No. This regulation establishes procedures satisfy the legal requirements of title 17 for applicants to request that the of the United States Code. If an Copyright Office reconsider refusals to applicant’s initial claim is refused, the ***** register copyright claims and claims in applicant is entitled to request that the 1.45D–1 ...... 1545–1765 mask works or vessel hull designs. initial refusal to register be There are two opportunities for ***** reconsidered. reconsideration of a refusal to register. (b) First reconsideration. Upon At the first level of reconsideration, the receiving a written notification from the Mark E. Mathews, Examining Division of the Copyright Examining Division explaining the Deputy Commissioner for Services and Office reviews its initial decision to reasons for a refusal to register, an Enforcement. refuse registration. At the second level, applicant may request that the Approved: December 21, 2004. the Review Board conducts the review Examining Division reconsider its initial Eric Solomon, of a refusal to register. For decision to refuse registration, subject to Acting Deputy Assistant Secretary of the administrative reasons, the Copyright the following requirements: Treasury. Office is making one change in the (1) An applicant must request in [FR Doc. 04–28325 Filed 12–22–04; 12:38 membership of the Review Board which writing that the Examining Division pm] considers the second request for reconsider its decision. A request for BILLING CODE 4830–01–P reconsideration. The Review Board is reconsideration must include the composed of three members; the first reasons the applicant believes two members are the Register of registration was improperly refused, LIBRARY OF CONGRESS Copyrights and the General Counsel or including any legal arguments in their respective designees. The third support of those reasons and any Copyright Office member will be designated by the supplementary information. The Register. This rule also establishes Examining Division will base its 37 CFR Parts 202, 211, and 212 procedures for mailing or hand decision on the applicant’s written delivering requests for reconsideration [Docket No. RM 2004–5] submissions. and related documents. (2) The fee set forth in § 201.3(d)(4) of Reconsideration Procedure In response to the publication of the this chapter must accompany the first proposed rule, the Copyright Office did request for reconsideration. AGENCY: Copyright Office, Library of not receive any comments. (3) The first request for Congress. Consequently, the Copyright Office is reconsideration and the applicable fee ACTION: Final rule. adopting the previously proposed text, must be received by the Copyright as a final rule, with the one Office no later than three months from SUMMARY: The Copyright Office is administrative change noted above and the date that appears in the Examining publishing a final rule concerning without substantive change, as follows: Division’s written notice of its initial reconsideration procedures. With a few List of Subjects decision to refuse registration. When the modifications, this regulation continues ending date for the three-month time procedures adopted by the U.S. 37 CFR Part 202 period falls on a weekend or a Federal Copyright Office in 1995 that permit Claims, Copyright. holiday, the ending day of the three- copyright applicants to request month period shall be extended to the reconsideration of its decisions to refuse 37 CFR Part 211 next Federal work day. registration. This regulation amends Freedom of Information. (4) If the Examining Division decides those procedures and incorporates them to register an applicant’s work in into Copyright Office regulations. 37 CFR Part 212 response to the first request for Copyright applicants will continue to Vessels. reconsideration, it will notify the have two opportunities to seek applicant in writing of the decision and Proposed Regulations reconsideration of a Copyright Office the work will be registered. However, if decision to refuse registration. A I In consideration of the foregoing, the the Examining Division again refuses to significant modification is that the Copyright Office amends parts 202, 211 register the work, it will send the
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applicant a written notification stating hand delivered by a commercial, non- Authority: 17 U.S.C. chapter 13. the reasons for refusal within four government courier or messenger, a I 6. Add § 212.7 to read as follows: months of the date on which the first request for reconsideration must be request for reconsideration is received delivered between 8:30 a.m. and 4 p.m. § 212.7 Reconsideration procedure for by the Examining Division. When the to: Congressional Courier Acceptance refusals to register. ending date for the four-month time Site, located at Second and D Streets, The requirements prescribed in period falls on a weekend or a Federal NE., Washington, DC. If hand delivered § 202.5 of this chapter for holiday, the ending day of the four- by a private party, a request for reconsideration of refusals to register month period shall be extended to the reconsideration must be delivered copyright claims are applicable to next Federal work day. Failure by the between 8:30 a.m. and 5 p.m. to: Room requests to reconsider refusals to Examining Division to send the written 401 of the James Madison Memorial register vessel hull designs under 17 notification within the four-month Building, located at 101 Independence U.S.C. chapter 13, unless otherwise period shall not result in registration of Avenue, SE., Washington, DC. required by this part. the applicant’s work. (2) The first page of the written Dated: December 3, 2004. (c) Second reconsideration. Upon request must contain the Copyright Marybeth Peters, receiving written notification of the Office control number and clearly Register of Copyrights. Examining Division’s decision to refuse indicate either ‘‘FIRST registration in response to the first RECONSIDERATION’’ or ‘‘SECOND Approved by: request for reconsideration, an applicant RECONSIDERATION,’’ as appropriate, James H. Billington, may request that the Review Board on the subject line. Librarian of Congress. reconsider the Examining Division’s (e) Suspension or wavier of time [FR Doc. 04–28396 Filed 12–27–04; 8:45 am] refusal to register, subject to the requirements. For any particular request BILLING CODE 1410–30–P following requirements: for reconsideration, the provisions (1) An applicant must request in relating to the time requirements for writing that the Review Board submitting a request under this section ENVIRONMENTAL PROTECTION reconsider the Examining Division’s may be suspended or waived, in whole AGENCY decision to refuse registration. The or in part, by the Register of Copyrights second request for reconsideration must upon a showing of good cause. Such 40 CFR PART 22 include the reasons the applicant suspension or waiver shall apply only to [FRL–7855–6] believes registration was improperly the request at issue and shall not be refused, including any legal arguments relevant with respect to any other Clarification of Address for Documents in support of those reasons and any request for reconsideration from that Filed With EPA’s Environmental supplementary information, and must applicant or any other applicant. Appeals Board address the reasons stated by the (f) Composition of the Review Board. Examining Division for refusing The Review Board shall consist of three AGENCY: Environmental Protection registration upon first reconsideration. members; the first two members are the Agency (EPA). The Board will base its decision on the Register of Copyrights and the General ACTION: Final rule. applicant’s written submissions. Counsel or their respective designees. (2) The fee set forth in § 201.3(d)(4) of SUMMARY: EPA is amending the The third member will be designated by regulations that pertain to filing appeals this chapter must accompany the the Register. second request for reconsideration. and other documents with the (g) Final agency action. A decision by Environmental Appeals Board (EAB) (3) The second request for the Review Board in response to a reconsideration and the applicable fee under the Consolidated Rules of second request for reconsideration Practice Governing the Administrative must be received in the Copyright Office constitutes final agency action. no later than three months from the date Assessment of Civil Penalties and the that appears in the Examining Division’s PART 211—MASK WORK Revocation/Termination or Suspension written notice of its decision to refuse PROTECTION of Permits (CROP). Specifically, EPA is registration after the first request for amending two regulations that specify reconsideration. When the ending date I 3. The authority citation for part 211 the addresses where notices of appeal, for the three-month time period falls on continues to read as follows: accompanying briefs, and other documents must be filed, to provide that a weekend or a Federal holiday, the Authority: 17 U.S.C. 702 and 908. ending day of the three-month period any filings made through the U.S. mail shall be extended to the next Federal I 4. Add § 211.7 to read as follows: service must be addressed to the EAB’s work day. mailing address, and that any filings § 211.7 Reconsideration procedure for made by hand-delivery or courier must (4) If the Review Board decides to refusals to register. register an applicant’s work in response be made to the EAB’s hand-delivery The requirements prescribed in address. The amendments are intended to a second request for reconsideration, § 202.5 of this chapter for it will notify the applicant in writing of to make the regulations consistent with reconsideration of refusals to register current Agency practice and to provide the decision and the work will be copyright claims are applicable to registered. If the Review Board upholds clear guidance on the proper address to requests to reconsider refusals to use under various circumstances. the refusal to register the work, it will register mask works under 17 U.S.C. send the applicant a written notification EFFECTIVE DATE: This final rule is chapter 9, unless otherwise required by effective on December 28, 2004. stating the reasons for refusal. this part. (d) Submission of reconsiderations. FOR FURTHER INFORMATION CONTACT: (1) All mail, including any that is hand PART 212—PROTECTION OF VESSEL Eurika Durr, Clerk of the Board. delivered, should be addressed as HULL DESIGNS Telephone number: (202) 233–0122. E- follows: RECONSIDERATION, mail: [email protected]. Copyright R&P Division, P.O. Box I 5. The authority citation for part 212 SUPPLEMENTARY INFORMATION: This 71380, Washington, DC 20024–1380. If continues to read as follows: action is directed to the public in
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general and to anyone who may want to shall be filed * * * with the Clerk of the Regulatory Planning and Review (58 FR file documents with the EAB. If you Board when the proceeding is before the 51735, October 4, 1993). This rule does have questions regarding the Environmental Appeals Board. A document not contain any information collection is filed when it is received by the appropriate requirements that require review and applicability of this action to a Clerk. particular entity or action, consult the approval by OMB pursuant to the person listed under FOR FURTHER 40 CFR 22.5(a)(1). According to 40 CFR Paperwork Reduction Act of 1995 (44 INFORMATION CONTACT. 22.3, the Clerk of the Board ‘‘means the U.S.C. 3501 et seq.). Because this action Clerk of the Environmental Appeals is not economically significant as I. Background Board, Mail Code 1103B, U.S. defined by section 3(f) of Executive A. What Action Is the Agency Taking? Environmental Protection Agency, 1200 Order 12866, this action is not subject Pennsylvania Avenue, NW., The Consolidated Rules of Practice to Executive Order 13045, Protection of Washington, DC 20460.’’ The purpose of Children from Environmental Health Governing the Administrative the amendment is to amend 40 CFR Assessment of Civil Penalties and the Risks and Safety Risks (62 FR 19885, 22.5(a)(I) by adding the following April 23, 1997). Since the Agency has Revocation/Termination or Suspension sentence after the regulatory language of Permits (CROP), 40 CFR part 22, made a ‘‘good cause’’ finding that this quoted above: action is not subject to notice-and- govern the filing of certain appeals with comment requirements under the APA the EAB, and provide, in pertinent part, Documents filed in proceedings before the Environmental Appeals Board shall either be or any other statute, this action is not that: sent by U.S. mail (except by U.S. Express subject to provisions of the Regulatory [A]ny party may appeal any adverse order Mail) to the official mailing address of the Flexibility Act (5 U.S.C. 601 et seq.), or or ruling of the Presiding Officer by filing an Clerk of the Board set forth at 22.3 or to sections 202 and 205 of the Unfunded original and one copy of a notice of appeal delivered by hand or courier (including Mandate Reform Act of 1995 (UMRA) and an accompanying appellate brief with deliveries by U.S. Postal Express or by a the Environmental Appeals Board (Clerk of commercial delivery service) to Suite 600, (Public Law 104–94). In addition, this the Board (Mail Code 1103B), United States 1341 G Street, NW., Washington, DC 20005. action does not impose any enforceable Environmental Protection Agency, 1200 duty, contain any unfunded mandate, or Pennsylvania Avenue, NW., Washington, DC B. How Can I Get Additional impose any significant or unique impact 20460. Hand deliveries may be made at Suite Information About This Action? on small governments as described in 600, 1341 G Street, NW. You may obtain additional the UMRA of 1995. This rule will not 40 CFR 22.30(a)(l). The regulation could information about this action on the have substantial direct effects on the be read as implying that hand deliveries EAB’s Internet home page at http:// States, on the relationship between the may be made at either of the two www.epa.gov/eab. national government and the States, or on the distribution of power and specified addresses. However, the C. What Is the Agency’s Authority for responsibilities among the various address referenced in the regulation as Taking This Action? ‘‘1200 Pennsylvania Avenue, NW.’’ is levels of government, as specified in EPA is issuing this document under that of the EPA mailing center, which Executive Order 13132, entitled its general rulemaking authority. no longer accepts hand deliveries of Federalism (64 FR 43255, August 10, Reorganization Plan No. 3 of 1970 (5 mail addressed to the EAB. The EPA 1999). Similarly, this rule will not have U.S.C. app.). In addition, section 553 of mailing center will reject any document substantial direct effects on tribal the Administrative Procedure Act, 5 addressed to the EAB that is delivered governments, or on the distribution of U.S.C. 553(b)(B), provides that, when an by hand or courier, and such document power and responsibilities between the agency for good cause finds that notice will not be properly filed until it has Federal government and Indian tribes, and public procedure are impracticable, been re-delivered to the physical offices as specified in Executive Order 13175, unnecessary or contrary to the public of the EAB at Suite 600, 1341 G Street, entitled Consultation and Coordination interest, the agency may issue a rule with Indian Tribal Governments (65 FR NW., Washington, DC 20005. The without providing notice and an purpose of the amendment is to delete 67249, November 6, 2000). This action opportunity for public comment. EPA does not involve any technical the regulatory language at 40 CFR has determined that this amendment is 22.30(a)(1) quoted above, and to replace standards that require the Agency’s technical and non-substantive, and consideration of voluntary consensus it with the following language: therefore, that there is good cause under standards pursuant to section 12(d) of [A]ny party may appeal any adverse order 5 U.S.C. 553(b)(B) for making this rule the National Technology Transfer and or ruling of the Presiding Officer by filing an final without prior proposal and Advancement Act of 1995 (NTTAA), original and one copy of a notice of appeal opportunity for comment. EPA also Public Law 104–113, section 12(d) (15 and an accompanying appellate brief with finds good cause under 5 U.S.C. 553(d) the Environmental Appeals Board. Appeals U.S.C. 272 note). This rule is not subject filed through the U.S. Postal Service (except to make this rule effective on the date to Executive Order 13211, entitled by U.S. Postal Express Mail) shall be of publication. Actions Concerning Regulations That addressed to the Environmental Appeals II. Do Any of the Regulatory Significantly Affect Energy Supply, Board at its official mailing address: Clerk of Assessment Requirements Apply to Distribution, or Use (66 FR 28355, May the Board (Mail Code 1103B), United States 22, 2001), because this action is not a This Action? Environmental Protection Agency, 1200 significant regulatory action under Pennsylvania Avenue, NW., Washington, DC No. This final rule implements a Executive Order 12866. 20460. Appeals delivered by hand or courier technical amendment to 40 CFR part 22 (including deliveries by U.S. Postal Express to provide clear guidance on the hand- III. Will EPA Submit This Final Rule to Mail or by a commercial delivery service) delivery address for filings with the Congress and the Comptroller General? shall be delivered to Suite 600, 1341 G Street, EAB, and does not otherwise impose or Yes. The Congressional Review Act NW., Washington, DC 20005. amend any requirements. This action is (CRA), 5 U.S.C. 801 et seq., generally The CROP further provides, in not a ‘‘significant regulatory action’’ and provides that, before a rule may take pertinent part, that: is therefore not subject to review by the effect, the agency that promulgates the The original and one copy of each Office of Management and Budget under rule must submit a rule report, which document intended to be part of the record Executive Order 12866, entitled includes a copy of the rule, to each
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House of the Congress and to the (1) Within 30 days after the initial Federal Register and inform the public Comptroller General of the United decision is served, any party may appeal that the rule will not take effect. States. CRA section 808 provides that any adverse order or ruling of the ADDRESSES: Submit your comments, the issuing agency may make a rule Presiding Officer by filing an original identified by Regional Material in effective sooner than otherwise and one copy of a notice of appeal and EDocket (RME) ID Number R03–OAR– provided by the CRA if the agency an accompanying appellate brief with 2004–DC–0003 by one of the following makes a good cause finding that notice the Environmental Appeals Board. methods: and public procedure are impracticable, Appeals sent by U.S. mail (except by A. Federal eRulemaking Portal: unnecessary, or contrary to the public U.S. Postal Express Mail) shall be http://www.regulations.gov. Follow the interest. EPA has made such a good addressed to the Environmental Appeals on-line instructions for submitting cause finding, including the reasons Board at its official mailing address: comments. therefor, and has established the date of Clerk of the Board (Mail Code 1103B), B. Agency Web site: http:// publication as the effective date. As United States Environmental Protection www.docket.epa.gov/rmepub/RME, stated previously, EPA will submit a Agency, 1200 Pennsylvania Avenue, EPA’s electronic public docket and report containing this rule and other NW., Washington, DC 20460. Appeals comment system, is EPA’s preferred required information to the U.S. Senate, delivered by hand or courier (including method for receiving comments. Follow the U.S. House of Representatives, and deliveries by U.S. Postal Express Mail or the on-line instructions for submitting the Comptroller General of the United by a commercial delivery service) shall comments. States, prior to publication of the rule in be delivered to Suite 600, 1341 G Street, C. E-mail: [email protected]. the Federal Register. This action is not NW., Washington, DC 20005. * * * D. Mail: R03–OAR–2004–DC–0003, a ‘‘major rule’’ as defined by 5 U.S.C. * * * * * Makeba Morris, Chief, Air Quality 804(2). [FR Doc. 04–28359 Filed 12–27–04; 8:45 am] Planning Branch, Mailcode 3AP21, U.S. List of Subjects in 40 CFR Part 22 BILLING CODE 6560–50–P Environmental Protection Agency, Region III, 1650 Arch Street, Environmental protection, Philadelphia, Pennsylvania 19103. Administrative practice and procedure, ENVIRONMENTAL PROTECTION E. Hand Delivery: At the previously- Courts. AGENCY listed EPA Region III address. Such Dated: December 20, 2004. deliveries are only accepted during the Richard McKeown, 40 CFR Part 52 Docket’s normal hours of operation, and special arrangements should be made Chief of Staff. [R03–OAR–2004–DC–0003; FRL–7853–9] for deliveries of boxed information. I 40 CFR Part 22 is amended as follows: Instructions: Direct your comments to I Approval and Promulgation of Air 1. The authority citation for part 22 RME ID No. R03–OAR–2004–DC–0003. continues to read as follows: Quality Implementation Plans; District of Columbia; Excess Volatile Organic EPA’s policy is that all comments Authority: 7 U.S.C. 136(l); 15 U.S.C. 2615; Compound and Nitrogen Oxides received will be included in the public 33 U.S.C. 1319, 1342, 1361, 1415 and 1418; Emissions Fee Rule docket without change, and may be 42 U.S.C. 300g–3(g), 6912, 6925, 6928, 6991e made available online at http:// and 6992d, 42 U.S.C. 7413(d), 7524(c), AGENCY: Environmental Protection www.docket.epa.gov/rmepub/, 7545(d), 7547, 7601 and 7607(a), 9609, and Agency (EPA). 11045. including any personal information ACTION: Direct final rule. provided, unless the comment includes I 2. Section 22.5 is amended by adding information claimed to be Confidential a sentence after the second sentence in SUMMARY: EPA is taking direct final Business Information (CBI) or other paragraph (a)(1) to read as follows: action to approve revisions to the information whose disclosure is District of Columbia (District) State restricted by statute. Do not submit § 22.5 Filing, service, and form of all filed Implementation Plan (SIP) for ozone. information that you consider to be CBI documents, business confidentiality claims. The rule requires major stationary or otherwise protected through RME, (a) * * * sources of volatile organic compounds regulations.gov or e-mail. The EPA RME (1) * * * Documents filed in (VOC) and nitrogen oxides (NOX) in the and the Federal regulations.gov Web proceedings before the Environmental District, which is part of the sites are an ‘‘anonymous access’’ Appeals Board shall either be sent by Metropolitan Washington DC Severe system, which means EPA will not U.S. mail (except by U.S. Express Mail) Ozone Nonattainment Area, to pay a fee know your identity or contact to the official mailing address of the to the District if the area fails to attain information unless you provide it in the Clerk of the Board set forth at § 22.3 or the one-hour national ambient air body of your comment. If you send an delivered by hand or courier (including quality standard for ozone by November e-mail comment directly to EPA without deliveries by U.S. Postal Express or by 15, 2005. The fee must be paid going through RME or regulations.gov, a commercial delivery service) to Suite beginning in 2006, and in each calendar your e-mail address will be 600, 1341 G Street, NW., Washington, year thereafter, until the area is automatically captured and included as DC 20005. * * * redesignated to attainment for the part of the comment that is placed in the * * * * * pollutant ozone. The District of public docket and made available on the Columbia submitted this rule on April I 3. Section 22.30 is amended by Internet. If you submit an electronic 16, 2004, pursuant to the requirements removing the first two sentences of comment, EPA recommends that you of Section 110 of the Clean Air Act. paragraph (a)(1) and adding three new include your name and other contact sentences in their place to read as DATES: This rule is effective on February information in the body of your follows: 28, 2005, without further notice, unless comment and with any disk or CD–ROM EPA receives adverse written comment you submit. If EPA cannot read your § 22.30 Appeal from or review of initial by January 27, 2005. If EPA receives comment due to technical difficulties decision. such comments, it will publish a timely and cannot contact you for clarification, (a) * * * withdrawal of the direct final rule in the EPA may not be able to consider your
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comment. Electronic files should avoid EPA is publishing this rule without state if the area fails to attain the the use of special characters, any form prior proposal because we view this as standard by the attainment date set forth of encryption, and be free of any defects a noncontroversial amendment and we in the Act. The District of Columbia is or viruses. anticipate no adverse comment, since classified as severe nonattainment area Docket: All documents in the no comments were received during the for ozone. Section 182(f) of the Act electronic docket are listed in the RME District’s regulatory process. However, requires states to apply the same index at http://www.docket.epa.gov/ in the ‘‘Proposed Rules’’ section of requirements to major stationary sources rmepub/. Although listed in the index, today’s Federal Register, we are of oxides of nitrogen (NOX) as are some information is not publicly publishing a separate document that applied to major stationary sources of available, i.e., CBI or other information will serve as the proposal to approve the VOC. whose disclosure is restricted by statute. SIP revision if adverse comments are V. What Are the Exceptions to this Certain other material, such as filed. This rule will be effective on Rule? copyrighted material, is not placed on February 28, 2005, without further the Internet and will be publicly notice unless EPA receives adverse As per section 185 of the Clean Air available only in hard copy form. comment by January 27, 2005. If EPA Act, the District of Columbia’s Publicly available docket materials are receives adverse comment, EPA will regulation provides for an exception of available either electronically in RME or publish a timely withdrawal in the the fee during any year that is treated as in hard copy during normal business Federal Register informing the public an extension year under section hours at the Air Protection Division, that the rule will not take effect. EPA 181(a)(5) of the Clean Air Act. U.S. Environmental Protection Agency, will address all public comments in a VI. What Administrative Requirements Region III, 1650 Arch Street, subsequent final rule based on the Must EPA Consider? Philadelphia, Pennsylvania 19103. proposed rule. EPA will not institute a Copies of material to be incorporated by second comment period on this action. Under Executive Order 12866 (58 FR reference are available at the Air and Any parties interested in commenting 51735, October 4, 1993), this action is Radiation Docket and Information must do so at this time. not a ‘‘significant regulatory action’’ and Center, U.S. Environmental Protection therefore is not subject to review by the Agency, 1301 Constitution Avenue, II. Who Has To Pay These Fees? Office of Management and Budget. For NW., Room B108, Washington, DC This rule applies to major stationary this reason, this action is also not 20460; and the District of Columbia VOC and NOX sources located in the subject to Executive Order 13211, Department of Public Health, Air District of Columbia. The District of ‘‘Actions Concerning Regulations That Quality Division, 51 N Street, NE., Columbia’s definition of a ‘‘major Significantly Affect Energy Supply, Washington, DC 20002. stationary source’’ is found at 20 DCMR Distribution, or Use’’ (66 FR 28355, May 22, 2001). This action merely approves FOR FURTHER INFORMATION CONTACT: section 199.1. In a separate action, EPA state law as meeting Federal Catherine L. Magliocchetti, (215) 814– is approving this definition as part of requirements and imposes no additional 2174, or by e-mail at the District of Columbia’s ozone SIP. requirements beyond those imposed by [email protected]. Pertaining to the application of this excess emissions fee for entities in the state law. Accordingly, the SUPPLEMENTARY INFORMATION: District of Columbia, a major stationary Administrator certifies that this rule Throughout this document, ‘‘we,’’ ‘‘us,’’ source is defined as ‘‘any stationary will not have a significant economic and ‘‘our’’ refer to EPA. This source of air pollutants that emits, or impact on a substantial number of small supplementary information is organized has the potential to emit, twenty five entities under the Regulatory Flexibility as follows. (25) tons per year or more of oxide of Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements Table of Contents nitrogen or volatile organic compounds ***’’ These sources are subject to this under state law and does not impose I. What Final Action Is EPA Taking? emissions fee rule. any additional enforceable duty beyond II. Who Has To Pay These Fees? that required by state law, it does not III. How Are the Fees Calculated? III. How Are the Fees Calculated? contain any unfunded mandate or IV. Is the District of Columbia Required to significantly or uniquely affect small Adopt an Excess Emission Rule? The fee is initially set at $5,000 per V. What Are the Exceptions to This Rule? ton of VOC or NOX emitted by the governments, as described in the VI. Statutory and Executive Order Reviews source during the previous calendar Unfunded Mandates Reform Act of 1995 year in excess of 80% of the baseline (Pub. L. 104–4). This rule also does not I. What Final Action Is EPA Taking? amount. The fee is to be adjusted have tribal implications because it will EPA is approving a SIP revision that annually, beginning in 1991, by the not have a substantial direct effect on revises the District of Columbia’s ozone percentage by which the consumer price one or more Indian tribes, on the SIP. The SIP revision requires major index has been adjusted. The baseline is relationship between the Federal stationary sources of VOC and NOX in the lower of the source’s actual or Government and Indian tribes, or on the the District of Columbia, which is part allowable VOC or NOX emissions during distribution of power and of the Metropolitan Washington DC calendar year 2005. responsibilities between the Federal Severe Ozone Nonattainment Area Government and Indian tribes, as (Area), to pay a fee to the District if the IV. Is the District of Columbia Required specified by Executive Order 13175 (65 Area fails to attain the national ambient To Adopt an Excess Emission Fee Rule? FR 67249, November 9, 2000). This air quality standard (NAAQS) for ozone Under sections 182(d)(3), (e), and 185 action also does not have Federalism by November 15, 2005. The fee must be of the Clean Air Act (the Act), states are implications because it does not have paid beginning in 2006 and in each required to adopt an excess emissions substantial direct effects on the States, calendar year thereafter, until the Area fee regulation for ozone nonattainment on the relationship between the national is redesignated to attainment for the areas classified as severe or extreme. government and the States, or on the pollutant ozone. We are approving this This regulation requires major distribution of power and rule because it is consistent with the stationary sources of VOC in the responsibilities among the various requirements of the Clean Air Act (Act). nonattainment area to pay a fee to the levels of government, as specified in
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Executive Order 13132 (64 FR 43255, VII. What Congressional Review Act This approval of the District of August 10, 1999). Requirements Must EPA Consider? Columbia’s Severe Ozone This action merely approves a state Nonattainment Area Fee SIP revision, as The Congressional Review Act, 5 required under section 185 and 182(f) of rule implementing a Federal standard, U.S.C. 801 et seq., as added by the Small the Clean Air Act, may not be and does not alter the relationship or Business Regulatory Enforcement challenged later in proceedings to the distribution of power and Fairness Act of 1996, generally provides enforce its requirements. (See section responsibilities established in the Clean that before a rule may take effect, the 307(b)(2).) Air Act. This rule also is not subject to agency promulgating the rule must Executive Order 13045 ‘‘Protection of submit a rule report, which includes a List of Subjects in 40 CFR Part 52 Children from Environmental Health copy of the rule, to each House of the Environmental protection, Air Risks and Safety Risks’’ (62 FR 19885, Congress and to the Comptroller General pollution control, Intergovernmental April 23, 1997), because it is not of the United States. EPA will submit a relations, Nitrogen dioxide, Ozone, economically significant. report containing this rule and other Reporting and recordkeeping required information to the U.S. Senate, In reviewing SIP submissions, EPA’s requirements, Volatile organic the U.S. House of Representatives, and role is to approve state choices, compounds. the Comptroller General of the United provided that they meet the criteria of Dated: December 14, 2004. States prior to publication of the rule in the Clean Air Act. In this context, in the the Federal Register. This rule is not a Donald S. Welsh, absence of a prior existing requirement ‘‘major rule’’ as defined by 5 U.S.C. Regional Administrator, Region III. for the State to use voluntary consensus 804(2). I 40 CFR part 52 is amended as follows: standards (VCS), EPA has no authority to disapprove a SIP submission for VIII. What Are the Requirements for PART 52—[AMENDED] failure to use VCS. It would thus be Judicial Review of This Action? inconsistent with applicable law for I 1. The authority citation for part 52 Under section 307(b)(1) of the Clean continues to read as follows: EPA, when it reviews a SIP submission, Air Act, petitions for judicial review of to use VCS in place of a SIP submission this action must be filed in the United Authority: 42 U.S.C. 7401 et seq. that otherwise satisfies the provisions of States Court of Appeals for the Subpart J—District of Columbia the Clean Air Act. Thus, the appropriate circuit by February 28, requirements of section 12(d) of the 2005. Filing a petition for I 2. In § 52.470, the table in paragraph (c) National Technology Transfer and reconsideration by the Administrator of is amended by adding the entry for Advancement Act of 1995 (15 U.S.C. this final rule does not affect the finality Chapter 3, Section 307, after existing 272 note) do not apply. This rule does of this rule for the purposes of judicial entry Section 8–2:720(c) to read as not impose an information collection review nor does it extend the time follows: burden under the provisions of the within which a petition for judicial Paperwork Reduction Act of 1995 (44 review may be filed, and shall not § 52.470 Identification of plan. U.S.C. 3501 et seq.). postpone the effectiveness of such rule * * * * * or action. (c) * * *
EPA-APPROVED DISTRICT OF COLUMBIA REGULATIONS
State effec- State citation Title/subject tive date EPA approval date Additional explanation
District of Columbia (DCMR), Title 20—Environment
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Chapter 3 Operating Permits
Section 307 ...... Enforcement for Severe Ozone 4/01/04 12/28/04 [Insert page Provision allowing for the District to collect pen- Nonattainment Areas. number where the alty fees from major stationary sources if the document begins] nonattainment area does not attain the ozone standard by the statutory attainment date.
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* * * * * Instructions: Direct your comments to SUPPLEMENTARY INFORMATION: On April [FR Doc. 04–28191 Filed 12–27–04; 8:45 am] RME ID No. R03–OAR–2004–DC–0006. 16, 2004, the District of Columbia (the BILLING CODE 6560–50–P EPA’s policy is that all comments District) submitted several revisions to received will be included in the public its SIP. The SIP revisions include both docket without change, and may be new regulations and amendments to ENVIRONMENTAL PROTECTION made available online at http:// Title 20 of the District of Columbia AGENCY www.docket.epa.gov/rmepub/, Municipal Regulations (20 DCMR). The including any personal information new regulations in Title 20 DCMR 40 CFR Part 52 provided, unless the comment includes (Environment), Subtitle A: Air Quality, Chapter 7, Volatile Organic Compounds [R03–OAR–2004–DC–0006; FRL–7854–7] information claimed to be Confidential Business Information (CBI) or other are: Approval and Promulgation of Air information whose disclosure is (1) New Section 718—‘‘Mobile Quality Implementation Plans; District restricted by statute. Do not submit Equipment Repair and Refinishing’’. of Columbia; VOC Emission Standards information that you consider to be CBI (2) New Sections 719 through 734— for Consumer Products or otherwise protected through RME, ‘‘Consumer Products’’. regulations.gov or e-mail. The EPA RME (3) New Sections 735 through 741— AGENCY: Environmental Protection and the Federal regulations.gov Web ‘‘Portable Fuel Containers and Spouts’’. (4) New Sections 742 through 748— Agency (EPA). sites are an ‘‘anonymous access’’ ‘‘Solvent Cleaning’’. ACTION: Direct final rule. system, which means EPA will not (5) New Sections 749 through 754— know your identity or contact SUMMARY: EPA is taking direct final ‘‘Architectural and Industrial information unless you provide it in the Maintenance Coating’’. action to approve revisions to the body of your comment. If you send an District of Columbia State The April 16, 2004 submittal also e-mail comment directly to EPA without includes new definitions that were Implementation Plan (SIP). The going through RME or regulations.gov, revisions pertain to the volatile organic added in section 799, a new section 307 your e-mail address will be to Chapter 3—to provide for a fee compound (VOC) emission standards automatically captured and included as for consumer products used or sold in penalty pursuant to section 185 of the part of the comment that is placed in the the District of Columbia. EPA is Act, and amendments to Chapters 1, 2, public docket and made available on the approving these revisions in accordance 6, 7, and 8 to satisfy the Act’s Internet. If you submit an electronic with the requirements of the Clean Air requirements for severe ozone comment, EPA recommends that you Act (CAA or the Act). nonattainment areas pursuant to the include your name and other contact Metropolitan Washington DC 1-hour DATES: This rule is effective on February information in the body of your ozone nonattainment area’s 28, 2005 without further notice, unless comment and with any disk or CD–ROM reclassification on January 24, 2003 EPA receives adverse written comment you submit. If EPA cannot read your from serious to severe nonattainment. by January 27, 2005. If EPA receives comment due to technical difficulties On September 20, 2004, the District such comments, it will publish a timely and cannot contact you for clarification, supplemented its April 16, 2004 withdrawal of the direct final rule in the EPA may not be able to consider your submittal. This supplemental submittal Federal Register and inform the public comment. Electronic files should avoid provides copies of standards that are that the rule will not take effect. the use of special characters, any form incorporated by reference in the ADDRESSES: Submit your comments, of encryption, and be free of any defects District’s new and amended regulations identified by Regional Material in or viruses. and a copy of the District’s responses to EDocket (RME) ID Number R03–OAR– Docket: All documents in the comments it received during its rule 2004–DC–0006 by one of the following electronic docket are listed in the RME adoption process. On November 26, methods: index at http://www.docket.epa.gov/ 2004, the District submitted another A. Federal eRulemaking Portal: rmepub/. Although listed in the index, supplemental revision to its April 16, http://www.regulations.gov. Follow the some information is not publicly 2004 submittal. This supplemental on-line instructions for submitting available, i.e., CBI or other information submittal consists of revised versions of comments. whose disclosure is restricted by statute. the new VOC regulations. These are B. Agency Web site: http:// Certain other material, such as minor revisions to the regulations which www.docket.epa.gov/rmepub/ RME, copyrighted material, is not placed on clarify the standards that are EPA’s electronic public docket and the Internet and will be publicly incorporated by reference and correct comment system, is EPA’s preferred available only in hard copy form. cross-referencing and typographical method for receiving comments. Follow Publicly available docket materials are errors. This action concerns only the on-line instructions for submitting available either electronically in RME or sections 719 through 734 (Consumer comments. in hard copy during normal business Products) and revised section 799 C. E-mail: [email protected]. hours at the Air Protection Division, containing the associated definitions for D. Mail: R03–OAR–2004–DC–0006, U.S. Environmental Protection Agency, the District’s consumer products rule. Makeba Morris, Chief, Air Quality Region III, 1650 Arch Street, The remaining SIP revisions submitted Planning Branch, Mailcode 3AP21, U.S. Philadelphia, Pennsylvania 19103. on April 16, 2004 and supplemented on Environmental Protection Agency, Copies of the State submittal are September 20, 2004 and November 26, Region III, 1650 Arch Street, available at the District of Columbia 2004 are the subjects of separate Philadelphia, Pennsylvania 19103. Department of Public Health, Air rulemaking actions. E. Hand Delivery: At the previously- Quality Division, 51 N Street, NE., listed EPA Region III address. Such I. Background Washington, DC 20002. deliveries are only accepted during the As stated previously, this approval Docket’s normal hours of operation, and FOR FURTHER INFORMATION CONTACT: Rose pertains only to the District’s special arrangements should be made Quinto, (215) 814–2182, or by e-mail at regulations for consumer products. The for deliveries of boxed information. [email protected]. standards and requirements contained
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in the District’s consumer products rule If EPA receives adverse comment, EPA Executive Order 13132 (64 FR 43255, are based on the Ozone Transport will publish a timely withdrawal in the August 10, 1999). This action merely Commission (OTC) model rule. The Federal Register informing the public approves a state rule implementing a OTC developed control measures into that the rule will not take effect. EPA Federal standard, and does not alter the model rules for a number of source will address all public comments in a relationship or the distribution of power categories. The OTC consumer products subsequent final rule based on the and responsibilities established in the model rule is based on the existing rules proposed rule. EPA will not institute a Clean Air Act. This rule also is not developed by the California Air second comment period on this action. subject to Executive Order 13045 Resources Board, which were analyzed Any parties interested in commenting ‘‘Protection of Children from and modified by the OTC workgroup to must do so at this time. Please note that Environmental Health Risks and Safety address VOC reduction needs in the if EPA receives adverse comment on an Risks’’ (62 FR 19885, April 23, 1997), Ozone Transport Region (OTR). amendment, paragraph, or section of because it is not economically this rule and if that provision may be significant. In reviewing SIP II. Summary of SIP Revision severed from the remainder of the rule, submissions, EPA’s role is to approve The District’s consumer products rule EPA may adopt as final those provisions state choices, provided that they meet (sections 719 through 734) applies to of the rule that are not the subject of an the criteria of the Clean Air Act. In this any person who sells, supplies, offers adverse comment. context, in the absence of a prior for sale, or manufactures consumer existing requirement for the State to use products on or after January 1, 2005 for IV. Statutory and Executive Order voluntary consensus standards (VCS), use in the District. The rule sets specific Reviews EPA has no authority to disapprove a VOC content limits in percent VOCs by A. General Requirements SIP submission for failure to use VCS. weight for consumer products with a It would thus be inconsistent with compliance date of January 1, 2005. Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is applicable law for EPA, when it reviews Exemptions from the VOC content a SIP submission, to use VCS in place limits are listed in the rule. The rule not a ‘‘significant regulatory action’’ and therefore is not subject to review by the of a SIP submission that otherwise also contains requirements for the satisfies the provisions of the Clean Air Office of Management and Budget. For following consumer products: (1) Act. Thus, the requirements of section this reason, this action is also not Products requiring dilution, (2) ozone 12(d) of the National Technology subject to Executive Order 13211, depleting compounds, (3) aerosol Transfer and Advancement Act of 1995 ‘‘Actions Concerning Regulations That adhesives, (4) antiperspirants or (15 U.S.C. 272 note) do not apply. This Significantly Affect Energy Supply, deodorants, (5) charcoal lighter rule does not impose an information Distribution, or Use’’ (66 FR 28355, May materials, and (6) floor wax strippers. collection burden under the provisions 22, 2001). This action merely approves Alternative control plans (ACP) are also of the Paperwork Reduction Act of 1995 state law as meeting Federal provided by allowing responsible (44 U.S.C. 3501 et seq.). parties the option to voluntarily enter requirements and imposes no additional into separate ACP agreements for the requirements beyond those imposed by B. Submission to Congress and the consumer products mentioned above. state law. Accordingly, the Comptroller General Criteria for innovative products Administrator certifies that this rule The Congressional Review Act, 5 exemption and requirements for will not have a significant economic U.S.C. 801 et seq., as added by the Small variance requests are listed in the rule. impact on a substantial number of small Business Regulatory Enforcement In addition, the rule contains entities under the Regulatory Flexibility Fairness Act of 1996, generally provides administrative requirements for labeling Act (5 U.S.C. 601 et seq.). Because this that before a rule may take effect, the and reporting as well as test methods for rule approves pre-existing requirements agency promulgating the rule must demonstrating compliance. The test under state law and does not impose submit a rule report, which includes a methods used to test coatings must be any additional enforceable duty beyond copy of the rule, to each House of the the most current approved method at that required by state law, it does not Congress and to the Comptroller General the time testing is performed. contain any unfunded mandate or of the United States. EPA will submit a significantly or uniquely affect small report containing this rule and other III. Final Action governments, as described in the required information to the U.S. Senate, EPA is approving revisions to the Unfunded Mandates Reform Act of 1995 the U.S. House of Representatives, and District of Columbia SIP to establish a (Pub. L. 104–4). This rule also does not the Comptroller General of the United regulation for the control of VOC have tribal implications because it will States prior to publication of the rule in emissions from consumer products. The not have a substantial direct effect on the Federal Register. This rule is not a implementation of this rule will result one or more Indian tribes, on the ‘‘major rule’’ as defined by 5 U.S.C. in the reduction of VOC emissions from relationship between the Federal 804(2). consumer products in the District of Government and Indian tribes, or on the Columbia. EPA is publishing this rule distribution of power and C. Petitions for Judicial Review without prior proposal because the responsibilities between the Federal Under section 307(b)(1) of the Clean Agency views this as a noncontroversial Government and Indian tribes, as Air Act, petitions for judicial review of amendment and anticipates no adverse specified by Executive Order 13175 (65 this action must be filed in the United comment. However, in the ‘‘Proposed FR 67249, November 9, 2000). This States Court of Appeals for the Rules’’ section of today’s Federal action also does not have Federalism appropriate circuit by February 28, Register, EPA is publishing a separate implications because it does not have 2005. Filing a petition for document that will serve as the proposal substantial direct effects on the States, reconsideration by the Administrator of to approve the SIP revision if adverse on the relationship between the national this final rule does not affect the finality comments are filed. This rule will be government and the States, or on the of this rule for the purposes of judicial effective on February 28, 2005 without distribution of power and review nor does it extend the time further notice unless EPA receives responsibilities among the various within which a petition for judicial adverse comment by January 27, 2005. levels of government, as specified in review may be filed, and shall not
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postpone the effectiveness of such rule Dated: December 14, 2004. following entries to ‘‘District of or action. This action pertaining to the Donald S. Welsh, Columbia Municipal Regulations District of Columbia’s consumer Regional Administrator, Region III. (DCMR), Title 20—Environment, products rule may not be challenged I 40 CFR part 52 is amended as follows: Chapter 7—Volatile Organic later in proceedings to enforce its Compounds’’: requirements. (See section 307(b)(2).) PART 52—[AMENDED] I a. Adding entries for Section 719 through Section 734. I 1. The authority citation for part 52 List of Subjects in 40 CFR Part 52 I continues to read as follows: b. Adding a new entry for Section 799 after the existing entry for Section 799. Air pollution control, Environmental Authority: 42 U.S.C. 7401 et seq. protection, Ozone, Reporting and The added entries read as follows: recordkeeping requirements, Volatile Subpart J—District of Columbia § 52.470 Identification of plan. organic compounds. I 2. In Section 52.470, the table in * * * * * paragraph (c) is amended by adding the (c) * * *
EPA-APPROVED REGULATIONS IN THE DISTRICT OF COLUMBIA SIP
State citation Title/subject State effective date EPA approval date Additional explanation
District of Columbia Municipal Regulations (DCMR), Title 20—Environment
*******
Chapter 7—Volatile Organic Compounds
******* Section 719 ...... Consumer Products—General 04/16/04, 11/26/04 ...... 12/28/04 [Insert page Requirements. number where the document begins]. Section 720 ...... Consumer Products—VOC 04/16/04, 11/26/04 ...... 12/28/04 [Insert page Standards. number where the document begins]. Section 721 ...... Consumer Products—Exemp- 04/16/04, 11/26/04 ...... 12/28/04 [Insert page tions from VOC Standards. number where the document begins]. Section 722 ...... Consumer Products—Reg- 04/16/04, 11/26/04 ...... 12/28/04 [Insert page istered Under FIFRA. number where the document begins]. Section 723 ...... Consumer Products—Prod- 04/16/04, 11/26/04 ...... 12/28/04 [Insert page ucts Requiring Dilution. number where the document begins]. Section 724 ...... Consumer Products— Ozone 04/16/04, 11/26/04 ...... 12/28/04 [Insert page Depleting Compounds. number where the document begins]. Section 725 ...... Consumer Products—Aerosol 04/16/04, 11/26/04 ...... 12/28/04 [Insert page Adhesives. number where the document begins]. Section 726 ...... Consumer Products—Anti- 04/16/04, 11/26/04 ...... 12/28/04 [Insert page perspirants or Deodorants. number where the document begins]. Section 727 ...... Consumer Products—Char- 04/16/04, 11/26/04 ...... 12/28/04 [Insert page coal Lighter Materials. number where the document begins]. Section 728 ...... Consumer Products—Floor 04/16/04, 11/26/04 ...... 12/28/04 [Insert page Wax Strippers. number where the document begins]. Section 729 ...... Consumer Products—Label- 04/16/04, 11/26/04 ...... 12/28/04 [Insert page ing of Contents. number where the document begins]. Section 730 ...... Consumer Products—Report- 04/16/04, 11/26/04 ...... 12/28/04 [Insert page ing Requirements. number where the document begins]. Section 731 ...... Consumer Products—Test 04/16/04, 11/26/04 ...... 12/28/04 [Insert page Methods. number where the document begins]. Section 732 ...... Consumer Products—Alter- 04/16/04, 11/26/04 ...... 12/28/04 [Insert page native Control Plans. number where the document begins]. Section 733 ...... Consumer Products—Innova- 04/16/04, 11/26/04 ...... 12/28/04 [Insert page tive Products Exemption. number where the document begins].
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EPA-APPROVED REGULATIONS IN THE DISTRICT OF COLUMBIA SIP—Continued
State citation Title/subject State effective date EPA approval date Additional explanation
Section 734 ...... Consumer Products—Vari- 04/16/04, 11/26/04 ...... 12/28/04 [Insert page ance Requests. number where the document begins].
******* Section 799 ...... Definitions ...... 04/16/04, 11/26/04 ...... 12/28/04 [Insert page number where the document begins].
*******
* * * * * B. Agency Web site: http:// you submit. If EPA cannot read your [FR Doc. 04–28193 Filed 12–27–04; 8:45 am] www.docket.epa.gov/rmepub/ RME, comment due to technical difficulties BILLING CODE 6560–50–P EPA’s electronic public docket and and cannot contact you for clarification, comment system, is EPA’s preferred EPA may not be able to consider your method for receiving comments. Follow comment. Electronic files should avoid ENVIRONMENTAL PROTECTION the on-line instructions for submitting the use of special characters, any form AGENCY comments. of encryption, and be free of any defects C. E-mail: [email protected]. or viruses. 40 CFR Part 52 D. Mail: R03–OAR–2004–DC–0002, Makeba Morris, Chief, Air Quality Docket: All documents in the [RME R03–OAR–2004–DC–0002; FRL–7855– Planning Branch, Mailcode 3AP21, U.S. electronic docket are listed in the RME 1] Environmental Protection Agency, index at http://www.docket.epa.gov/ rmepub/. Although listed in the index, Approval and Promulgation of Air Region III, 1650 Arch Street, some information is not publicly Quality Implementation Plans; District Philadelphia, Pennsylvania 19103. available, i.e., CBI or other information of Columbia; Approval of Minor E. Hand Delivery: At the previously- whose disclosure is restricted by statute. Clarifications to Municipal Regulations listed EPA Region III address. Such deliveries are only accepted during the Certain other material, such as AGENCY: Environmental Protection Docket’s normal hours of operation, and copyrighted material, is not placed on Agency (EPA). special arrangements should be made the Internet and will be publicly ACTION: Direct final rule. for deliveries of boxed information. available only in hard copy form. Instructions: Direct your comments to Publicly available docket materials are SUMMARY: EPA is taking direct final RME ID No. R03–OAR–2004–DC–0002. available either electronically in RME or action to approve revisions to the EPA’s policy is that all comments in hard copy during normal business District of Columbia State received will be included in the public hours at the Air Protection Division, Implementation Plan (SIP). The docket without change, and may be U.S. Environmental Protection Agency, revisions include minor changes to made available online at http:// Region III, 1650 Arch Street, clarify that the allowable emission rates www.docket.epa.gov/rmepub/, Philadelphia, Pennsylvania 19103. for particulates and nitrogen oxides including any personal information Copies of the State submittal are (NOX) are expressed in pounds of provided, unless the comment includes available at the District of Columbia pollutant per million BTUs (lbs/ information claimed to be Confidential Department of Public Health, Air MMBTUs) of heat input in District of Business Information (CBI) or other Quality Division, 51 N Street, NE., Columbia Municipal Regulations information whose disclosure is Washington, DC 20002. (DCMRs). This action is being taken in restricted by statute. Do not submit accordance with the Clean Air Act information that you consider to be CBI FOR FURTHER INFORMATION CONTACT: (CAA). or otherwise protected through RME, Linda Miller, (215) 814–2068, or by e- regulations.gov or e-mail. The EPA RME mail at [email protected]. DATES: This rule is effective on February and the Federal regulations.gov Web SUPPLEMENTARY INFORMATION: 28, 2005 without further notice, unless sites are an ‘‘anonymous access’’ EPA receives adverse written comment system, which means EPA will not I. Background by January 27, 2005. If EPA receives know your identity or contact such comments, it will publish a timely information unless you provide it in the The District of Columbia submitted withdrawal of the direct final rule in the body of your comment. If you send an SIP revisions on April 16, 2004 Federal Register and inform the public e-mail comment directly to EPA without pertaining to changes necessary to meet that the rule will not take effect. going through RME or regulations.gov, the more stringent requirements of ADDRESSES: Submit your comments, your e-mail address will be section 182(d) of the CAA and to make identified by Regional Material in automatically captured and included as certain clarifications. This action EDocket (RME) ID Number R03–OAR– part of the comment that is placed in the pertains to changes made to previously 2004–DC–0002 by one of the following public docket and made available on the SIP-approved Sections 600.1 and 805.5 methods: Internet. If you submit an electronic of Title 20 of the DCMRs to clarify that A. Federal eRulemaking Portal: comment, EPA recommends that you the allowable emission rates for http://www.regulations.gov. Follow the include your name and other contact particulates and NOX are expressed in on-line instructions for submitting information in the body of your pounds of pollutant per million BTUs comments. comment and with any disk or CD–ROM (lbs/MMBTUs).
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II. Summary of SIP Revision IV. Statutory and Executive Order for the State to use voluntary consensus Reviews standards (VCS), EPA has no authority The April 16, 2004 SIP submittal to disapprove a SIP submission for A. General Requirements requested approval of revisions to failure to use VCS. It would thus be portions of the regulations in the 20 Under Executive Order 12866 (58 FR inconsistent with applicable law for DCMR Chapters 6 and 8. The federally 51735, October 4, 1993), this action is EPA, when it reviews a SIP submission, approved SIP version of these DCMRs not a ‘‘significant regulatory action’’ and to use VCS in place of a SIP submission correctly prescribes allowable therefore is not subject to review by the that otherwise satisfies the provisions of particulate and NOX emission rates in Office of Management and Budget. For the Clean Air Act. Thus, the pounds of pollutant per million BTUs of this reason, this action is also not requirements of section 12(d) of the heat input. However, some confusion subject to Executive Order 13211, National Technology Transfer and has arisen from how these allowable ‘‘Actions Concerning Regulations That Advancement Act of 1995 (15 U.S.C. emission rates actually appear in the Significantly Affect Energy Supply, 272 note) do not apply. This rule does current SIP version of the regulations. Distribution, or Use’’ (66 FR 28355, May not impose an information collection For example, one such limit for 22, 2001). This action merely approves burden under the provisions of the state law as meeting Federal particulate emissions is expressed as Paperwork Reduction Act of 1995 (44 requirements and imposes no additional follows: thirteen hundredths (0.13) U.S.C. 3501 et seq.). pounds per million BTU of heat input. requirements beyond those imposed by While not incorrect, this has led to the state law. Accordingly, the B. Submission to Congress and the allowable emission rate being Administrator certifies that this rule Comptroller General abbreviated and then interpreted as 0.13 will not have a significant economic ppm, which is parts per million, rather impact on a substantial number of small The Congressional Review Act, 5 than as 0.13lbs/MMBTUs. The revised entities under the Regulatory Flexibility U.S.C. 801 et seq., as added by the Small language clarifies all of the allowable Act (5 U.S.C. 601 et seq.). Because this Business Regulatory Enforcement rule approves pre-existing requirements Fairness Act of 1996, generally provides emission rates for particulates and NOX, respectively, in 20 DCMR Sections 600.1 under state law and does not impose that before a rule may take effect, the and 805.5 to avoid this confusion. For any additional enforceable duty beyond agency promulgating the rule must example, the clarified version of the that required by state law, it does not submit a rule report, which includes a previously referenced particulate contain any unfunded mandate or copy of the rule, to each House of the emission limit now reads as follows: significantly or uniquely affect small Congress and to the Comptroller General thirteen hundredths pounds (0.13 lb) governments, as described in the of the United States. EPA will submit a per million BTU of heat input. By Unfunded Mandates Reform Act of 1995 report containing this rule and other expressing the allowable emission limits (Public Law 104–4). This rule also does required information to the U.S. Senate, in this fashion, they will properly be not have tribal implications because it the U.S. House of Representatives, and abbreviated and correctly interpreted in will not have a substantial direct effect the Comptroller General of the United lbs/MMBTUs. These revisions to clarify on one or more Indian tribes, on the States prior to publication of the rule in 20 DCMR Chapters 6 and 8 do not affect relationship between the Federal the Federal Register. This rule is not a the stringency of these previously SIP- Government and Indian tribes, or on the ‘‘major rule’’ as defined by 5 U.S.C. distribution of power and approved regulations. 804(2). responsibilities between the Federal III. Final Action Government and Indian tribes, as C. Petitions for Judicial Review specified by Executive Order 13175 (65 Under section 307(b)(1) of the Clean EPA is approving revisions to FR 67249, November 9, 2000). This Air Act, petitions for judicial review of Sections 600.1 and 805.5 of 20 DCMR to action also does not have Federalism this action must be filed in the United clarify how the allowable emission rates implications because it does not have States Court of Appeals for the for particulates and NOX are expressed. substantial direct effects on the States, appropriate circuit by February 28, EPA is publishing this rule without on the relationship between the national 2005. Filing a petition for prior proposal because the Agency government and the States, or on the reconsideration by the Administrator of views this as a noncontroversial distribution of power and amendment and anticipates no adverse responsibilities among the various this final rule does not affect the finality comment. However, in the ‘‘Proposed levels of government, as specified in of this rule for the purposes of judicial Rules’’ section of today’s Federal Executive Order 13132 (64 FR 43255, review nor does it extend the time Register, EPA is publishing a separate August 10, 1999). This action merely within which a petition for judicial document that will serve as the proposal approves a state rule implementing a review may be filed, and shall not to approve the SIP revision if adverse Federal standard, and does not alter the postpone the effectiveness of such rule comments are filed. This rule will be relationship or the distribution of power or action. This action to approve minor effective on February 28, 2005 without and responsibilities established in the clarifications to the allowable emissions further notice unless EPA receives Clean Air Act. This rule also is not rates for particulates and NOX such that adverse comment by January 27, 2005. subject to Executive Order 13045 they are clearly expressed in pounds of If EPA receives adverse comment, EPA ‘‘Protection of Children from pollutant per million BTUs (lbs/ will publish a timely withdrawal in the Environmental Health Risks and Safety MMBTUs) may not be challenged later Federal Register informing the public Risks’’ (62 FR 19885, April 23, 1997), in proceedings to enforce its that the rule will not take effect. EPA because it is not economically requirements. (See section 307(b)(2).) will address all public comments in a significant. List of Subjects in 40 CFR Part 52 subsequent final rule based on the In reviewing SIP submissions, EPA’s proposed rule. EPA will not institute a role is to approve state choices, Environmental protection, Air second comment period on this action. provided that they meet the criteria of pollution control, Intergovernmental Any parties interested in commenting the Clean Air Act. In this context, in the relations, Nitrogen dioxide, Ozone, must do so at this time. absence of a prior existing requirement organic compounds.
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Dated: December 14, 2004. Authority: 42 U.S.C. 7401 et seq. 805 after the existing entry for Chapter 8, Donald S. Welsh, Section 805 to read as follows: Regional Administrator, Region III. Subpart J—District of Columbia § 52.470 Identification of plan. I 40 CFR part 52 is amended as follows: I 2. In Section 52.470, the table in * * * * * PART 52—[AMENDED] paragraph (c) is amended by revising the (c) EPA-approved regulations. entry for Chapter 6, Section 600 and I 1. The authority citation for part 52 adding an entry for Chapter 8, Section continues to read as follows:
EPA-APPROVED DISTRICT OF COLUMBIA REGULATIONS
State effective State citation Title/subject date EPA approval date Additional explanation
*******
Chapter 6 Particulates
Section 600 ...... Fuel-Burning Particulate Emissions ...... 4/16/04 12/28/04 [Insert page Revision to paragraph number where the 600.1. document begins].
*******
Chapter 8 Asbestos, Sulfur and Nitrogen Oxides
******* Section 805 ...... Nitrogen Oxides ...... 4/16/04 12/28/04 [Insert page Revision to paragraph number where the 805.5(b) and (c) document begins].
*******
[FR Doc. 04–28195 Filed 12–27–04; 8:45 am] are required pursuant to the Planning Branch, Mailcode 3AP21, U.S. BILLING CODE 6560–50–P reclassification of the Metropolitan Environmental Protection Agency, Washington, DC 1-hour ozone Region III, 1650 Arch Street, nonattainment area from serious to Philadelphia, Pennsylvania 19103. ENVIRONMENTAL PROTECTION severe. This action is being taken under E. Hand Delivery: At the previously- AGENCY the CAA. listed EPA Region III address. Such DATES: This rule is effective on February deliveries are only accepted during the 40 CFR Part 52 28, 2005 without further notice, unless Docket’s normal hours of operation, and [RME R03–OAR–2004–DC–0001; FRL–7855– EPA receives adverse written comment special arrangements should be made 3] by January 27, 2005. If EPA receives for deliveries of boxed information. such comments, it will publish a timely Instructions: Direct your comments to Approval and Promulgation of Air withdrawal of the direct final rule in the RME ID No. R03–OAR–2004–DC–0001. Quality Implementation Plans; District Federal Register and inform the public EPA’s policy is that all comments of Columbia; Amendments to the Size that the rule will not take effect. received will be included in the public Thresholds for Defining Major Sources ADDRESSES: Submit your comments, docket without change, and may be and to the NSR Offset Ratios for identified by Regional Material in made available online at http:// Sources of VOC and NOX EDocket (RME) ID Number R03–OAR– www.docket.epa.gov/rmepub/, AGENCY: Environmental Protection 2004–DC–0001 by one of the following including any personal information Agency (EPA). methods: provided, unless the comment includes ACTION: Direct final rule. A. Federal eRulemaking Portal: http:/ information claimed to be Confidential /www.regulations.gov. Follow the on- Business Information (CBI) or other SUMMARY: EPA is taking direct final line instructions for submitting information whose disclosure is action to approve revisions to the comments. restricted by statute. Do not submit District of Columbia (the District) State B. Agency Web site: http:// information that you consider to be CBI Implementation Plan (SIP). The www.docket.epa.gov/rmepub/ RME, or otherwise protected through RME, revisions reduce the size thresholds for EPA’s electronic public docket and regulations.gov or e-mail. The EPA RME defining major sources and increase the comment system, is EPA’s preferred and the Federal regulations.gov Web new source review (NSR) offset ratio method for receiving comments. Follow sites are an ‘‘anonymous access’’ requirements for sources of ozone the on-line instructions for submitting system, which means EPA will not precursors to meet the Clean Air Act comments. know your identity or contact (CAA) requirements for 1-hour ozone C. E-mail: [email protected]. information unless you provide it in the nonattainment areas classified as severe. D. Mail: R03–OAR–2004–DC–0001, body of your comment. If you send an These amendments to the District’s SIP Makeba Morris, Chief, Air Quality e-mail comment directly to EPA without
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going through RME or regulations.gov, amendments to the offset ratio 182(d) of the CAA and strengthen the your e-mail address will be requirements for NSR permitting current SIP. automatically captured and included as purposes. These revisions are the III. Final Action part of the comment that is placed in the subject of this rulemaking action. The public docket and made available on the other revisions submitted on April 16, EPA is approving revisions to Internet. If you submit an electronic 2004 are the addressed in separate regulations found in 20 DCMR Chapters comment, EPA recommends that you rulemakings. 1, 2, 7 and 8 submitted by the District include your name and other contact to satisfy the more stringent major II. Summary of SIP Revision information in the body of your source definitions and offset ratio comment and with any disk or CD–ROM On April 16, 2004 (and supplemented requirements for severe ozone you submit. If EPA cannot read your on September 20, 2004), the District nonattainment areas found in CAA comment due to technical difficulties submitted SIP revisions to regulations 182(d). EPA is publishing this rule and cannot contact you for clarification, found in Chapters 1, 2, 7 and 8 of Title without prior proposal because the EPA may not be able to consider your 20 of the District of Columbia Municipal Agency views this as a noncontroversial comment. Electronic files should avoid Regulations (DCMRs). Specifically, the amendment and anticipates no adverse the use of special characters, any form regulations have been revised to meet comment. However, in the ‘‘Proposed of encryption, and be free of any defects the more stringent major source Rules’’ section of today’s Federal or viruses. definitions and offset ratio requirements Register, EPA is publishing a separate Docket: All documents in the for severe ozone nonattainment areas document that will serve as the proposal electronic docket are listed in the RME found in CAA 182(d). to approve the SIP revision if adverse index at http://www.docket.epa.gov/ Revisions have been made to 20 comments are filed. This rule will be rmepub/. Although listed in the index, DCMR Chapter 2, subsection 204.4 effective on February 28, 2005 without some information is not publicly which change the NSR offset ratio from further notice unless EPA receives available, i.e., CBI or other information 1.2:1 to the more stringent ratio of 1.3:1 adverse comment by January 27, 2005. whose disclosure is restricted by statute. required for the NSR permitting of major If EPA receives adverse comment, EPA Certain other material, such as sources and major modifications of will publish a timely withdrawal in the copyrighted material, is not placed on ozone precursors in the District, namely Federal Register informing the public the Internet and will be publicly volatile organic compounds (VOCs) and that the rule will not take effect. EPA available only in hard copy form. nitrogen oxides (NOX). will address all public comments in a Publicly available docket materials are Revisions have also been made which subsequent final rule based on the available either electronically in RME or change the size thresholds for defining proposed rule. EPA will not institute a in hard copy during normal business major sources of VOC and NOX to second comment period on this action. hours at the Air Protection Division, comply with the 25 ton per year size Any parties interested in commenting U.S. Environmental Protection Agency, threshold requirements of the CAA for must do so at this time. Region III, 1650 Arch Street, severe 1-hour ozone nonattainment IV. Statutory and Executive Order Philadelphia, Pennsylvania 19103. areas. Specifically, 20 DCMR Chapter 1, Reviews Copies of the State submittal are Subsection 199.1, for permitting available at the District of Columbia requirements, now defines major A. General Requirements Department of Public Health, Air stationary sources of VOC and NOX as Under Executive Order 12866 (58 FR Quality Division, 51 N Street, NE., those which emit or have the potential 51735, October 4, 1993), this action is Washington, DC 20002. to emit 25 tons per year or more. Title not a ‘‘significant regulatory action’’ and FOR FURTHER INFORMATION CONTACT: 20 DCMR Chapter 7, Subsections 715.2, therefore is not subject to review by the Linda Miller, (215) 814–2068, or by e- 715.3 and 715.4(b), for purposes of Office of Management and Budget. For mail at [email protected]. requiring reasonably available control this reason, this action is also not SUPPLEMENTARY INFORMATION: technology (RACT), now define major subject to Executive Order 13211, sources of VOC as those which emit, ‘‘Actions Concerning Regulations That I. Background have ever emitted, have the potential to Significantly Affect Energy Supply, On January 24, 2003 (68 FR 3410), emit, or exceed in the future, emissions Distribution, or Use’’ (66 FR 28355, May EPA issued a final rule which greater than or equal to 25 tons per year. 22, 2001). This action merely approves reclassified the Metropolitan Similarly, 20 DCMR Chapter 8, state law as meeting Federal Washington DC 1-hour ozone Subsections 805.1 and 805.6 and 805.7; requirements and imposes no additional nonattainment area (the Washington DC now define major sources of NOX as requirements beyond those imposed by area) from serious to severe. This is those which emit or have the potential state law. Accordingly, the commonly referred to as ‘‘bumping up’’ to emit 25 tons per year or more for Administrator certifies that this rule a 1-hour ozone nonattainment area. applicability of NOX RACT will not have a significant economic Pursuant to EPA’s January 24, 2003 requirements. Additional changes were impact on a substantial number of small reclassification of the Washington DC made to include a January 1, 2005 entities under the Regulatory Flexibility area to severe, the District was required compliance date for RACT for those Act (5 U.S.C. 601 et seq.). Because this to adopt and submit SIP revisions to sources which emit or have the rule approves pre-existing requirements satisfy the more stringent CAA section potential to emit between 25 tons per under state law and does not impose 182(d) requirements for severe 1-hour year (the new threshold for defining a any additional enforceable duty beyond ozone nonattainment areas. On April 16, subject major source) and the previous that required by state law, it does not 2004, the District submitted several SIP major source applicability level of 50 contain any unfunded mandate or revisions to satisfy those mandatory tons per year. significantly or uniquely affect small severe area requirements. Among those These changes to the District SIP are governments, as described in the revisions are amendments to the size necessary to meet the mandatory Unfunded Mandates Reform Act of 1995 thresholds for defining major stationary requirements for severe 1-hour ozone (Public Law 104–4). This rule also does sources of ozone precursors and nonattainment areas under section not have tribal implications because it
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will not have a substantial direct effect that otherwise satisfies the provisions of review nor does it extend the time on one or more Indian tribes, on the the Clean Air Act. Thus, the within which a petition for judicial relationship between the Federal requirements of section 12(d) of the review may be filed, and shall not Government and Indian tribes, or on the National Technology Transfer and postpone the effectiveness of such rule distribution of power and Advancement Act of 1995 (15 U.S.C. or action. This action to approve responsibilities between the Federal 272 note) do not apply. This rule does revisions to the District of Columbia’s Government and Indian tribes, as not impose an information collection regulations pertaining to major source specified by Executive Order 13175 (65 burden under the provisions of the size thresholds and offset ratios to FR 67249, November 9, 2000). This Paperwork Reduction Act of 1995 (44 satisfy the requirements for severe 1- action also does not have federalism U.S.C. 3501 et seq.). hour ozone nonattainment requirements implications because it does not have may not be challenged later in B. Submission to Congress and the substantial direct effects on the States, proceedings to enforce its requirements. Comptroller General on the relationship between the national (See section 307(b)(2).) government and the States, or on the The Congressional Review Act, 5 List of Subjects in 40 CFR Part 52 distribution of power and U.S.C. 801 et seq., as added by the Small responsibilities among the various Business Regulatory Enforcement Environmental protection, Air levels of government, as specified in Fairness Act of 1996, generally provides pollution control, Intergovernmental Executive Order 13132 (64 FR 43255, that before a rule may take effect, the relations, Nitrogen dioxide, Ozone, August 10, 1999). This action merely agency promulgating the rule must volatile organic compounds. approves a state rule implementing a submit a rule report, which includes a Dated: December 14, 2004. Federal standard, and does not alter the copy of the rule, to each House of the Donald S. Welsh, relationship or the distribution of power Congress and to the Comptroller General Regional Administrator, Region III. and responsibilities established in the of the United States. EPA will submit a Clean Air Act. This rule also is not report containing this rule and other I 40 CFR part 52 is amended as follows: subject to Executive Order 13045 required information to the U.S. Senate, PART 52—[AMENDED] ‘‘Protection of Children from the U.S. House of Representatives, and Environmental Health Risks and Safety the Comptroller General of the United I 1. The authority citation for part 52 Risks’’ (62 FR 19885, April 23, 1997), States prior to publication of the rule in continues to read as follows: because it is not economically the Federal Register. This rule is not a Authority: 42 U.S.C. 7401 et seq. significant. ‘‘major rule’’ as defined by 5 U.S.C. In reviewing SIP submissions, EPA’s 804(2). Subpart J—District of Columbia role is to approve state choices, C. Petitions for Judicial Review provided that they meet the criteria of I 2. In Section 52.470, the table in the Clean Air Act. In this context, in the Under section 307(b)(1) of the Clean paragraph (c) is amended by revising the absence of a prior existing requirement Air Act, petitions for judicial review of existing entries for Chapter 1, Section for the State to use voluntary consensus this action must be filed in the United 199; Chapter 2, Section 204; Chapter 7, standards (VCS), EPA has no authority States Court of Appeals for the Section 715; and Chapter 8, Section 805. to disapprove a SIP submission for appropriate circuit by February 28, The amendments read as follows: failure to use VCS. It would thus be 2005. Filing a petition for inconsistent with applicable law for reconsideration by the Administrator of § 52.470 Identification of plan. EPA, when it reviews a SIP submission, this final rule does not affect the finality * * * * * to use VCS in place of a SIP submission of this rule for the purposes of judicial (c) EPA approved regulations.
EPA-APPROVED DISTRICT OF COLUMBIA REGULATIONS
State effective State citation Title/subject date EPA approval date Additional explanation
*******
Chapter 1 General
Section 199 ...... Definitions and Abbreviations ...... 4/16/04 12/28/04 [Insert page Revised Definition of number where the Major Stationary document begins]. Source.
*******
Chapter 2 General and Non-attainment Area Permits
******* Section 204 ...... Requirements for Sources Affecting Nonattain- 4/16/04 12/28/04 [Insert page Revised Paragraph ment Areas. number where the 204.4. document begins].
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EPA-APPROVED DISTRICT OF COLUMBIA REGULATIONS—Continued
State effective State citation Title/subject date EPA approval date Additional explanation
*******
Chapter 7 Volatile Organic Compounds
******* Section 715 ...... Reasonably Available Control Technology ...... 4/16/04 12/28/04 [Insert page Revised paragraphs number where the 715.2, 715.3, and document begins]. 715.4(b).
*******
Chapter 8 Asbestos, Sulfur and Nitrogen Oxides
******* Section 805 ...... Nitrogen Oxides ...... 4/16/04 12/28/04 [Insert page Revised paragraphs number where the 805.1 (a), 805.1(a)(3) document begins]. and (4), 805.1(b) and (c), 805.6 and 805.7.
*******
[FR Doc. 04–28197 Filed 12–27–04; 8:45 am] FOR FURTHER INFORMATION CONTACT: environmental impact assessment has BILLING CODE 6560–50–P Mike Grimm, Mitigation Division, 500 C been prepared. Street, SW.; Room 412, Washington, DC Regulatory Flexibility Act. The 20472, (202) 646–2878. Administrator certifies that this rule DEPARTMENT OF HOMELAND SUPPLEMENTARY INFORMATION: The NFIP will not have a significant economic SECURITY enables property owners to purchase impact on a substantial number of small flood insurance which is generally not entities in accordance with the Federal Emergency Management otherwise available. In return, Regulatory Flexibility Act, 5 U. S. C. 601 Agency communities agree to adopt and et seq., because the rule creates no administer local floodplain management additional burden, but lists those 44 CFR Part 64 measures aimed at protecting lives and communities eligible for the sale of [Docket No. FEMA–7774] new construction from future flooding. flood insurance. Since the communities on the attached Regulatory Classification. This final List of Communities Eligible for the list have recently entered the NFIP, rule is not a significant regulatory action Sale of Flood Insurance subsidized flood insurance is now under the criteria of section 3(f) of available for property in the community. Executive Order 12866 of September 30, AGENCY: Federal Emergency In addition, the Federal Emergency 1993, Regulatory Planning and Review, Management Agency, Emergency Management Agency has identified the 58 FR 51735. Preparedness and Response Directorate, special flood hazard areas in some of Department of Homeland Security. Paperwork Reduction Act. This rule these communities by publishing a does not involve any collection of ACTION: Final rule. Flood Hazard Boundary Map (FHBM) or information for purposes of the SUMMARY: This rule identifies Flood Insurance Rate Map (FIRM). The Paperwork Reduction Act, 44 U.S.C. communities participating in the date of the flood map, if one has been 3501 et seq. National Flood Insurance Program published, is indicated in the fourth Executive Order 12612, Federalism. (NFIP) and suspended from the NFIP. column of the table. In the communities This rule involves no policies that have These communities have applied to the listed where a flood map has been federalism implications under Executive program and have agreed to enact published, Section 202 of the Flood Order 12612, Federalism, October 26, certain floodplain management Disaster Protection Act of 1973, as 1987, 3 CFR, 1987 Comp., p. 252. measures. The communities’ amended, 42 U.S.C. 4016(a), requires Executive Order 12778, Civil Justice participation in the program authorizes the purchase of flood insurance as a Reform. This rule meets the applicable the sale of flood insurance to owners of condition of Federal or federally related standards of section 2(b)(2) of Executive property located in the communities financial assistance for acquisition or Order 12778, October 25, 1991, 56 FR listed. construction of buildings in the special 55195, 3 CFR, 1991 Comp., p. 309. flood hazard areas shown on the map. EFFECTIVE DATES: The dates listed under The Administrator finds that delayed List of Subjects in 44 CFR Part 64. the column headed Effective Date of effective dates would be contrary to the Flood insurance, Floodplains. Eligibility. public interest and that notice and I Accordingly, 44 CFR part 64 is ADDRESSES: Flood insurance policies for public procedure under 5 U.S.C. 553(b) amended as follows: property located in the communities are impracticable and unnecessary. listed can be obtained from any licensed National Environmental Policy Act. PART 64—[AMENDED] property insurance agent or broker This rule is categorically excluded from serving the eligible community, or from the requirements of 44 CFR Part 10, I 1. The authority citation for Part 64 the NFIP at: (800) 638–6620. Environmental Considerations. No continues to read as follows:
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Authority: 42 U.S.C. 4001 et seq., § 64.6 [Amended] Reorganization Plan No. 3 of 1978, 3 CFR, I 2. The tables published under the 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, authority of § 64.6 are amended as 3 CFR, 1979 Comp., p. 376. follows:
Community State/location No. Effective date of eligibility Current effective map date
New Eligibles: Emergency Program Georgia: Glenwood, City of, Wheeler County ...... 130419 Jan. 6, 2004 ...... Apr. 4, 1975 FHBM. Elbert County, Unincorporated Areas ...... 135264 ...... do* ...... Never Mapped. Minnesota: Avoca, City of, Murray County ...... 270552 Jan. 20, 2004 ...... Jan. 10, 1975 FHBM. Indiana: Warren County, Unincorporated Areas ...... 180448 Feb. 25, 2004 ...... Dec. 10, 1978 FHBM. Texas: Potter County, Unincorporated Areas ...... 481241 ...... do ...... Dec. 6, 1977 FHBM. North Carolina: Connelly Springs, Town of, Burke County ...... 370600 Mar. 12, 2004 ...... Never Mapped. Texas: Concho County, Unincorporated Areas ...... 480762 Mar. 14, 2004 ...... Do. Massachusetts: Tyringham, Town of, Berkshire County ...... 250043 Apr. 1, 2004 ...... Nov. 29, 1974 FHBM. New Hampshire: Loudon, Town of, Merrimack County ...... 330117 Apr. 2, 2004 ...... Sept. 28, 1979 FHBM. Arkansas: Nevada County, Unincorporated Areas ...... 050454 Apr. 15, 2004 ...... Aug. 9, 1977 FHBM. Winchester, City of, Drew County ...... 050077 ...... do ...... Oct. 10, 1975 FHBM. Maine: Alna, Town of, Lincoln County ...... 230083 May 6, 2004 ...... Jan. 3, 1975. Kansas: Onaga, City of, Pottawatomie County ...... 200544 May 13, 2004 ...... Aug. 13, 1976 FHBM. Maryland: Galestown, Town of, Dorchester County ...... 240106 June 2, 2004 ...... July 11, 1975. Tennessee: Townsend, City of, Blount County ...... 470281 ...... do ...... June 18, 1976. Vermont: Danville, Town of, Caledonia County ...... 500185 June 7, 2004 ...... Jan. 17, 1975. North Carolina: Hildebran, Town of, Burke County ...... 370519 ...... do ...... Never Mapped. Iowa: Hazleton, City of, Buchanan County ...... 190330 July 8, 2004 ...... May 28, 1976 FHBM. Colorado: New Castle, Town of, Garfield County ...... 080256 July 22, 2004 ...... July 25, 1975 FHBM. Utah: Daggett County, Unincorporated Areas ...... 490230 ...... do ...... Never Mapped. Nebraska: Elba, Village of, Howard County ...... 310514 Aug. 5, 2004 ...... Do. Texas: Kress, City of, Swisher County ...... 481012 Aug. 31, 2004 ...... Feb. 21, 1975 FHBM. Kansas: Lincoln County, Unincorporated Areas ...... 200591 Aug. 23, 2004 ...... Never Mapped. Missouri: Edmundson, City of, St. Louis County ...... 280729 Aug. 31, 2004 ...... Never Mapped. Kentucky: London, City of, Laurel County ...... 210396 Sept. 8, 2004 ...... Never Mapped. Texas: Fannin County, Unincorporated Areas ...... 480807 Sept. 9, 2004 ...... Dec. 8, 1977 FHBM. New Eligibles: Regular Program North Carolina: Bethel, Town of, Pitt County ** ...... 370546 Jan. 2, 2004 ...... Jan. 2, 2004. Falkland, Town of, Pitt County ** ...... 370666 ...... do ...... Do. Grimesland, Town of, Pitt County ** ...... 370535 ...... do ...... Do. Simpson Village of, Pitt County ** ...... 370615 ...... do ...... Do. Nebraska: Kearney County, Unincorporated Areas ** ...... 310448 Jan. 16, 2004 ...... Jan. 16, 2004. Washington: Lummi Indian Reservation, Tribe of, Whatcom Coun- 530331 ...... do ...... Do. ty **. Nebraska: Nickerson, Town of, Dodge County ...... 310070 Jan. 20, 2004 ...... NSFHA. Arkansas: Dyer, Town of, Crawford County ...... 050408 Jan. 30, 2004 ...... Dec. 20, 2000. Missouri: Fair Grove, City of, Greene County ...... 290591 ...... do ...... June 27, 1975 FHBM Re- scinded. Adopted Green County FIRM panel 0025B, dated June 15, 1983. North Carolina: Alleghany County, Unincorporated Areas ** ...... 370004 Feb. 1, 2004 ...... Feb. 1, 2004. North Carolina: Huntersville, Town of, Mecklenburg County ** ...... 370478 Feb. 4, 2004 ...... Feb. 4, 2004. Matthews, Town of, Mecklenburg County ** ...... 370310 ...... do ...... Do. Washington: Anacortes, City of, Skagit County ** ...... 530317 Feb. 23, 2004 ...... Sept. 17, 2003. Prescott, Town of, Walla Walla County. ** ...... 530259 ...... do ...... Jan. 18, 2002. Wisconsin: Markesan, City of, Green Lake County. ** ...... 550169 ...... do ...... July 2, 2003. Maine: Washington, Town of, Knox County.** ...... 230082 Mar. 1, 2004 ...... Mar. 1, 2004. New York: Atlantic Beach, Village of, Nassau County ...... 360458 Mar. 9, 2004 ...... Use Town of Hempstead (CID 360467) FIRM pan- els 0284, 0303, and 0304. North Carolina: Beech Mountain, Town of, Watauga County ...... 370480 Mar. 12, 2004 ...... Use Watauga County (CID 370254) panels 0150, 0151, and 0153. West Virginia: Pleasant Valley, City of, Marion County ...... 540292 Mar. 29, 2004 ...... Use Marion County (CID 540097) FIRM panels 0079 and 0090 dated July 2, 1992; 0085 dated Oct. 18, 1995; 0095 and 0097 dated July 4, 1988.
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Community State/location No. Effective date of eligibility Current effective map date
Missouri: Christian County, Unincorporated Areas. ** ...... 290847 Apr. 1, 2004 ...... Apr. 1, 2004. Duenweg, City of, Jasper County ...... 290182 ...... do ...... Use Jasper County (CID 290807) FIRM panels 0180 and 0190 dated Apr. 17, 1985. Hillsboro, City of, Jefferson County ...... 290573 ...... do ...... Apr. 1, 2004. Taney County, Unincorporated Areas ...... 290435 ...... do ...... Do. Texas: Beasley, City of, Fort Bend County ...... 481654 ...... do ...... Apr. 20, 2000 All Zone C. Crockett County, Unincorporated Areas. ** ...... 480158 ...... do ...... Apr. 1, 2004. Erath County, Unincorporated Areas. ** ...... 480218 ...... do ...... Do. Karnes County, Unincorporated Areas. ** ...... 481175 ...... do ...... Do. Navaro County, Unincorporated Areas. ** ...... 480950 ...... do ...... Do. Van Zandt County, Unincorporated Areas. ** ...... 481040 ...... do ...... Do. Washington: Spokane Valley, City of, Spokane County ...... 530342 ...... do ...... Use Spokane County (CID 530174) FIRM panels 0285, 0294, 0300, 0304, 0315, 0382 and 0401 dated Sept. 30, 1992. Alabama: Taylor, Town of, Houston County ...... 010108 Apr. 15, 2004 ...... Nov. 21, 2002. Texas: Volente, Village of, Travis County ...... 481696 ...... do ...... Use Travis County (CID 481026) FIRM panel 0280E dated June 16, 1993. Arkansas: Cherokee Village, City of, Sharp County. ** ...... 050603 Apr. 16, 2004 ...... Apr. 16, 2004. Illinois: Williamsville, Village of, Sangamon County. ** ...... 171041 May 3, 2004 ...... May 3, 2004. Oklahoma: Commerce, City of, Ottawa County ...... 400156 May 5, 2004 ...... July 18, 1985. Florida: Doral, City of, Miami-Dade County ...... 120041 May 12, 2004 ...... Use Miami-Dade County (CID 120635) FIRM pan- els 0075, 0160, 0170 dated Mar. 2, 1994. Arkansas: Georgetown, Town of, White County. ** ...... 050605 May 13, 2004 ...... Use the White County (CID 050467) FIRM panel 0015 dated Mar. 1, 2000. Illinois: Coles County, Unincorporated Areas ...... 170986 ...... Aug. 5, 1985. Spaulding, Village of, Sangamon County ...... 171050 ...... do ...... May 3, 2004. Kansas: Mitchell County, Unincorporated Areas ...... 200225 ...... do ...... June 15, 1988. New Hampshire: Chichester, Town of, Merrimack County ...... 330109 May 14, 2004 ...... Sept. 1, 1978. New York: Victor, Village of, Ontario County.** ...... 361648 May 17, 2004 ...... May 17, 2004. Ohio: Glendale, Village of, Hamilton County.** ...... 390217 ...... do ...... Do. Wisconsin: Suamico, Village of, Brown County ...... 550660 May 24, 2004 ...... Nov. 4, 1992. Arkansas: Lincoln, City of, Washington County ...... 050338 June 1, 2004 ...... Dec. 20, 2000. Plainview, City of, Yell County ...... 050363 ...... do ...... Mar. 4, 2003. Prairie Grove, City of, Washington County ...... 050587 ...... do ...... Dec. 2000. Georgia: McDonough, City of, Henry County.** ...... 130342 ...... do ...... June 1, 2004. Indiana: Sheridan, Town of, Hamilton County ...... 180516 ...... do ...... Feb. 19, 2003. Illinois: Trenton, City of, Clinton County ...... 170924 June 2, 2004 ...... June 2, 2004. California: Goleta, City of, Santa Barbara County ...... 060771 ...... do ...... Do. Alabama: Valley Grande, City of, Dallas County ...... 010312 June 8, 2004 ...... Use Dallas County. (CID 010063) FIRM panels 0020, 0025, 0040, 0050, and 0070 dated Sept. 29, 1986. Florida: Miami Gardens, City of, Miami-Dade County ...... 120345 June 21, 2004 ...... Use Miami-Dade. County (CID 120635) FIRM pan- els 0080, 0082, 0083 and 0090 dated Mar. 2, 1994. California: Laguna Woods, City of, Orange County ...... 060768 June 25, 2004 ...... Feb. 18, 2004. Missouri: Lake Annette, City of, Cass County ...... 290953 ...... do ...... Use Cass County (CID 290783) FIRM panel 0100 dated May 4, 1992. North Carolina: Cove City, Town of, Craven County.** ...... 370601 July 2, 2004 ...... July 16, 2004. LaGrange, Town of, Lenoir County.** ...... 370579 ...... do ...... Do. Texas: Salado, City of, Bell County ...... 480033 July 8, 2004 ...... Use Bell County (CID 480706) FIRM panels 0280 and 0345 dated Feb. 15, 1984. Wisconsin: New Richmond, City of, St. Croix County.** ...... 550384 July 16, 2004 ...... July 16, 2004. Texas: East Bernard, City of, Wharton County ...... 480650 July 22, 2004 ...... Use Wharton County (CID 480652) FIRM panel 0150 dated Nov. 7, 2001. New Hampshire: Loudon, Town of, Merrimack County.** ...... 330117 Aug. 1, 2004 ...... Aug. 1, 2004. Georgia: Ailey, City of, Montgomery County.** ...... 130360 ...... do ...... Do. Glenwood, City of, Wheeler County.** ...... 130419 ...... do ...... Do.
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Community State/location No. Effective date of eligibility Current effective map date
Ohio: Sherwood, Village of, Defiance County ...... 390859 Aug. 9, 2004 ...... Rescinded FHBM. Use De- fiance County (CID 390143) FIRM panel 0105 dated Aug. 2, 1990. Alabama: Ohatchee, Town of, Calhoun County ...... 010232 Aug. 18, 2004 ...... Use Calhoun County (CID 010013) FIRM panels 0025 and 0125 dated Sept. 15, 1983. Arkansas: Enola, City of, Faulkner County ...... 050589 Aug. 23, 2004 ...... Sept. 27, 1991—All Zone C—No published FIRM. Utah: Holladay, City of, Salt Lake County ...... 490253 Aug. 24, 2004 ...... Use Salt Lake County (CID 490102) FIRM panels 0312 and 0314 dated Sept. 21,2001. Georgia: Molena, City of, Pike County.** ...... 130376 Sept. 1, 2004 ...... Sept. 1, 2004. Kansas: Douglass, City of, Butler County ...... 200489 ...... do ...... All Zone C—No Published FIRM. Arkansas: Springtown, Town of, Benton County ...... 050004 Sept. 9, 2004 ...... Use Benton County (CID 050419) FIRM panel 0140 dated Sept. 18, 1991. California: Rancho Cordova, City of, Sacramento County ...... 060772 Sept. 15, 2004 ...... Use Sacramento County (CID 060262) FIRM pan- els 0205, 0210, 0215 and 0220 dated May 22, 2000. Reinstatements Arkansas: Tupelo, City of, Jackson County ...... 050106 June 4, 1975 Emerg.; Jan. NSFHA. 23, 1979, Reg.; Aug. 16, 1988, Susp.; Jan. 30, 2004 Rein. Illinois: Freeburg, Village of, St. Clair County ...... 170790 Mar. 24, 1976, Emerg.; Nov. 5, 2003. Jan. 18, 1980, Reg.; Nov. 7, 2003, Susp.; Feb. 4, 2004, Rein. New Athens, Village of, St. Clair County ...... 170632 Sept. 3, 1975, Emerg.; Mar. Do. 23, 1984, Reg.; Nov. 7, 2003, Susp.; Feb. 4, 2004, Rein. Georgia: Hart County, Unincorporated Areas ...... 130467 Sept. 26, 1978 Emerg.; Sept. 1, 1987. Sept. 1, 1987, Reg.; Sept. 1, 1987, Susp.; Mar. 12, 2004, Rein. Ohio: Crown City, Village of, Gallia County ...... 390187 Apr. 22, 1983, Emerg.; July Oct. 16, 2003. 5, 1983, Reg.; Oct. 22, 2003, Susp.; Apr. 1, 2004, Rein. New Mexico: Eddy County, Unincorporated Areas ...... 350120 Oct. 22, 1975, Emerg.; Jan. June 4, 1996. 18, 1989, Susp.; Apr. 22, 2004, Rein; Apr. 22, 2004, Reg. Pennsylvania: Findley, Township of, Mercer County ...... 421866 Aug. 12, 1975, Emerg.; Feb. 4, 1983. Feb. 4, 1983, Reg.; Sept. 2, 1993, Susp.; June 2, 2004, Rein. Illinois: Auburn, City of, Sangamon County ...... 170944 May 13, 1980, Emerg.; May 3, 2004. Aug. 19, 1985, Reg.; May 4, 2004, Susp.; June 4, 2004, Rein. Summerfield, Village of, St. Clair County ...... 170636 Aug. 11, 1976, Emerg.; Nov. 5, 2003. Aug. 10, 1979, Reg.; Nov. 7, 2003, Susp.; June 4, 2004, Rein. Fayetteville, Village of, St. Clair County ...... 170628 May 12, 1976, Emerg.; Nov. 5, 2003. June 15, 1981, Reg.; Nov. 7, 2003, Susp.; June 9, 2004, Rein.
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Community State/location No. Effective date of eligibility Current effective map date
Ohio: Evendale, Village of, Hamilton County ...... 390214 June 27, 1977, Emerg.; May 17, 2004. Sept. 29, 1986, Reg.; May 18, 2004, Susp.; June 21, 2004, Rein. Alabama: Ragland, Town of, St. Clair County ...... 010190 June 26, 1975, Emerg.; June 3, 1986. June 3, 1986, Reg.; June 3, 1986, Susp.; July 15, 2004, Rein. Maine: Hope, Town of, Knox County ...... 230226 Apr. 5, 1976, Emerg.; Feb- Feb. 19, 1986. ruary 19, 1986, Reg.; Feb. 19, 1986, Susp.; July 23, 2004, Rein. Nebraska: Talmage, Village of, Otoe County ...... 310167 Dec. 23, 1974, Emerg.; Aug. 9, 2004. June 1, 1982, Reg.; June 1, 1982, Susp.; Aug. 9, 2004, Rein. Minnesota: Brooklyn Park, City of, Hennepin County ...... 270152 Feb. 5, 1974, Emerg.; May Sept. 2, 2004. 17, 1982, Reg.; Sept. 3, 2004, Susp.; Sept. 27, 2004, Rein. Suspensions North Carolina: Youngsville, Town of, Franklin County ...... 370494 June 30, 1997, Emerg.; Jan. 16, 2004. Jan. 19, 2001, Reg., Jan. 17, 2004, Susp. Illinois: Auburn, City of, Sangamon County ...... 170944 May 13, 1980, Emerg.; May 3, 2004. Aug. 19, 1985, Reg.; May 4, 2004, Susp. Ohio: Evendale, Village of, Hamilton County ...... 390214 June 27, 1977, Emerg.; May 17, 2004. Sept. 29, 1986, Reg.; May 18, 2004, Susp. Illinois: Keyesport, Village of, Clinton County ...... 170860 July 19, 1978, Emerg.; Aug. June 2, 2004. 19, 1985, Reg.; June 3, 2004, Susp. Minnesota: Brooklyn Park, City of, Hennepin County ...... 270152 Feb. 5, 1974, Emerg.; May Sept. 2, 2004. 17, 1982, Reg.; Sept. 3, 2004, Susp. Greenwood, City of, Hennepin County ...... 270164 July 25, 1975, Emerg.; Dec. Do. 26, 1978, Reg.; Sept. 3, 2004, Susp. Minnetonka Beach, City of, Hennepin County ...... 270174 June 9, 1975, Emerg.; June Do. 22, 1984, Reg.; Sept. 3, 2004, Susp. New Hope, City of, Hennepin County ...... 270177 July 2, 1975, Emerg.; Jan. Do. 2, 1981, Reg.; Sept. 3, 2004, Susp. Shorewood, City of, Hennepin County ...... 270185 Apr. 8, 1975, Emerg.; Dec. Do. 4, 1979, Reg.; Sept. 3, 2004, Susp. St. Anthony, City of, Hennepin County ...... 270716 Feb. 26, 1998, Emerg.; Do. Sept. 2, 2004, Reg.; Sept. 3, 2004, Susp. Withdrawals Alaska: Haines, City of, Haines Borough ...... 020008 June 16, 2004 ...... May 1, 1987 (Community disincorporated and the area was absorbed into the surrounding Borough which does not partici- pate in the NFIP.) West Virginia: Littleton, Town of, Wetzel County ...... 540255 Sept. 27, 2004 ...... Aug. 24, 1984 (On Aug. 10, 2004, Headquarters re- ceived a request from State Office of Emer- gency Management with concurrence from the Re- gional Office requesting that the Town of Littleton be removed from the NFIP).
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Community State/location No. Effective date of eligibility Current effective map date
NFIP Community Suspension Rescissions Region V Ohio: Medina County, Unincorporated Areas ...... 390378 Dec. 2, 2003, Suspension Dec. 2, 2003. Notice Rescinded. Region VII Kansas: Gridley, City of, Coffey County ...... 200064 ...... do ...... Do. Region III Pennsylvania: College, Township of, Centre County ...... 420259 Dec. 16, 2004, Suspension Dec. 16, 2004. Notice Rescinded. Harris, Township of, Centre County ...... 420262 ...... do ...... Do. Region II New York: Dover, Town of, Duchess County ...... 361335 Jan. 2, 2004, Suspension Jan. 2, 2004. Notice Rescinded. Region I Massachusetts: Chelmsford, Town of, Middlesex County ...... 250188 Jan. 16, 2004, Suspension Jan. 16, 2004. Notice Rescinded. Region IV North Carolina: Columbia, Town of, Tyrrell County ...... 370233 ...... do ...... Do. Franklin County, Unincorporated Areas ...... 370377 ...... do ...... Do. Franklinton, Town of, Franklin County ...... 370497 ...... do ...... Do. Louisburg, Town of, Franklin County ...... 370098 ...... do ...... Do. Region VII Nebraska: Axtell, Village of, Kearney County ...... 310344 ...... do ...... Do. Kearney County, Unincorporated Areas ...... 310448 ...... do ...... Do. Minden, City of, Kearney County ...... 310389 ...... do ...... Do. Region III Virginia: Bristol, Independent City ...... 510022 Feb. 4, 2004, Suspension Feb. 4, 2004. Notice Rescinded. Region V Illinois: Hanover Park, Village of, Cook County, Du Page County ...... 170099 ...... do ...... Do. Schaumburg, Village of, Cook County, Du Page County ...... 170158 ...... do ...... Do. Cook County, Unincorporated Areas ...... 170054 ...... do ...... Do. Region V Ohio: Fayette County, Unincorporated Areas ...... 390164 Mar. 2, 2004, Suspension Mar. 2, 2004. Notice Rescinded. Jeffersonville, Village of, Fayette County ...... 390165 ...... do ...... Do. Washington Court House, City of, Fayette County ...... 390166 ...... do ...... Do. Region III Pennsylvania: Anthony, Township of, Lycoming County ...... 420971 Mar. 16, 2004, Suspension Mar. 16, 2004. Notice Rescinded. Armstrong, Township of, Lycoming County ...... 420635 ...... do ...... Do. Bastress, Township of, Lycoming County ...... 422472 ...... do ...... Do. Brady, Township of, Lycoming County ...... 421169 ...... do ...... Do. Brown, Township of, Lycoming County ...... 420636 ...... do ...... Do. Cascade, Township of, Lycoming County ...... 421837 ...... do ...... Do. Clinton, Township of, Lycoming County ...... 420637 ...... do ...... Do. Cogan House, Township of, Lycoming County ...... 421838 ...... do ...... Do. Cummings, Township of, Lycoming County ...... 420638 ...... do ...... Do. Duboistown, Borough of, Lycoming County ...... 420639 ...... do ...... Do. Eldred, Township of, Lycoming County ...... 421839 ...... do ...... Do. Fairfield, Township of, Lycoming County ...... 420972 ...... do ...... Do. Franklin, Township of, Lycoming County ...... 420973 ...... do ...... Do. Gamble, Township of, Lycoming County ...... 420974 ...... do ...... Do. Hepburn, Township of, Lycoming County ...... 420640 ...... do ...... Do. Hughesville, Borough of, Lycoming County ...... 420641 ...... do ...... Do. Jackson, Township of, Lycoming County ...... 422601 ...... do ...... Do. Jersey Shore, Borough of, Lycoming County ...... 420642 ...... do ...... Do. Jordan, Township of, Lycoming County ...... 422596 ...... do ...... Do. Lewis, Township of, Lycoming County ...... 420643 ...... do ...... Do. Limestone, Township of, Lycoming County ...... 422588 ...... do ...... Do.
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Community State/location No. Effective date of eligibility Current effective map date
Loyalsock, Township of, Lycoming County ...... 421040 ...... do ...... Do. Lycoming, Township of, Lycoming County ...... 420644 ...... do ...... Do. McHenry, Township of, Lycoming County ...... 420975 ...... do ...... Do. McIntyre, Township of, Lycoming County ...... 420645 ...... do ...... Do. McNett, Township of, Lycoming County ...... 422597 ...... do ...... Do. Mifflin, Township of, Lycoming County ...... 422590 ...... do ...... Do. Mill Creek, Township of, Lycoming County ...... 421845 ...... do ...... Do. Montgomery, Borough of, Lycoming County ...... 420646 ...... do ...... Do. Montoursville, Borough of, Lycoming County ...... 420648 ...... do ...... Do. Moreland, Township of, Lycoming County ...... 421846 ...... do ...... Do. Muncy Creek, Township of, Lycoming County ...... 420650 ...... do ...... Do. Muncy, Borough of, Lycoming County ...... 420649 ...... do ...... Do. Muncy, Township of, Lycoming County ...... 421847 ...... do ...... Do. Nippenose, Township of, Lycoming County ...... 420651 ...... do ...... Do. Old Lycoming, Township of, Lycoming County ...... 420652 ...... do ...... Do. Penn, Township of, Lycoming County ...... 421848 ...... do ...... Do. Piatt, Township of, Lycoming County ...... 420653 ...... do ...... Do. Picture Rocks, Borough of, Lycoming County ...... 420654 ...... do ...... Do. Pine, Township of, Lycoming County ...... 420954 ...... do ...... Do. Plunketts Creek, Township of, Lycoming County ...... 420655 ...... do ...... Do. Porter, Township of, Lycoming County ...... 420656 ...... do ...... Do. Salladasburg, Borough of, Lycoming County ...... 420657 ...... do ...... Do. Shrewsbury, Township of, Lycoming County ...... 421148 ...... do ...... Do. South Williamsport, Borough of, Lycoming County ...... 420658 ...... do ...... Do. Susquehanna, Township of, Lycoming County ...... 420659 ...... do ...... Do. Upper Fairfield, Township of, Lycoming County ...... 420660 ...... do ...... Do. Washington, Township of, Lycoming County ...... 422613 ...... do ...... Do. Watson, Township of, Lycoming County ...... 420661 ...... do ...... Do. Williamsport, City of, Lycoming County ...... 420662 ...... do ...... Do. Wolf, Township of, Lycoming County ...... 420663 ...... do ...... Do. Woodward, Township of, Lycoming County ...... 420664 ...... do ...... Do. Region V Ohio: Bexley, City of, Franklin County ...... 390168 ...... do ...... Do. Columbus, City of, Fairfield County, Franklin County ...... 390170 ...... do ...... Do. Dublin, City of, Delaware County, Franklin County ...... 390673 ...... do ...... Do. Franklin County, Unincorporated Areas ...... 390167 ...... do ...... Do. Grandview Heights, City of, Franklin County ...... 390172 ...... do ...... Do. Grove City, City of, Franklin County ...... 390173 ...... do ...... Do. Marble Cliff, Village of, Franklin County ...... 390896 ...... do ...... Do. Obetz, Village of, Franklin County ...... 390176 ...... do ...... Do. Upper Arlington, City of, Franklin County ...... 390178 ...... do ...... Do. Region II New York: Blenheim, Town of, Schoharie County ...... 361580 Apr. 2, 2004, Suspension Apr. 2, 2004. Notice Rescinded. Broome, Town of, Schoharie County ...... 361431 ...... do ...... Do. Cobleskill, Town of, Schoharie County ...... 361573 ...... do ...... Do. Cobleskill, Village of, Schoharie County ...... 360743 ...... do ...... Do. Esperance, Town of, Schoharie County ...... 361194 ...... do ...... Do. Esperance, Village of, Schoharie County ...... 361542 ...... do ...... Do. Schoharie, Village of, Schoharie County ...... 361061 ...... do ...... Do. Sharon Springs, Village of, Schoharie County ...... 361549 ...... do ...... Do. Wright, Town of, Schoharie County ...... 361202 ...... do ...... Do. Region V Minnesota: Jackson, City of, Jackson County 270213 ...... do ...... Do. Region X Oregon: Talent, City of, Jackson County ...... 410100 April Apr. 16, 2004, Suspension Apr. 16, 2004. Notice Rescinded. Tillamook, City of, Jackson County ...... 410202 ...... do ...... Do. Region V Illinois: Auburn, City of, Sangamon County ...... 170944 May 3, 2004, Suspension May 3, 2004. Notice Rescinded. Chatham, Village of, Sangamon County ...... 170601 ...... do ...... Do. Divernon, Village of, Sangamon County ...... 170949 ...... do ...... Do. Jerome, Village of, Sangamon County ...... 171004 ...... do ...... Do. Leland Grove, City of, Sangamon County ...... 170925 ...... do ...... Do. Loami, Village of, Sangamon County ...... 170795 ...... do ...... Do.
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Community State/location No. Effective date of eligibility Current effective map date
Pawnee, Village of, Sangamon County ...... 170602 ...... do ...... Do. Pleasant Plains, Village of, Sangamon County ...... 170798 ...... do ...... Do. Riverton, Village of, Sangamon County ...... 170603 ...... do ...... Do. Rochester, Village of, Sangamon County ...... 170840 ...... do ...... Do. Sangamon County, Unincorporated Areas ...... 170912 ...... do ...... Do. Sherman, Village of, Sangamon County ...... 170969 ...... do ...... Do. Springfield, City of, Sangamon County ...... 170604 ...... do ...... Do. Thayer, Village of, Sangamon County ...... 170804 ...... do ...... Do. Williamsville, Village of, Sangamon County ...... 171041 ...... do ...... Do. Region II New Jersey: Greenwich, Township of, Warren County ...... 340483 May 17, 2004 Suspension May 17, 2004. Notice Rescinded. New York: Schuyler Falls, Town of, Clinton County ...... 360172 ...... do ...... Do. Victor, Village of, Ontario County ...... 361648 ...... do ...... Do. Woodstock, Town of, Ulster County ...... 360868 ...... do ...... Do. Region V Ohio: Addyston, Village of, Hamilton County ...... 390205 ...... do ...... Do. Amberley, Village of, Hamilton County ...... 390206 ...... do ...... Do. Arlington Heights, Village of, Hamilton County ...... 390207 ...... do ...... Do. Blue Ash, City of, Hamilton County ...... 390208 ...... do ...... Do. Cincinnati, City of, Hamilton County ...... 390210 ...... do ...... Do. Cleves, Village of, Hamilton County ...... 390211 ...... do ...... Do. Elmwood Place, Village of, Hamilton County ...... 390213 ...... do ...... Do. Fairfax, Village of, Hamilton County ...... 390215 ...... do ...... Do. Glendale, Village of, Hamilton County ...... 390217 ...... do ...... Do. Greenhills, Village of, Hamilton County ...... 390219 ...... do ...... Do. Hamilton County, Unincorporated Areas ...... 390204 ...... do ...... Do. Harrison, City of, Hamilton County ...... 390220 ...... do ...... Do. Indian Hill, Village of, Hamilton County ...... 390221 ...... do ...... Do. Lockland, Village of, Hamilton County ...... 390223 ...... do ...... Do. Loveland, City of, Hamilton County ...... 390068 ...... do ...... Do. Madeira, City of, Hamilton County ...... 390225 ...... do ...... Do. Montgomery, City of, Hamilton County ...... 390228 ...... do ...... Do. Mount Healthy, City of, Hamilton County ...... 390229 ...... do ...... Do. Newtown, Village of, Hamilton County ...... 390230 ...... do ...... Do. North Bend, Village of, Hamilton County ...... 390231 ...... do ...... Do. North College Hill, City of, Hamilton County ...... 390232 ...... do ...... Do. Reading, City of, Hamilton County ...... 390234 ...... do ...... Do. Sharonville, City of, Hamilton County ...... 390236 ...... do ...... Do. Springdale, City of, Hamilton County ...... 390877 ...... do ...... Do. St. Bernard, City of, Hamilton County ...... 390235 ...... do ...... Do. Terrace Park, Village of, Hamilton County ...... 390633 ...... do ...... Do. Woodlawn, Village of, Hamilton County ...... 390239 ...... do ...... Do. Wyoming, City of, Hamilton County ...... 390240 ...... do ...... Do. Region VIII North Dakota: Fort Yates, City of, Sioux County ...... 380111 ...... do ...... Do. Sioux County, Unincorporated Areas ...... 380321 ...... do ...... Do. Solen, City of, Sioux County ...... 380114 ...... do ...... Do. Standing Rock Indian Reservation, Sioux County ...... 380697 ...... do ...... Do. South Dakota: Blunt, City of, Hughes County ...... 460039 ...... do ...... Do. Corson County, Unincorporated Areas ...... 460237 ...... do ...... Do. Fort Pierre, City of, Stanley County ...... 465419 ...... do ...... Do. Hughes County, Unincorporated Areas ...... 460271 ...... do ...... Do. Pierre, City of, Hughes County ...... 460040 ...... do ...... Do. Standing Rock Indian Reservation, Corson County ...... 461219 ...... do ...... Do. Stanley County, Unincorporated Areas ...... 460287 ...... do ...... Do. Region IV North Carolina: Alliance, Town of, Pamlico County ...... 370404 July 2, 2004 Suspension July 2, 2004. Notice Rescinded. Bayboro, Town of, Pamlico County ...... 370183 ...... do ...... Do. Bridgeton, Town of, Craven County ...... 370436 ...... do ...... Do. Havelock, City of, Craven County ...... 370265 ...... do ...... Do. Jones County, Unincorporated Areas ...... 370379 ...... do ...... Do. Kinston, City of, Lenoir County ...... 370145 ...... do ...... Do. LaGrange, Town of, Lenoir County ...... 370579 ...... do ...... Do.
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Community State/location No. Effective date of eligibility Current effective map date
Maysville, Town of, Jones County ...... 370330 ...... do ...... Do. Minnesott Beach, Town of, Pamlico County ...... 370418 ...... do ...... Do. New Bern, City of, Craven County ...... 370074 ...... do ...... Do. Oriental, Town of, Pamlico County ...... 370279 ...... do ...... Do. Pamlico County, Unincorporated Areas ...... 370181 ...... do ...... Do. Pollocksville, Town of, Jones County ...... 370142 ...... do ...... Do. Stonewall, Town of, Pamlico County ...... 370437 ...... do ...... Do. Trenton, Township of, Jones County ...... 370141 ...... do ...... Do. Vanceboro, Town of, Craven County ...... 370075 ...... do ...... Do. Vandemere, Town of, Pamlico County ...... 370438 ...... do ...... Do. Region V Wisconsin: New Richmond, City of, St. Croix County ...... 550384 July 16, 2004, Suspension July 16, 2004. Notice Rescinded. Region VII Nebraska: Dunbar, Village of, Otoe County ...... 310163 Aug. 4, 2004, Suspension Aug. 4, 2004. Notice Rescinded. Otoe County, Unincorporated Areas ...... 310462 ...... do ...... Do. Region V Minnesota: Brooklyn Center, City of, Hennepin County ...... 270151 Sept. 2, 2004, Suspension Sept. 2, 2004 Notice Rescinded. Camplin, City of, Hennepin County ...... 270153 ...... do ...... Do. Corcoran, City of, Hennepin County ...... 270155 ...... do ...... Do. Crystal, City of, Hennepin County ...... 270156 ...... do ...... Do. Dayton, City of, Hennepin County ...... 270157 ...... do ...... Do. Deephaven, City of, Hennepin County ...... 270158 ...... do ...... Do. Eden Prairie, City of, Hennepin County ...... 270159 ...... do ...... Do. Edina, City of, Hennepin County ...... 270160 ...... do ...... Do. Excelsior, City of, Hennepin County ...... 270161 ...... do ...... Do. Greenfield, City of, Hennepin County ...... 270673 ...... do ...... Do. Hanover, City of, Hennepin County County and Wright County .. 270540 ...... do ...... Do. Hopkins, City of, Hennepin County ...... 270166 ...... do ...... Do. Independence, City of, Hennepin County ...... 270167 ...... do ...... Do. Long Lake, City of, Hennepin County ...... 270168 ...... do ...... Do. Loretto, City of, Hennepin County ...... 270659 ...... do ...... Do. Maple Plain, City of, Hennepin County ...... 270170 ...... do ...... Do. Medicine Lake, City of, Hennepin County ...... 270690 ...... do ...... Do. Medina, City of, Hennepin County ...... 270171 ...... do ...... Do. Minneapolis, City of, Hennepin County ...... 270172 ...... do ...... Do. Minnetonka, City of, Hennepin County ...... 270173 ...... do ...... Do. Minnetrista, City of, Hennepin County ...... 270175 ...... do ...... Do. Orono, City of, Hennepin County ...... 270178 ...... do ...... Do. Plymouth, City of, Hennepin County ...... 270179 ...... do ...... Do. Richfield, City of, Hennepin County ...... 270180 ...... do ...... Do. Robbinsdale, City of, Hennepin County ...... 270181 ...... do ...... Do. Rockford, City of, Hennepin County ...... 270182 ...... do ...... Do. Spring Park, City of, Hennepin County ...... 270186 ...... do ...... Do. St. Bonifacius, City of, Hennepin County ...... 270183 ...... do ...... Do. St. Louis Park, City of, Hennepin County ...... 270184 ...... do ...... Do. Tonka Bay, City of, Hennepin County ...... 270187 ...... do ...... Do. Wayzata, City of, Hennepin County ...... 270188 ...... do ...... Do. Woodland, City of, Hennepin County ...... 270189 ...... do ...... Do. Region VII Nebraska: Deshler, City of, Thayer County ...... 310218 Sept. 30, 2004 Suspension Sept. 30, 2004 Notice Rescinded. Hebron, City of, Thayer County ...... 310219 ...... do ...... Do. Hubbell, Village of, Thayer County ...... 310220 ...... do ...... Do. Stanton, City of, Stanton County ...... 310217 ...... do ...... Do. Stanton County, Unincorporated Areas ...... 310478 ...... do ...... Do. Thayer County, Unincorporated Areas ...... 310479 ...... do ...... Do. Region VIII Montana: Fort Peck Indian Reservation 300187 ...... do ...... Do. * do and Do. = ditto. ** Designates communities converted from Emergency Phase of participation to the Regular Phase of participation. Code for reading third and fourth columns: Emerg.—Emergency; Reg.—Regular; Rein.—Reinstatement; Susp.—Suspension; With.—With- drawn; NSFHA—Non Special Flood Hazard Area.
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(Catalog of Federal Domestic Assistance No. Statutory Authority 1992. They were effective in October, 83.100, ‘‘Flood Insurance.’’) The provisions of this regulation 1993. In the preamble to that regulation, David I. Maurstad, pertaining to review and adjustment of the basis for seeking an adjustment to an Acting Director, Mitigation Division, child support orders are published order was described as paraphrased Emergency Preparedness and Response under the authority granted to the below. Directorate. Secretary by section 466(a) of the Social In the 1992 regulation, 45 CFR [FR Doc. 04–28321 Filed 12–27–04; 8:45 am] Security Act (the Act), 42 U.S.C. 666(a). 303.8(d) specified the requirements BILLING CODE 6718–05–P Section 466(a) requires each State to States had to meet in seeking have in effect laws requiring the use of adjustments to child support orders in specified procedures, consistent with IV–D cases. Paragraph (d)(1) required DEPARTMENT OF HEALTH AND this section of the Act and regulations that an inconsistency between the HUMAN SERVICES of the Secretary, to increase the existent child support order amount and effectiveness of the Child Support the amount of child support which Administration for Children and Enforcement program. Review and resulted from application of the State Families adjustment of support orders at section guidelines must be an adequate basis, 466(a)(10) of the Act is one of the under State law, for petitioning for an 45 CFR Part 303 required procedures. adjustment of an order in a IV–D case, whether or not the order was Child Support Enforcement Program; Justification for Interim Final Rule established using guidelines. Reasonable Quantitative Standard for The Administrative Procedure Act Paragraph (d)(2) of the 1992 Review and Adjustment of Child requirements for notice of proposed regulation provided for an exception Support Orders rulemaking do not apply to rules when that allowed States to establish a the agency finds that notice is quantitative standard based upon either AGENCY: Office of Child Support impracticable, unnecessary or contrary a fixed dollar amount or percentage, or Enforcement (OCSE), Health and to the public interest. We find proposed both, as a basis for determining whether Human Services (HHS). rulemaking unnecessary and contrary to an inconsistency is adequate grounds ACTION: Interim final rule with comment the public interest, because the rule is for petitioning for adjustment of the period. not imposing new requirements or order. That quantitative standard, or burdens on States, but is removing an threshold, was to be used as a basis for SUMMARY: This interim final rule revises administrative requirement and burden determining whether the inconsistency existing regulations on review and on agencies and families that was added was sufficient to justify proceeding with adjustment of child support orders to to the technical corrections final a petition or motion for adjustment of an reinstate a rule which was in place since regulation published in the Federal award, not as a criterion for deciding 1993. The change permits States to once Register on May 12, 2003 (68 FR 25293). whether to review. Threshold standards again use reasonable quantitative Without opportunity for public were not needed if States adjusted all standards in adjusting an existing child comment, that regulation implemented orders regardless of the degree of support award amount after conducting a substantive change to prior policy that inconsistency with the guidelines. a review of the order, regardless of the was not warranted under any However, thresholds could serve to method of review used. intervening amendment to the relevant prevent inundating the adjustment DATES: These regulations are effective statute. The change required States to process with cases in which the December 28, 2004. Consideration will adjust an order for support after a variance was minimal between the be given to comments received February guidelines review, regardless of the current order amount and the amount 28, 2005. amount by which the existing order is that would result from an application of ADDRESSES: Send comments to: Office of found to deviate from the State’s the guidelines. The quantitative standard permitted Child Support Enforcement, support guidelines. The statute, as in by the 1992 regulation was meant to be Administration for Children and effect before and after this change, used as a post-review decision-making Families, 370 L’Enfant Promenade, SW., provided that such adjustments were tool. It was not intended to restrict the 4th floor, Washington, DC 20447. only required ‘‘if appropriate.’’ Prior to use of guidelines in setting and Attention: Director, Division of Policy, that regulation, since 1993, States could modifying support nor to limit the Mail Stop: OCSE/DP. Comments will be apply a reasonable quantitative standard authority of the court or other authority available for public inspection Monday for adjustment of an order regardless of to find, in a particular case, that an through Friday 8:30 a.m. to 5 p.m. on the method of their review of the order. award based on guidelines was unfair or the 4th floor of the Department’s offices This regulation reinstates the prior rule inappropriate. In making any at the above address. To download an with opportunity for public comment. adjustment to the amount of support, electronic version of the rule, you may Because the regulatory change the judicial or administrative process access http://www.regulations.gov. You published on May 12 did not allow for still had to apply the State guidelines. may also transmit written comments public comment, and this rule merely Under regulations at 45 CFR 302.56, electronically via the Internet at http:// reinstates the prior regulation which Guidelines for setting child support www.regulations.acf.hhs.gov. was issued pursuant to notice and awards, the child support award comment, advance notice is FOR FURTHER INFORMATION CONTACT: calculated to be due under the unnecessary. Elizabeth Matheson, Division of Policy, guidelines was rebuttably presumed to OCSE, 202–401–9386, e-mail: Background be the correct amount of support to be [email protected]. Deaf and paid. hearing-impaired individuals may call 1992 Regulations the Federal Dual Party Relay Service at Under the authority of sections 1997 Action Transmittal 1–800–877–8339 between 8 a.m. and 7 466(a)(10) and 1102 of the Act, OCSE OCSE issued policy on review and p.m. eastern time. published regulations on review and adjustment of orders in OCSE–AT–97– SUPPLEMENTARY INFORMATION: adjustment of child support orders in 10 on July 30, 1997, in response to
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provisions of Pub. L. 104–193, the guideline’s amount does not meet the methods. In the preamble to the May 12 Personal Responsibility and Work ‘‘reasonable quantitative standard rule, we said: ‘‘We are revising Opportunity Reconciliation Act of 1996, established by the State’’? paragraph (c) to clarify that States may relating to review and adjustment. In A. Yes. Under section use a quantitative standard only in cases that action transmittal, OCSE continued 466(a)(10)(A)(i)(I) of the Act, the involving the use of automated methods to permit States to use a reasonable language ‘‘if appropriate, adjust the in accordance with section quantitative standard for determining order’’ is consistent with regulations 466(a)(10)(A)(i)(III) of the Act. That whether or not to adjust an order. which said that, if a State reviews a case section alone refers to orders being Pertinent questions and answers from under the 3-year cycle provision using ‘‘eligible for adjustment,’’ recognizing the action transmittal are summarized State guidelines, it can determine not to there might be some standard set to below. adjust the order if the inconsistency determine eligibility for adjustment. The Q. 4. Does the requirement to ‘‘adjust between the current order and the other two methods of review (guidelines the order in accordance with the guideline amount does not meet the and cost-of-living) do not contain this guidelines * * * if the amount * * * ‘‘reasonable quantitative standard language. Sections 303.8(a) and (d) differs’’ preclude a State law providing established by the State’’. Under the through (f) remain as published in the a threshold deviation of, for example, regulations, the State could establish a interim final rule.’’ 15% before an adjustment is deemed reasonable quantitative standard based The change to paragraph (c) in the appropriate? upon either a fixed dollar amount or May 12 final rule was not required by A. No. Section 466(a)(10)(A)(i)(I) of percentage, or both, as a basis for any change in the underlying statute, the Act, as amended by section 351 of determining whether an inconsistency and it clearly was not mandated by Pub. Pub. L. 104–193, does not preclude a between the existent child support L. 104–193, as the statute was State law from providing a threshold award amount and the amount of interpreted in OCSE–AT–97–10. Nor deviation before an adjustment of an support which resulted from application should the change have been issued in order is appropriate. First of all, of the guidelines was adequate grounds a final rule without opportunity for according to section 466(a)(10)(A)(i) of for petitioning for adjustment of the comment. The interim final regulation the Act, the State must take ‘‘into order. Therefore, a reasonable in today’s Federal Register reinstates account the best interests of the child quantitative standard could be used to the original rule with opportunity for involved.’’ A small reduction in determine not to adjust the order. public comment. support, or even an increase, because of Q. 8. Is it only under section Under this interim rule a State may a deviation in the guidelines’ amount 466(a)(10)(A)(i)(III) that a State can establish a reasonable quantitative might not be in the child’s best interests. establish a standard for determining standard, based on either a fixed dollar Secondly, statute and regulations allow when an adjustment is warranted? amount or percentage, or both, as a basis the State to adjust the order, or A. No. Under both sections for determining whether an determine that there should be no 466(a)(10)(A)(i)(I) (guidelines review) inconsistency between the existent adjustment, if appropriate, in and (III) (automated review), as child support award amount and the accordance with the State’s guidelines amended by section 351 of Pub. L. 104– amount of support determined as a for setting child support awards. Given 193, it is appropriate for the State to use result of a review is adequate grounds the latitude States have to apply cost-of- its threshold standard to determine if an for petitioning for adjustment of the living adjustments, or to set thresholds adjustment is appropriate. order, regardless of the method of if they use automated methods, it was Q. 10. Under section 466(a)(10)(A)(ii) review. This interim final rule allows stated that there was similar latitude for of the Act does ‘‘if appropriate’’ mean States to manage their resources and States to determine that small that a State can determine not to refrain from unreasonably small order deviations are ‘‘inappropriate’’ for (re)adjust the order if the inconsistency adjustments that may be costly and adjustment. between current and guideline support perhaps involve changes to States’ Given the complexity of the most does not merit an adjustment based on automated systems. Most States’ review States’’ review and adjustment process, the ‘‘reasonable quantitative standard and adjustment process, as well as State as well as State child support established by the State’’? child support guidelines, are complex guidelines, it may not be in the child’s A. Yes. Under section 466(a)(10)(A)(ii) and lengthy. The application of child best interest for parents, child support of the Act (opportunity to contest an support guidelines often involves far agencies, and courts to wrangle over adjustment), a State can determine not more than a simple calculation of a very small amounts of money. The to (re)adjust the order if the portion of a parent’s income, including application of child support guidelines inconsistency between current and decisions with respect to child care, often involves far more than a simple guideline support does not merit an health insurance, and extraordinary calculation of a portion of a parent’s adjustment based on the reasonable medical expenses. Both the review income. Both the review process and the quantitative standard established by the process and the adjustment process are adjustment process are time-consuming State. time-consuming and involve multiple and involve multiple parties in most parties in most states. Despite authority States. Despite authority in the Federal Provisions of the Regulation in the Federal statute for automated statute, very few States have automated In OCSE–AT–97–10, OCSE said it was review and adjustment and cost-of- review processes in place and about half working on a regulation to eliminate living increases, very few States have the States have court-based systems for inconsistencies between title IV–D these automated review processes in adjusting orders. regulations and Pub. L. 104–193. That place and about half the States have Q. 7. Under section 466(a)(10)(A)(i)(I) regulation was published in the Federal court-based, rather than administrative, of the Act, does ‘‘if appropriate’’ mean Register on May 12, 2003. (68 FR systems for adjusting orders. that if a State reviews a case under the 25293). That regulation did not retain The rule minimizes the burden, stress 3-year cycle provision using State the regulatory policy described above. and uncertainty families would face in guidelines, it can determine not to Rather, it limited use of the reasonable opening up the orders to change despite adjust the order if the inconsistency quantitative standard to adjustments in little anticipated gain. In addition, the between the current order and the cases that were reviewed by automated rule reduces complex agency and
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tribunal record-keeping that could lead reviewed by the Office of Management not have Federalism implications for to errors and lessens the burden on and Budget. State or local governments as defined in employers who would need to respond the Executive Order. Unfunded Mandates Reform Act of to constantly adjusting income 1995 List of Subjects in 45 CFR Part 303 withholding orders to address small differences in the amount withheld. Section 202 of the Unfunded Child support, Grant programs— It is important to note that § 303.8 Mandates Reform Act of 1995 requires social programs. continues to require States to review that a covered agency prepare a (Catalog of Federal Domestic Assistance child support orders at least every 3 budgetary impact statement before Programs No. 93.563, Child Support years, upon request of a parent in any promulgating a rule that includes any Enforcement Program.) case, and upon request of the State if Federal mandate that may result in the Dated: May 25, 2004. there is an assignment of support rights expenditure by State, local, and Tribal under title IV–A of the Act, and make governments, in the aggregate, or by the Wade F. Horn, adjustments, if appropriate, if the private sector, of $100 million or more Assistant Secretary for Children and Families. reasonable quantitative standard for an in any one year. Date Approved: September 29, 2004. adjustment is met. Further, under If a covered agency must prepare a Tommy G. Thompson, paragraph (b)(5) of this section, a State budgetary impact statement, section 205 Secretary of Health and Human Services. further requires that it select the most must have procedures under which a I cost-effective and least burdensome For the reasons discussed above, title parent or other person who has standing 45 CFR chapter III is amended as follows: may request a review and adjustment alternative that achieves the objectives outside the regular 3-year (or shorter) of the rule and is consistent with the PART 303—STANDARDS FOR cycle, and if the requesting party statutory requirements. In addition, PROGRAM OPERATIONS section 203 requires a plan for demonstrates a substantial change in I circumstance, the State must adjust the informing and advising any small 1. The authority citation for part 303 order in accordance with its support governments that may be significantly continues to read as follows: or uniquely impacted by the rule. guidelines. Authority: 42 U.S.C. 651 through 658, 660, We have determined that the interim 663, 664, 666, 667, 1302, 1396a(a)(25), Paperwork Reduction Act of 1995 final rule will not result in the 1396b(d)(2), 1396b(o), 1396b(p) and 1396(k). expenditure by State, local, and Tribal No new information collection governments, in the aggregate, or by the § 303.8 [Amended] requirements are imposed by these private sector, of more than $100 I regulations, nor are any existing 2. In § 303.8, paragraph (c) is amended million in any one year. Accordingly, requirements changed as a result of their by removing ‘‘using automated methods we have not prepared a budgetary promulgation. Therefore, the under paragraph (b)(1)(iii) of this impact statement, specifically addressed requirements of the Paperwork section’’. the regulatory alternatives considered, Reduction Act of 1995 (44 U.S.C. [FR Doc. 04–28410 Filed 12–27–04; 8:45 am] or prepared a plan for informing and 3507(d)), regarding reporting and record BILLING CODE 4184–01–P advising any significantly or uniquely keeping, do not apply. impacted small governments. Regulatory Flexibility Analysis Congressional Review GENERAL SERVICES The Secretary certifies, under 5 U.S.C. This regulation is not a major rule as ADMINISTRATION 605(b), as enacted by the Regulatory defined in 5 U.S.C. chapter 8. Flexibility Act (Pub. L. 96–354), that 48 CFR Part 504 Assessment of Federal Regulations and this rule will not result in a significant GSAR Amendment 2004–04; GSAR Case impact on a substantial number of small Policies on Families 2004–G509 (Change 12) entities. The primary impact is on State Section 654 of the Treasury and RIN 3090–AI00 governments. State governments are not General Government Appropriations considered small entities under the Act. Act of 1999 requires Federal agencies to General Services Administration Regulatory Impact Analysis determine whether a proposed policy or Acquisition Regulation; Access to the regulations may affect family well- Federal Procurement Data System Executive Order 12866 requires that being. If the agency’s determination is regulations be reviewed to ensure that affirmative, then the agency must AGENCY: Office of the Chief Acquisition they are consistent with the priorities prepare an impact assessment Officer, General Services and principles set forth in the Executive addressing seven criteria specified in Administration (GSA). Order. The Department has determined the law. These regulations will not have ACTION: Interim rule with request for that this rule is consistent with these an impact on family well-being as comments. priorities and principles because there defined in the legislation. is broad agreement among state IV–D SUMMARY: The General Services agencies that removal of the burden, and Executive Order 13132 Administration (GSA) is amending the reinstatement of prior policy, is Executive Order 13132 on Federalism General Services Administration necessary. Individuals, either those applies to policies that have Federalism Acquisition Regulation (GSAR) by owing or those entitled to receive child implications, defined as ‘‘regulations, adding coverage to specify the rate that support, will not be harmed, as only legislative comments or proposed will be charged to non-governmental small adjustments (either up or down) legislation, and other policy statements entities in exchange for permitting them in the amount of the child support or actions that have substantial direct to establish a direct computer obligation will be avoided. This effects on the States, or on the connection with the Federal regulation is considered a ‘‘significant distributions of power and Procurement Data System database. regulatory action’’ under 3f of the responsibilities among the various DATES: Effective Date: December 28, Executive Order, and therefore has been levels of government’’. This rule does 2004.
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Comment Date: Interested parties reports on nearly any desired set of Interested parties must submit such should submit comments in writing on FPDS data. comments separately and should cite or before February 28, 2005, to be • Direct web services connection can GSAR case 2004–G509, in considered in the formulation of a final be established between a public correspondence. computer and the FPDS computers to rule. C. Paperwork Reduction Act ADDRESSES: Submit comments, use FPDS as a data source. identified by GSAR Amendment 2004– The first three methods are free. This The Paperwork Reduction Act does 04, GSAR case 2004–G509, by any of the rule concerns the fee for the fourth. not apply because this interim rule does This interim rule establishes the one- following methods: not contain any information collection • Federal eRulemaking Portal: http:// time hook-up fee that will be charged to requirements that require the approval www.regulations.gov. Follow the individuals, companies, or of the Office of Management and Budget instructions for submitting comments. organizations wishing direct web (OMB) under 44 U.S.C. 3501, et seq. services access to the database. They • E-mail: gsarcase.2004– D. Determination to Issue an Interim will be required to pay a $2,500 fee to [email protected]. Include GSAR Rule Amendment 2004–04, GSAR case 2004– partially cover the cost of technical support, testing, and certification of A determination has been made under G509, in the subject line of the message. the authority of the Administrator of • Mail: General Services direct integration to the FPDS web General Services that compelling Administration, Regulatory Secretariat services. However, they will not be reasons exist to promulgate this interim (VIR), 1800 F Street, NW., Room 4035, required to pay a fee for the data itself. rule without prior opportunity for ATTN: Laurieann Duarte, Washington, Direct access to the database may be public comment. This rule is necessary DC 20405. restricted to non-peak hours, depending on level of demand and FPDS’s ability to establish the rate of payment for the Instructions: Please submit comments to service the demand without connection fee for direct web access to only and cite GSAR Amendment 2004– degradation of service to other users. the FPDS database. Access is planned to 04, GSAR case 2004–G509, in all We expect only a few requests for the begin immediately after December 31, correspondence related to this case. All direct integration to the FPDS web 2004, and there is insufficient time to comments received will be posted services. We expect that nearly all of the obtain public comments prior to that without change to http:// public users will use the free data and date. Comments received in response to www.acqnet.gov/GSAM/ report generation tools that will also be the publication of this interim rule will gsamcomments.htm, including any available. The public will use the same be considered in formulating the final personal information provided. report generation tools as Federal rule. FOR FURTHER INFORMATION CONTACT: The employees to access the database. They List of Subjects in 48 CFR Part 504 Regulatory Secretariat, Room 4035, GS will have access to the same data as Building, Washington, DC, 20405, (202) Federal employees and they can Government procurement. 501–4755, for information pertaining to generate the same reports as Federal Dated: December 20, 2004 status or publication schedules. For employees, with minor exceptions. David A. Drabkin, clarification of content, contact Mr. Jerry Certain data may be delayed and will Senior Procurement Executive,General Olson at (202) 501–3221. Please cite not be available in real-time in order to Services Administration. GSAR Amendment 2004–04, GSAR case guard against inappropriate release of I Therefore, GSA amends 48 CFR part 2004–G509. data that could reveal pace of operations 504 as set forth below: SUPPLEMENTARY INFORMATION: information. GSA previously charged citizens a A. Background PART 504—ADMINISTRATIVE price for FPDS data, representing the MATTERS The Federal Procurement Data System costs incurred by GSA for providing the (FPDS) is the primary database of the information. I 1. The authority citation for 48 CFR Federal Government for information This rule is not a significant part 504 continues to read as follows: relating to Federal procurement. GSA, regulatory action and, therefore, was not Authority: 40 U.S.C. 121(c). in keeping with its vision of providing subject to review under Section 6(b) of I 2. Add Subpart 504.6, consisting of greater transparency into Government Executive Order 12866, Regulatory section 504.602–71, to read as follows: contracting, announced that it will pay Planning and Review, dated September the costs to provide three years of free 30, 1993. This interim rule is not a Subpart 504.6—Contract Reporting access to the public to data in the FPDS major rule under 5 U.S.C. 804. Sec. and to provide for a reduced cost for a B. Regulatory Flexibility Act 504.602–71 Federal Procurement Data special direct web services connection System-Public Access to Data. to the database. We certify that the amendments will Following is a description of the not have a significant economic impact 504.602–71 Federal Procurement Data methods the public will be able to use on a substantial number of small entities System-Public Access to Data. to get data from FPDS. within the meaning of the Regulatory (a) The FPDS database. The General The public will have access to the Flexibility Act, 5 U.S.C. 601, et seq., Services Administration awarded a FPDS data using several methods: because we do not expect a substantial contract for creation and operation of • A copy of data can be made number of small entities to request the Federal Procurement Data System available using FTP (file transfer direct web services access to the FPDS (FPDS) database. That database includes protocol) from the FPDS web site. database. Nearly all public access to the information reported by departments • Prewritten queries (that can be FPDS database is expected to occur via and agencies as required by Federal customized to produce data for the free report generation tools and free Acquisition Regulation (FAR) Subpart specified period and organizations) can data provided by GSA. GSA will 4.6. One of the primary purposes of the be used that will produce reports. consider comments from small entities FPDS database is to provide information • Ad hoc queries can be written by concerning the affected GSAR Subpart on Government procurement to the members of the public to produce 504.6 in accordance with 5 U.S.C. 610. public.
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(b) Fee for direct hook-up. To the IV. Public Comments million, with the average approximating extent that a member of the public V. Post-NPRM CAFE Considerations $4 million. requests establishment of real-time VI. The Final Regulation The provisions of EPCA recognize A. Definitions that changes in corporate structures are integration of reporting services to run B. CAFE Credits reports from another application, a one- 1. Legal Considerations common and that a ‘‘manufacturer,’’ as time charge of $2,500 for the original 2. Policy Considerations defined by the CAFE statute, may integration must be paid by the C. Acquisitions During a Model Year change in light of new corporate requestor. This one-time charge covers VII. Rulemaking Analyses and Notices relationships. In 1980, Congress amended the definition of a the setup and certification required for I. Introduction and History an integrator to access the FPDS manufacturer to explicitly contemplate database and for technical assistance to This final rule establishes a regulation corporate successors and predecessors. help integrators use the web services. governing the treatment of corporate Congress recognized at that time that The fee will be paid to the FPDS assets and liabilities arising from the CAFE credits and responsibilities would contractor and credited to invoices agency’s Corporate Average Fuel become assets and liabilities in the submitted to GSA by the FPDS Economy (CAFE) program in the face of course of such changes, and directed the contractor. changes in corporate relationships. It Secretary of Transportation to [FR Doc. 04–28280 Filed 12–27–04; 8:45 am] fulfills a statutory responsibility to promulgate regulations defining how define by regulation the use of CAFE such credits and responsibilities should BILLING CODE 6820–61–S credits and liabilities in light of changes be treated when corporate changes in corporate structure. occur. (49 U.S.C. 32901(13)) In December 1975, Congress enacted The agency did not immediately move DEPARTMENT OF TRANSPORTATION the Energy Policy and Conservation Act to establish the regulation Congress (EPCA). The EPCA established the National Highway Traffic Safety prescribed. Nonetheless, in 1991, the Corporate Average Fuel Economy Administration Administrator authorized the agency’s (CAFE) program by adding a new Title Complaint Counsel to initiate an V to the Motor Vehicle Information and 49 CFR Part 534 administrative complaint against the Cost Saving Act. Congress has made Chrysler Corporation (Chrysler). As [Docket No. NHTSA 2004–19940] various amendments to the fuel Congress anticipated, structural economy provisions since 1975, and the RIN 2127–AG97 corporate change gave rise to issues fuel economy provisions are now relating to the application of CAFE Fuel Economy Standards—Credits and codified in Chapter 329 of Title 49 of rights and responsibilities. Chrysler had Fines—Rights and Responsibilities of the United States Code. purchased the assets of American Manufacturers in the Context of The CAFE statute requires that a Motors Company (AMC) and Chrysler Changes in Corporate Relationships manufacturer meet average fuel had fallen short of an applicable CAFE. economy standards, as established by AMC had available credits that Chrysler AGENCY: National Highway Traffic regulation, separately for fleets of light wished to apply to its existing shortfall. Safety Administration (NHTSA), trucks, domestic passenger cars and Chrysler took the position that AMC’s Department of Transportation. imported passenger cars. A CAFE credits were available to the new ACTION: Final rule. manufacturer’s average fuel economy for corporate entity. Complaint Counsel a particular model year is calculated in disagreed and sought to impose CAFE SUMMARY: This document establishes a accordance with 49 U.S.C. 32904. The fines for Chrysler’s failure to meet the new regulation governing the use of establishment of CAFE standards and applicable CAFE standard.1 rights (credits) and liabilities (fines) the calculation of average fuel economy On January 8, 1992, an Administrative under the Corporate Average Fuel is statutorily tied to ‘‘automobiles Law Judge issued an Initial Decision Economy program in the face of changes manufactured by a manufacturer’’ for and Order. While expressing in dictum in corporate relationships. This final any given model year. (49 U.S.C. 32902, support for Complaint Counsel’s rule fulfills a statutory responsibility to 32904) position, the ALJ ruled that the agency issue a regulation addressing these The statute specifically provides that, could not enforce that position because issues. with regard to each individual fleet, a it had not, as the statute anticipates, DATES: The rule is effective January 27, manufacturer may earn credits by promulgated regulations in accordance 2005. exceeding the applicable standard and with the Administrative Procedures Act. Petitions for Reconsideration must be may use those credits, for three years NHTSA’s Administrator terminated the received by February 11, 2005. Petitions forward and three years back, to offset prosecution and directed the agency to for reconsideration should refer to the any shortfalls in CAFE compliance initiate rulemaking. In an order dated docket and notice number of this applicable in a particular model year. March 31, 1992, NHTSA’s document and be submitted to the Again the statute makes clear that the Administrator found: Administrator of NHTSA 400 Seventh number of credits earned is tied to the Upon further consideration of the matters Street, SW., Washington, DC 20590. volume of automobiles manufactured by at issue in this proceeding, I have decided the manufacturer. (49 U.S.C. 32903) that NHTSA should prescribe regulations FOR FURTHER INFORMATION CONTACT: Mr. Manufacturers failing to meet the Otto Matheke, Office of the Chief established fleet standard for a 1 Complaint Counsel’s position in the Counsel, Suite 5219, National Highway particular model year must, if they do administrative proceeding was consistent with the Traffic Safety Administration, 400 position taken by the agency’s Acting Chief Counsel not have credits available to offset their in a 1990 letter to the Chrysler Corporation setting Seventh Street, SW., Washington, DC shortfall, pay fines to the United States 20590. (202–366–5263) forth the agency’s interpretation of the law as Treasury. Over the history of the CAFE applied to Chrysler’s acquisition of AMC. Pursuant Table of Contents program, manufacturers have paid over to 49 CFR part 501.8(d)(5), the NHTSA Administrator has delegated to the Chief Counsel I. Introduction and History 140 fines totaling more than $600 the authority ‘‘to issue authoritative interpretations II. Applicable Statutory Provisions million. The highest fine ever paid by a of the statutes administered by NHTSA and the III. The Notice of Proposed Rulemaking single manufacturer was almost $28 regulations issued by the agency.’’
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pursuant to section 501(g) of the Act to rulemaking (NPRM) advancing seeking clarification with regard to define the extent to which predecessors and regulatory text intended to formalize whether vehicles produced by certain successors of manufacturers of automobiles Complaint Counsel’s positions in the corporate affiliates could appropriately should be included within the term 1991–1992 administrative proceeding. be included in its CAFE fleet, the ‘manufacturer’ for the purposes of the Act. I have therefore directed the Associate (66 FR 6523) agency reviewed the meaning of the Administrator for Rulemaking to promptly II. Applicable Statutory Provisions phrase ‘‘automobiles manufactured by a commence such a proceeding. manufacturer,’’ which by statute While such a proceeding would provide The CAFE statute provides that a ‘‘includes every automobile helpful clarification and be consistent with ‘‘manufacturer of automobiles commits manufactured by a person that controls, the statute, in my view there is a great deal a violation if the manufacturer fails to is controlled by, or is under common of doubt as to the correctness of the comply with an applicable average fuel control with the manufacturer’’ (except Administrative Law Judge’s view that, in the economy standard under section 32902 those exported within 30 days of the absence of such regulations, an enforcement of this title. Compliance is determined model year). The agency stated: proceeding against Chrysler cannot proceed. after considering credits available to the Therefore, I am unwilling to allow the I.D. manufacturer under section 32903 of The term ‘‘control’’ a used in 32902(a)(4) (Initial Decision) to become the Final is not defined elsewhere in Chapter 329 or Decision of this agency. On the other hand, this title.’’ (49 U.S.C. 32911(b)) the legislative history of the Chapter and its I believe that continuation of this proceeding Section 32903 provides that ‘‘when predecessor, the Motor Vehicle Information under these circumstances could result in an the average fuel economy of passenger and Cost Savings Act. In past interpretations unnecessary expenditure of the resources of automobiles manufactured by a the agency has indicated that the term as the agency and of Chrysler. Therefore, I have manufacturer in a particular model year used in the CAFE context may have the same decided to take steps to terminate the exceeds an applicable average fuel definition as it has when used in a corporate proceeding at this time, without prejudice to economy standard * * * the law context. In the corporate law context, the the possible filing of a new administrative manufacturer earns credits.’’ Those issue of control is important for determining complaint against Chrysler following the credits may be applied to any of the 3 whether the controlling persons have violated any fiduciary duties to the issuance of the regulatory definitions referred consecutive model years immediately to above. corporation and other shareholders. Control proceeding or following the model year in that sense refers to ownership of a large The agency did not act immediately. during which the credits were earned. enough bloc of a company’s stock to In the early 1990s, the agency faced a The statute defines a ‘‘manufacturer’’ constitute effective voting control of the firm. variety of legal challenges raising as ‘‘(A) a person engaged in the business For the purposes of Chapter 329, control is numerous issues and focusing agency of manufacturing automobiles, important for determining a company’s resources on the developing contours of including a predecessor or successor of corporate average fuel economy and total the program. In April 1994, the agency the person to the extent provided under production. For CAFE purposes, ‘‘control’’ is began to consider a multi-year regulations prescribed by the Secretary; the ability to exercise a major influence over a company’s average fuel economy and rulemaking to establish light truck and (B) if more than one person is the production. In addition to the ownership of CAFE standards for some or all of model manufacturer of an automobile, the a controlling bloc of stock, control for our years 1998–2006. (59 FR 16324). person specified under regulations purposes could be shown by control over the Congress responded by effectively prescribed by the Secretary.’’ (49 U.S.C. design and availability of certain models and ‘‘freezing’’ light truck standards. On 32901(a)(13)) The statute defines ‘‘an other factors affecting production, sales mix November 15, 1995, the Department of automobile manufactured by a and technological improvements. Transportation and Related Agencies manufacturer’’ as including ‘‘every (Letter from John Womack, Acting Chief Appropriations Act for FY 1996 was automobile manufactured by a person Counsel, to Timothy Green of Ford enacted. Pub. L. 104–50. Section 330 of that controls, is controlled by, or is Motor Company, dated September 19, that Act provided: under common control with the 1996). None of the funds in this Act shall be manufacturer, but does not include an In sum, the statute provides that a available to prepare, propose, or promulgate automobile manufactured by the person manufacturer may earn credits when its any regulations * * * prescribing corporate that is exported not later than 30 days fleet (consisting of every vehicle built by average fuel economy standards for after the end of the model year in which a manufacturer that controls it, is automobiles * * * in any model year that the automobile is manufactured.’’ 2 controlled by it or is under common differs from standards promulgated for such During the 1990s, the agency control with it) exceeds the applicable automobiles prior to enactment of this provided its interpretation of the term CAFE standard for that model year. The section. ‘‘automobile manufactured by a statute anticipates that predecessors and Similar language in subsequent manufacturer.’’ This term is crucial to successors will be included and that the Appropriations Acts continued the this rulemaking because a manufacturer Department would define such entities freeze through model year 2003. earns CAFE credits when the average through regulation. Ongoing debate about the efficacy of the fuel economy of the ‘‘automobiles CAFE program also led Congress to manufactured by a manufacturer’’ III. The Notice of Proposed Rulemaking require a review of the program. The exceeds the applicable CAFE standard In January 2001, the agency published conference committee report for the for that model year. In response to a its NPRM relating to the rights and Department of Transportation and 1996 letter from Ford Motor Company responsibilities of manufacturers in Related Agencies Appropriations Act for light of changes in corporate FY 2001 directed NHTSA to fund a 2 The statutory language relating to predecessors relationships. The NPRM sought to study by the National Academy of and successor was added to the statute as part of formalize the agency’s position during the 1980 amendments. That same set of Sciences to evaluate the effectiveness amendments extended the credit period from one the Chrysler enforcement action of the and impacts of CAFE standards (H.R. year carry forward and carry back to three years early 1990s and addressed a number of Conf. Rep. No. 106–940, at 117–118). forward and back. Although the phrase ‘‘automobile corollary issues. On January 22, 2001, six months prior manufactured by a manufacturer’’ was in the statute The regulatory text proposed in the previously, Congress added the definition of that to submission of the NAS report to the phrase in 1990. We take all of those definitions and NPRM would have made successors Department of Transportation, the provisions into account in reaching our conclusions responsible for any civil penalties agency published a notice of proposed in this rulemaking. arising out of fuel economy shortfalls
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incurred by predecessors, as well as any carryover that requires all credits first be ordinary corporate law meaning of those shortfall if the companies had combined used by the manufacturer earning the terms.4 within the last model year. Credits in credits to satisfy its existing CAFE IV. Public Comments existence at the time the predecessor/ liabilities and before remaining credits successor relationship was established are carried forward for use by that same The NPRM generated little public could only be used to satisfy the manufacturer. NHTSA then stated that comment. Ford Motor Company raised existing shortfalls of each company permitting a successor to use its fundamental objections to the prior to the formation of the new predecessor’s remaining credits to definitional approach the agency had corporate structure. Thus, the satisfy other existing liabilities would taken, pointing out that as applied to successor’s existing credits could only permit the remaining credits to be certain situations the approach created be used first to satisfy its existing carried forward and then carried back to potentially unfair results inconsistent shortfalls and the predecessor’s credits a manufacturer that did not possess with the application of general could only be used first to satisfy its those credits when it incurred the principles of corporate law. existing shortfalls. Remaining credits liabilities the credits would satisfy. Ford claimed that a successor should could be used to offset future shortfalls Although the agency did not conduct a not be responsible for all vehicles of the new corporate entity. rulemaking as Congress contemplated manufactured by the predecessor for the The proposed regulatory text also before taking a view, NHTSA’s tentative entire model year (defined as October 1– addressed companies within control position since the Chrysler enforcement September 30). The company argued the relationships. It suggested that each action has been that the statute does not NPRM would have forced companies to company coming within a corporate support such a result. combine fleets before any control control relationship within a model year Second, while recognizing Congress’ relationship had been established. Ford should be jointly and severally liable for intent to add flexibility to the CAFE also noted that the NPRM stated its any CAFE liabilities incurred by any of program when amending the statute in intent to be both simple and faithful to the other companies coming within the 1980, the agency expressed concern that the overall statutory scheme and then control relationship within that model a successor should not be permitted to argued that the agency had failed to do year. The NPRM then set forth a number ‘‘merge’’ the CAFE credits of its so. According to Ford, ‘‘NHTSA’s of additional ‘‘specifications’’ predecessor companies because it proposed rule short-circuits the statute attempting to define, in general terms, believed that ‘‘permitting such use of and general principles of corporate the use of credits and incurring of credits would discourage energy successorship in its eagerness to achieve liabilities within control relationships. conservation. For example, to the extent simplicity.’’ Ford and DaimlerChrysler also Each ‘‘specification’’ was subject to the that a successor had been planning to contested the agency’s proposed agreement of the other manufacturers, exceed standards in the future to earn limitations on the use of predecessor’s the availability of the credits, and other credits that could be carried back to pre-existing CAFE credits. Ford argued: general restrictions. cover pre-acquisition shortfalls, ‘‘[I]n the final analysis, we see no reason The proposal presented in the NPRM permitting the successor to use the why allowing a successor corporation to was built upon the following notion: predecessor’s previously earned credits use pre-existing credits as it sees fit ‘‘Credits earned by a particular to cover those shortfalls would remove would be contrary to the intent of manufacturer are only ‘available to be the incentive to exceed those Congress. Credits are not being double- taken into account with respect to the standards.’’ 66 FR 6528. counted or being used for some average fuel economy of that As noted above, the agency proposed improper purpose; no vehicles are being manufacturer,’ for any of the three a number of ‘‘specifications’’ covering a omitted from the CAFE calculations. model years before, or after, the model variety of situations in which questions 3 The only real effect of this proposal year in which the credits are earned’’ relating to the use of credits and would be to increase the likelihood that (emphasis added). liabilities might arise. The NPRM shortfalls will be subject to fines rather NHTSA historically allowed proposed the following definitions: than covered with credits.’’ successor manufacturers to use a • Control relationship means the predecessor’s existing credits to satisfy relationship that exists between V. Post-NPRM CAFE Considerations the newly merged corporation’s CAFE manufacturers that control, are liabilities acquired after the merger has Since the promulgation of the NPRM, controlled by, or are under common the CAFE program has received been finalized. By the same token, control with, one or more other successors are generally responsible for considerable analytic attention. manufacturers. Particularly in response to predecessors’ liabilities, and NHTSA • Identity means the relationship has maintained this is the case under Congressional concerns, studies of the between a predecessor and a successor CAFE program have emerged that help the CAFE program. Thus, the only issue during the time in which the successor regarding credits in the NPRM was us better understand how policy owns 50 percent or more of the assets, decisions are likely to affect the goal of whether a successor is entitled to use based on valuation, that had belonged to the existing CAFE credits of either itself achieving energy independence. the predecessor. Congress directed the National or its predecessors to satisfy the other’s • Predecessor means a manufacturer Academy of Sciences, in consultation existing CAFE liabilities. In the NPRM, whose rights have been vested in and the agency tentatively was of the view whose burdens have been assumed by 4 The Revised Model Business Corporation Act (at that the successor could not. another manufacturer. § 11.02), incorporates these general principles by This position was based on two • Successor means a manufacturer stating that a ‘‘survivor corporation becomes vested premises, one legal and one policy- who has become vested with the rights with all the assets of the corporation(s)/entity that driven. First, NHTSA maintained that merged into the survivor and becomes subject to and assumed the burdens of another their liabilities.’’ The states in which the major EPCA established a priority of credit manufacturer. motor vehicle makers are incorporated each apply As set forth in the NPRM, the the same concept in their respective statutes. See, 3 This language mirrors that in EPCA prior to its e.g., 8 Del.C. § 259 (Delaware), Cal. Corp. Code codification in 1994. The codification was not definitions of ‘‘successor’’ or § 1107(a) (California) and N.J.S.A. 14A:10–6 (New intended to have any substantive effect. ‘‘predecessor’’ are intended to reflect the Jersey).
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with the Department of Transportation, how best to achieve the overall intent of corporation had before it acquired the to evaluate the CAFE program and make the CAFE program. predecessor. recommendations to improve it. The Based on our review and We also proposed to define successors NAS conducted a detailed review of the consideration of all this information, we and predecessors in accordance with policies underlying the CAFE program have decided to expand our initial general principles of corporate law. Yet, and made recommendations for better stance on carry back credits so as to even while doing so, we proposed a achieving those policies. A draft of the allow a successor to use a predecessor’s tentative conclusion different than the NAS Report was available to the existing credits to satisfy the successor’s one that would result from applying Department in June 2001 and the final existing liabilities and vice versa. As those definitions and the same general report was published in January 2002. proposed in the NPRM, the successor principles. Under ordinary principles of The NAS recommended ‘‘the CAFE will be liable for all of the predecessor’s corporate law, the reference to that system, or any alternative regulatory liabilities and credits not used to satisfy manufacturer would not be read as system, should include broad trading of existing liabilities may be used to satisfy prohibiting a successor from putting fuel economy credits. The committee subsequent liabilities, consistent with itself in the position of a predecessor believes a trading system would be less statutory requirements. We have also corporation. Nor did we consider the costly than the current CAFE system; decided to assess a successor’s CAFE import of the statutory phrase provide more flexibility and options to assets and liabilities for the full model ‘‘automobiles manufactured by a the automotive companies; give better year during which the corporate merger manufacturer’’ when developing our information on the cost of fuel economy occurred. In those instances in which preliminary analysis. changes to the private sector, public the change in corporate relationships The agency proposed a reading of the interests groups, and regulators; and did not result in the establishment of a CAFE statute contrary to ordinary provide incentives to all manufacturers successor/predecessor relationship, but principles of corporate law based on our to improve fuel economy. Importantly, rather in a lesser form of corporate preliminary policy conclusion that trading of fuel economy credits would control, the corporations are free to permitting the normal application of allow for more ambitious fuel economy determine which corporation will be successor/predecessor principles of goals than exist under the current CAFE responsible for the model year corporate law would frustrate the system, while simultaneously reducing allocation of penalties, as long as they policies underlying the CAFE statute. In the economic cost of the program.’’ file a contract detailing respective such circumstances, the proposed More recently, the Congressional responsibilities with NHTSA prior to interpretation of the statute was Budget Office released an issue brief the end of the model year. intended to ensure that the underlying focusing on the economic costs of CAFE We no longer find tenable the policies of the law were effectuated. However, we have now concluded that standards and comparing them with the proposed position we had taken limiting a successor corporation’s right to use our policy view as to the impact of our costs of a gasoline tax that would reduce CAFE credits earned by a predecessor reading of the statute does not in fact gasoline consumption by the same corporation. As indicated above, the further the goals of the CAFE statute. amount. The CBO noted the NAS’s proposed position was based on two Accordingly, we have no reason to read finding that enhancing the transfer of premises, one policy and one legal. The the CAFE statute in a way that is credits would encourage the creation of policy premise was a statement that contrary to general principles of credits because firms able to produce permitting a successor corporation to corporate law and we are not doing so them would be able either to use them use the CAFE credits of its predecessor in this final regulation. as needed or to sell them to other firms. corporation would not encourage CAFE The CBO estimated that fuel economy A. Definitions credit building. Upon further credit trading could cut the cost of a 3.8 consideration, we do not believe our The NPRM proposed four definitions: mpg increase in the CAFE standards by tentative policy premise regarding Control relationship, Successor, 16 percent, down from $3.6 billion per Predecessor and Identity. The comments 5 incentives to earn additional credits is year to $3 billion per year. a valid reason for limiting successor did not take issue with these VI. The Final Regulation corporations’ ability to use CAFE credits definitions, but did object to the earned by a predecessor. agency’s proposal regarding the use of We have considered the issues raised Further, our preliminary legal credits upon corporate restructurings. in the NPRM in light of the comments analysis did not fully consider all the As explained in the NPRM, the term filed by Ford Motor Company and applicable statutory language nor did it ‘‘identity’’ was proposed solely to DaimlerChrysler, applicable concepts of apply the general corporate law provide structure to the agency’s corporate law and the policy analyses principles it sought to instill in the proposal that credits earned by a provided by the National Academy of definitions. The legal premise was company that subsequently becomes Sciences and the Congressional Budget explained in our proposal as an part of another should expire and no Office. We have also reviewed the outgrowth of the statutory provision that longer be available to the acquiring legislative history and considered the credits earned by a particular manufacturer. issues with an eye towards the manufacturer are ‘‘only available to be We are adopting in this Final Rule Congressional intent of providing taken into account with respect to the definitions of the terms ‘‘successor’’, flexibility while enhancing overall fuel average fuel economy of that ‘‘predecessor’’ and ‘‘control efficiency. While this regulation does manufacturer.’’ We proposed to relationship’’ as proposed in the NPRM. not directly implicate credit trading, the conclude that a successor corporation As amended in 1980, the EPCA policy considerations are similar and, as could not be considered to be that specifically directed the agency to the NPRM suggests, relevant to deciding manufacturer with respect to the develop regulations to include predecessor corporation, and so the successors and predecessors within the 5 The CBO estimated that CAFE standards would statute would prohibit the successor structure of manufacturer’s carry-back need to increase by 3.8 mpg (to 31.3 mpg for passenger cars and 24.5 mpg for light trucks) in corporation from using CAFE credits and carry-forward CAFE credit plans. order to reduce the amount of gasoline consumed earned by a predecessor corporation to The proposed definitions incorporate by new vehicles by 10 percent. address CAFE shortfalls the successor into that regulatory structure the
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common definition of successors and The fuel economy credit provisions following the model year in which such predecessors used in corporate law, are set forth in 49 U.S.C. 32903, Credits manufacturer exceeds such applicable providing successors with the rights and for exceeding average fuel economy average fuel economy standard. burdening them with the liabilities of standards. Paragraph (a) of this section NHTSA has historically maintained their predecessors. reads as follows: that this language of the Motor Vehicle We believe it is necessary to define a (a) Earning and period for applying credits. Information and Cost Savings Act means control relationship because in many When the average fuel economy of passenger that a credit earned by a particular instances manufacturers are engaged in automobiles manufactured by a manufacturer manufacturer (or group of related the corporate operations of another in a particular model year exceeds an manufacturers) is only available to be manufacturer to such an extent that they applicable average fuel economy standard taken into account with respect to the may have control over vehicle design or under section 32902(b)–(d) of this title average fuel economy of that production but do not have so much (determined by the Secretary of manufacturer (or group of related control as to establish the successor/ Transportation without regard to credits manufacturers). In the NPRM (as well as under this section), the manufacturer earns in previous agency articulations of the predecessor relationship contemplated credits. The credits may be applied to— under corporate law. We have decided (1) Any of the 3 consecutive model years issue), NHTSA maintained that this against defining the term ‘‘identity’’ immediately before the model year for which language allows only a manufacturer because under today’s rule, the the credits are earned; and exercising control at the time the credit successor is not limited in using credits (2) To the extent not used under clause (1) is earned to use the credit to satisfy a generated by the predecessor or in of this subsection, any of the 3 consecutive contemporaneous or preexisting satisfying the predecessor’s CAFE model years immediately after the model liability. liabilities. To the extent a non- year for which the credits are earned. However, support for this position successor/predecessor control The language of the statute suggests cannot be found in the 1980 relationship is established, the that a manufacturer may use credits in amendments to the statute that codified allocation of rights and liabilities will be any manner it chooses as long as this provision, or indeed to its governed by contract. existing liabilities are first satisfied and, predecessor language in EPCA. The Final Rule also includes the potentially, those credits are not sold or Additionally, this position largely following provision to help implement otherwise traded to another ignores the fact that the 1980 these definitions: manufacturer.6 However, the language amendments, which adopted not only • ‘‘Reporting Corporate of § 32903 changed when the this language but amended the Transactions.’’ Manufacturers who have predecessor Motor Vehicle Information definition of a manufacturer to include entered into written contracts and Cost Savings Act, which was successor/predecessor relationships transferring rights and responsibilities codified into § 32903 by Pub. L. 103– which were to be defined by NHTSA, such that a different manufacturer owns 272 (July 5, 1994). Section 1(a) of that were made to increase the degree of the controlling stock or exerts control law stated that the laws being codified manufacturer flexibility while retaining over the design, production or sale of were being done so ‘‘without the overall intent of the original statute automobiles to which a Corporate substantive change.’’ Therefore, it is to promote fuel efficiency. Thus, in Average Fuel Economy standard applies appropriate to look to the language of defining the terms ‘‘successor’’ and shall report the contract to the agency as the earlier statute when determining ‘‘predecessor’’ consistent with Congress’ follows: whether Congress intended to compel intent at the time, we must look not (a) The manufacturers must file a the agency to further restrict only to the overarching goal of certified report with the agency manufacturer use of credits. improving fuel efficiency, but more affirmatively stating that the contract Section 502(l)(1)(B) of the Motor specifically to the goal of increasing transfers rights and responsibilities Vehicle Information and Cost Savings manufacturing flexibility. between them such that one Act stated: CAFE standards were established in manufacturer has assumed a controlling 1975 as part of a far-reaching piece of Whenever the average fuel economy of the legislation designed to address growing stock ownership or control over the passenger automobiles manufactured by a design, production or sale of vehicles. dependency on foreign oil and manufacturer in a particular model year dwindling domestic petroleum reserves. The report must also specify the first exceeds an applicable average fuel economy Congress determined that the best way full model year to which the transaction standard * * *, such manufacturer shall be to encourage the automotive sector to will apply. entitled to a credit calculated under increase the fuel efficiency of its (b) The manufacturers may seek subparagraph (C), which— vehicles was to create a system under confidential treatment for information (i) Shall be available to be taken into account with respect to the average fuel which manufacturers would be required provided in the certified report in economy of that manufacturer for any of the to meet federally established fuel accordance with 49 CFR Part 512. three consecutive model years immediately standards. These standards were to be B. CAFE Credits prior to the model year in which such sufficiently rigorous to promote the manufacturer exceeds such applicable development of more fuel efficient 1. Legal Considerations average fuel economy standard, and vehicles, but not so rigorous as to result NHTSA has been provided with wide (ii) To the extent that such credit is not so taken into account pursuant to clause (i), in the loss of employment in the latitude to confer rights and develop shall be available to be taken into account automotive sector, then responsible for constraints within the context of the with respect to the average fuel economy of 1 out of every 9 jobs in the U.S. successor/predecessor relationship. In that manufacturer for any of the three economy. light of this broad statutory authority, consecutive model years immediately As part of that legislation, Congress we have determined that our previous established a limited credit program in interpretation of § 32903 as prohibiting 6 The question as to whether the statute permits which a manufacturer could earn credits successor corporations from using a credit trading, either between manufacturers or for enhanced fuel efficiency. As part of between classes of light trucks, was raised in the predecessor’s existing credits to satisfy agency’s Advanced Notice of Proposed Rulemaking its enforcement program, the the successor’s existing liability is too exploring CAFE reform options. See 68 FR 74908 Department of Transportation would narrow. (December 29, 2003). determine a manufacturer’s liability and
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then would determine whether the extent provided under rules which the to calculate its corporate average fuel manufacturer had earned any credits the Secretary shall prescribe.’’ economy with regard to the automobiles previous year. If so, those credits were Under the scheme proposed in the sold by companies within that control to be applied to the liability and NPRM, a successor’s use of the CAFE relationship. penalties would be reduced by existing credits of its predecessor corporations 2. Policy Considerations credits on a one-to-one basis. Any would be limited, placing a significant credits not used to satisfy a previous constraint on manufacturer flexibility. The NPRM was premised on the year’s liabilities could be retained to Yet, the successor would be held agency’s preliminary belief that tight meet liabilities incurred in the following responsible for any CAFE liabilities of constraints on existing credits are year, either as a direct reduction if its predecessor companies. A successor necessary to encourage vehicle fleets to penalties had not yet been paid, or as a corporation could well find itself exceed applicable CAFE standards. The refund. responsible for previously incurred agency reasoned that allowing the A manufacturer was defined as ‘‘any CAFE obligations, but without transfer of CAFE credits as part of a person engaged in the business of previously earned CAFE credits. Despite corporate merger would not encourage manufacturing’’ and the Secretary of the statutory language, a good CAFE performance. Indeed, the Transportation was ordered to ‘‘manufacturer’’ would no longer agency believed that permitting the ‘‘prescribe rules for determining, in include the concept of successor and transfer of CAFE credits would cases in which more than one person is predecessor corporations as generally discourage the development and sale of the manufacturer of an automobile, defined in corporate law. Instead, it more fuel-efficient vehicles. which person is to be treated as the would be subject to a different set of The NPRM offered the following manufacturer’’ 15 U.S.C. 2002 (1976 rules applicable only in the context of example: ‘‘To the extent that a successor Ed.). the CAFE program. had been planning to exceed standards Five years later, domestic U.S. Further, the preliminary analysis set in the future to earn credits that could automobile manufacturers were in the forth in the NPRM focused only on the be carried back to cover pre-acquisition midst of financial difficulties and one statutory term ‘‘manufacturer,’’ but did shortfalls, permitting the successor to major manufacturer, Chrysler, was on not give due consideration to the import use the predecessor’s previously earned the verge of bankruptcy. Congress of the statutory term ‘‘automobiles credits to cover those shortfalls would decided the CAFE program needed to be manufactured by a manufacturer.’’ This remove the incentive to exceed those amended so as to provide vehicle latter term is the fulcrum of determining standards.’’ 66 FR 6528. It did not, manufacturers with greater flexibility, the CAFE performance of a particular however, consider the incentive to thus decreasing the likelihood of layoffs vehicle fleet and, by statute, companies to exceed standards in order in the automotive sector, while incorporates any vehicle manufactured to gain assets valuable to potential generally retaining the program’s by a manufacturer in a control investors and acquirers. commitment to increased fuel relationship with another manufacturer. The agency issued the NPRM without efficiency. By definition, then, the statute the benefit of the policy input and As part of the 1980 amendments, anticipates including in a economic analysis developed during the Congress took several steps to increase manufacturer’s fleet vehicles sold by NAS’s review of the CAFE program. The manufacturer flexibility. First, it manufacturers other than the particular NAS study is instructive in that it raises allowed low-volume manufacturers to corporate entity that produced or sold the prospect that treating credits as an request alternative CAFE standards for the vehicle when there is a control asset that is potentially of value to two or more years and exempted them relationship. others provides an increased incentive from reporting requirements. Second, it We believe it is unlikely that Congress to create the asset. The preliminary provided additional flexibility in the expected the agency to develop a conclusions stated in the NPRM did not CAFE standards for foreign scheme under which there is no consider that a successor company’s manufacturers so as to encourage them incentive to earn credits other than to to expand manufacturing operations make up for existing shortfalls. Nor is it ability to use CAFE credits might create into the U.S. Finally, and most a policy encouraging the development valuable assets enhancing the value of a importantly for this discussion, it and sale of vehicle fleets exceeding corporation to another. provided manufacturers with greater applicable CAFE standards. In the NPRM, the agency only flexibility in achieving CAFE standards Indeed, as discussed above, Congress considered the prospect encountered in in any particular year by allowing adopted amendments to the CAFE the earlier Chrysler enforcement action, manufacturers to earn credits that could statute to provide for three-year carry- i.e., the successor possesses a shortfall be used to offset liabilities incurred up forward and carry-back compliance that the predecessor’s credits can to three years before and three years plans using credits to offset liabilities alleviate. It did not consider the reverse after the credits were earned. expressly to give manufacturers situation in which a credit-rich Manufacturers without credits that additional flexibility. Rather, it is more manufacturer is acquiring a predecessor discovered they were likely to end the likely that Congress was well aware with sizeable CAFE liability. Ford raised model year with a shortfall were when it enacted provisions to extend this scenario in its comments. Ford permitted to file a plan with NHTSA CAFE credit planning that compliance offered the following example: demonstrating how they would make up with CAFE standards was premised on If A, whose fleet is CAFE-positive, acquires any shortfall within three years. Unless the fleet of ‘‘automobiles manufactured B, whose fleet is CAFE-negative, it may not the plan was deemed unreasonable, by a manufacturer,’’ and further that any be possible for A to generate sufficient credits NHTSA was to approve the plan, and individual fleet would include vehicles in the next three years to cover B’s pre- penalties were deferred until the plan manufactured by companies in various existing shortfalls. A’s product plans for the next three model years are basically set, and failed to produce the anticipated credits. control relationships. Congress chose to there is little A can do in the short term to As part of this legislation, the term provide additional flexibility to improve its CAFE performance. Nor can A do ‘‘manufacturer’’ was amended to manufacturers to meet CAFE standards anything to change B’s CAFE-negative past. ‘‘include[s] any predecessor or while maintaining the ability of a As a result, A may have no choice but to successor of such a manufacturer to the manufacturer in a control relationship address B’s shortfall by paying a fine—even
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though A may have enough past credits to three-year carry-forward carry-back time specification also provided that ‘‘(a) offset B’s past shortfall. This outcome may frame, the company is responsible for manufacturer is considered to have add to the coffers of the U.S. Treasury, but the liabilities and may use the credits become the successor of another it unfairly penalizes A and does nothing to applicable to the corporation as a whole. serve CAFE’s overall purpose of promoting manufacturer during a model year if it energy conservation. Consistent with the express statutory is the successor on September 30 of the terms construing a manufacturer’s corresponding calendar year and was While Ford expressed its concerns in corporate average fuel economy in terms not the successor for the preceding terms of equity, we believe the ability of of the ‘‘automobiles manufactured by a model year.’’ a successor corporation to use its manufacturer,’’ and consistent with Ford argued that the proposed existing credits actually has the general principles of corporate law, a specification ‘‘is clearly inconsistent potential to encourage greater fuel successor corporation is entitled to use with the CAFE statute.’’ It noted that, as efficiency. That is to say, a manufacturer the assets and is responsible for the currently codified, 49 U.S.C. 32901(4) has an incentive to earn credits above liabilities of its predecessor corporations defines the term ‘‘automobile and beyond its actual need because a as defined by their contractual relations. manufactured by a manufacturer’’ as credit-rich manufacturer can use excess This includes the rights and including every automobile credits to reduce the cost of merging responsibilities of companies in a manufactured by a person that controls, with an otherwise attractive position of control over, or who are is controlled by, or is under common manufacturer that is laden with CAFE controlled by, another corporation. control with a manufacturer * * *’’ liabilities. Our purpose, as set forth in the The concern expressed in the NPRM Ford argued that a problem with NPRM, is to encourage CAFE NHTSA’s proposed rule is that it forces was also premised on the notion that compliance in the vehicle fleet as a allowing a successor corporation to use manufacturers to combine fleets before whole to reduce consumption of any control relationship has even been credits by one of its predecessors to gasoline and to enhance the nation’s established. It cited the example of A’s offset the liabilities of any other energy independence. We now believe acquiring or taking control of B on predecessor amounted to trading credits that the ability of successor corporations August 1, 2002. Under the proposed between manufacturers. This concern to use more freely the CAFE credits rule, the fleets of A and B would be was premised on a preliminary belief earned by each of their predecessor combined for all of model year 2002. that allowing a successor to use within corporations enhances the value of However, Ford argued that it is the control relationship the credits those companies to others. And, improper to force A to include in its earned by one of its constituent parts perhaps more compelling, the ability of model year 2002 fleet a vehicle would ‘‘retroactively’’ apply credits to a a successor corporation to use its own produced by B on October 2001. ‘‘manufacturer’’ that did not earn them. credits to satisfy the liabilities of a After reviewing the comments and predecessor provides the successor with Ford noted the agency’s statement applicable corporate law, we find that a valuable mechanism to reduce the that fuel economy standards must apply acknowledging the purchase and sale of overall cost of the acquisition. Thus, the to ‘‘particular model years as a whole’’ corporate assets, including CAFE effect of today’s rule is to encourage and not to ‘‘separate parts of a model credits, or corporate liabilities, companies on the one hand to maximize year.’’ It stated that the agency is including CAFE obligations, does not the number of credits it earns and on the worried that, absent such a provision, amount to trading credits between other to join in corporate structures that ‘‘one or both manufacturers would have manufacturers. Nor does it imply any help advance overall fleet fuel economy. two separate CAFE values * * * for the retroactive application of credits. At any The NPRM also addressed other types same model year.’’ Ford claimed this is particular point of time, CAFE of changes in corporate relationships, an implausible assumption. According responsibility is gauged in accordance including the potential for corporate to Ford, simply put, both manufacturers with the corporate structure in existence relations to dissolve. We believe our would file CAFE reports; manufacturer at that time. regulation properly addresses such A would include those models If a company purchases the assets and dissolutions by focusing on the produced after ‘‘control’’ was liabilities of another manufacturer, in contractual agreements and by applying established and manufacturer B would accordance with the contract between (as suggested in the NPRM) general include those vehicles produced before them, the successor manufacturer may principles of corporate law. Thus, we ‘‘control’’ was established. This would be entitled to use the assets of its have included in the Final Rule a be the case even if B ceased to exist after constituent parts as one company. If the provision simply stating that the ‘‘control’’ date. successor has purchased the assets and dissolutions—like combinations—are That company argued that a scheme liabilities of its constituent parts, it is subject to contractual agreements and which pretends that Manufacturer A entitled (consistent with its contract) to should be available for use consistent ‘‘controls’’ Manufacturer B for an entire use those assets and liabilities to with general principles of corporate law. model year, even though the actual address the responsibilities of the We have, therefore, simplified the final control relationship existed only for the company as they exist as of that time. regulation without altering the basic last two months (or even the very last For example, if Company A has CAFE policy underlying the need to enhance day) of that model year, is contrary to liability in Year 1 and purchases the energy independence. the statutory scheme. Ford argued that assets and liabilities of Company B in setting up the ‘‘control’’ criterion, midway through Year 2, combined C. Acquisitions During a Model Year Congress intended to count in a Company C’s assets and liabilities for In the NPRM, we proposed to specify manufacturer’s CAFE fleet only those CAFE purposes are determined with that ‘‘(i)f one manufacturer becomes the vehicles for which the manufacturer regard to its position, in terms of its successor of another manufacturer could fairly be held responsible. Ford CAFE responsibilities, as of Year 3. If during a model year, all of the vehicles argued that the fairest and most the contract provides, combined produced by those manufacturers transparent way to address the issue is Company C incurs all the liabilities and during the model year are treated as to have A take responsibility for only is entitled to all of the assets of its though they were manufactured by the those vehicles produced by B after the predecessor corporations. If within the same manufacturer.’’ The proposed control relationship is established.
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We disagree. First, CAFE compliance Likewise, to the extent that a group of rights the predecessor had with respect and any remaining obligations are based manufacturers within a control to the use of preexisting credits and the on the total volume of vehicles sold relationship allocates the group’s CAFE ability to earn future credits. during the course of the model year and credits and liabilities among the The provisions concerning the rights are not determined until the end of the manufacturers within the group, the and responsibilities of manufacturers in model year. (49 U.S.C. 32903(b)(1)) No group of manufacturers shall file a copy other situations in which there have administrative mechanism currently of the agreement controlling the been changes in corporate relationships, exists to separate CAFE compliance to allocation at the end of each model year. e.g., changes in control, are essentially account for mid-year changes in In this way, NHTSA will be better able a statement of our interpretation of the corporate relationships and we see no to administer its CAFE compliance statute and reflect the same principles need to craft one. Under today’s rule, an program. All manufacturers in a control as the provisions relating to acquiring corporation inherits all CAFE relationship shall be jointly and predecessors and successors. liabilities and credits of the predecessor severally liable for any CAFE liabilities B. Regulatory Flexibility Act corporation for a period dating back that are not collected from the three years. These assets and liabilities manufacturer allocated responsibility We have considered the effects of this would be considered by both parties for those liabilities. rulemaking action under the Regulatory when negotiating the transfer of Flexibility Act (5 U.S.C. 601 et seq.) I VII. Rulemaking Analyses and Notices corporate interests, as would any assets hereby certify that proposed rule does and liabilities. A. Executive Order 12866 and DOT not have a significant economic impact Accordingly, we do not believe that Regulatory Policies and Procedures on a substantial number of small entities. Therefore, a regulatory the successor corporation is in any way NHTSA has considered the impact of injured by the existing administrative flexibility analysis is not required for this rulemaking action under Executive this action. As discussed above, the structure. A successor corporation may, Order 12866 and the Department of upon acquisition, take steps to mitigate regulation does not create any new Transportation’s regulatory policies and obligations but simply adopts the same any projected CAFE shortfall for its total procedures. This rulemaking document fleet for that model year, including positions concerning predecessors and is not economically significant. It was successors as we have previously taken filing a plan to make up any shortfalls reviewed by the Office of Management within the next three model years. in interpretation letters. Similarly, the and Budget under E.O. 12866, provisions concerning the rights and Given today’s determination that a ‘‘Regulatory Planning and Review.’’ The predecessor’s CAFE liabilities need not responsibilities of manufacturers in rulemaking action has been determined other situations in which there have be satisfied solely through the payment to be significant under the Department’s of penalties, there is no imposition of an been changes in corporate relationships, regulatory policies and procedures, e.g., changes in control, are essentially unreasonable burden. given the public interest in the Further, to ensure that the agency a statement of our interpretation of the automotive fuel economy program. statute and reflect the same principles properly allocates CAFE credits and The new regulation does not create liabilities to the appropriate as the provisions relating to any new obligations, other than the predecessors and successors. Moreover, manufacturer in accordance with their obligation to file with NHTSA evidence corporate transaction, we have decided as a practical matter, the acquiring of a contractual relationship allocating corporations most likely to be affected to include in the regulation a provision CAFE credits and liabilities among similar to that used in many of our by this regulation are not small various parties exercising control over businesses. Federal Motor Vehicle Safety Standards the manufacture of a fleet of vehicles. It (FMVSS). New or upgraded FMVSS expands upon the same positions C. National Environmental Policy Act often include a ‘‘phase-in’’ schedule concerning predecessors and successors NHTSA has analyzed this rule for the during which the standard becomes as we have previously taken in purposes of the National Environmental applicable to an increasing percentage interpretation letters by permitting Policy Act and determined that it does of each manufacturer’s new vehicle existing credits to be used to satisfy the not have any significant impact on the fleet. The agency has accounted for existing liabilities of either party to a quality of the human environment. corporate transactions in this context by transaction establishing a successor/ providing that a vehicle will be predecessor relationship. D. Executive Order 13132 (Federalism) attributable as between manufacturers As discussed earlier in this notice, if The agency has analyzed this in accordance with express written we did not adopt regulations governing rulemaking action in accordance with contracts submitted to NHTSA. (See, the use of CAFE credits by predecessors the principles and criteria set forth in e.g., FMVSS 225 § 14.2.2 and 49 CFR and successors, a predecessor’s unused Executive Order 13132 and has part 596.6(b)(3)). credits would simply expire, since the determined that it does not have We have included a similar provision only manufacturer that could use them sufficient federalism implications to in this Final Rule to help the agency would no longer exist. Similarly, there warrant consultation with State and identify when a corporate transaction would be no way of offsetting a local officials or the preparation of a has resulted in the transfer of rights and predecessor’s remaining CAFE shortfalls federalism summary impact statement. responsibilities between manufacturers. in the absence of some provision The rule has no substantial effects on To effect the corporate transaction, concerning successors. The successor the States, or on the current Federalism- manufacturers are to submit a certified would thus be required to pay the State relationship, or on the current report to the agency stating that the predecessor’s penalties, a responsibility distribution of power and transaction has or will transfer which it assumed with the rest of the responsibilities among the various local controlling stock interest or otherwise predecessor’s obligations, but would officials. vest a new corporate entity with control have no ability to earn future credits to over the design, production or sales of offset the predecessor’s shortfalls. E. Unfunded Mandates Act automobiles manufactured by another To address this inequity, the The Unfunded Mandates Reform Act manufacturer. regulation gives the successor all the of 1995 requires agencies to prepare a
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written assessment of the costs, benefits includes a provision requiring the 534.6 Reporting corporate transactions. and other effects of proposed or final submission of agreements between 535.7 Situations not directly addressed by rules that include a Federal mandate companies in certain circumstances. this part. likely to result in the expenditure by H. Regulation Identifier Number (RIN) Authority: 49 U.S.C. 32901; delegation of State, local or tribal governments, in the authority at 49 CFR 1.50. aggregate, or by the private sector, of The Department of Transportation § 534.1 Scope. more than $100 million annually assigns a regulation identifier number (adjusted for inflation with base year of (RIN) to each regulatory action listed in This part defines the rights and 1995). The rule does not result in the the Unified Agenda of Federal responsibilities of manufacturers in the expenditure by State, local or tribal Regulations. The Regulatory Information context of changes in corporate governments, in the aggregate, or by the Service Center publishes the Unified relationships for purposes of the private sector, of more than $100 Agenda in April and October of each automotive fuel economy program million annually. year. You may use the RIN contained in established by 49 U.S.C. Chapter 329. the heading at the beginning of this F. Executive Order 12778 (Civil Justice document to find this action in the § 534.2 Applicability. Reform) Unified Agenda. This part applies to manufacturers of passenger automobiles and non- This rule does not have any I. Executive Order 13045 retroactive effect. However, as we noted passenger automobiles. Executive Order 13045 (62 FR 19885, in the NPRM, we would, as a practical § 534.3 Definitions. matter, consider the regulation in any April 23, 1997) applies to any rule that: enforcement action regarding (1) Is determined to be ‘‘economically (a) Statutory definitions and terms. predecessors and successors that significant’’ as defined under E.O. All terms used in 49 U.S.C. Chapter 329 involved conduct that occurred before 12866, and (2) concerns an are used according to their statutory the regulation became effective. environmental, health or safety risk that meaning. As discussed earlier, the regulation NHTSA has reason to believe may have (b) As used in this part— does not create any new obligations but a disproportionate effect on children. ‘‘Control relationship’’ means the expands the same positions concerning This regulatory action does not meet relationship that exists between predecessors and successors as we have either of those criteria. manufacturers that control, are controlled by, or are under common previously taken in interpretation letters J. National Technology Transfer and control with, one or more other and have previously applied in our Advancement Act administration of the statute. If we did manufacturers. Section 12(d) of the National not adopt special provisions governing ‘‘Predecessor’’ means a manufacturer Technology Transfer and Advancement the use of CAFE credits by predecessors whose rights have been vested in and Act (NTTAA) requires NHTSA to and successors, a predecessor’s unused whose burdens have been assumed by evaluate and use existing voluntary credits would simply expire, since the another manufacturer. consensus standards 7 in its regulatory only manufacturer that could use them ‘‘Successor’’ means a manufacturer activities unless doing so would be would no longer exist. Similarly, there that has become vested with the rights inconsistent with applicable law (e.g., would be no way of offsetting a and assumed the burdens of another the statutory provisions regarding predecessor’s remaining CAFE shortfalls manufacturer. NHTSA’s vehicle safety authority) or in the absence of some provision otherwise impractical. This requirement § 534.4 Successors and predecessors. concerning successors. is not relevant to this rulemaking action. The rule addresses this inequity and For purposes of the automotive fuel gives the successor all the rights the List of Subjects in 49 CFR Part 534 economy program, ‘‘manufacturer’’ includes ‘‘predecessors’’ and predecessor had with respect to credits. Fuel economy, Motor vehicles. We would similarly consider the ‘‘successors’’ to the extent specified in regulation in any enforcement action I In consideration of the foregoing, paragraphs (a) through (d) of this regarding other situations in which chapter V of title 49 of the Code of section. there have been changes in corporate Federal Regulations is amended by (a) Successors are responsible for any relationships, e.g., changes in control, adding a new Part 534 to read as follows: civil penalties that arise out of fuel economy shortfalls incurred and not that involved conduct that occurred PART 534—RIGHTS AND before the regulation became effective. satisfied by predecessors. RESPONSIBILITIES OF (b) If one manufacturer has become However, the provisions are essentially MANUFACTURERS IN THE CONTEXT a statement of our interpretation of the the successor of another manufacturer OF CHANGES IN CORPORATE during a model year, all of the vehicles statute. RELATIONSHIPS States are preempted from produced by those manufacturers promulgating laws and regulations 534.1 Scope. during the model year are treated as contrary to the provisions of this rule. 534.2 Applicability. though they were manufactured by the The rule does not require submission of 534.3 Definitions. same manufacturer. A manufacturer is a petition for reconsideration or other 534.4 Successors and predecessors. considered to have become the administrative proceedings before 534.5 Manufacturers within control successor of another manufacturer relationships. parties may file suit in court. during a model year if it is the successor on September 30 of the corresponding G. Paperwork Reduction Act 7 Voluntary consensus standards are technical calendar year and was not the successor standards developed or adopted by voluntary The agency has prepared the consensus standards bodies. Technical standards for the preceding model year. necessary paperwork under the are defined by the NTTAA as ‘‘performance-based (c) Credits earned by a predecessor Paperwork Reduction Act and or design-specific technical specifications and may be used by a successor, subject to related management systems practices.’’ They submitted it to the Office of pertain to ‘‘products and processes, such as size, availability of the credits and the Management and Budget. PRA clearance strength, or technical performance of a product, general three-year restriction on is necessary because the final regulation process or material.’’ carrying credits forward and the general
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three-year restriction on carrying credits transfers rights and responsibilities This action is necessary to make backward. between them such that one available to U.S. fishermen a fishing (d) Credits earned by a successor may manufacturer has assumed a controlling privilege on an equitable basis. be used to offset a predecessor’s stock ownership or control over the DATES: All fish quotas and the effort shortfall, subject to availability of the design, production or sale of vehicles. allocation are effective January 1, 2005, credits and the general three-year The report must also specify the first through December 31, 2005. Expressions restriction on carrying credits backward. full model year to which the transaction of interest regarding U.S. fish quota will apply. § 534.5 Manufacturers within control allocations for all species except 3L relationships. (b) Each report shall— shrimp will be accepted throughout (i) Identify each manufacturer; 2005. Expressions of interest regarding (a) If a civil penalty arises out of a fuel (ii) State the full name, title, and the U.S. 3L shrimp quota allocation and economy shortfall incurred by a group address of the official responsible for the 3M shrimp effort allocation will be of manufacturers within a control preparing the report; accepted through January 12, 2005. relationship, each manufacturer within (iii) Identify the production year being that group is jointly and severally liable ADDRESSES: Expressions of interest reported on; regarding the U.S. effort allocation and for the civil penalty. (iv) Be written in the English (b) A manufacturer is considered to be quota allocations should be made in language; and writing to Patrick E. Moran in the NMFS within a control relationship for an (v) Be submitted to: Administrator, entire model year if and only if it is Office of Sustainable Fisheries, at 1315 National Highway Traffic Safety East-West Highway, Silver Spring, MD within that relationship on September Administration, 400 Seventh Street, 30 of the calendar year in which the 20910 (phone: 301–713–2276, fax: 301– SW., Washington, DC 20590. 713–2313, e-mail: model year ends. (c) The manufacturers may seek (c) Credits of a manufacturer within a [email protected]). confidential treatment for information control relationship may be used by the Information relating to NAFO fish provided in the certified report in group of manufacturers within the quotas, NAFO Conservation and accordance with 49 CFR part 512. control relationship to offset shortfalls, Enforcement Measures, and the High subject to the agreement of the other § 534.7 Situations not directly addressed Seas Fishing Compliance Act (HSFC) manufacturers, the availability of the by this part. Permit is available from Sarah McLaughlin, at the NMFS Northeast credits, and the general three-year To the extent that this part does not Regional Office at One Blackburn Drive, restriction on carrying credits forward directly address an issue concerning the Gloucester, Massachusetts 01930 or backward. rights and responsibilities of (phone: 978–281–9279, fax: 978–281– (d) If a manufacturer within a group manufacturers in the context of a change 9135, e-mail: of manufacturers is sold or otherwise in corporate relationships, the agency [email protected]) and from spun off so that it is no longer within will make determinations based on NAFO on the World Wide Web at that control relationship, the interpretation of the statute and the http://www.nafo.ca. manufacturer may use credits that were principles reflected in the part. earned by the group of manufacturers FOR FURTHER INFORMATION CONTACT: Issued on: December 20, 2004. within the control relationship while Patrick E. Moran, 301–713–2276. the manufacturer was within that Jeffrey W. Runge, SUPPLEMENTARY INFORMATION: Administrator. relationship, subject to the agreement of Background the other manufacturers, the availability [FR Doc. 04–28237 Filed 12–27–04; 8:45 am] of the credits and the general restriction BILLING CODE 4910–59–P NAFO has established and maintains on carrying credits forward or conservation measures in its Regulatory backward. Area that include one effort limitation (e) Agreements among manufacturers DEPARTMENT OF COMMERCE fishery as well as fisheries with total in a control relationship related to the allowable catches (TACs) and member allocation of credits or liabilities National Oceanic and Atmospheric nation quota allocations. The principal addressed by this section shall be filed Administration species managed are cod, flounder, with the agency within 60 days of the redfish, American plaice, halibut, end of each model year in the same form 50 CFR Part 300 capelin, shrimp, and squid. At the 2004 NAFO Annual Meeting, the United as specified in section 534.6. The [I.D. 122104C] manufacturers may seek confidential States received fish quota allocations for treatment for information provided in Notification of U.S. Fish Quotas and an three NAFO stocks and an effort the certified report in accordance with Effort Allocation in the Northwest allocation for one NAFO stock to be 49 CFR Part 512. Atlantic Fisheries Organization (NAFO) fished during 2005. The species, Regulatory Area location, and allocation (in metric tons § 534.6 Reporting corporate transactions. or effort) of these U.S. fishing Manufacturers who have entered into AGENCY: National Marine Fisheries opportunities, as found in Annexes I.A, written contracts transferring rights and Service (NMFS), National Oceanic and I.B, and I.C of the 2005 NAFO responsibilities such that a different Atmospheric Administration (NOAA), Conservation and Enforcement manufacturer owns the controlling stock Commerce. Measures, are as follows: or exerts control over the design, ACTION: Final rule; notification of U.S. (1) Redfish NAFO Division 3M 69 mt production or sale of automobiles to fish quotas and an effort allocation. (2) Squid NAFO Subareas 3 453 mt which a Corporate Average Fuel (Illex) & 4 Economy standard applies shall report SUMMARY: NMFS announces that fish (3) Shrimp NAFO Division 3L 144 mt the contract to the agency as follows: quotas and an effort allocation are (4) Shrimp NAFO Division 3M 1 vessel/ (a) The manufacturers must file a available for harvest by U.S. fishermen 100 days certified report with the agency in the Northwest Atlantic Fisheries Additionally, U.S. vessels may be affirmatively stating that the contract Organization (NAFO) Regulatory Area. authorized to fish any available portion
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of the 1,000 mt allocation of oceanic U.S. 3M Effort Allocation outlined in the NAFO Convention and redfish in NAFO Subarea 2 and Expressions of interest in harvesting Conservation and Enforcement Divisions 1F and 3K allocated to NAFO the U.S. portion of the 2005 NAFO 3M Measures including, but not limited to, members that are not also members of shrimp effort allocation (1 vessel/100 submission of the following reports to the Northeast Atlantic Fisheries days) will be considered from owners of the NAFO Executive Secretary: Commission. Fishing opportunities may U.S. vessels in possession of a valid provisional monthly catches within 30 also be authorized for U.S. fishermen in days following the calendar month in HSFC permit. All expressions of interest the ‘‘Others’’ category for: Division which the catches were made; should be directed in writing to Patrick 3LNO yellowtail flounder (76 mt); provisional daily catches of shrimp E. Moran (see ADDRESSES). Division 3NO white hake (500 mt); taken from Division 3L; provisional Letters of interest from U.S. vessel Division 3LNO skates (500 mt); and monthly fishing days in Division 3M owners should include the name, Division 3O redfish (100 mt). within 30 days following the calendar registration and home port of the Procedures for obtaining NMFS month in which the catches were made; applicant vessel as required by NAFO in authorization are specified below. observer reports within 30 days advance of fishing operations. In the following the completion of a fishing U.S. Fish Quota Allocations event that multiple expressions of trip; and an annual statement of actions Expressions of interest to fish for any interest are made by U.S. vessel owners, taken in order to comply with the NAFO or all of the U.S. fish quota allocations NMFS may promulgate regulations Convention. Furthermore, the United and ‘‘Others’’ category allocations in designed to choose one U.S. applicant States may also consider a Contracting NAFO will be considered from U.S. from among expressions of interest. Party’s previous compliance with the vessels in possession of a valid High NAFO Conservation and Management NAFO incidental catch limits, as Seas Fishing Compliance (HSFC) Measures outlined in the NAFO Conservation and permit, which is available from the Enforcement Measures, before entering Relevant NAFO Conservation and NMFS Northeast Regional Office (see into a chartering arrangement. ADDRESSES). All expressions of interest Enforcement Measures include, but are Expressions of interest from U.S. should be directed in writing to Patrick not limited to, maintenance of a fishing fishing interests intending to make use E. Moran (see ADDRESSES). Letters of logbook with NAFO-designated entries; of vessels from another NAFO interest from U.S. vessel owners should adherence to NAFO hail system Contracting Party under chartering include the name, registration, and requirements; presence of an on-board arrangements should include home port of the applicant vessel as observer; deployment of a functioning, information required by NAFO required by NAFO in advance of fishing autonomous vessel monitoring system; regarding the proposed chartering operations. In addition, any available and adherence to all relevant minimum operation, including: the name, information on intended target species size, gear, bycatch, and other registration and flag of the intended and dates of fishing operations should requirements. Further details regarding vessel; a copy of the charter; the fishing be included. To ensure equitable access these requirements are available from opportunities granted; a letter of consent by U.S. vessel owners, NMFS may the NMFS Northeast Regional Office, from the vessel’s flag state; the date from promulgate regulations designed to and can also be found in the current which the vessel is authorized to choose one or more U.S. applicants from NAFO Conservation and Enforcement commence fishing on these among expressions of interest. Measures on the Internet (see opportunities; and the duration of the Note that vessels issued valid HSFC ADDRESSES). charter (not to exceed six months). More permits under 50 CFR part 300 are Chartering Arrangements details on NAFO requirements for exempt from multispecies permit, mesh chartering operations are available from size, effort-control, and possession limit In the event that no adequate NMFS (see ADDRESSES). In addition, restrictions, specified in 50 CFR parts expressions of interest in harvesting the expressions of interest for chartering 648.4, 648.80, 648.82 and 648.86, U.S. portion of the 2005 NAFO 3L operations should be accompanied by a respectively, while transiting the U.S. shrimp quota allocation and/or 3M detailed description of anticipated exclusive economic zone (EEZ) with shrimp effort allocation are made on benefits to the United States. Such multispecies on board the vessel, or behalf of U.S. vessels, expressions of benefits might include, but are not landing multispecies in U.S. ports that interest will be considered from U.S. limited to, the use of U.S. processing were caught while fishing in the NAFO fishing interests intending to make use facilities/personnel; the use of U.S. Regulatory Area, provided: of vessels of other NAFO Parties under fishing personnel; other specific (1) The vessel operator has a letter of chartering arrangements to fish the 2005 positive effects on U.S. employment; authorization issued by the Regional U.S. quota allocation for 3L shrimp and/ evidence that fishing by the chartered Administrator on board the vessel; or the effort allocation for 3M shrimp. vessel actually would take place; and (2) For the duration of the trip, the Under NAFO rules in effect through documentation of the physical vessel fishes, except for transiting 2005, a vessel registered to another characteristics and economics of the purposes, exclusively in the NAFO NAFO Contracting Party may be fishery for future use by the U.S. fishing Regulatory Area and does not harvest chartered to fish the U.S. effort industry. fish in, or possess fish harvested in, or allocation provided that written consent In the event that multiple expressions from, the U.S. EEZ; for the charter is obtained from the of interest are made by U.S. fishing (3) When transiting the U.S. EEZ, all vessel’s flag state and the U.S. allocation interests proposing the use of chartering gear is properly stowed in accordance is transferred to that flag state. NAFO operations, the information submitted with one of the applicable methods Parties must be notified of such a regarding benefits to the United States specified in 50 CFR part 648.23(b); and chartering operation through a mail will be used in making a selection. In (4) The vessel operator complies with notification process. the event that applications by U.S. the HSFC permit and all NAFO A NAFO Contracting Party wishing to fishing interests proposing the use of conservation and enforcement measures enter into a chartering arrangement with chartering operations are considered, all while fishing in the NAFO Regulatory the United States must be in full current applicants will be made aware of the Area. compliance with the requirements allocation decision as soon as possible.
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Once the allocation has been awarded Federal fisheries permit for the summer determine when a state’s commercial for use in a chartering operation, NMFS flounder fishery may not land summer quota has been harvested. NMFS then will immediately take appropriate steps flounder in North Carolina for the publishes a notification in the Federal to notify NAFO and transfer the U.S. 3L remainder of calendar year 2004, unless Register to advise the state and to notify shrimp quota allocation and/or the 3M additional quota becomes available Federal vessel and dealer permit holders shrimp effort allocation to the through a transfer. Regulations that, effective upon a specific date, the appropriate Contracting Party. governing the summer flounder fishery state’s commercial quota has been After reviewing all requests for require publication of this notification harvested and no commercial quota is allocations submitted, NMFS may to advise North Carolina that the quota available for landing summer flounder decide not to grant any allocations if it has been harvested and to advise vessel in that state. The Regional is determined that no requests meet the permit holders and dealer permit Administrator has determined, based criteria described in this notice. All holders that no commercial quota is upon dealer reports and other available individuals/companies submitting available for landing summer flounder information, that North Carolina has expressions of interest to NMFS will be in North Carolina. harvested its quota for 2004. contacted if an allocation has been DATES: Effective 1800 hours, December The regulations at § 648.4(b) provide awarded. Please note that if the U.S. 26, 2004, through 2400 hours, December that Federal permit holders agree, as a portion of the 2005 NAFO 3L shrimp 31, 2004. quota allocation and/or 3M shrimp condition of the permit, not to land FOR FURTHER INFORMATION CONTACT: summer flounder in any state that the effort allocation is awarded to a U.S. Jason Blackburn, Fishery Management vessel or a specified chartering Regional Administrator has determined Specialist, (978) 281–9326, e-mail no longer has commercial quota operation, it may not be transferred [email protected]. without the express, written consent of available. Therefore, effective 1800 NMFS. SUPPLEMENTARY INFORMATION: hours, December 26, 2004, through 2400 Regulations governing the summer hours, December 31, 2004, further Dated: December 22, 2004. flounder fishery are found at 50 CFR landings of summer flounder in North John H. Dunnigan, part 648. The regulations require annual Carolina by vessels holding summer Director, Office of Sustainable Fisheries, specification of a commercial quota that flounder commercial Federal fisheries National Marine Fisheries Service. is apportioned on a percentage basis permits are prohibited for the remainder [FR Doc. 04–28366 Filed 12–27–04; 8:45 am] among the coastal states from North of the 2004 calendar year, unless BILLING CODE 3510–22–S Carolina through Maine. The process to additional quota becomes available set the annual commercial quota and the through a transfer and is announced in percent allocated to each state is DEPARTMENT OF COMMERCE the Federal Register. Effective 1800 described in § 648.100. hours, December 26, 2004, through 2400 The initial total commercial quota for National Oceanic and Atmospheric hours, December 31, 2004, federally summer flounder for the 2004 calendar Administration permitted dealers are also notified that year was set equal to 16,920,000 lb they may not purchase summer flounder (7,674,862 kg) (69 FR 2074, January 14, 50 CFR Part 648 from federally permitted vessels that 2004). The percent allocated to vessels land in North Carolina for the remainder [Docket No. 031119283–4001–02; I.D. landing summer flounder in North of the calendar year, or until additional 122204F] Carolina is 27.44584 percent, resulting quota becomes available through a in a commercial quota of 4,643,836 lb transfer. Fisheries of the Northeastern United (2,106,430 kg). The adjusted 2004 States; Summer Flounder Fishery; allocation was reduced to 4,163,464 lb Classification Commercial Quota Harvested for North (1,888,535 kg) due to research set-aside Carolina and quota overages from 2003. However, This action is required by 50 CFR part 648 and is exempt from review under AGENCY: on March 9, 2004 (69 FR 10937), NMFS National Marine Fisheries E.O. 12866. Service (NMFS), National Oceanic and published notification of a commercial Atmospheric Administration (NOAA), quota restoration of 451,595 lb (204,842 Authority: 16 U.S.C. 1801 et seq. Commerce. kg) to North Carolina increasing the Dated: December 22, 2004. ACTION: Closure of commercial fishery. commercial quota to 4,615,059 lb (2,093,377 kg). Alan D. Risenhoover, SUMMARY: NMFS announces that the Section 648.101(b) requires the Acting Director, Office of Sustainable summer flounder commercial quota Administrator, Northeast Region, NMFS Fisheries, National Marine Fisheries Service. available to North Carolina has been (Regional Administrator) to monitor [FR Doc. 04–28365 Filed 12–22–04; 1:48 pm] harvested. Vessels issued a commercial state commercial quotas and to BILLING CODE 3510–22–S
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Proposed Rules Federal Register Vol. 69, No. 248
Tuesday, December 28, 2004
This section of the FEDERAL REGISTER • Mail: Docket Management Facility, comments on the overall regulatory, contains notices to the public of the proposed U.S. Department of Transportation, 400 economic, environmental, and energy issuance of rules and regulations. The Seventh Street SW., Nassif Building, aspects of the proposed AD. We will purpose of these notices is to give interested room PL–401, Washington, DC 20590. consider all comments submitted by the persons an opportunity to participate in the • By fax: (202) 493–2251. closing date and may amend the rule making prior to the adoption of the final • rules. Hand Delivery: Room PL–401 on proposed AD in light of those the plaza level of the Nassif Building, comments. 400 Seventh Street SW., Washington, We will post all comments we DEPARTMENT OF TRANSPORTATION DC, between 9 a.m. and 5 p.m., Monday receive, without change, to http:// through Friday, except Federal holidays. dms.dot.gov, including any personal Federal Aviation Administration For service information identified in information you provide. We will also this proposed AD, contact Boeing post a report summarizing each 14 CFR Part 39 Commercial Airplanes, P.O. Box 3707, substantive verbal contact with FAA Seattle, Washington 98124–2207. personnel concerning this proposed AD. [Docket No. FAA–2004–19943; Directorate You can examine the contents of this Using the search function of that Identifier 2004–NM–76–AD] AD docket on the Internet at http:// website, anyone can find and read the comments in any of our dockets, RIN 2120–AA64 dms.dot.gov, or in person at the Docket Management Facility, U.S. Department including the name of the individual Airworthiness Directives; Boeing of Transportation, 400 Seventh Street who sent the comment (or signed the Model 757–200 Series Airplanes SW., room PL–401, on the plaza level of comment on behalf of an association, the Nassif Building, Washington, DC. business, labor union, etc.). You can AGENCY: Federal Aviation This docket number is FAA–2004– review DOT’s complete Privacy Act Administration (FAA), DOT. 19943; the directorate identifier for this Statement in the Federal Register ACTION: Notice of proposed rulemaking docket is 2004–NM–76–AD. published on April 11, 2000 (65 FR (NPRM). FOR FURTHER INFORMATION CONTACT: 19477–78), or you can visit http:// Technical information: Binh Tran, dms.dot.gov. SUMMARY: The FAA proposes to adopt a We are reviewing the writing style we Aerospace Engineer, Systems and new airworthiness directive (AD) for currently use in regulatory documents. Equipment Branch, ANM–130S, FAA, certain Boeing Model 757–200 series We are interested in your comments on Seattle Aircraft Certification Office, airplanes. This proposed AD would whether the style of this document is 1601 Lind Avenue, SW., Renton, require modifying the wiring of the test clear, and your suggestions to improve Washington 98055–4056; telephone ground signal for the master dim and the clarity of our communications that (425) 917–6485; fax (425) 917–6590. test system circuit in the flight affect you. You can get more Plain language information: Marcia compartment. This proposed AD is information about plain language at Walters, [email protected]. prompted by a report that the master http://www.faa.gov/language and http:// dim and test system circuit does not SUPPLEMENTARY INFORMATION: www.plainlanguage.gov. have wiring separation of the test Docket Management System (DMS) Examining the Docket ground signal for redundant equipment The FAA has implemented new in the flight compartment. We are You can examine the AD docket on procedures for maintaining AD dockets proposing this AD to prevent a single the Internet at http://dms.dot.gov, or in electronically. As of May 17, 2004, new fault failure during flight, which could person at the Docket Management AD actions are posted on DMS and result in test patterns instead of the Facility office between 9 a.m. and 5 assigned a docket number. We track selected radio frequencies showing on p.m., Monday through Friday, except each action and assign a corresponding the communications panel. These Federal holidays. The Docket directorate identifier. The DMS AD conditions could adversely affect voice Management Facility office (telephone docket number is in the form ‘‘Docket and transponder communication (800) 647–5227) is located on the plaza No. FAA–2004–99999.’’ The Transport capability between the flightcrew and level of the Nassif Building at the DOT Airplane Directorate identifier is in the air traffic control, which could result in street address stated in the ADDRESSES form ‘‘Directorate Identifier 2004–NM– increased pilot workload. section. Comments will be available in 999–AD.’’ Each DMS AD docket also the AD docket shortly after the DMS DATES: We must receive comments on lists the directorate identifier (‘‘Old receives them. this proposed AD by February 11, 2005. Docket Number’’) as a cross-reference ADDRESSES: Use one of the following for searching purposes. Discussion addresses to submit comments on this We have received a report indicating proposed AD. Comments Invited that the master dim and test system • DOT Docket Web site: Go to We invite you to submit any relevant circuit does not have wiring separation http://dms.dot.gov and follow the written data, views, or arguments of the test ground signal for redundant instructions for sending your comments regarding this proposed AD. Send your equipment in the flight compartment on electronically. comments to an address listed under certain Boeing Model 757–200 series • Government-wide rulemaking Web ADDRESSES. Include ‘‘Docket No. FAA– airplanes. This condition could allow a site: Go to http://www.regulations.gov 2004–19943; Directorate Identifier single fault to simulate a test condition and follow the instructions for sending 2004–NM–76–AD’’ in the subject line of in the annunciators, switches, and your comments electronically. your comments. We specifically invite displays in the flight compartment. A
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single fault failure could also simulate promoting safety flight of civil aircraft Applicability a test condition on the communications in air commerce by prescribing (c) This AD applies to certain Boeing panels and show test patterns instead of regulations for practices, methods, and Model 757–200 series airplanes, certificated the selected radio frequencies. The procedures the Administrator finds in any category. flightcrew must be aware of the selected necessary for safety in air commerce. radio frequencies used to communicate This regulation is within the scope of Unsafe Condition with air traffic control. If test patterns that authority because it addresses an (d) This AD was prompted by a report that show on the communications panel unsafe condition that is likely to exist or the master dim and test system circuit does during flight, it could adversely affect develop on products identified in this not have wiring separation of the test ground voice and transponder communication AD. signal for redundant equipment in the flight capability between the flightcrew and compartment. We are issuing this AD to Regulatory Findings air traffic control, which could result in prevent a single fault failure during flight increased pilot workload. We have determined that this AD will which could result in test patterns instead of not have federalism implications under the selected radio frequencies showing on the Relevant Service Information Executive Order 13132. This AD will communications panel. These conditions We have reviewed Boeing Service not have a substantial direct effect on could adversely affect voice and transponder Bulletin 757–33–0050, Revision 2, dated the States, on the relationship between communication capability between the December 4, 2003. The service bulletin the national government and the States, flightcrew and air traffic control, which describes procedures for modifying the or on the distribution of power and could result in increased pilot workload. wiring of the test ground signal for the responsibilities among the various Compliance master dim and test system circuit in levels of government. the flight compartment. The For the reasons discussed above, I (e) You are responsible for having the modification includes an operational certify that the proposed regulation: actions required by this AD performed within test. Accomplishing the actions 1. Is not a ‘‘significant regulatory the compliance times specified, unless the actions have already been done. specified in the service information is action’’ under Executive Order 12866; intended to adequately address the 2. Is not a ‘‘significant rule’’ under the Modification unsafe condition. DOT Regulatory Policies and Procedures (f) Within 60 months after the effective (44 FR 11034, February 26, 1979); and FAA’s Determination and Requirements date of this AD: Modify the wiring of the test 3. Will not have a significant of the Proposed AD ground signal for the master dim and test economic impact, positive or negative, system circuit in the flight compartment by We have evaluated all pertinent on a substantial number of small entities doing all the applicable actions specified in information and identified an unsafe under the criteria of the Regulatory Boeing Service Bulletin 757–33–0050, condition that is likely to exist or Flexibility Act. Revision 2, dated December 4, 2003. develop on other airplanes of this same We prepared a regulatory evaluation type design. Therefore, we are of the estimated costs to comply with Modifications Done Using Previous Issues of proposing this AD, which would require this proposed AD. See the ADDRESSES the Service Bulletin accomplishing the actions specified in section for a location to examine the (g) Modifications done before the effective the service information described regulatory evaluation. date of this AD in accordance with Boeing previously. Service Bulletin 757–33–0050, dated August List of Subjects in 14 CFR Part 39 15, 2002; or Revision 1, dated January 30, Costs of Compliance Air transportation, Aircraft, Aviation 2003; are considered acceptable for There are about 55 airplanes of the safety, Safety. compliance with paragraph (f) of this AD. affected design worldwide, and 30 airplanes of U.S. registry. The proposed The Proposed Amendment Alternative Methods of Compliance (AMOCs) modification (including the operational Accordingly, under the authority test) would take between 2 and 3 work delegated to me by the Administrator, (h) The Manager, Seattle Aircraft hours, depending on the airplane the FAA proposes to amend 14 CFR part Certification Office, FAA, has the authority to configuration, at an average labor rate of 39 as follows: approve AMOCs for this AD, if requested in $65 per work hour. Required parts cost accordance with the procedures found in 14 would be minimal. Based on these PART 39—AIRWORTHINESS CFR 39.19. figures, the estimated cost of the DIRECTIVES Issued in Renton, Washington, on proposed modification for U.S. 1. The authority citation for part 39 December 7, 2004. operators is between $130 and $195 per continues to read as follows: Ali Bahrami, airplane. Authority: 49 U.S.C. 106(g), 40113, 44701. Manager, Transport Airplane Directorate, Authority for This Rulemaking Aircraft Certification Service. § 39.13 [Amended] The FAA’s authority to issue rules [FR Doc. 04–28250 Filed 12–27–04; 8:45 am] regarding aviation safety is found in 2. The FAA amends § 39.13 by adding BILLING CODE 4910–13–P Title 49 of the United States Code. the following new airworthiness Subtitle I, Section 106, describes the directive (AD): authority of the FAA Administrator. Boeing: Docket No. FAA–2004–19943; Subtitle VII, Aviation Programs Directorate Identifier 2004–NM–76–AD. describes in more detail the scope of the Comments Due Date agency’s authority. This rulemaking is promulgated (a) The Federal Aviation Administration (FAA) must receive comments on this AD under the authority described in action by February 11, 2005. Subtitle VII, Part A, Subpart III, Section 44701, ‘‘General requirements.’’ Under Affected ADs that section, the FAA is charged with (b) None.
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DEPARTMENT OF TRANSPORTATION Executive Park, Burlington, MA 01803– require removing the affected air turbine 5299; telephone (781) 238–7152; fax starters from service. This condition, if Federal Aviation Administration (781) 238–7199. not corrected, could result in SUPPLEMENTARY INFORMATION: uncontained failures of air turbine 14 CFR Part 39 starters, which could result in damage Comments Invited [Docket No. FAA–2004–19928; Directorate to the airplane. Identifier 2004–NE–27–AD] We invite you to submit any written relevant data, views, or arguments Relevant Service Information RIN 2120–AA64 regarding this proposal. Send your We have reviewed and approved the comments to an address listed under technical contents of: Airworthiness Directives; CFM ADDRESSES. Include ‘‘Docket No. FAA– • CFMI Service Bulletin (SB) No. International (CFMI) CFM56–5, –5A, 2004–19928; Directorate Identifier (CFM56–5) 80–0018, Revision 1, dated –5B, and –5C Series Turbofan Engines 2004–NE–27–AD’’ in the subject line of November 26, 2003. • AGENCY: Federal Aviation your comments. We specifically invite CFMI SB No. (CFM56–5) 80–0020, Administration (FAA), DOT. comments on the overall regulatory, Revision 1, dated November 26, 2003. • CFMI SB No. (CFM56–5B) 80–0011, ACTION: Notice of proposed rulemaking economic, environmental, and energy Revision 1, dated November 26, 2003. (NPRM). aspects of the proposed AD. We will consider all comments received by the • CFMI SB No. (CFM56–5C) 80–0013, SUMMARY: The FAA proposes to adopt a closing date and may amend the Revision 1, dated November 26, 2003. new airworthiness directive (AD) for proposed AD in light of those These service bulletins describe CFM International (CFMI) CFM56–5, comments. procedures for removal of the air turbine –5A, –5B, and –5C series turbofan We will post all comments we starter. The DGAC classified these engines. This proposed AD would receive, without change, to http:// service bulletins as mandatory and require removing certain part number dms.dot.gov, including any personal issued airworthiness directive AD F– (P/N) air turbine starters from service. information you provide. We will also 2003–456, Revision 2, dated September This proposed AD results from several post a report summarizing each 29, 2004 in order to ensure the reports of failures of uncontained air substantive verbal contact with FAA airworthiness of these CFMI CFM56–5, turbine starters where high-energy personnel concerning this proposed AD. –5A, –5B, and –5C series turbofan particles were not contained within the Using the search function of the DMS engines in France. web site, anyone can find and read the containment feature of the starter. We Differences Between This Proposed AD comments in any of our dockets, are proposing this AD to prevent and the Manufacturer’s Service including the name of the individual uncontained failures of air turbine Information starters, which could result in damage who sent the comment (or signed the to the airplane. comment on behalf of an association, The manufacturer’s service information requires compliance with DATES: We must receive any comments business, labor union, etc.). You may the proposed requirements of this AD at on this proposed AD by February 28, review the DOT’s complete Privacy Act the next shop visit of the engine or the 2005. Statement in the Federal Register published on April 11, 2000 (65 FR next air turbine starter shop visit. This ADDRESSES: Use one of the following 19477–78) or you may visit http:// proposed AD only requires compliance addresses to submit comments on this dms.dot.gov. at the next air turbine starter shop visit. proposed AD. • DOT Docket Web site: Go to Examining the AD Docket FAA’s Determination and Requirements http://dms.dot.gov and follow the You may examine the docket that of the Proposed AD instructions for sending your comments contains the proposal, any comments These turbofan engines, manufactured electronically. received, and any final disposition in in France, are type-certificated for • Government-wide rulemaking Web person at the DMS Docket Offices operation in the United States under the site: Go to http://www.regulations.gov between 9 a.m. and 5 p.m., Monday provisions of section 21.29 of the and follow the instructions for sending through Friday, except Federal holidays. Federal Aviation Regulations (14 CFR your comments electronically. The Docket Office (telephone (800) 647– 21.29) and the applicable bilateral • Mail: Docket Management Facility; 5227) is on the plaza level of the airworthiness agreement. In keeping U.S. Department of Transportation, 400 Department of Transportation Nassif with this bilateral airworthiness Seventh Street, S.W., Nassif Building, Building at the street address stated in agreement, the DGAC kept us informed Room PL–401, Washington, DC 20590– ADDRESSES. Comments will be available of the situation described above. We 001. in the AD docket shortly after the DMS have examined the DGAC’s findings, • Fax: (202) 493–2251. receives them. reviewed all available information, and • Hand Delivery: Room PL–401 on determined that AD action is necessary Discussion the plaza level of the Nassif Building, for products of this type design that are 400 Seventh Street, SW., Washington, The Direction Generale de L’Aviation certificated for operation in the United DC, between 9 a.m. and 5 p.m., Monday Civile (DGAC), which is the States. We are proposing this AD, which through Friday, except Federal holidays. airworthiness authority for France, would require removing certain P/N air Contact CFM International, Technical notified us that an unsafe condition may turbine starters from service at the next Information Operation, One Neumann exist on CFMI CFM56–5, –5A, –5B, and turbine starter shop visit, but no later Way, Cincinnati; OH 45215–1988 for the –5C series turbofan engines. The DGAC than December 31, 2009. service information identified in this advises that several uncontained proposed AD. failures of certain P/N air turbine Costs of Compliance FOR FURTHER INFORMATION CONTACT: starters where high-energy particles There are about 3,579 CFMI CFM56– James Rosa, Aerospace Engineer, Engine were not contained within the 5, –5A, –5B, and –5C series turbofan Certification Office, FAA, Engine and containment feature of the starter have engines of the affected design in the Propeller Directorate, 12 New England occurred. This proposed AD would worldwide fleet. We estimate that this
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proposed AD would affect 600 air The Proposed Amendment alternative methods of compliance for this turbine starters installed on airplanes of AD if requested using the procedures found Under the authority delegated to me in 14 CFR 39.19. U.S. registry. We also estimate that it by the Administrator, the FAA proposes would take about 1 work hour per to amend 14 CFR part 39 as follows: Related Information engine to perform the proposed actions, (i) The following documents also pertain to and that the average labor rate is $65 per PART 39—AIRWORTHINESS the subject of this AD: work hour. Required parts would cost DIRECTIVES (1) Direction Generale de L’Aviation Civile about $5,000 per air turbine starter. (DGAC) AD F–2003–456, Revision 2, dated Based on these figures, we estimate the 1. The authority citation for part 39 September 29, 2004. total cost of the proposed AD to U.S. continues to read as follows: (2) CFM International (CFMI) Service operators to be $3,039,000. Authority: 49 U.S.C. 106(g), 40113, 44701. Bulletin (SB) No. (CFM56–5) 80–0018, Revision 1, dated November 26, 2003. Authority for This Rulemaking § 39.13 [Amended] (3) CFMI SB No. (CFM56–5) 80–0020, Title 49 of the United States Code 2. The Federal Aviation Revision 1, dated November 26, 2003. (4) CFMI SB No. (CFM56–5B) 80–0011, specifies the FAA’s authority to issue Administration (FAA) amends § 39.13 by adding the following new Revision 1, dated November 26, 2003. rules on aviation safety. Subtitle I, (5) CFMI SB No. (CFM56–5C) 80–0013, Section 106, describes the authority of airworthiness directive (AD): Revision 1, dated November 26, 2003. the FAA Administrator. Subtitle VII, CFM International (CFMI): Docket No. FAA– Issued in Burlington, Massachusetts, on Aviation Programs, describes in more 2004–19928; Directorate Identifier 2004– December 16, 2004. detail the scope of the Agency’s NE–27–AD. Francis A. Favara, authority. Comments Due Date We are issuing this rulemaking under Acting Manager, Engine and Propeller (a) The Federal Aviation Administration Directorate, Aircraft Certification Service. the authority described in Subtitle VII, (FAA) must receive comments on this [FR Doc. 04–28384 Filed 12–27–04; 8:45 am] Part A, Subpart III, Section 44701, airworthiness directive (AD) action by BILLING CODE 4910–13–P ‘‘General requirements.’’ Under that February 28, 2005. section, Congress charges the FAA with promoting safe flight of civil aircraft in Affected ADs air commerce by prescribing regulations (b) None. DEPARTMENT OF THE TREASURY for practices, methods, and procedures Applicability Internal Revenue Service the Administrator finds necessary for (c) This AD applies to CFMI CFM56–5, safety in air commerce. This regulation –5A, –5B, and ‘‘5C series turbofan engines 26 CFR Part 1 is within the scope of that authority with air turbine starters, part numbers (P/Ns) because it addresses an unsafe condition VIN 3505582–24 (301–807–004–0), VIN [REG–114726–04] that is likely to exist or develop on 3505582–25 (301–807–005–0), VIN 3505582– products identified in this rulemaking 40 (301–781–203–0), VIN 3505582–41 (301– RIN 1545–BD23 action. 806–602–0), VIN 3505582–42 (301–806–802– 0), VIN 3505582–60 (301–790–903–0), VIN Distribution From a Pension Plan Regulatory Findings 3505582–61 (301–806–702–0), and VIN Under a Phased Retirement Program; 3505582–62 (301–806–902–0), installed. Hearing We have determined that this These engines are installed on, but not proposed AD would not have federalism limited to, Airbus A319, A320, A321, and AGENCY: Internal Revenue Service (IRS), implications under Executive Order A340 airplanes. Treasury. 13132. This proposed AD would not ACTION: Notice of public hearing on have a substantial direct effect on the Unsafe Condition proposed rulemaking. States, on the relationship between the (d) This AD results from several reports of failures of uncontained air turbine starters national Government and the States, or SUMMARY: This document contains a on the distribution of power and where high-energy particles were not contained within the containment feature of notice of public hearing on a proposed responsibilities among the various the starter. We are issuing this AD to prevent rulemaking that provide rules levels of government. uncontained failures of air turbine starters, permitting distributions to be made For the reasons discussed above, I which could result in damage to the airplane. from a pension plan under a phased certify that the proposed regulation: Compliance retirement program and set forth 1. Is not a ‘‘significant regulatory requirements for a bona fide phased action’’ under Executive Order 12866; (e) You are responsible for having the retirement program. 2. Is not a ‘‘significant rule’’ under the actions required by this AD performed within DATES: DOT Regulatory Policies and Procedures the compliance times specified unless the The public hearing is being held (44 FR 11034, February 26, 1979); and actions have already been done. on March 14, 2005, at 10 a.m. The IRS must receive outlines of the topics to be 3. Would not have a significant Removing Air Turbine Starters economic impact, positive or negative, discussed at the hearing by February 21, (f) At the next air turbine starter shop visit, 2005. on a substantial number of small entities but no later than December 31, 2009, remove under the criteria of the Regulatory any air turbine starter, that has a P/N ADDRESSES: The public hearing is be Flexibility Act. specified in this AD, from service. held in the Auditorium, Internal We prepared a summary of the costs Revenue Service Building, 1111 Prohibition of Air Turbine Starters Not Constitution Avenue, NW., Washington, to comply with this proposal and placed Reworked or Remarked it in the AD Docket. You may get a copy DC. Send submissions to: of this summary at the address listed (g) After the effective date of this AD, do CC:PA:LPD:PR (REG–114726–04), Room not install any air turbine starters, that have 5203, Internal Revenue Service, PO Box under ADDRESSES. a P/N specified in this AD, into any engine. 7604, Ben Franklin Station, Washington, List of Subjects in 14 CFR Part 39 Alternative Methods of Compliance DC 20044. Submissions may be hand Air transportation, Aircraft, Aviation (h) The Manager, Engine Certification delivered Monday through Friday safety, Safety. Office, has the authority to approve between the hours of 8 a.m. and 4 p.m.
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to CC:PA:LPD:PR (REG–114726–04), DEPARTMENT OF THE TREASURY to read ‘‘rules relating to health Courier’s Desk, Internal Revenue coverage.’’ Internal Revenue Service Service, 1111 Constitution Avenue NW., Cynthia E. Grigsby, Washington, DC, or sent electronically, 26 CFR Part 1 Acting Chief, Publications and Regulations via the IRS Internet site at http:// Branch, Legal Processing Division, Associate www.irs.gov/regs or via the Federal [REG–114726–04] Chief Counsel (Procedure and eRulemaking Portal at http:// Administration). RIN 1545–BD23 www.regulations.gov (IRS and REG– [FR Doc. 04–28329 Filed 12–27–04; 8:45 am] 114726–04). Distributions From a Pension Plan BILLING CODE 4830–01–P FOR FURTHER INFORMATION CONTACT: Under a Phased Retirement Program; Concerning the regulations, Cathy Vohs, Correction (202) 622–6090; concerning PENSION BENEFIT GUARANTY AGENCY: Internal Revenue Service (IRS), CORPORATION submissions, the hearing, and/or Treasury. placement on the building access list to ACTION: Correction to notice of proposed 29 CFR Parts 4000 and 4010 attend the hearing, Sonya M. Cruse of rulemaking. the Publications and Regulations RIN 1212–AB01 SUMMARY: Branch, Legal Processing Division, This document contains Electronic Filing—Annual Financial Associate Chief Counsel (Procedures corrections to a notice of proposed and Actuarial Information and Administration), at (202) 622–4693 rulemaking that was published in the (not toll-free numbers). Federal Register on November 10, 2004 AGENCY: Pension Benefit Guaranty (69 FR 65108), providing rules Corporation. SUPPLEMENTARY INFORMATION: permitting distributions to be made ACTION: Proposed rule. Background from a pension plan under a phased retirement program and set forth SUMMARY: This proposed rule would The subject of the public hearing is requirements for a bona fide phased require that certain identifying, the notice of proposed rulemaking retirement program. financial, and actuarial information be filed electronically in a standardized (REG–114726–04) that was published in FOR FURTHER INFORMATION CONTACT: format. In addition, the proposed rule the Federal Register on Wednesday, Cathy A. Vohs (202) 622–6090 (not a would require the filing of additional November 10, 2004 (69 FR 65108). toll-free number). items of supporting information that are The rules of 26 CFR 601.601(a)(3) SUPPLEMENTARY INFORMATION: readily available to the filer. Finally, the apply to the hearing. Background proposed rule would require a filer for Persons who have submitted written the previous year who does not believe The notice of proposed rulemaking comments and wish to present oral a filing is required for the current year (REG–114726–04) that is the subject of comments at the hearing, must submit to demonstrate why there is no current this correction is under section 401(a) of filing requirement. The proposed rule an outline of the topics to be discussed the Internal Revenue Code. and the amount of time to be devoted would benefit filers by streamlining the to each topic (signed original and eight Need for Correction filing process and would enhance the PBGC’s ability to effectively administer (8) copies) by February 21, 2005. As published, REG–114726–04 the pension insurance program. A period of 10 minutes is allotted to contains errors that may prove to be DATES: Comments must be received on each person for presenting oral misleading and are in need of clarification. or before January 27, 2005. See ‘‘30-day comments. comment period’’ below. After the deadline for receiving Correction of Publication ADDRESSES: Comments may be mailed to outlines has passed, the IRS will Accordingly, the publication of the the Office of the General Counsel, prepare an agenda containing the notice of proposed rulemaking (REG– Pension Benefit Guaranty Corporation, schedule of speakers. Copies of the 114726–04), that was the subject of FR 1200 K Street, NW., Washington, DC agenda will be made available, free of Doc. 04–24874, is corrected as follows: 20005–4026, or delivered to Suite 340 at charge, at the hearing. 1. On page 65111, column 2, in the the above address. Comments also may Because of access restrictions, the IRS preamble under the paragraph heading be submitted electronically through the will not admit visitors beyond the ‘‘Explanation of Provisions’’, fourth PBGC’s Web site at http:// immediate entrance area more than 15 paragraph, line 9, the language, www.pbgc.gov/regs, or by fax to 202– minutes before the hearing starts. For ‘‘retirement benefit, commencing a 326–4112. The PBGC will make all comments available on its Web site, information about having your name later’’ is corrected to read ‘‘retirement http://www.pbgc.gov. Copies of the placed on the building access list to benefit, commencing at a later’’. 2. On page 65112, column 1, in the comments may also be obtained by attend the hearing, see the FOR FURTHER preamble under the paragraph heading writing to the PBGC’s Communications INFORMATION CONTACT section of this ‘‘Explanation of Provisions’’, first and Public Affairs Department at Suite document. paragraph, line 1, the language, ‘‘the 240 at the above address or by visiting Cynthia E. Grigsby, continued availability of heath’’ is that office or calling 202–326–4040 Acting Chief, Publications and Regulations corrected to read ‘‘the continued during normal business hours. (TTY and Branch, Legal Processing Division, Associate availability of health’’. TDD users may call the Federal relay Chief Counsel (Procedures and 3. On page 65112, column 1, in the service toll-free at 1–800–877–8339 and Administration). preamble under the paragraph heading ask to be connected to 202–326–4040.) [FR Doc. 04–28328 Filed 12–27–04; 8:45 am] ‘‘Explanation of Provisions’’, first FOR FURTHER INFORMATION CONTACT: BILLING CODE 4830–01–P paragraph, line 6, the language, ‘‘rules Harold J. Ashner, Assistant General relating to heath coverage.’’ is corrected Counsel, or James L. Beller, Attorney,
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Pension Benefit Guaranty Corporation, reviews the information that is filed and for the PBGC to effectively carry out its Office of the General Counsel, Suite 340, enters it into an electronic data base for statutory responsibilities. The 1200 K Street, NW., Washington, DC more detailed analysis. Computer- additional information is typically 20005–4026, 202–326–4024. (For TTY/ assisted analysis of this information already collected, prepared, and TTD users, call the Federal relay service helps the PBGC to anticipate possible maintained by filers; the new toll-free at 1–800–877–8339 and ask to major demands on the pension requirement, therefore, imposes very be connected to 202–326–4024.) insurance system and to focus PBGC little additional burden. SUPPLEMENTARY INFORMATION: This resources on situations that pose the Liability separated by participant proposed rule is part of the Pension greatest risks to that system. Because status. Under the current section 4010 Benefit Guaranty Corporation’s (PBGC’s) other sources of information are usually filing process, the information about ongoing effort to streamline regulation not as current as the section 4010 benefit liabilities that the PBGC now and to improve administration of the information, the section 4010 filing receives under § 4010.8(a)(2) does not pension insurance program, with a plays a major role in the PBGC’s ability reflect the breakdown of these liabilities focus on making pension-related data to protect participant and premium- among: (1) Retired participants and more accurate, complete, and—in payer interests. beneficiaries receiving payments, (2) particular—transparent. It is also part of The PBGC does not currently provide terminated vested participants, and (3) the PBGC’s ongoing implementation of a form for section 4010 filings and thus active participants; nor are filers the Government Paperwork Elimination filers provide the information in a non- required to report the number of standard format. This makes the participants in each category. This Act and is consistent with the Office of information harder to use, restricts the breakdown is necessary to enable the Management and Budget’s directive to PBGC’s ability to perform electronic PBGC to better estimate plan liabilities remove regulatory impediments to data analysis, and in general results in by reflecting the impact of the passage electronic transactions. The rule unnecessary delays. The PBGC’s of time and any change in plan addresses the filing of information experience with section 4010 filings has assumptions or provisions. Accordingly, required under part 4010 of the PBGC’s led the PBGC to conclude that its ability the PBGC proposes to amend regulations (Annual Financial and to protect participant and premium- § 4010.8(a)(2) to require that benefit Actuarial Information Reporting ) and payer interests would increase and that liabilities be reported separately for builds in the flexibility needed to allow the filing process would work better if these three categories of participants the PBGC to update the electronic filing filers provided information and that the number of participants in process as technology advances. electronically and in a standardized each category be reported. The PBGC administers the pension format, and is therefore proposing to Actuarial valuation report. Section insurance programs under title IV of the require electronic filing of section 4010 4010.8(a)(3) of the current regulation Employee Retirement Income Security information in a standardized format. requires filers to provide a copy of the Act of 1974 (ERISA). In order to give the The PBGC is also proposing to require actuarial valuation report (AVR) ‘‘that PBGC an opportunity to anticipate and the submission of certain additional contains or is supplemented by’’ certain attempt to minimize potential liabilities information it needs to carry out its role information, which the regulation lists. that may arise from the termination of protecting participant and premium- The PBGC has found that this listing significantly underfunded plans, ERISA payer interests; to modify the rules for omits certain important information that section 4010 requires the reporting of determining whether aggregate is not always included in the AVR. The actuarial and financial information by unfunded vested benefits exceed $50 proposed rule would add the following controlled groups with pension plans million (the $50 million section 4010 to the list: (1) The current liability, that have significant funding problems. gateway test); and to remove the vested and nonvested, calculated Specifically, reporting is required by a requirement that a power of attorney pursuant to Internal Revenue Code controlled group if: (1) The aggregate accompany any filing made by a person Section 412 (separated into information unfunded vested benefits of all plans other than a filer. for retired participants and beneficiaries maintained by members of the Standardized electronic format. This receiving payments, terminated vested controlled group exceed $50 million proposed rule would require electronic participants, and active participants); (2) (disregarding plans with no unfunded filing in a standardized format (except the expected increase in current liability vested benefits); (2) the conditions as otherwise provided by the PBGC), in due to benefits accruing during the plan specified in section 302(f) of ERISA and accordance with instructions on the year; and (3) the expected plan section 412(n) of the Internal Revenue PBGC’s Web site (http:// disbursements for the plan year. Code for imposing a lien for missed www.PBGC.gov). This would enable the Because this information has necessarily contributions exceeding $1 million have PBGC to simplify the reporting process been developed to prepare the AVR, its been met with respect to any plan and to improve the accuracy, submission to the PBGC should impose maintained by any member of the completeness, and timeliness of the little additional burden. controlled group; or (3) the Internal information it receives. The PBGC Specified actuarial assumptions. The Revenue Service has granted minimum would be able to access the information PBGC has found that filers do not funding waivers in excess of $1 million quickly and in a complete manner from always use the mandated actuarial to any plan maintained by any member its data base, while imposing very little assumptions for purposes of reporting of the controlled group, and any portion additional burden on filers. Almost all benefit liabilities under section 4010. of the waiver(s) is still outstanding. section 4010 filers are large corporations Such a violation is subject to the Pursuant to section 4010 of ERISA, accustomed to submitting electronic assessment of a PBGC penalty under the PBGC issued its regulation on filings with other government agencies, ERISA section 4071 of up to $1,100 for Annual Financial and Actuarial such as with the Securities and each day the violation continues. In Information Reporting in 1995 (29 CFR Exchange Commission using EDGAR. order to help filers avoid the assessment part 4010). The regulation specifies the Additional supporting information of such a penalty and to ensure that the items of identifying, financial, and requirements. Certain additional mandated assumptions are used, the actuarial information that filers must supporting information not currently proposed rule would require the filer to submit under section 4010. The PBGC required by the regulation is necessary specify the actuarial assumptions for
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interest rate (i.e., the specific interest information breakdown for all members fair market value of plan assets, and (3) rate(s), such as 5%), mortality, included in the controlled group’s specified mortality tables. The optional retirement age, and loading for consolidated financial statements (other method was added when the current administrative expenses, used to than exempt entities). This information rule was adopted in 1995 in response to calculate benefit liabilities under breakdown is currently maintained by comments because it was expected that § 4010.8. controlled groups that file consolidated the optional assumptions shortly would Information on exempt entities. Under statements, and thus providing it would become the standards that would apply the current PBGC regulations (see not be burdensome. for calculating the variable rate §§ 4010.4(d), .7(a), .9(a)), filers are not Identification of controlled group premium under ERISA section 4006. In required to include in their section 4010 changes. To enable the PBGC to keep fact, these assumptions have not become reports identifying or financial track of controlled group members and the standards. Instead, Congress has information about ‘‘exempt entities’’ plans, the proposed rule would require passed several laws that temporarily set (certain small entities that are not the filer to tell the PBGC which the interest rate to be used for contributing sponsors). The exemption controlled group members and plans calculating the variable rate premium was added to the original final rule in joined or left the controlled group under ERISA section 4006. Under response to comments on the proposed during the information year. current law, for the 2004 and 2005 plan rule that it would be unnecessarily Frozen plan information. In order for years, the interest rate is based upon burdensome to require filers to report on the PBGC to assess the risk and long-term investment grade corporate small, non-sponsor entities. However, exposure presented by a plan, the bonds. Because of these changes and the these entities sometimes provide a proposed rule would require the filer to possibility of future changes in this area, source of recovery for PBGC claims identify which plans are frozen as well the PBGC proposes to eliminate the use (should any arise) that is not available as the nature of the freeze (e.g., service of the optional assumptions method for to other creditors. Reporting is is frozen but pay is not). purposes of the $50 million section necessary because the PBGC must be Demonstration by previous filer of 4010 gateway test. Moreover, reporting aware of the existence of such entities exemption. The proposed rule adds a for this purpose is warranted if the $50 before it can assert claims. To minimize new requirement for any filer that was million section 4010 gateway test is the additional burden on filers, the required to file for the previous year but reached using the general rule under proposed rule would require the filer to is not required to file for the current § 4006.4 of this chapter for determining provide initially only the identifying year. Under the proposed rule, these unfunded vested benefits. information for exempt entities. The previous filers would need to In addition, the PBGC proposes to rule would make clear that additional demonstrate to the PBGC that a filing is clarify the rules governing which information about exempt entities must not required for the current year. On contributions may be taken into account be submitted upon written request by occasion, when the PBGC discovers that when determining unfunded vested the PBGC. a previous filer has not made a benefits for purposes of the $50 million In addition, exempt entities are not submission for the current year, the section 4010 gateway test. required to file. The PBGC invites PBGC has contacted the filer to Power of attorney requirement. The comments on whether the threshold, determine whether the filer has current rule requires the submission of under § 4010.4(d), for determining what overlooked the current filing obligation. a signed power of attorney whenever a is an exempt entity is appropriate. The PBGC has discovered a number of person other than a filer submits the Information on exempt plans. Under instances of such oversight. The new required information. The PBGC the current PBGC regulations (see requirement would enable the PBGC to proposes to simplify the process by §§ 4010.7(b), .8(a), (c)), filers are ascertain quickly those previous filers eliminating this requirement as required to include in their section 4010 that do not need to file for the current unnecessary. The requirement for a reports identifying information about year. In addition, it may prevent certification by the enrolled actuary ‘‘exempt plans’’ (certain small or fully inadvertent failures to file and thereby would remain, regardless of who funded plans), but are not required to prevent the assessment, or reduce the submits the filing. report actuarial information about them. amount, of penalties. Because previous 30-day comment period. For this The proposed rule would make clear filers need to determine each year proposed rule, the PBGC is providing a that additional information about whether they are required to file, the 30-day comment period. The PBGC’s exempt plans must be submitted upon new requirement should impose little need for more complete and up-to-date written request by the PBGC. additional burden. information under section 4010 has Financial information on controlled Modification by instructions on Web become acute. The recent increase in the group members. In the case of a site. The proposed rule would allow the number of failures of large underfunded controlled group with consolidated PBGC, through instructions on its Web plans, as most clearly evidenced by financial statements, the current site, to modify the format of the developments in the airline industry, regulation requires the reporting of information and to require the has heightened the need for the PBGC revenue, operating income, and net submission of additional information to know when it must take immediate assets only for each contributing relating to the specific information action to protect participant and sponsor (other than an exempt entity). described in the regulation. premium-payer interests. The The PBGC has found that it needs this $50 million section 4010 gateway test. information provided by filers pursuant information breakdown on all The current regulation allows filers to to section 4010 is crucial in allowing the nonexempt entities included in the determine unfunded vested benefits for PBGC to act promptly and responsibly. consolidated financial statements, not purposes of the $50 million section Because most filers have calendar only on contributing sponsors. This 4010 gateway test using an optional information years, most section 4010 information enables the PBGC to assumptions method. In essence, under filings are due on April 15 following the identify which controlled group the optional method, unfunded vested end of the information year. The final members hold the assets of the benefits are determined by using: (1) An rule would need to be in effect well consolidated group. Therefore, the interest rate equal to 100% of the annual before April 15 to allow filers time to proposed rule would require this yield for 30-year Treasury securities, (2) adjust to the new procedures. Were the
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PBGC to provide the usual 60-day The PBGC needs the information For the reasons given above, the PBGC comment period, it would be extremely required to be submitted under part proposes to amend 29 CFR parts 4000 difficult to provide adequate notice to 4010 to enable it (1) to detect and and 4010 as follows. filers in order for them to prepare for the monitor financial problems with the filings due April 15, 2005. The delay in contributing sponsors that maintain PART 4000—FILING, ISSUANCE, applicability would mean that over 80% severely underfunded pension plans COMPUTATION OF TIME, AND of filers (those who file on a calendar and their controlled group members, (2) RECORD RETENTION year basis) would not file under the new to respond quickly when it learns that 1. The authority citation for Part 4000 rules until April 15, 2006. This a controlled group with severely continues to read as follows: significant delay could seriously underfunded pension plans intends to hamper the PBGC’s ability to act engage in a transaction that may Authority: 29 U.S.C. 1082(f), 1302(b)(3). promptly where necessary. significantly reduce the assets available 2. Revise paragraph § 4000.3 to read Applicability. This proposed rule to pay plan liabilities, and (3) to take as follows: would apply to reporting for any action to protect participant and information year ending on or after premium-payer interests. § 4000.3 What Methods of Filing May I December 31, 2004. The PBGC estimates that an average of Use? (a) Paper filings. Except for the filings Compliance With Rulemaking 400 controlled groups per year respond listed in paragraph (b) of this section, Guidelines to this collection of information. The PBGC further estimates that the average you may file any submission with us by The PBGC has determined, in annual burden of this collection of hand, mail, or commercial delivery consultation with the Office of information (including the changes in service. Management and Budget, that this this proposed rule) is 8.7 hours and (b) Electronic filings. You must submit proposed rule is a ‘‘significant $13,750 per controlled group, for a total the information required under part regulatory action’’ under Executive burden of 3,480 hours and $5,500,000. 4010 of this chapter electronically in Order 12866. The Office of Management Comments on the paperwork accordance with the instructions on the and Budget, therefore, has reviewed this provisions under this rule should be PBGC’s Web site, except as otherwise notice under Executive Order 12866. mailed to the Office of Information and provided by the PBGC. Under section 605(b) of the Regulatory Affairs, Office of (c) Information on electronic filings. Regulatory Flexibility Act, the PBGC Current information on electronic certifies that the amendments in this Management and Budget, Attention: Desk Officer for the Pension Benefit filings, including permitted methods, rule would not have a significant fax numbers, and e-mail addresses, is— economic impact on a substantial Guaranty Corporation, Washington, DC 20503. The Office of Management and (1) On our Web site, http:// number of small entities. The tests for www.pbgc.gov; identifying filers under section 4010(b) Budget requests that comments be received on or before January 27, 2005 (2) In our various printed forms and of ERISA effectively limit the filing instructions packages; and requirements to large companies and to ensure their consideration. Comments may address (among other (3) Available by contacting our their controlled groups. Accordingly, as Customer Service Center at 1200 K provided in section 605 of the things)— • Whether the proposed collection of Street, NW., Washington, DC 20005– Regulatory Flexibility Act (5 U.S.C. 601 4026; telephone 1–800–400–7242 (for et seq.), sections 603 and 604 do not information is needed for the proper performance of the PBGC’s functions participants), or 1–800–736–2444 (for apply. practitioners). (TTY/TDD users may call The PBGC is submitting the and will have practical utility; • the Federal relay service toll-free at 1– information requirements contained in The accuracy of the PBGC’s 800–877–8339 and ask to be connected this proposed rule to the Office of estimate of the burden of the proposed to the appropriate number.) Management and Budget for review and collection of information, including the 3. Amend § 4000.4 by adding two approval under section 3507(d) of the validity of the methodology and sentences to the end of the section to Paperwork Reduction Act of 1995. assumptions used; • read as follows: Persons may obtain copies of the Enhancement of the quality, utility, PBGC’s request free of charge by and clarity of the information to be § 4000.4 Where do I file my submission? contacting the PBGC Communications collected; and • Minimizing the burden of the * * * You do not have to address and Public Affairs Department, suite electronic submissions made through 240, 1200 K Street, NW., Washington, collection of information on those who are to respond, including through the our Web site. We are responsible for DC 20005, 202–326–4020. A summary ensuring that such submissions go to the of the proposed methodology for use of appropriate automated, electronic, mechanical, or other proper place. electronic submission 4010 information 4. Amend § 4000.24 as follows: filing (including draft screen shots and technological collection techniques or other forms of information technology, a. Add a sentence to the end of instructions) is available on the PBGC’s paragraph (a); and Web site at http://www.pbgc.gov. This e.g., permitting electronic submission of responses. b. Add a sentence to the end of proposed rule would modify paperwork paragraph (b)(3) collections under both part 4000 List of Subjects The additions read as follows: (approved under OMB control number 1212–0059; expires 10/31/06) and part 29 CFR Part 4000 § 4000.24 What if I mail my submission or 4010 (approved under OMB control Pension insurance, Pensions, issuance using the U.S. Postal Service? number 1212–0049; expires 3/31/05). Reporting and recordkeeping * * * A submission made through An agency may not conduct or sponsor, requirements. our Web site is considered to have been and a person is not required to respond sent when you perform the last act to, a collection of information unless it 29 CFR Part 4010 necessary to indicate that your displays a currently valid OMB control Pensions, Reporting and submission is filed and cannot be number. recordkeeping requirements. further edited or withdrawn.
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(b) * * * any portion thereof is still outstanding plan maintained by any member of the (3) * * * A submission made through (determined in accordance with controlled group, and any other our Web site is considered to have been paragraph (c) of this section). information relating to the information sent when you perform the last act (b) Unfunded vested benefits. (1) specified in §§ 4010.7 though 4010.9, as necessary to indicate that your General. For purposes of the $50 million specified in the instructions on the submission is filed and cannot be test in paragraph (a)(1) of this section, PBGC’s Web site. further edited or withdrawn. the value of a plan’s unfunded vested (2) Previous filers. If a filer for the * * * * * benefits is determined at the end of the immediately preceding information year 5. Amend § 4000.29 by adding three plan year ending within the filer’s is not required to file for the current sentences to the end of paragraph (a) information year in accordance with information year, the filer must submit introductory text to read as follows: section 4006(a)(3)(E)(iii) of ERISA and information, in accordance with the § 4006.4 of this chapter (without instructions on the PBGC’s Web site, § 4000.29 What if I use electronic delivery? reference to the exemptions and special demonstrating why a filing is not (a) * * * A submission made through rules under § 4006.5 of this chapter). required for the current information our Web site is considered to have been (2) Contributions. When determining year. transmitted when you perform the last the value of a plan’s unfunded vested (b) Additional information. By written act necessary to indicate that your benefits under paragraph (b)(1) of this notification, the PBGC may require any submission is filed and cannot be section— filer to submit additional actuarial or further edited or withdrawn. You do not (i) Contributions for the plan year financial information that is necessary have to address electronic submissions ending within the filer’s information to determine plan assets and liabilities made through our Web site. We are year (or for any earlier plan year) are for any period through the end of the responsible for ensuring that such taken into account only to the extent filer’s information year, or the financial submissions go to the proper place. they are paid on or before the due date status of a filer for any period through * * * * * or, if earlier, the filing date under the end of the filer’s information year § 4010.10(a) (without regard to the (including information on exempt PART 4010—ANNUAL FINANCIAL AND alternative due date under § 4010.10(b)); entities and exempt plans). The ACTUARIAL INFORMATION and information must be submitted within REPORTING (ii) Contributions used to satisfy ten days after the date of the written quarterly contribution requirements for notification or by a different time 6. The authority citation for Part 4010 the current plan year are not taken into specified therein. continues to read as follows: account. * * * * * Authority: 29 U.S.C. 1302(b)(3), 1310. (c) Outstanding waiver. Before the end 11. Revise § 4010.7 to read as follows: 7. Revise § 4010.3 to read as follows: of the statutory amortization period, a portion of a minimum funding waiver § 4010.7 Identifying information. § 4010.3 Filing requirement. for a plan is considered outstanding (a) Filers. Each filer is required to (a) In general. Except as provided in unless— provide, in accordance with the § 4010.8(c) (relating to exempt plans) * * * * * instructions on the PBGC’s Web site, the and except where waivers have been 9. Revise paragraph (c)(2) of § 4010.5 following identifying information with granted under § 4010.11, each filer shall to read as follows: respect to each member of the submit to the PBGC annually, on or controlled group (including exempt before the due date specified in § 4010.5 Information year. entities) § 4010.10, all information specified in * * * * * (1) Current members. For each entity § 4010.6(a) with respect to all members (c) * * * that is a member of the controlled group of a controlled group and all plans (2) Example. Filers A and B are as of the end of the filer’s information maintained by members of a controlled members of the same controlled group. year— group. Under § 4000.3(b) of this chapter, Filer A has a July 1 fiscal year, and filer (i) The name, address, and telephone except as otherwise provided by the B has an October 1 fiscal year. The number of the entity and the legal PBGC, the information shall be information year is the calendar year. relationships with other members of the submitted electronically in accordance Filer A’s financial information with controlled group (for example, parent, with the instructions on the PBGC’s respect to its fiscal year ending June 30, subsidiary); Web site. 2004, and filer B’s financial information (ii) The nine-digit Employer (b) Single controlled group with respect to its fiscal year ending Identification Number (EIN) assigned by submission. Any filer or other person September 30, 2004, must be submitted the IRS to the entity (or if there is no may submit the information specified in to the PBGC following the end of the EIN for the entity, an explanation); § 4010.6(a) on behalf of one or more 2004 calendar year (the calendar year in (iii) If the entity became a member of members of a filer’s controlled group. which those fiscal years end). If filer B the controlled group during the 8. Revise paragraphs (a)(3), (b), and (c) were an exempt entity, the information information year, the date the entity introductory text of § 4010.4 to read as year would be filer A’s July 1 fiscal year. became a member of the controlled follows: 10. Revise paragraphs (a) and (b) of group; and § 4010.6 to read as follows: (2) Former members. For any entity § 4010.4 Filers. that ceased to be a member of the (a) * * * § 4010.6 Information to be filed. controlled group during the filer’s (3) Any plan maintained by a member (a) General. (1) Current filers. A filer information year, the date the entity of a controlled group has been granted must submit the information specified ceased to be a member of the controlled one or more minimum funding waivers in § 4010.7 (identifying information), group and the identifying information under section 303 of ERISA or section § 4010.8 (plan actuarial information) required by paragraph (a)(1) of this 412(d) of the Code totaling in excess of and § 4010.9 (financial information) of section as of the date immediately $1 million and, as of the end of the plan this part with respect to each member of preceding the date the entity left the year ending within the information year, the filer’s controlled group and each controlled group.
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(b) Plans. Each filer is required to value of the liabilities attributable to (1) Including a statement, with the provide, in accordance with the retired participants and beneficiaries material that is submitted to the PBGC, instructions on the PBGC’s Web site, the receiving payments, terminated vested that the filer will file the unavailable following identifying information with participants, and active participants, information by the alternative due date respect to each plan (including exempt determined (in accordance with specified in § 4010.10(b), and plans) maintained by any member of the paragraph (d) of this section) at the end (2) Filing such information (along controlled group (including exempt of the plan year ending within the filer’s with a certification by an enrolled entities)— information year; actuary under paragraph (a)(6) of this (1) Current plans. For each plan that (4) A description of the actuarial section) with the PBGC by that is maintained by the controlled group as assumptions for interest (i.e., the alternative due date. of the last day of the filer’s information specific interest rate(s), such as 5%), * * * * * year— mortality, retirement age, and loading 13. Revise paragraphs (a) introductory (i) The name of the plan; for administrative expenses, as used to text and (b)(2) of § 4010.9 to read as (ii) The EIN and the three-digit Plan determine the benefit liabilities in follows: Number (PN) assigned by the paragraph (a)(3) of this section; and contributing sponsor to the plan (or if (5) a copy of the actuarial valuation § 4010.9 Financial information. there is no EIN or PN for the plan, an report for the plan year ending within (a) General. Except as provided in this explanation); the filer’s information year that contains section, each filer is required to provide, (iii) If the EIN or PN of the plan has or is supplemented by the following in accordance with the instructions on changed since the beginning of the information— the PBGC’s Web site, the following filer’s information year, the previous (i) * * * financial information for each EIN or PN and an explanation; (iv) The actuarial assumptions and controlled group member (other than an (iv) If the plan had not been methods used for that plan year for exempt entity)— maintained by the controlled group purposes of section 302(b) and (d) of *** immediately before the filer’s ERISA or section 412(b) and (l) of the (b) * * * information year, the date the plan was Code (and any change in those (2) If audited financial statements are first maintained by the controlled group assumptions and methods since the not available by the date specified in during the information year; and previous valuation and justifications for § 4010.10(a), unaudited financial (v) If, as of any day during the any change), statements for the fiscal year ending information year, the plan was frozen (v) A summary of the principal within the information year; or eligibility and benefit provisions on (for eligibility or benefit accrual * * * * * purposes), a description of the date and which the valuation of the plan was the nature of the freeze (e.g., service is based (and any changes to those Issued in Washington, DC, this 22nd day frozen but pay is not). provisions since the previous of December, 2004. (2) Former plans. For any plan that valuation), along with descriptions of Bradley D. Belt, ceased to be maintained by the any benefits not included in the Executive Director, Pension Benefit Guaranty controlled group during the filer’s valuation, any significant events that Corporation. information year, the date the plan occurred during that plan year, and the [FR Doc. 04–28398 Filed 12–27–04; 8:45 am] ceased to be so maintained, plan’s early retirement factors, BILLING CODE 7708–01–P identification of the controlled group (vi) The current liability, vested and currently maintaining the plan, and the nonvested, calculated pursuant to identifying information required by section 412 of the Code, setting forth DEPARTMENT OF HOMELAND paragraph (b)(1) of this section as of the separately the value of the liabilities SECURITY date immediately preceding that date. attributable to retired participants and 12. Amend § 4010.8 by revising beneficiaries receiving payments, Coast Guard paragraphs (a) inductory text and (1) terminated vested participants, and through (4), (5) introductory text, (5)(iv) active participants, 33 CFR Part 165 through (viii), (6), (b) introductory text, (vii) The expected increase in current (b)(1), and (2) as follows: liability due to benefits accruing during [CGD05–04–171] the plan year, and RIN 1625–AA00 (viii) The expected plan § 4010.8 Plan actuarial information. disbursements for the plan year; and Security Zone; Fifth Coast Guard (a) Required information. For each (6) A written certification by an District plan (other than an exempt plan) enrolled actuary that, to the best of his maintained by any member of the filer’s or her knowledge and belief, the AGENCY: Coast Guard, DHS. controlled group, each filer is required actuarial information submitted is true, ACTION: Notice of proposed rulemaking. to provide, in accordance with the correct, and complete and conforms to instructions on the PBGC’s Web site, the all applicable laws and regulations, SUMMARY: The Coast Guard proposes following actuarial information— provided that this certification may be establishing permanent moving security (1) The number of— qualified in writing, but only to the zones around escorted vessels while (i) Retired participants and extent the qualification(s) are permitted they are in the navigable waters of the beneficiaries receiving payments; under 26 CFR 301.6059–1(d). Fifth Coast Guard District. The proposed (ii) Terminated vested participants, (b) Alternative compliance for plan security zones would require all vessels and actuarial information. If any of the in a 500-yard radius around escorted (iii) Active participants; information specified in paragraph (a)(5) vessels to operate at the minimum speed (2) The fair market value of the plan’s of this section is not available by the necessary to navigate safely and prohibit assets; date specified in § 4010.10(a), a filer any vessels from entering within 100 (3) The value of the plan’s benefit may satisfy the requirement to provide yards of an escorted vessel. These liabilities, setting forth separately the such information by— proposed security zones would mitigate
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potential terrorist acts and enhance asymmetric threats, acts of aggression, the minimum safe speed may transit in public and maritime safety and security. and attacks by terrorists on the the 500-yard zone and no persons or DATES: Comments and related material American homeland while maintaining vessels will be allowed within 100 yards must reach the Coast Guard on or before our freedoms and sustaining the flow of of any escorted vessel, without the February 28, 2005. commerce. Terrorists have permission of the District Commander, ADDRESSES: You may mail comments demonstrated both desire and ability to Captain of the Port or their designated and related material to Fifth Coast utilize multiple means in different representatives, while the vessel is Guard District, Marine Safety Division, geographic areas to successfully carry within the Fifth Coast Guard District. 431 Crawford Street, Portsmouth, out their terrorist missions. Persons desiring to transit within 100 During the past 3 years, the Federal Virginia, 23704. The Fifth District yards of an escorted vessel in the Fifth Bureau of Investigation has issued Marine Safety Division maintains the Coast Guard District must contact the several advisories to the public public docket for this rulemaking. local Captain of the Port on VHF concerning the potential for terrorist Comments and material received from channel 16 (156.800 MHz) or VHF attacks within the United States. The the public, as well as documents channel 13 (156.650 MHz) and obtain October 2002 attack on a tank vessel, M/ indicated in this preamble as being permission to transit within 100 yards V LIMBURG, off the coast of Yemen and of the escorted vessel. The boundaries of available in the docket, will become part the prior attack on the USS COLE the Fifth Coast Guard District are of this docket and will be available for demonstrate a continuing threat to U.S. defined in 33 CFR 3.25–1. And the inspection or copying at the above maritime assets as described in the boundaries of the four COTP zones are mentioned office between 8 a.m. and 3 President’s finding in Executive Order defined in § 3.25–05, Philadelphia p.m., Monday through Friday, except 13273 of August 21, 2002 (67 FR 56215, Captain of the Port Zone; § 3.25–10, Federal holidays. September 3, 2002) and Continuation of Hampton Roads Marine Inspection Zone FOR FURTHER INFORMATION CONTACT: the National Emergency with Respect to and Captain of the Port Zone; § 3.25–15, Lieutenant E.J. Terminella, Fifth Coast Certain Terrorist Attacks, (67 FR 58317, Baltimore Captain of the Port Zone, and Guard District, at (757) 398–7783. September 13, 2002); Continuation of § 3.25–20, Wilmington Marine SUPPLEMENTARY INFORMATION: the National Emergency With Respect Inspection Zone and Captain of the Port To Persons Who Commit, Threaten To Request for Comments Zone. Commit, Or Support Terrorism, (67 FR All persons within 500-yards of an We encourage you to participate in 59447, September 20, 2002). escorted vessel would be required to this rulemaking by submitting Furthermore, the ongoing hostilities in operate their vessels at the minimum comments and related material. If you Afghanistan and Iraq have made it safe speed necessary to maintain do so, please include your name and prudent for U.S. port and waterway navigation in accordance with the address, identify the docket number for users to be on a higher state of alert Navigation Rules in 33 CFR Chapter I, this rulemaking (CGD05–04–171), because the Al Qaeda organization and subchapters D and E. Stationary vessels indicate the specific section of this other similar organizations have that are moored or anchored must document to which each comment declared an ongoing intention to remain moored or anchored when an applies, and give the reason for each conduct armed attacks on U.S. interests escorted vessel approaches within 100 comment. Please submit all comments worldwide. yards of the stationary vessel. and related material in an unbound In addition to escorting vessels, a Additionally, vessels restricted in their format, no larger than 81⁄2 by 11 inches, security zone is a tool available to the ability to maneuver may request suitable for copying. If you would like Coast Guard that may be used to control permission from the District to know that your submission reached maritime traffic operating in the vicinity Commander, Captain of the Port, or a us, please enclose a stamped, self- of vessels, which the Coast Guard has designated representative, to enter addressed postcard or envelope. We will determined need additional security within 100 yards of an escorted vessel consider all comments and material measures during their transit. The COTP in order to ensure safe passage in received during the comment period. would use this regulation to establish a accordance with the Navigation Rules in We may change this proposed rule in security zone around vessels to 33 CFR Chapter I, subparts D and E. view of them. safeguard the port, harbors or waterfront facilities. Vessels that may require an Regulatory Evaluation Public Meeting escort are vessels of national security This proposed rule is not a We do not now plan to hold a public interest, a passenger vessel, vessels ‘‘significant regulatory action’’ under meeting. But you may submit a request carrying certain dangerous or hazardous section 3(f) of Executive Order 12866, for a meeting by writing to the Fifth cargo. These proposed security zones Regulatory Planning and Review, and Coast Guard District at the address around all escorted vessels during does not require an assessment of under ADDRESSES explaining why one transit and while the escorted vessels potential costs and benefits under would be beneficial. If we determine are anchored, moored, or underway section 6(a)(3) of that Order. The Office that a public meeting would aid this within the Fifth Coast Guard District of Management and Budget has not rulemaking, we will hold one at a time will help ensure the safety of the ports reviewed it under that Order. It is not and place announced by a separate and vessels in the navigable waters of ‘‘significant’’ under the regulatory notice in the Federal Register. the Fifth Coast Guard District. policies and procedures of the Department of Homeland Security Background and Purpose Discussion of Proposed Rule (DHS). Due to increased awareness that This rule proposes placing a 500-yard We expect the economic impact of future terrorist attacks are possible, the security zone around all vessels that are this proposed rule to be so minimal that Coast Guard, as Lead Federal Agency for being escorted by a Coast Guard surface, a full Regulatory Evaluation under the maritime homeland security, has air or Coast Guard Auxiliary asset, or by regulatory policies and procedures of determined that the Captain of the Port a local law enforcement agency during DHS is unnecessary. must have the means to be aware of, their transit through the Fifth Coast This finding is based on the relatively detect, deter, intercept, and respond to Guard District. Only vessels traveling at small percentage of ships that would fall
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within the applicability of the governmental jurisdiction and you have safety that might disproportionately regulation, the relatively small size of questions concerning its provisions or affect children. the limited access area around each options for compliance, please contact Indian Tribal Governments ship, the minimal amount of time that Lieutenant E.J. Terminella, Coast Guard vessels will be restricted in course or Fifth Coast Guard District, at (757) 398– This proposed rule does not have speed when the zone is being enforced, 7783. The Coast Guard will not retaliate tribal implications under Executive and the ease with which vessels may against small entities that question or Order 13175, Consultation and transit around the affected area. In complain about this rule or any policy Coordination with Indian Tribal addition, vessels that may need to enter or action of the Coast Guard. Governments, because it would not have the zones may request permission on a a substantial direct effect on one or case-by-case basis from the District Collection of Information more Indian tribes, on the relationship Commander, Captain of the Port or their This proposed rule would call for no between the Federal Government and designated representatives. new collection of information under the Indian tribes, or on the distribution of power and responsibilities between the Small Entities Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). Federal Government and Indian tribes. Under the Regulatory Flexibility Act We invite your comments on how this (5 U.S.C. 601–612), we have considered Federalism proposed rule might impact tribal whether this proposed rule would have A rule has implications for federalism governments, even if that impact may a significant economic impact on a under Executive Order 13132, not constitute a ‘‘tribal implication’’ substantial number of small entities. Federalism, if it has a substantial direct under the Order. The term ‘‘small entities’’ comprises effect on State or local governments and Energy Effects small businesses, not-for-profit would either preempt State law or organizations that are independently impose a substantial direct cost of We have analyzed this proposed rule owned and operated and are not compliance on them. We have analyzed under Executive Order 13211, Actions dominant in their fields, and this proposed rule under that Order and Concerning Regulations That governmental jurisdictions with have determined that it does not have Significantly Affect Energy Supply, populations of less than 50,000. implications for federalism. Distribution, or Use. We have The Coast Guard certifies under 5 determined that it is not a ‘‘significant U.S.C. 605(b) that this proposed rule Unfunded Mandates Reform Act energy action’’ under that order because would not have a significant economic it is not a ‘‘significant regulatory action’’ The Unfunded Mandates Reform Act impact on a substantial number of small under Executive Order 12866 and is not of 1995 (2 U.S.C. 1531–1538) requires entities. likely to have a significant adverse effect Federal agencies to assess the effects of This rule affects the following on the supply, distribution, or use of their discretionary regulatory actions. In entities, some of which might be small energy. The Administrator of the Office particular, the Act addresses actions entities: The owners or operators of of Information and Regulatory Affairs that may result in the expenditure by a vessels intending to transit in the has not designated it as a significant State, local, or tribal government, in the security zone near an escorted vessel. energy action. Therefore, it does not aggregate, or by the private sector of This proposed rule would not have a require a Statement of Energy Effects $100,000,000 or more in any one year. significant impact on a substantial under Executive Order 13211. number of small entities because the Though this proposed rule would not restrictions affect only a limited area. result in such expenditure, we do Technical Standards Although this is a permanent security discuss the effects of this rule elsewhere The National Technology Transfer zone, the rule is effective only when in this preamble. and Advancement Act (NTTAA) (15 vessels are escorted and vessel traffic Taking of Private Property U.S.C. 272 note) directs agencies to use could pass safely around the security voluntary consensus standards in their zone. Additionally, the opportunity to This proposed rule would not affect a regulatory activities unless the agency engage in recreational and charter taking of private property or otherwise provides Congress, through the Office of fishing outside the limits of the security have taking implications under Management and Budget, with an zone will not be disrupted. Executive Order 12630, Governmental explanation of why using these If you think that your business, Actions and Interference with standards would be inconsistent with organization, or governmental Constitutionally Protected Property applicable law or otherwise impractical. jurisdiction qualifies as a small entity Rights. Voluntary consensus standards are and that this rule would have a Civil Justice Reform technical standards (e.g., specifications significant economic impact on it, of materials, performance, design, or please submit a comment (see This proposed rule meets applicable operation; test methods; sampling ADDRESSES) explaining why you think it standards in sections 3(a) and 3(b)(2) of procedures; and related management qualifies and how and to what degree Executive Order 12988, Civil Justice systems practices) that are developed or this rule would economically affect it. Reform, to minimize litigation, adopted by voluntary consensus eliminate ambiguity, and reduce Assistance for Small Entities standards bodies. burden. This proposed rule does not use Under section 213(a) of the Small Protection of Children technical standards. Therefore, we did Business Regulatory Enforcement not consider the use of voluntary Fairness Act of 1996 (Public Law 104– We have analyzed this proposed rule consensus standards. 121), we want to assist small entities in under Executive Order 13045, understanding this proposed rule so that Protection of Children from Environment they could better evaluate its effects on Environmental Health Risks and Safety We have analyzed this proposed rule them and participate in the rulemaking Risks. This rule is not an economically under Commandant Instruction process. If the rule would affect your significant rule and would not create an M16475. lD, which guides the Coast small business, organization, or environmental risk to health or risk to Guard in complying with the National
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Environmental Policy Act of 1969 (b) Location. The following area is a ENVIRONMENTAL PROTECTION (NEPA)(42 U.S.C. 4321–4370f), and security zone: 500-yard radius around AGENCY have concluded that there are no factors escorted vessels in the navigable waters in this case that would limit the use of of the Fifth Coast Guard District as 40 CFR Part 52 a categorical exclusion under section defined in 33 CFR 3.25–1, from surface [R03–OAR–2004–DC–0003; FRL–7854–1] 2.B.2 of the Instruction. Therefore, this to bottom. rule is categorically excluded, under (c) Regulations. (1) No vessel may Approval and Promulgation of Air figure 2–1, paragraph (34)(g), of the approach within 500 yards of an Quality Implementation Plans; District Instruction, from further environmental escorted vessel within the navigable of Columbia; Excess Volatile Organic documentation. Under figure 2–1, waters of the Fifth Coast Guard District, Compound and Nitrogen Oxides paragraph (34)(g) of the Instruction, an unless traveling at the minimum speed Emissions Fee Rule ‘‘Environmental Analysis Check List’’ necessary to navigate safely. and a ‘‘Categorical Exclusion (2) No vessel may enter within a 100- AGENCY: Environmental Protection Determination’’ are not required for this yard radius of an escorted vessel within Agency (EPA). rule. If you disagree with this the navigable waters of the Fifth Coast ACTION: Proposed rule. categorical exclusion, comments on this Guard District, without approval from section will be considered. the District Commander, Captain of the SUMMARY: EPA proposes to approve the Port or their designated representatives. State Implementation Plan (SIP) List of Subjects in 33 CFR Part 165 revision submitted by the District of (3) Moored or anchored vessels, Columbia (District) for the purpose of Harbors, Marine safety, Navigation which are overtaken by a moving zone, establishing a fee on major VOC (water), Reporting and recordkeeping must remain stationary at their location (volatile organic compound) and NO requirements, Security measures, until the escorted vessel maneuvers at X (nitrogen oxides) sources in The District Waterways. least 500 yards past. For the reasons discussed in the which is part of the Metropolitan (4) Vessels restricted in their ability to Washington D.C. Severe Ozone preamble, the Coast Guard proposes to maneuver may request permission of the amend 33 CFR part 165 as follows: Nonattainment Area. In the Final Rules District Commander, Captain of the Port section of this Federal Register, EPA is PART 165—REGULATED NAVIGATION or designated representative to enter the approving the State’s SIP submittal as a AREAS AND LIMITED ACCESS AREAS security zone in order to ensure safe direct final rule without prior proposal passage in accordance with the because the Agency views this as a 1. The authority citation for part 165 Navigation Rules in 33 CFR chapter I, noncontroversial submittal and continues to read as follows: subparts D and E. anticipates no adverse comments. A Authority: 33 U.S.C. 1226, 1231; 46 U.S.C (5) The local COTP may notify the detailed rationale for the approval is set Chapter 701; 50 U.S.C. 191, 195; 33 CFR maritime and general public by marine forth in the direct final rule. If no 1.05–1(g), 6.04–1, 6.04–6, and 160.5; Pub. L. information broadcast of the periods adverse comments are received in 107–295, 116 Stat.2064; Department of during which individual security zones response to this action, no further Homeland Security Delegation No. 0170.1. have been activated by providing notice activity is contemplated. If EPA receives 2. Add § 165.518 to read as follows: in accordance with 33 CFR 165.7. adverse comments, the direct final rule (6) When moored, a security zone will be withdrawn and all public § 165.518 Security Zone; Waters of the around an escorted vessel may also be Fifth Coast Guard District. comments received will be addressed in enforced by Coast Guard, State or local a subsequent final rule based on this (a) Definitions. As used in this law enforcement personnel shoreside. proposed rule. EPA will not institute a section— (7) Persons desiring to transit within second comment period. Any parties Designated Representative means any 100 yards of an escorted vessel in the interested in commenting on this action U.S. Coast Guard commissioned, Fifth Coast Guard District must contact should do so at this time. warrant or petty officer who has been the local Captain of the Port on VHF authorized by the District Commander DATES: Comments must be received in channel 16 (156.800 MHz), VHF writing by January 27, 2005. or local Captain of the Port (COTP), as channel 13 (156.650 MHz) or at ADDRESSES: Submit your comments, defined in 33 CFR part 3, subpart 3.25, telephone numbers: to act on his or her behalf. identified by Regional Material in Escorted vessel means a vessel that is Philadelphia: (215) 271–4807, EDocket (RME) ID Number R03–OAR– accompanied by one or more Coast Baltimore: (410) 576–2693, 2004–DC–0003 by one of the following Guard assets or Federal, State or local Hampton Roads: (757) 668–5555 or methods: law enforcement agency assets as listed (757) 484–8192, or A. Federal eRulemaking Portal: below: Wilmington: (910) 772–2200 or (910) http://www.regulations.gov. Follow the (1) Coast Guard surface or air asset 254–1500. on-line instructions for submitting displaying the Coast Guard insignia. (8) If permission is granted to transit comments. (2) Coast Guard Auxiliary surface within 100 yards of an escorted vessel, B. Agency Web site: http:// asset displaying the Coast Guard all persons and vessels must comply www.docket.epa.gov/rmepub/ RME, Auxiliary insignia. with the instructions of the District EPA’s electronic public docket and (3) State and/or local law enforcement Commander, Captain of the Port or his comment system, is EPA’s preferred asset displaying the applicable agency or her designated representative. method for receiving comments. Follow markings and or equipment associated the on-line instructions for submitting with the agency. Dated: December 14, 2004. comments. State and/or local law enforcement S. Brice-O’Hara, C. E-mail: [email protected]. officers means any State or local Rear Admiral, U.S. Coast Guard, Commander, D. Mail: R03–OAR–2004–DC–0003, government law enforcement officer Fifth Coast Guard District. Makeba Morris, Chief, Air Quality who has authority to enforce State [FR Doc. 04–28228 Filed 12–27–04; 8:45 am] Planning Branch, Mailcode 3AP21, U.S. criminal laws. BILLING CODE 4910–15–P Environmental Protection Agency,
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Region III, 1650 Arch Street, Department of Public Health, Air DATES: Comments must be received in Philadelphia, Pennsylvania 19103. Quality Division, 51 N Street, NE., writing by January 27, 2005. E. Hand Delivery: At the previously- Washington, DC 20002. ADDRESSES: Submit your comments, listed EPA Region III address. Such FOR FURTHER INFORMATION CONTACT: identified by Regional Material in deliveries are only accepted during the Catherine L. Magliocchetti, (215) 814– EDocket (RME) ID Number R03–OAR– Docket’s normal hours of operation, and 2174, or by e-mail at 2004–DC–0006 by one of the following special arrangements should be made [email protected]. methods: for deliveries of boxed information. A. Federal eRulemaking Portal: Instructions: Direct your comments to SUPPLEMENTARY INFORMATION: For further information, please see the http://www.regulations.gov. Follow the RME ID No. R03–OAR–2004–DC–0003. on-line instructions for submitting EPA’s policy is that all comments information provided in the direct final action, with the same title, Approval comments. received will be included in the public B. Agency Web site: http:// docket without change, and may be and Promulgation of Air Quality www.docket.epa.gov/rmepub/ RME, made available online at http:// Implementation Plans; District of EPA’s electronic public docket and www.docket.epa.gov/rmepub/, Columbia; Excess Volatile Organic comment system, is EPA’s preferred including any personal information Compound and Nitrogen Oxides method for receiving comments. Follow provided, unless the comment includes Emissions Fee Rule, that is located in the on-line instructions for submitting information claimed to be Confidential the ‘‘Rules and Regulations’’ section of comments. Business Information (CBI) or other this Federal Register publication. C. E-mail: [email protected]. information whose disclosure is Dated: December 14, 2004. D. Mail: R03–OAR–2004–DC–0006 restricted by statute. Do not submit Donald S. Welsh, Makeba Morris, Chief, Air Quality information that you consider to be CBI Regional Administrator, Region III. or otherwise protected through RME, Planning Branch, Mailcode 3AP21, U.S. regulations.gov or e-mail. The EPA RME [FR Doc. 04–28192 Filed 12–27–04; 8:45 am] Environmental Protection Agency, and the Federal regulations.gov Web BILLING CODE 6560–50–P Region III, 1650 Arch Street, sites are an ‘‘anonymous access’’ Philadelphia, Pennsylvania 19103. system, which means EPA will not E. Hand Delivery: At the previously- ENVIRONMENTAL PROTECTION know your identity or contact listed EPA Region III address. Such AGENCY information unless you provide it in the deliveries are only accepted during the Docket’s normal hours of operation, and body of your comment. If you send an 40 CFR Part 52 e-mail comment directly to EPA without special arrangements should be made for deliveries of boxed information. going through RME or regulations.gov, [R03–OAR–2004–DC–0006; FRL–7854–8] your e-mail address will be Instructions: Direct your comments to automatically captured and included as Approval and Promulgation of Air RME ID No. R03–OAR–2004–DC–0006. part of the comment that is placed in the Quality Implementation Plans; District EPA’s policy is that all comments public docket and made available on the of Columbia; VOC Emission Standards received will be included in the public Internet. If you submit an electronic for Consumer Products docket without change, and may be comment, EPA recommends that you made available online at http:// include your name and other contact AGENCY: Environmental Protection www.docket.epa.gov/rmepub/, information in the body of your Agency (EPA). including any personal information comment and with any disk or CD–ROM ACTION: Proposed rule. provided, unless the comment includes you submit. If EPA cannot read your information claimed to be Confidential comment due to technical difficulties SUMMARY: EPA proposes to approve the Business Information (CBI) or other and cannot contact you for clarification, State Implementation Plan (SIP) information whose disclosure is EPA may not be able to consider your revision submitted by the District of restricted by statute. Do not submit comment. Electronic files should avoid Columbia for the purpose of establishing information that you consider to be CBI the use of special characters, any form a regulation to control the volatile or otherwise protected through RME, of encryption, and be free of any defects organic compounds (VOC) from regulations.gov or e-mail. The EPA RME or viruses. consumer products in the District of and the Federal regulations.gov Web Docket: All documents in the Columbia. In the Final Rules section of sites are an ‘‘anonymous access’’ electronic docket are listed in the RME this Federal Register, EPA is approving system, which means EPA will not index at http://www.docket.epa.gov/ the District’s SIP submittal as a direct know your identity or contact rmepub/. Although listed in the index, final rule without prior proposal information unless you provide it in the some information is not publicly because the Agency views this as a body of your comment. If you send an available, i.e., CBI or other information noncontroversial submittal and e-mail comment directly to EPA without whose disclosure is restricted by statute. anticipates no adverse comments. A going through RME or regulations.gov, Certain other material, such as detailed rationale for the approval is set your e-mail address will be copyrighted material, is not placed on forth in the direct final rule. If no automatically captured and included as the Internet and will be publicly adverse comments are received in part of the comment that is placed in the available only in hard copy form. response to this action, no further public docket and made available on the Publicly available docket materials are activity is contemplated. If EPA receives Internet. If you submit an electronic available either electronically in RME or adverse comments, the direct final rule comment, EPA recommends that you in hard copy during normal business will be withdrawn and all public include your name and other contact hours at the Air Protection Division, comments received will be addressed in information in the body of your U.S. Environmental Protection Agency, a subsequent final rule based on this comment and with any disk or CD–ROM Region III, 1650 Arch Street, proposed rule. EPA will not institute a you submit. If EPA cannot read your Philadelphia, Pennsylvania 19103. second comment period. Any parties comment due to technical difficulties Copies of the State submittal are interested in commenting on this action and cannot contact you for clarification, available at the District of Columbia should do so at this time. EPA may not be able to consider your
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comment. Electronic files should avoid SUMMARY: EPA is taking direct final www.docket.epa.gov/rmepub/, the use of special characters, any form action to approve revisions to the including any personal information of encryption, and be free of any defects District of Columbia State provided, unless the comment includes or viruses. Implementation Plan (SIP). The information claimed to be Confidential Docket: All documents in the revisions include minor changes to Business Information (CBI) or other electronic docket are listed in the RME clarify that the allowable emission rates information whose disclosure is index at http://www.docket.epa.gov/ for particulates and nitrogen oxides restricted by statute. Do not submit rmepub/. Although listed in the index, (NOX) are expressed in pounds of information that you consider to be CBI some information is not publicly pollutant per million BTUs (lbs/ or otherwise protected through RME, available, i.e., CBI or other information MMBTUs) of heat input in District of regulations.gov or e-mail. The EPA RME whose disclosure is restricted by statute. Columbia Municipal Regulations and the Federal regulations.gov Web Certain other material, such as (DCMRs). In the Final Rules section of sites are an ‘‘anonymous access’’ copyrighted material, is not placed on this Federal Register, EPA is approving system, which means EPA will not the Internet and will be publicly the District’s SIP submittal as a direct know your identity or contact available only in hard copy form. final rule without prior proposal information unless you provide it in the Publicly available docket materials are because the Agency views this as a body of your comment. If you send an available either electronically in RME or noncontroversial submittal and e-mail comment directly to EPA without in hard copy during normal business anticipates no adverse comments. A going through RME or regulations.gov, hours at the Air Protection Division, detailed rationale for the approval is set your e-mail address will be U.S. Environmental Protection Agency, forth in the direct final rule. If no automatically captured and included as Region III, 1650 Arch Street, adverse comments are received in part of the comment that is placed in the Philadelphia, Pennsylvania 19103. response to this action, no further public docket and made available on the Copies of the State submittal are activity is contemplated. If EPA receives Internet. If you submit an electronic available at the District of Columbia adverse comments, the direct final rule comment, EPA recommends that you Department of Public Health, Air will be withdrawn and all public include your name and other contact Quality Division, 51 N Street, NE., comments received will be addressed in information in the body of your Washington, DC 20002. a subsequent final rule based on this comment and with any disk or CD-ROM FOR FURTHER INFORMATION CONTACT: Rose proposed rule. EPA will not institute a you submit. If EPA cannot read your Quinto, (215) 814–2182, or by e-mail at second comment period. Any parties comment due to technical difficulties [email protected]. interested in commenting on this action and cannot contact you for clarification, SUPPLEMENTARY INFORMATION: For should do so at this time. EPA may not be able to consider your further information, please see the DATES: Comments must be received in comment. Electronic files should avoid information provided in the direct final writing by January 27, 2005. the use of special characters, any form action, District of Columbia’s Approval ADDRESSES: Submit your comments, of encryption, and be free of any defects of VOC Emission Standards for identified by Regional Material in or viruses. Consumer Products, that is located in EDocket (RME) ID Number R03–OAR– Docket: All documents in the the ‘‘Rules and Regulations’’ section of 2004–DC–0002 by one of the following electronic docket are listed in the RME this Federal Register publication. Please methods: index at http://www.docket.epa.gov/ note that if EPA receives adverse A. Federal eRulemaking Portal: rmepub/. Although listed in the index, comment on an amendment, paragraph, http://www.regulations.gov. Follow the some information is not publicly or section of this rule and if that on-line instructions for submitting available, i.e., CBI or other information provision may be severed from the comments. whose disclosure is restricted by statute. remainder of the rule, EPA may adopt B. Agency Web site: http:// Certain other material, such as as final those provisions of the rule that www.docket.epa.gov/rmepub/ RME, copyrighted material, is not placed on are not the subject of an adverse EPA’s electronic public docket and the Internet and will be publicly comment. comment system, is EPA’s preferred available only in hard copy form. Dated: December 14, 2004. method for receiving comments. Follow Publicly available docket materials are Donald S. Welsh, the on-line instructions for submitting available either electronically in RME or Regional Administrator, Region III. comments. in hard copy during normal business [FR Doc. 04–28194 Filed 12–27–04; 8:45 am] C. E-mail: [email protected] hours at the Air Protection Division, U.S. Environmental Protection Agency, BILLING CODE 6560–50–P D. Mail: R03-OAR–2004-DC–0002, Makeba Morris, Chief, Air Quality Region III, 1650 Arch Street, Planning Branch, Mailcode 3AP21, U.S. Philadelphia, Pennsylvania 19103. ENVIRONMENTAL PROTECTION Environmental Protection Agency, Copies of the District submittal are AGENCY Region III, 1650 Arch Street, available at the District of Columbia Philadelphia, Pennsylvania 19103. Department of Public Health, Air 40 CFR Part 52 E. Hand Delivery: At the previously- Quality Division, 51 N Street, NE., [RME R03–OAR–2004–DC–0002; FRL–7855– listed EPA Region III address. Such Washington, DC 20002. 2] deliveries are only accepted during the FOR FURTHER INFORMATION CONTACT: Docket’s normal hours of operation, and Linda Miller, (215) 814–2068, or by e- Approval and Promulgation of Air special arrangements should be made mail at [email protected]. Quality Implementation Plans; District for deliveries of boxed information. SUPPLEMENTARY INFORMATION: For of Columbia; Approval of Minor Instructions: Direct your comments to further information on this proposed Clarifications to Municipal Regulations RME ID No. R03–OAR–2004–DC–0002. approval of clarifications to 20 DCMR, AGENCY: Environmental Protection EPA’s policy is that all comments Chapter 6 and 8 at Sections 600.01 and Agency (EPA). received will be included in the public 805.5, please see the information docket without change, and may be provided in the direct final action, with ACTION: Proposed rule. made available online at http:// the same title, that is located in the
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‘‘Rules and Regulations’’ section of this 2004–DC–0001 by one of the following index at http://www.docket.epa.gov/ Federal Register publication. methods: rmepub/. Although listed in the index, Dated: December 14, 2004. A. Federal eRulemaking Portal: some information is not publicly http://www.regulations.gov. Follow the Donald S. Welsh, available, i.e., CBI or other information on-line instructions for submitting whose disclosure is restricted by statute. Regional Administrator, Region III. comments. Certain other material, such as [FR Doc. 04–28196 Filed 12–27–04; 8:45 am] B. Agency Web site: http:// copyrighted material, is not placed on BILLING CODE 6560–50–P www.docket.epa.gov/rmepub/ RME, the Internet and will be publicly EPA’s electronic public docket and available only in hard copy form. comment system, is EPA’s preferred Publicly available docket materials are ENVIRONMENTAL PROTECTION method for receiving comments. Follow available either electronically in RME or AGENCY the on-line instructions for submitting in hard copy during normal business comments. 40 CFR Part 52 hours at the Air Protection Division, C. E-mail: [email protected]. U.S. Environmental Protection Agency, D. Mail: R03–OAR02004–DC–0001, Region III, 1650 Arch Street, [RME R03–OAR–2004–DC–0001; FRL–7855– Makeba Morris, Chief, Air Quality Philadelphia, Pennsylvania 19103. 4 ] Planning Branch, Mailcode 3AP21, U.S. Copies of the District submittal are Environmental Protection Agency, available at the District of Columbia Approval and Promulgation of Air Region III, 1650 Arch Street, Department of Public Health, Air Quality Implementation Plans; District Philadelphia, Pennsylvania 19103. Quality Division, 51 N Street, NE., of Columbia; Amendments to the Size E. Hand Delivery: At the previously- Thresholds for Defining Major Sources listed EPA Region III address. Such Washington, DC 20002. and to the NSR Offset Ratios for deliveries are only accepted during the FOR FURTHER INFORMATION CONTACT: Sources of VOC and NOX Docket’s normal hours of operation, and Linda Miller, (215) 814–2068, or by e- special arrangements should be made mail at [email protected]. AGENCY: Environmental Protection for deliveries of boxed information. SUPPLEMENTARY INFORMATION: For Agency (EPA). Instructions: Direct your comments to further information on this proposed ACTION: Proposed rule. RME ID No. R03–OAR–2004–DC–0001. approval of revisions to 20 DCMR EPA’s policy is that all comments SUMMARY: EPA proposes to approve Chapters 1, 2, 7 and 8 which reduce the received will be included in the public revisions to the District of Columbia (the major source size thresholds and docket without change, and may be District) State Implementation Plan increase the offset ratio requirements in made available online at http:// (SIP). The revisions reduce the size order to satisfy the mandatory CAA www.docket.epa.gov/rmepub/, thresholds for defining major sources requirements pursuant to the including any personal information and increase the new source review reclassification of the Metropolitan provided, unless the comment includes (NSR) offset ratio requirements for Washington DC 1-hour ozone information claimed to be Confidential sources of ozone precursors to meet the nonattainment area from serious to Business Information (CBI) or other Clean Air Act (CAA) requirements for 1- severe, please see the information information whose disclosure is hour ozone nonattainment areas provided in the direct final action, with restricted by statute. Do not submit classified as severe. These amendments the same title, that is located in the information that you consider to be CBI to the District’s SIP are required ‘‘Rules and Regulations’’ section of this or otherwise protected through RME, pursuant to the reclassification of the Federal Register publication. regulations.gov or e-mail. The EPA RME Metropolitan Washington, DC 1-hour Dated: December 14, 2004. and the Federal regulations.gov Web ozone nonattainment area from serious Donald S. Welsh, sites are an ‘‘anonymous access’’ to severe. In the Final Rules section of system, which means EPA will not Regional Administrator, Region III. this Federal Register, EPA is approving know your identity or contact [FR Doc. 04–28198 Filed 12–27–04; 8:45 am] the District’s SIP submittal as a direct information unless you provide it in the BILLING CODE 6560–50–P final rule without prior proposal body of your comment. If you send an because the Agency views this as a e-mail comment directly to EPA without noncontroversial submittal and going through RME or regulations.gov, ENVIRONMENTAL PROTECTION anticipates no adverse comments. A your e-mail address will be AGENCY detailed rationale for the approval is set automatically captured and included as forth in the direct final rule. If no 40 CFR Part 261 part of the comment that is placed in the adverse comments are received in public docket and made available on the response to this action, no further Internet. If you submit an electronic [SW–FRL–7855–5] activity is contemplated. If EPA receives comment, EPA recommends that you adverse comments, the direct final rule Hazardous Waste Management include your name and other contact will be withdrawn and all public System; Identification and Listing of information in the body of your comments received will be addressed in Hazardous Waste; Proposed Exclusion comment and with any disk or CD–ROM a subsequent final rule based on this you submit. If EPA cannot read your AGENCY: Environmental Protection proposed rule. EPA will not institute a comment due to technical difficulties Agency (EPA). second comment period. Any parties and cannot contact you for clarification, interested in commenting on this action ACTION: Proposed rule and request for EPA may not be able to consider your should do so at this time. comment. comment. Electronic files should avoid DATES: Comments must be received in the use of special characters, any form SUMMARY: EPA is proposing to grant a writing by January 27, 2005. of encryption, and be free of any defects petition submitted by Shell Oil ADDRESSES: Submit your comments, or viruses. Company (Shell Oil Company) to identified by Regional Material in Docket: All documents in the exclude (or delist) a certain liquid waste EDocket (RME) ID Number R03–OAR– electronic docket are listed in the RME generated by its Houston, TX Deer Park
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facility from the lists of hazardous C. How Will Shell Oil Company Manage B. Why Is EPA Proposing To Approve wastes. the Waste, if it Is Delisted? This Delisting? EPA used the Delisting Risk D. When Would the Proposed Delisting Exclusion be Finalized? Shell Oil Company’s petition requests Assessment Software (DRAS) in the E. How Would This Action Affect the evaluation of the impact of the an exclusion from the F039 waste listing States? pursuant to 40 CFR 260.20 and 260.22. petitioned waste on human health and II. Background the environment. A. What Is the History of the Delisting Shell Oil Company does not believe that EPA bases its proposed decision to Program? the petitioned waste meets the criteria grant the petition on an evaluation of B. What is a Delisting Petition, and What for which EPA listed it. Shell Oil waste-specific information provided by Does it Require of a Petitioner? Company also believes no additional C. What Factors Must EPA Consider in the petitioner. This proposed decision, constituents or factors could cause the Deciding Whether To Grant a Delisting waste to be hazardous. EPA’s review of if finalized, would exclude the Petition? petitioned waste from the requirements III. EPA’s Evaluation of the Waste this petition included consideration of of hazardous waste regulations under Information and Data the original listing criteria and the the Resource Conservation and A. What Wastes Did Shell Oil Company additional factors required by the Recovery Act (RCRA). Petition EPA To Delist? Hazardous and Solid Waste If finalized, EPA would conclude that B. Who Is Shell Oil Company and What Amendments of 1984 (HSWA). See Shell Oil Company’s petitioned waste is Process Does it use To Generate the section 3001(f) of RCRA, 42 U.S.C. Petitioned Waste? 6921(f), and 40 CFR 260.22(d)(1)–(4) nonhazardous with respect to the C. How Did Shell Oil Company Sample original listing criteria. EPA would also and Analyze the Data in This Petition? (hereinafter all sectional references are conclude that Shell Oil Company’s D. What Were the Results of Shell Oil to 40 CFR unless otherwise indicated). process minimizes short-term and long- Company’s Analysis? In making the initial delisting term threats from the petitioned waste E. How did EPA Evaluate the Risk of determination, EPA evaluated the to human health and the environment. Delisting This Waste? petitioned waste against the listing F. What Did EPA Conclude About Shell Oil criteria and factors cited in DATES: EPA will accept comments until Company’s Analysis? February 11, 2005. EPA will stamp §§ 261.11(a)(2) and (a)(3). Based on this G. What Other Factors Did EPA Consider review, EPA agrees with the petitioner comments received after the close of the in its Evaluation? comment period as late. These late H. What Is EPA’s Evaluation of This that the waste is nonhazardous with comments may not be considered in Delisting Petition? respect to the original listing criteria. (If formulating a final decision. Your IV. Next Steps EPA had found, based on this review, requests for a hearing must reach EPA A. With What Conditions Must the that the waste remained hazardous Petitioner Comply? by January 12, 2005. The request must based on the factors for which the waste B. What Happens if Shell Oil Company was originally listed, EPA would have contain the information prescribed in 40 Violates the Terms and Conditions? CFR 260.20(d). proposed to deny the petition.) EPA V. Public Comments evaluated the waste with respect to ADDRESSES: Please send three copies of A. How may I as an Interested Party Submit Comments? other factors or criteria to assess your comments. You should send two whether there is a reasonable basis to copies to the Section Chief of the B. How may I Review the Docket or Obtain Copies of the Proposed Exclusions? believe that such additional factors Corrective Action and Waste VI. Regulatory Impact could cause the waste to be hazardous. Minimization Section, Multimedia VII. Regulatory Flexibility Act EPA considered whether the waste is Planning and Permitting Division (6PD– VIII. Paperwork Reduction Act acutely toxic, the concentration of the C), Environmental Protection Agency, IX. Unfunded Mandates Reform Act constituents in the waste, their tendency 1445 Ross Avenue, Dallas, Texas 75202. X. Executive Order 13045 to migrate and to bioaccumulate, their You should send a third copy to Nicole XI. Executive Order 13084 XII. National Technology Transfer and persistence in the environment once Bealle, Waste Team Leader, Texas released from the waste, plausible and Commission on Environmental Quality, Advancements Act XIII. Executive Order 13132 Federalism specific types of management of the 5425 Polk Avenue, Suite A, Houston, petitioned waste, the quantities of waste TX 77023. Identify your comments at I. Overview Information generated, and waste variability. EPA the top with this regulatory docket A. What Action Is EPA Proposing? believes that the petitioned waste does number: ‘‘F–04–TEXDEL–Shell Oil.’’ not meet the listing criteria and thus You should address requests for a EPA is proposing: (1) To grant Shell Oil Company’s should not be a listed waste. EPA’s hearing to Ben Banipal, Chief of the proposed decision to delist waste from Corrective Action and Waste delisting petition to have its multisource landfill leachate underlying the Shell Oil Company’s facility is based on Minimization Section, Multimedia the information submitted in support of Planning and Permitting Division (6PD– Minimum Technology Requirements (MTR) hazardous waste landfill this rule, including descriptions of the C), Environmental Protection Agency, wastes and analytical data from the Deer 1445 Ross Avenue, Dallas, Texas 75202. excluded, or delisted, from the definition of a hazardous waste; and Park, TX facility. FOR FURTHER INFORMATION CONTACT: subject to certain verification and Comments may also be submitted C. How Will Shell Oil Company Manage monitoring conditions. the Waste if it Is Delisted? electronically to Michelle Peace at (2) To use the Delisting Risk [email protected]. Assessment Software (DRAS) to If the leachate is delisted, Shell will SUPPLEMENTARY INFORMATION: The evaluate the potential impact of the make piping modifications to allow the information in this section is organized petitioned waste on human health and leachate to be routed to the North as follows: the environment. The Agency used this Effluent Treater (NET) for treatment. I. Overview Information model to predict the concentration of The treated effluent will be discharged A. What Action Is EPA Proposing? hazardous constituents released from through an Texas Pollutant Discharge B. Why Is EPA Proposing To Approve This the petitioned waste, once it is Elimination System (TPDES) permitted Delisting? disposed. outfall.
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D. When Would the Proposed Delisting Oil Company must obtain delisting waste characteristics (that is, Exclusion be Finalized? authorization from that state before it ignitability, reactivity, corrosivity, and RCRA section 3001(f) specifically can manage the waste as nonhazardous toxicity) and present sufficient requires EPA to provide notice and an in the state. information for EPA to decide whether factors other than those for which the opportunity for comment before II. Background granting or denying a final exclusion. waste was listed warrant retaining it as Thus, EPA will not grant the exclusion A. What Is the History of the Delisting a hazardous waste. (See part 261 and the until it addresses all timely public Program? background documents for the listed comments (including those at public EPA published an amended list of waste.) hearings, if any) on this proposal. hazardous wastes from nonspecific and Generators remain obligated under RCRA section 3010(b)(1) at 42 USCA specific sources on January 16, 1981, as RCRA to confirm whether their waste 6930(b)(1), allows rules to become part of its final and interim final remains nonhazardous based on the effective in less than six months when regulations implementing section 3001 hazardous waste characteristics even if the regulated facility does not need the of RCRA. EPA has amended this list EPA has ‘‘delisted’’ the waste. six-month period to come into several times and published it in C. What Factors Must EPA Consider in compliance. That is the case here, §§ 261.31 and 261.32. Deciding Whether To Grant a Delisting because this rule, if finalized, would EPA lists these wastes as hazardous Petition? reduce the existing requirements for because: (1) The wastes typically and Besides considering the criteria in persons generating hazardous wastes. frequently exhibit one or more of the § 260.22(a) and section 3001(f) of RCRA, EPA believes that this exclusion characteristics of hazardous wastes 42 U.S.C. 6921(f), and in the background should be effective immediately upon identified in Subpart C of part 261 (that documents for the listed wastes, EPA final publication because a six-month is, ignitability, corrosivity, reactivity, must consider any factors (including deadline is not necessary to achieve the and toxicity), (2) the wastes meet the additional constituents) other than those purpose of section 3010(b), and a later criteria for listing contained in for which EPA listed the waste, if a effective date would impose §§ 261.11(a)(2) or (a)(3), or (3) the wastes reasonable basis exists that these unnecessary hardship and expense on are mixed with or derived from the additional factors could cause the waste this petitioner. These reasons also treatment, storage or disposal of such to be hazardous. provide good cause for making this rule characteristic and listed wastes and EPA must also consider as hazardous effective immediately, upon final which therefore become hazardous waste mixtures containing listed publication, under the Administrative under §§ 261.3(a)(2)(iv) or (c)(2)(i), hazardous wastes and wastes derived Procedure Act, 5 U.S.C. 553(d). known as the ‘‘mixture’’ or ‘‘derived- from treating, storing, or disposing of from’’ rules, respectively. E. How Would This Action Affect the Individual waste streams may vary, listed hazardous waste. See States? however, depending on raw materials, § 261.3(a)(2)(iii) and (iv) and (c)(2)(i), Because EPA is issuing this exclusion industrial processes, and other factors. called the ‘‘mixture’’ and ‘‘derived- under the Federal RCRA delisting Thus, while a waste described in these from’’ rules, respectively. These wastes program, only states subject to Federal regulations or resulting from the are also eligible for exclusion and RCRA delisting provisions would be operation of the mixture or derived-from remain hazardous wastes until affected. This would exclude states rules generally is hazardous, a specific excluded. See 66 FR 27266 (May 16, which have received authorization from waste from an individual facility may 2001). EPA to make their own delisting not be hazardous. III. EPA’s Evaluation of the Waste decisions. For this reason, §§ 260.20 and 260.22 Information and Data EPA allows states to impose their own provide an exclusion procedure, called non-RCRA regulatory requirements that delisting, which allows persons to prove A. What Waste Did Shell Oil Company are more stringent than EPA’s, under that EPA should not regulate a specific Petition EPA To Delist? section 3009 of RCRA, 42 U.S.C. 6929. waste from a particular generating On January 29, 2003, Shell Oil These more stringent requirements may facility as a hazardous waste. Company petitioned EPA to exclude include a provision that prohibits a from the lists of hazardous wastes B. What Is a Delisting Petition, and Federally issued exclusion from taking contained in § 261.31, multisource What Does it Require of a Petitioner? effect in the state. Because a dual system landfill leachate (F039) generated from (that is, both Federal (RCRA) and state A delisting petition is a request from its facility located in Deer Park, Texas. (non-RCRA) programs) may regulate a a facility to EPA or an authorized state The waste falls under the classification petitioner’s waste, EPA urges petitioners to exclude wastes from the list of of listed waste pursuant to § 261.31. to contact the state regulatory authority hazardous wastes. The facility petitions Specifically, in its petition, Shell Oil to establish the status of their wastes EPA because it does not consider the Company requested that EPA grant a under the state law. wastes hazardous under RCRA standard exclusion for 3.36 million EPA has also authorized some states regulations. gallons (16,619 cu. yards) per year of the (for example, Louisiana, Oklahoma, In a delisting petition, the petitioner multisource landfill leachate. Georgia, Illinois) to administer an RCRA must show that wastes generated at a delisting program in place of the Federal particular facility do not meet any of the B. Who Is Shell Oil Company and What program, that is, to make state delisting criteria for which the waste was listed. Process Does it Use To Generate the decisions. Therefore, this exclusion The criteria for which EPA lists a waste Petitioned Waste? does not apply in those authorized are in part 261 and further explained in Shell Oil Company refines high sulfur states unless that state makes the rule the background documents for the listed crude oil from Mexico into products part of its authorized program. If Shell waste. including gasoline, kerosene, jet fuel, Oil Company transports the petitioned In addition, under § 260.22, a fuel oil, lube oil and others. The waste to or manages the waste in any petitioner must prove that the waste hazardous wastes included incinerator state with delisting authorization, Shell does not exhibit any of the hazardous ash, spent catalysts and filters,
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Chloronated Plate Interceptor (CPI) C. How Did Shell Oil Company Sample characterization provide a reasonable sludge from the refinery wastewater and Analyze the Data in This Petition? basis to grant Shell Oil Company’s treatment plant, NET and primary solids To support its petition, Shell Oil petition for an exclusion of the from Shell Chemical and the South Company submitted: multisource landfill leachate. EPA Effluent Treater (SET). The wastes (1) Historical information on past believes the data submitted in support disposed of in the minimum waste generation and management of the petition show the multisource technological requirements (MTR) practices; landfill leachate is non-hazardous. landfill for the past four years have been (2) Results of the total constituent list Analytical data for the multisource Class 1 and Class 2 nonhazardous for 40 CFR part 264 Appendix IX landfill leachate samples were used in wastes. The landfill is designed to meet volatiles, semivolatiles, metals, the DRAS to develop delisting levels. the minimum technological pesticides, herbicides, dioxins and The data summaries for detected requirements specified in 40 CFR PCBs; constituents are presented in Table I. (3) Results of the constituent list for § 264.301. The design includes a EPA has reviewed the sampling 40 CFR part 264 Appendix IX on primary leachate collection system and procedures used by Shell Oil Company Toxicity Characteristic Leaching and has determined that it satisfies EPA liner (underlying the deposited waste) Procedure (TCLP) extract for volatiles, followed by a secondary leachate criteria for collecting representative semivolatiles, and metals; samples of the variations in constituent collection system. Leachate from this (4) Analytical constituents of concern concentrations in the multisource landfill requires offsite disposal as an for F039; F039 (multisource leachate) listed (5) Results from total oil and grease landfill leachate. In addition, the data waste. However, analytical data analyses; submitted in support of the petition collected monthly for this aqueous (6) Multiple pH testing for the show that constituents in Shell Oil stream shows that it is not a petitioned waste. Company’s waste are presently below characteristic waste and contains little health-based levels used in the delisting D. What Were the Results of Shell Oil decision-making. EPA believes that to no detectable concentrations of Company’s Analyses? organic constituents. Shell Oil Company has successfully EPA believes that the descriptions of demonstrated that the multisource the Shell Oil Company analytical landfill leachate is non-hazardous.
TABLE I.—MAXIMUM TCLP CONCENTRATIONS AND MAXIMUM ALLOWABLE DELISTING CONCENTRATION OF THE MULTISOURCE LANDFILL LEACHATE AT THE SHELL OIL COMPANY DEER PARK, TX FACILITY 1
Maximum allow- TCLP analyses able delisting con- Constituent (mg/l) centration levels (mg/l)
Antimony ...... 0.0092 0.0204 Arsenic ...... 0.011 2 0.385 Barium ...... 0.252 2.92 Copper ...... 0.00553 418.00 Chromium ...... 0.0122 5.0 Cobalt ...... 0.0126 2.25 Nickel ...... 0.0368 1.13 Selenium ...... 0.0128 0.0863 Acetone ...... 0.033 1.46 Acetophenone ...... 0.0031 1.58 Benzene ...... 0.013 0.022 Dichloroethane, 1,2 ...... 0.0014 0.0803 Ethylbenzene ...... 0.00098 4.51 Napthalene ...... 0.0061 1.05 Phenanthrene 3 ...... 0.0014 1.39 Phenol ...... 0.056 9.46 TCDD,2,3,7,8 ...... 0.00000000325 0.0000926 Trichloropropane ...... 0.00025 0.000574 Xylenes (total) ...... 0.0016 97.60 1 These levels represent the highest concentration of each constituent found in any one sample. These levels do not necessarily represent the specific levels found in one sample. 2 EPA defers to the maximum allowable delisting concentration based on the MCL. As a result, Shell Oil Company’s analytical sampling results and consequent DRAS analysis meet the criteria for the proposed delisting petition approval. 3 The DRAS program does not have a delisting concentration for phenanthrene. Consequently EPA substituted anthracene into the DRAS pro- gram to set a delisting level for phenanthrene. Anthracene has similar toxicological and health based properties as phenanthrene. The DRAS program contains a complete risk-based dataset for anthracene. Shell Oil Company’s phenanthrene analytical sampling results and consequent DRAS analysis using anthracene input parameters meet the criteria for the proposed phenanthrene delisting level. 4 Shell ran TCLP analysis only for the liquid wastes, total analysis were excluding because similar analytical results would be provided.
E. How Did EPA Evaluate the Risk of groundwater, surface water, air) for scenario for Shell Oil Company’s Delisting This Waste? hazardous constituents present in the petitioned waste. EPA applied the petitioned waste. EPA determined that Delisting Risk Assessment Software For this delisting determination, EPA disposal in a surface impoundment is (DRAS) described in 65 FR 58015 used such information gathered to the most reasonable, worst-case disposal (September 27, 2000) and 65 FR 75637 identify plausible exposure routes (i.e.,
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(December 4, 2000), to predict the fate and transport equations, the DRAS concludes that the petitioned waste do maximum allowable concentrations of uses the maximum compliance-point not exhibit any of the characteristics of hazardous constituents that may be concentrations and back-calculates the ignitability, corrosivity, reactivity or released from the petitioned waste after maximum allowable waste constituent toxicity. See §§ 261.21, 261.22 261.23 disposal and determined the potential concentrations (or ‘‘delisting levels’’). and 261.24, respectively. impact of the disposal of Shell Oil In most cases, because a delisted G. What Other Factors Did EPA Company’s petitioned waste on human waste is no longer subject to hazardous Consider in Its Evaluation? health and the environment. A copy of waste control, EPA is generally unable this software can be found on the world to predict, and does not presently During the evaluation of Shell Oil wide web at http://www.epa.gov/ control, how a petitioner will manage a Company’s petition, EPA also earth1r6/6pd/rcra_c/pd-o/dras.htm. In waste after delisting. Therefore, EPA considered the potential impact of the assessing potential risks to groundwater, currently believes that it is petitioned waste via non-groundwater EPA used the maximum estimated inappropriate to consider extensive site- routes (i.e., air emission and surface waste volumes and the maximum specific factors when applying the fate runoff). With regard to airborne reported extract concentrations as and transport model. EPA does control dispersion in particular, EPA believes inputs to the DRAS program to estimate the type of unit where the waste is that exposure to airborne contaminants the constituent concentrations in the disposed. The waste must be disposed from Shell Oil Company’s petitioned groundwater at a hypothetical receptor in the type of unit the fate and transport waste is unlikely. Therefore, no well down gradient from the disposal model evaluates. appreciable air releases are likely from site. Using the risk level (carcinogenic EPA also considers the applicability Shell Oil Company waste under any risk of 10¥5 and non-cancer hazard of groundwater monitoring data during likely disposal conditions. EPA index of 0.1), the DRAS program can the evaluation of delisting petitions. In evaluated the potential hazards back-calculate the acceptable receptor this case, Shell Oil Company will resulting from the unlikely scenario of well concentrations (referred to as dispose of its wastewater in its TPDES airborne exposure to hazardous compliance-point concentrations) using permitted NET unit, with existing constituents released from Shell Oil standard risk assessment algorithms and groundwater contamination sources. Company’s waste in an open surface EPA health-based numbers. Using the The groundwater contamination is impoundment. The results of this worst- maximum compliance-point currently being addressed and managed case analysis indicated that there is no concentrations and EPA’s Composite through a RCRA Corrective Actions substantial present or potential hazard Model for Leachate Migration with Program. Consequently the groundwater to human health and the environment Transformation Products (EPACMTP) data would not be relevant to this from airborne exposure to constituents fate and transport modeling factors, the exclusion. Therefore, EPA has from Shell Oil Company’s multisource DRAS further back-calculates the determined that it would be landfill leachate. maximum permissible waste constituent unnecessary to request groundwater H. What Is EPA’s Evaluation of This concentrations not expected to exceed monitoring data. Delisting Petition? the compliance-point concentrations in EPA believes that the descriptions of groundwater. Shell Oil Company hazardous waste The descriptions of Shell Oil EPA believes that the EPACMTP fate process and analytical characterization Company’s hazardous waste process and transport model represents a provide a reasonable basis to conclude and analytical characterization, with the reasonable worst-case scenario for that the likelihood of migration of proposed verification testing possible groundwater contamination hazardous constituents from the requirements (as discussed later in this resulting from disposal of the petitioned petitioned waste will be substantially notice), provide a reasonable basis for waste in a surface impoundment, and reduced so that short-term and long- EPA to grant the exclusion. The data that a reasonable worst-case scenario is term threats to human health and the submitted in support of the petition appropriate when evaluating whether a environment are minimized. show that constituents in the waste are waste should be relieved of the The DRAS results which calculate the below the maximum allowable protective management constraints of maximum allowable concentration of leachable concentrations (see Table I). RCRA Subtitle C. The use of some chemical constituents in the waste are EPA believes Shell Oil Company’s reasonable worst-case scenarios resulted presented in Table I. Based on the process will substantially reduce the in conservative values for the comparison of results from the DRAS likelihood of migration of hazardous compliance-point concentrations and and maximum TCLP concentrations constituents from the petitioned waste. ensures that the waste, once removed found in Table I, the petitioned waste Shell Oil Company’s process also from hazardous waste regulation, will should be delisted because no minimizes short-term and long-term not pose a significant threat to human constituents of concern tested are likely threats from the petitioned waste to health or the environment. to be present or formed as reaction human health and the environment. The DRAS also uses the maximum products or by-products in Shell Oil Thus, EPA believes Shell Oil estimated waste volumes and the Company’s waste. Company should be granted an maximum reported total concentrations exclusion for the multisource landfill to predict possible risks associated with F. What Did EPA Conclude About Shell leachate. EPA believes the data releases of waste constituents through Oil Company’s Analysis? submitted in support of the petition surface pathways (e.g., volatilization EPA concluded, after reviewing Shell show Shell Oil Company’s multisource from the surface impoundment). As in Oil Company’s processes that no other landfill leachate is non-hazardous. EPA the above groundwater analyses, the hazardous constituents of concern, other has reviewed the sampling procedures DRAS uses the risk level, the health- than those for which tested, are likely to used by Shell Oil Company and has based data and standard risk assessment be present or formed as reaction determined that it satisfies EPA criteria and exposure algorithms to predict products or by-products in the waste. In for collecting representative samples of maximum compliance-point addition, on the basis of explanations variable constituent concentrations in concentrations of waste constituents at and analytical data provided by Shell the multisource landfill leachate. The a hypothetical point of exposure. Using Oil Company, pursuant to § 260.22, EPA data submitted in support of the petition
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show that constituents in Shell Oil leachate as a hazardous waste until after the final exclusion as described in Company’s waste are presently below initial verification testing is performed Paragraph (3)(B) of the exclusion the compliance point concentrations will protect against improper handling language. used in the delisting decision and of hazardous material. If EPA EPA, per Paragraph 3(C) of the would not pose a substantial hazard to determines that the data collected under exclusion language, is proposing to end the environment. EPA believes that this Paragraph do not support the data the subsequent testing conditions after Shell Oil Company has successfully provided for in the petition, the the first year, if Shell Oil Company has demonstrated that the multisource exclusion will not cover the petitioned demonstrated that the waste landfill leachate is non-hazardous. waste. The exclusion is effective upon consistently meets the delisting levels. EPA therefore, proposes to grant an publication in the Federal Register but To confirm that the characteristics of the exclusion to Shell Oil Company, in Deer the disposal as non-hazardous cannot waste do not change significantly over Park, Texas, for the multisource landfill begin until the verification sampling is time, Shell Oil Company must continue leachate described in its petition. EPA’s completed. to analyze a representative sample of the waste on an annual basis. Annual decision to exclude this waste is based (3) Verification Testing Requirements on descriptions of the treatment testing requires analyzing the full list of activities associated with the petitioned Shell Oil Company must complete a components in Paragraph (1) of the waste and characterization of the rigorous verification testing program on exclusion language. If operating multisource landfill leachate. the multisource landfill leachate to conditions change as described in If EPA finalizes the proposed rule, assure that the treated multisource Paragraph (4) of the exclusion language; EPA will no longer regulate the landfill leachate does not exceed the Shell Oil Company must reinstate all petitioned waste under Parts 262 maximum levels specified in Paragraph testing in Paragraph (1) of the exclusion through 268 and the permitting (1) of the exclusion language. This language. Shell Oil Company must standards of Part 270. verification program operates on two prove through a new demonstration that levels. their waste meets the conditions of the IV. Next Steps The first part of the verification exclusion. testing program consists of testing the A. With What Conditions Must the If the annual testing of the waste does multisource landfill leachate for Petitioner Comply? not meet the delisting requirements in specified indicator parameters as per Paragraph 1, Shell Oil Company must The petitioner, Shell Oil Company, Paragraph (1) of the exclusion language. notify EPA according to the must comply with the requirements in If EPA determines that the data requirements in Paragraph 6 of the 40 CFR part 261, Appendix IX, Table 1. collected under this Paragraph do not exclusion language. The facility must The text below gives the rationale and support the data provided for the provide sampling results that support details of those requirements. petition, the exclusion will not cover the rationale that the delisting exclusion the generated wastes. If the data from (1) Delisting Levels should not be withdrawn. the initial verification testing program This paragraph provides the levels of demonstrate that the leachate meets the (4) Changes in Operating Conditions constituents for which Shell Oil delisting levels, Shell Oil Company may Paragraph (4) of the exclusion Company must test the multisource request quarterly testing. EPA will language would allow Shell Oil landfill leachate, below which these notify Shell Oil Company, in writing, if Company the flexibility of modifying its wastes would be considered non- and when it may replace the testing processes (for example, changes in hazardous. conditions in paragraph (3)(A) with the equipment or change in operating EPA selected the set of inorganic and testing conditions in (3)(B) of the conditions) to improve its treatment organic constituents specified in exclusion language. process. However, Shell Oil Company Paragraph (1) of 40 CFR part 261, The second part of the verification must prove the effectiveness of the Appendix IX, Table 1, (the exclusion testing program is the quarterly testing modified process and request approval language) based on information in the of representative samples of multisource from EPA. Shell Oil Company must petition. EPA compiled the inorganic landfill leachate for all constituents manage wastes generated during the and organic constituents list from the specified in Paragraph (1) of the new process demonstration as composition of the waste, descriptions exclusion language. EPA believes that hazardous waste until it has obtained of Shell Oil Company’s treatment the concentrations of the constituents of written approval and Paragraph (3) of process, previous test data provided for concern in the multisource landfill the exclusion language is satisfied. the waste, and the respective health- leachate may vary over time. (5) Data Submittals based levels used in delisting decision- Consequently this program will ensure making. These delisting levels that the leachate is evaluated in terms To provide appropriate correspond to the allowable levels of variation in constituent documentation that Shell Oil measured in the total concentrations. concentrations in the waste over time. Company’s multisource landfill leachate The limits described here do not relieve The proposed subsequent testing is meeting the delisting levels, Shell Oil Shell Oil Company of its duty to comply would verify that Shell Oil Company Company must compile, summarize, with discharge limits in its TPDES operates a landfill where the constituent and keep delisting records on-site for a permit. concentrations of the multisource minimum of five years. It should keep landfill leachate do not exhibit all analytical data obtained through (2) Waste Holding and Handling unacceptable temporal and spatial Paragraph (3) of the exclusion language The purpose of this paragraph is to levels of toxic constituents. including quality control information ensure that Shell Oil Company manages EPA is proposing to require Shell Oil for five years. Paragraph (5) of the and disposes of any multisource landfill Company to analyze representative exclusion language requires that Shell leachate that contains hazardous levels samples of the multisource landfill Oil Company furnish these data upon of inorganic and organic constituents leachate quarterly during the first year request for inspection by any employee according to Subtitle C of RCRA. of waste generation. Shell Oil Company or representative of EPA or the state of Managing the multisource landfill would begin quarterly sampling 60 days Texas.
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If the proposed exclusion is made appropriate. The language being to Nicole Bealle, Waste Team Leader, final, it will apply only to 3.36 million proposed is similar to those provisions Texas Commission on Environmental gallons (16,619 cu. yards) per year of found in RCRA regulations governing Quality, 5425 Polk Avenue Suite A, multisource landfill leachate, generated no-migration petitions at § 268.6. Houston, TX 77023. Identify your at the Shell Oil Company facility after EPA believes that it has the authority comments at the top with this regulatory successful verification testing. under RCRA and the Administrative docket number: ‘‘F–04–TEXDEL–Shell EPA would require Shell Oil Procedures Act (APA), 5 U.S.C. § 551 Oil.’’ You may submit your comments Company to file a new delisting petition (1978) et seq., to reopen a delisting electronically to Michelle Peace at under any of the following decision. EPA may reopen a delisting [email protected]. circumstances: decision when it receives new You should submit requests for a (a) If it significantly alters the information that calls into question the hearing to Ben Banipal, Section Chief of manufacturing process treatment system assumptions underlying the delisting. the Corrective Action and Waste except as described in Paragraph (4) of EPA believes a clear statement of its Minimization Section (6PD–C), the exclusion language; authority in delistings is merited in light Multimedia Planning and Permitting (b) If it uses any new manufacturing of EPA’s experience. See Reynolds Division, U. S. Environmental or production process(es), or Metals Company at 62 FR 37694 and 62 Protection Agency, 1445 Ross Avenue, significantly changes from the current FR 63458 where the delisted waste Dallas, Texas 75202. process(es) described in their petition; leached at greater concentrations in the B. How May I Review the Docket or or environment than the concentrations (c) If it makes any changes that could Obtain Copies of the Proposed predicted when conducting the TCLP, Exclusion? affect the composition or type of waste thus leading EPA to repeal the delisting. generated. If an immediate threat to human health You may review the RCRA regulatory Shell Oil Company must manage and the environment presents itself, docket for this proposed rule at the waste volumes greater than 3.36 million EPA will continue to address these Environmental Protection Agency gallons (16,619 cu. yards) per year of situations on a case by case basis. Where Region 6, 1445 Ross Avenue, Dallas, multisource landfill leachate as necessary, EPA will make a good cause Texas 75202. It is available for viewing hazardous until EPA grants a new finding to justify emergency rulemaking. in EPA Freedom of Information Act exclusion. See APA § 553 (b). Review Room from 9 a.m. to 4 p.m., When this exclusion becomes final, Monday through Friday, excluding Shell Oil Company’s management of the (7) Notification Requirements Federal holidays. Call (214) 665–6444 wastes covered by this petition would In order to adequately track wastes for appointments. The public may copy be relieved from Subtitle C jurisdiction. that have been delisted, EPA is material from any regulatory docket at Shell Oil Company must either treat, requiring that Shell Oil Company no cost for the first 100 pages, and at store, or dispose of the waste in an on- provide a one-time notification to any fifteen cents per page for additional site facility. If not, Shell Oil Company state regulatory agency through which copies. must ensure that it delivers the waste to or to which the delisted waste is being VI. Regulatory Impact an off-site storage, treatment, or disposal carried. Shell Oil Company must facility that has a state permit, license, provide this notification 60 days before Under Executive Order 12866, EPA or register to manage municipal or commencing this activity. must conduct an ‘‘assessment of the industrial solid waste. potential costs and benefits’’ for all B. What Happens if Shell Oil Company (6) Reopener ‘‘significant’’ regulatory actions. Violates the Terms and Conditions? The proposal to grant an exclusion is The purpose of Paragraph (6) of the If Shell Oil Company violates the not significant, since its effect, if exclusion language is to require Shell terms and conditions established in the promulgated, would be to reduce the Oil Company to disclose new or exclusion, EPA will start procedures to overall costs and economic impact of different information related to a withdraw the exclusion. Where there is EPA’s hazardous waste management condition at the facility or disposal of an immediate threat to human health regulations. This reduction would be the waste, if it is pertinent to the and the environment, EPA will evaluate achieved by excluding waste generated delisting. Shell Oil Company must also the need for enforcement activities on a at a specific facility from EPA’s lists of use this procedure if the waste sample case-by-case basis. EPA expects Shell hazardous wastes, thus enabling a in the annual testing fails to meet the Oil Company to conduct the appropriate facility to manage its waste as levels found in Paragraph 1. This waste analysis and comply with the nonhazardous. provision will allow EPA to reevaluate criteria explained above in Paragraph (1) Because there is no additional impact the exclusion, if a source provides new of the exclusion. from this proposed rule, this proposal or additional information to EPA. EPA would not be a significant regulation, will evaluate the information on which V. Public Comments and no cost/benefit assessment is EPA based the decision to see if it is still A. How Can I as an Interested Party required. The Office of Management and correct, or if circumstances have Submit Comments? Budget (OMB) has also exempted this changed so that the information is no rule from the requirement for OMB longer correct or would cause EPA to EPA is requesting public comments review under Section (6) of Executive deny the petition, if presented. on this proposed decision. Please send Order 12866. This provision expressly requires three copies of your comments. Send Shell Oil Company to report differing two copies to Section Chief of the VII. Regulatory Flexibility Act site conditions or assumptions used in Corrective Action and Waste Under the Regulatory Flexibility Act, the petition in addition to failure to Minimization Section (6PD–C), 5 U.S.C. 601–612, whenever an agency meet the annual testing conditions Multimedia Planning and Permitting is required to publish a general notice within 10 days of discovery. If EPA Division, Environmental Protection of rulemaking for any proposed or final discovers such information itself or Agency (EPA), 1445 Ross Avenue, rule, it must prepare and make available from a third party, it can act on it as Dallas, Texas 75202. Send a third copy for public comment a regulatory
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flexibility analysis which describes the them on compliance with the regulatory In addition, Executive Order 13084 impact of the rule on small entities (that requirements. requires EPA to develop an effective is, small businesses, small The UMRA generally defines a process permitting elected and other organizations, and small governmental Federal mandate for regulatory purposes representatives of Indian tribal jurisdictions). No regulatory flexibility as one that imposes an enforceable duty governments to have ‘‘meaningful and analysis is required, however, if the upon state, local, or tribal governments timely input’’ in the development of Administrator or delegated or the private sector. regulatory policies on matters that representative certifies that the rule will EPA finds that this delisting decision significantly or uniquely affect their not have any impact on a small entities. is deregulatory in nature and does not communities of Indian tribal This rule, if promulgated, will not impose any enforceable duty on any governments. This action does not have an adverse economic impact on state, local, or tribal governments or the involve or impose any requirements that small entities since its effect would be private sector. In addition, the proposed affect Indian Tribes. Accordingly, the to reduce the overall costs of EPA’s delisting decision does not establish any requirements of section 3(b) of hazardous waste regulations and would regulatory requirements for small Executive Order 13084 do not apply to be limited to one facility. Accordingly, governments and so does not require a this rule. EPA hereby certifies that this proposed small government agency plan under UMRA section 203. XII. National Technology Transfer and regulation, if promulgated, will not have Advancement Act a significant economic impact on a X. Executive Order 13045 substantial number of small entities. Under Section 12(d) of the National The Executive Order 13045 is entitled This regulation, therefore, does not Technology Transfer and Advancement ‘‘Protection of Children from Act, EPA is directed to use voluntary require a regulatory flexibility analysis. Environmental Health Risks and Safety consensus standards in its regulatory VIII. Paperwork Reduction Act Risks’’ (62 FR 19885, April 23, 1997). activities unless to do so would be This order applies to any rule that EPA inconsistent with applicable law or Information collection and record- determines (1) is economically otherwise impractical. Voluntary keeping requirements associated with significant as defined under Executive consensus standards are technical this proposed rule have been approved Order 12866, and (2) the environmental standards (e.g., materials specifications, by the Office of Management and health or safety risk addressed by the test methods, sampling procedures, Budget (OMB) under the provisions of rule has a disproportionate effect on business practices, etc.) developed or the Paperwork Reduction Act of 1980 children. If the regulatory action meets adopted by voluntary consensus (Public Law 96–511, 44 U.S.C. 3501 et both criteria, EPA must evaluate the standard bodies. Where available and seq.) and have been assigned OMB environmental health or safety effects of potentially applicable voluntary Control Number 2050–0053. the planned rule on children, and consensus standards are not used by IX. Unfunded Mandates Reform Act explain why the planned regulation is EPA, the Act requires that EPA to preferable to other potentially effective provide Congress, through the OMB, an Under section 202 of the Unfunded and reasonably feasible alternatives explanation of the reasons for not using Mandates Reform Act of 1995 (UMRA), considered by EPA. This proposed rule such standards. Public Law 104–4, which was signed is not subject to E.O. 13045 because this This rule does not establish any new into law on March 22, 1995, EPA is not an economically significant technical standards and thus, EPA has generally must prepare a written regulatory action as defined by no need to consider the use of voluntary statement for rules with Federal Executive Order 12866. consensus standards in developing this mandates that may result in estimated final rule. costs to state, local, and tribal XI. Executive Order 13084 governments in the aggregate, or to the Because this action does not involve XIII. Executive Order 13132 Federalism private sector, of $100 million or more any requirements that affect Indian Executive Order 13132, entitled in any one year. Tribes, the requirements of section 3(b) ‘‘Federalism’’ (64 FR 43255, August 10, When such a statement is required for of Executive Order 13084 do not apply. 1999) requires EPA to develop an EPA rules, under section 205 of the Under Executive Order 13084, EPA accountable process to ensure UMRA EPA must identify and consider may not issue a regulation that is not ‘‘meaningful and timely input by state alternatives, including the least costly, required by statute, that significantly and local officials in the development of most cost-effective, or least burdensome affects or uniquely affects the regulatory policies that have federalism alternative that achieves the objectives communities of Indian tribal implications.’’ ‘‘Policies that have of the rule. EPA must select that governments, and that imposes federalism implications’’ is defined in alternative, unless the Administrator substantial direct compliance costs on the Executive Order to include explains in the final rule why it was not those communities, unless the Federal regulations that have ‘‘substantial direct selected or it is inconsistent with law. government provides the funds effects on the states, on the relationship Before EPA establishes regulatory necessary to pay the direct compliance between the national government and requirements that may significantly or costs incurred by the tribal the states, or on the distribution of uniquely affect small governments, governments. power and responsibilities among the including tribal governments, it must If the mandate is unfunded, EPA must various levels of government.’’ develop under section 203 of the UMRA provide to the Office Management and Under section 6 of Executive Order a small government agency plan. The Budget, in a separately identified 13132, EPA may not issue a regulation plan must provide for notifying section of the preamble to the rule, a that has federalism implications, that potentially affected small governments, description of the extent of EPA’s prior impose substantial direct compliance giving them meaningful and timely consultation with representatives of costs, and that is not required by statute, input in the development of EPA affected tribal governments, a summary unless the Federal government provides regulatory proposals with significant of the nature of their concerns, and a the funds necessary to pay the direct Federal intergovernmental mandates, statement supporting the need to issue compliance costs incurred by state and and informing, educating, and advising the regulation. local governments, or EPA consults with
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state and local officials early in the Executive Order 13132, because it PART 261—IDENTIFICATION AND process of developing the proposed affects only one facility. LISTING OF HAZARDOUS WASTE regulation. EPA also may not issue a Lists of Subjects in 40 CFR Part 261 regulation that has federalism 1. The authority citation for Part 261 implications and that preempts state Environmental protection, Hazardous continues to read as follows: law unless EPA consults with state and Waste, Recycling, Reporting and Authority: 42 U.S.C. 6905, 6912(a), 6921, local officials early in the process of recordkeeping requirements. 6922, and 6938. developing the proposed regulation. Authority: Sec. 3001(f) RCRA, 42 U.S.C. This action does not have federalism 6921(f) 2. In Table 1 of Appendix IX of Part implication. It will not have a Dated: November 9, 2004. 261 add the following waste stream in substantial direct effect on states, on the Carl E. Edlund, alphabetical order by facility to read as relationship between the national Director, Multimedia Planning and Permitting follows: government and the states, or on the Division, Region 6. distribution of power and For the reasons set out in the Appendix IX to Part 261—Waste responsibilities among the various preamble, 40 CFR part 261 is proposed Excluded Under §§ 260.20 and 260.22. levels of government, as specified in to be amended as follows:
TABLE 1.—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES
Facility Address Waste Description
******* Shell Oil Company .... Deer Park, TX ...... Multisource landfill leachate (EPA Hazardous Waste No. F039) generated at a maximum an- nual rate of 3.36 million gallons (16,619 cu. yards) per calendar year after [insert publication date of the final rule] and disposed in accordance with the TPDES permit. The Delisting Levels set do not relieve Shell Oil Company of its duty to comply with the limits set in its TPDES permit. For the exclusion to be valid, Shell Oil Company must implement a verification testing program that meets the following Paragraphs: (1) Delisting Levels: All total concentrations for those constituents must not exceed the fol- lowing levels (mg/l). The petitioner must analyze the aqueous waste on a total basis to meas- ure constituents in the multisource landfill leachate. Multisource landfill leachate (i) Inorganic Constituents Antimony-0.0204; Arsenic-0.385; Barium- 2.92; Copper-418.00; Chromium-5.0; Cobalt-2.25; Nickel-1.13; Selenium-0.0863; Thallium- 0.005 (ii) Organic Constituents Acetone-1.46; Acrylonitrile-0.00745; Acetophenone-1.58; Benzene- 0.0222; Cresol, p-0.0788; Bis(2-chlorethyl)ether-0.00583; Bis(2-ethylhexyl)phthlate-15800.00; Dichlorobenzene, 1,3–0.00478; Dichloroethane, 1,2–0.0803; Dimethoate-3.15; Dimethyphenol, 2,4–0.405; Dinitrophenol-0.0293; Dinitrotoluene, 2,4–0.00451; Dinitrololuene, 2,6–0.00451; Diphenylthydrazine-0.00484; Dichloroethylene, 1,1–0.00719; Ethylbenzene- 4.51; Kepone-0.00407; Methacrylonitrile-0.00146; Methanol-7.32; Napthalene-1.05; Nitrobenzene 0.00788; Nitrosodiethylamine-0.000258; Nitrosodimethylamine-0.000076; Nitrosodi-n-butylamine-0.000826; N-Nitrosodi-n-propylamine-0.000553; N-Nitrosopiperdine- 0.000102; N-Nitrosopyrrolidine-0.000841; N-Nitrosomethylethylamine-0.000176; PCB’s- 0.000841; Pentachlorophenol-1.58; Phenol-9.46; Pyridine-0.0146; 2,3,7,8-TCDD equivalents as TEQ–0.0000926; Trichloropropane-0.000574; Vinyl Chloride-0.0019; Xylenes (total)-97.60 (2) Waste Management: (A) Shell Oil Company must manage as hazardous all multisource landfill leachate generated, until it has completed initial verification testing described in Paragraph (3)(A) and (B), as ap- propriate, and valid analyses show that Paragraph(1) is satisfied. (B) Levels of constituents measured in the samples of the multisource landfill leachate that do not exceed the levels set forth in Paragraph (1) are non-hazardous. Shell Oil Company can manage and dispose of the non-hazardous multisource landfill leachate according to all appli- cable solid waste regulations. (C) If constituent levels in a sample exceed any of the Delisting Levels set in Paragraph (1), Shell Oil Company can collect one additional sample and perform expedited analyses to verify if the constituent exceeds the delisting level. If this sample confirms the exceedance, Shell Oil Company must, from that point forward, treat the waste as hazardous until it is dem- onstrated that the waste again meets the levels in Paragraph (1). (D) If the facility has not treated the waste, Shell Oil Company must manage and dispose of the waste generated under Subtitle C of RCRA from the time that it becomes aware of any ex- ceedance. (E) Upon completion of the Verification Testing described in Paragraph 3(A) and (B) as appro- priate and the transmittal of the results to EPA, and if the testing results meet the require- ments of Paragraph (1), Shell Oil Company may proceed to manage its multisource landfill leachate as non-hazardous waste. If Subsequent Verification Testing indicates an exceed- ance of the Delisting Levels in Paragraph (1), Shell Oil Company must manage the multi- source landfill leachate as a hazardous waste until two consecutive quarterly testing samples show levels below the Delisting Levels in Table I.
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TABLE 1.—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES—Continued
Facility Address Waste Description
(3) Verification Testing Requirements: Shell Oil Company must perform sample collection and analyses, including quality control procedures, according to appropriate methods such as those found in SW–846 or other reliable sources (with the exception of analyses requiring the use of SW–846 methods incorporated by reference in 40 CFR 260.11, which must be used without substitution). If EPA judges the process to be effective under the operating conditions used during the initial verification testing, Shell Oil Company may replace the testing required in Paragraph (3)(A) with the testing required in Paragraph (3)(B). Shell Oil Company must continue to test as specified in Paragraph (3)(A) until and unless notified by EPA in writing that testing in Paragraph (3)(A) may be replaced by Paragraph (3)(B). (A) Initial Verification Testing: After EPA grants the final exclusion, Shell Oil Company must do the following: (i) Within 60 days of this exclusion becoming final, collect eight samples, before disposal, of the multisource landfill leachate. (ii) The samples are to be analyzed and compared against the Delisting Levels in Paragraph (1) (iii) Within sixty (60) days after this exclusion becomes final, Shell Oil Company will report initial verification analytical test data for the multisource landfill leachate, including analytical quality control information for the first thirty (30) days of operation after this exclusion becomes final. If levels of constituents measured in the samples of the multisource landfill leachate that do not exceed the levels set forth in Paragraph (1) are also non-hazardous in two consecutive quarters after the first thirty (30) days of operation after this exclusion become effective, Shell Oil Company can manage and dispose of the multisource landfill leachate according to all applicable solid waste regulations. (B) Subsequent Verification Testing: Following written notification by EPA, Shell Oil Company may substitute the testing conditions in (3)(B) for (3)(A). Shell Oil Company must continue to monitor operating conditions, and analyze two representative samples of the multisource landfill leachate for each quarter of operation during the first year of waste generation. The samples must represent the waste generated during the quarter. After the first year of analyt- ical sampling verification sampling can be performed on a single annual sample of the multi- source landfill leachate. The results are to be compared to the Delisting Levels in Condition (1). (C) Termination of Testing: (i) After the first year of quarterly testing, if the Delisting Levels in Paragraph (1) are being met, Shell Oil Company may then request that EPA not require quarterly testing. After EPA noti- fies Shell Oil Company in writing, the company may end quarterly testing. (ii) Following cancellation of the quarterly testing, Shell Oil Company must continue to test a representative sample for all constituents listed in Paragraph (1) annually. (4) Changes in Operating Conditions: If Shell Oil Company significantly changes the process described in its petition or starts any processes that generate(s) the waste that may or could significantly affect the composition or type of waste generated as established under Para- graph (1) (by illustration, but not limitation, changes in equipment or operating conditions of the treatment process), it must notify EPA in writing; it may no longer handle the wastes gen- erated from the new process as nonhazardous until the wastes meet the Delisting Levels set in Paragraph (1) and it has received written approval to do so from EPA. (5) Data Submittals: Shell Oil Company must submit the information described below. If Shell Oil Company fails to submit the required data within the specified time or maintain the re- quired records on-site for the specified time, EPA, at its discretion, will consider this sufficient basis to reopen the exclusion as described in Paragraph 6. Shell Oil Company must: (A) Submit the data obtained through Paragraph 3 to the Section Chief, Region 6 Corrective Action and Waste Minimization Section, EPA, 1445 Ross Avenue, Dallas, Texas 75202– 2733, Mail Code, (6PD-C) within the time specified. (B) Compile records of operating conditions and analytical data from Paragraph (3), summa- rized, and maintained on-site for a minimum of five years. (C) Furnish these records and data when EPA or the state of Texas request them for inspec- tion. (D) Send along with all data a signed copy of the following certification statement, to attest to the truth and accuracy of the data submitted: Under civil and criminal penalty of law for the making or submission of false or fraudulent state- ments or representations (pursuant to the applicable provisions of the Federal Code, which include, but may not be limited to, 18 U.S.C. § 1001 and 42 U.S.C. § 6928), I certify that the information contained in or accompanying this document is true, accurate and complete. As to the (those) identified section(s) of this document for which I cannot personally verify its (their) truth and accuracy, I certify as the company official having supervisory responsibility for the persons who, acting under my direct instructions, made the verification that this infor- mation is true, accurate and complete. If any of this information is determined by EPA in its sole discretion to be false, inaccurate or incomplete, and upon conveyance of this fact to the company, I recognize and agree that this exclusion of waste will be void as if it never had effect or to the extent directed by EPA and that the company will be liable for any actions taken in contravention of the company’s RCRA and CERCLA obligations premised upon the company’s reliance on the void exclusion. (6) Reopener:
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TABLE 1.—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES—Continued
Facility Address Waste Description
(A) If, anytime after disposal of the delisted waste, Shell Oil Company possesses or is other- wise made aware of any environmental data (including but not limited to leachate data or groundwater monitoring data) or any other data relevant to the delisted waste indicating that any constituent identified for the delisting verification testing is at level higher than the delisting level allowed by the Division Director in granting the petition, then the facility must report the data, in writing, to the Division Director within 10 days of first possessing or being made aware of that data. (B) If the annual testing of the waste does not meet the delisting requirements in Paragraph 1, Shell Oil Company must report the data, in writing, to the Division Director within 10 days of first possessing or being made aware of that data. (C) If Shell Oil Company fails to submit the information described in Paragraphs (5),(6)(A) or (6)(B) or if any other information is received from any source, the Division Director will make a preliminary determination as to whether the reported information requires EPA action to protect human health and/or the environment. Further action may include suspending, or re- voking the exclusion, or other appropriate response necessary to protect human health and the environment. (D) If the Division Director determines that the reported information does require action, EPA’s Division Director will notify the facility in writing of the actions the Division Director believes are necessary to protect human health and the environment. The notice shall include a state- ment of the proposed action and a statement providing the facility with an opportunity to present information as to why the proposed action by EPA is not necessary. The facility shall have 10 days from the date of the Division Director’s notice to present such information. (E) Following the receipt of information from the facility described in Paragraph (6)(D) or (if no information is presented under Paragraph (6)(D)) the initial receipt of information described in Paragraphs (5), (6)(A) or (6)(B), the Division Director will issue a final written determination describing EPA’s actions that are necessary to protect human health and/or the environment. Any required action described in the Division Director’s determination shall become effective immediately, unless the Division Director provides otherwise. (7) Notification Requirements: Shell Oil Company must do the following before transporting the delisted waste. Failure to provide this notification will result in a violation of the delisting peti- tion and a possible revocation of the decision. (A) Provide a one-time written notification to any state Regulatory Agency to which or through which it will transport the delisted waste described above for disposal, 60 days before begin- ning such activities. (B) Update the one-time written notification if it ships the delisted waste into a different disposal facility. (C) Failure to provide this notification will result in a violation of the delisting variance and a possible revocation of the decision.
*******
[FR Doc. 04–28199 Filed 12–27–04; 8:45 am] our September 24, 2002, proposed rule evaluate the exclusions made to our BILLING CODE 6560–50–P (hereinafter referred to as the September proposal in two separate actions: (1) A 2002 proposal) to designate critical re-evaluation of exclusions based on habitat for 4 vernal pool crustaceans and policy or non-economic reasons DEPARTMENT OF THE INTERIOR 11 vernal pool plants in California and addressed herein; and (2) a re- southern Oregon (67 FR 59884). We evaluation of exclusions based on Fish and Wildlife Service issued a final rule based on the economic concerns in a subsequent September 2002 proposal on August 6, Federal Register notice. Comments 50 CFR Part 17 2003 (68 FR 46684). In the final rule we previously submitted on the September RIN 1018–AU06 excluded certain specific lands that had 2002 proposal need not be resubmitted been included in the September 2002 because we will incorporate them into Endangered and Threatened Wildlife proposal. We excluded these lands the public record as part of this and Plants; Proposed Critical Habitat pursuant to section 4(b)(2) of the Act reopening of the comment period and Designation for Four Vernal Pool based on either policy or economic will fully consider them in development Crustaceans and Eleven Vernal Pool reasons. On October 28, 2004, a court of a new final rule. Plants in California and Southern remanded the final designation to the DATES: We will accept public comments Oregon Service in part, ordering the Service to on the policy (non-economic) make a new determination as to whether AGENCY: Fish and Wildlife Service, exclusions to our September 2002 to designate the excluded areas (Butte Interior. proposal and any new information Environmental Council v. Norton, NO. ACTION: Proposed rule, reopening of concerning the 15 vernal pool species CIV. S–04–0096 (E.D. Cal. Oct. 28, public comment period. addressed in this critical habitat 2004). The August 6, 2003, final rule is designation until January 27, 2005. SUMMARY: We, the U.S. Fish and still in effect while we reconsider the Wildlife Service (Service), announce exclusions from the proposed rule and ADDRESSES: If you wish to comment, that we are soliciting additional make a new final determination. you may submit your comments and comments on certain areas included in Pursuant to the court order, we will materials by any one of several methods:
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1. You may submit written comments total of 128 units of critical habitat for designation, impacts on national and information to the Field Supervisor, these 15 vernal pool species, totaling security, and other relevant factors such Sacramento Fish and Wildlife Office, approximately 672,920 hectares (ha) as partnerships and on-going U.S. Fish and Wildlife Service, 2800 (1,662,762 acres (ac)) in 36 counties in management actions benefiting the Cottage Way, Suite W–2605, California and one county in Oregon. In species covered by the designation. Sacramento, California 95825. accordance with our regulations at 50 Next, we determined that the benefits of 2. You may hand-deliver written CFR 424.16(c)(2), we opened a 60-day excluding certain lands from the final comments and information to our comment period on this proposal, designation of critical habitat for the 15 Sacramento Fish and Wildlife Office, at which closed on November 25, 2002. vernal pool species outweighed the the above address, or fax your All the species listed above live in benefit of including them in the comments to 916/414–6710. vernal pools (shallow depressions that designation, and the specific exclusions 3. You may send your comments by hold water seasonally), swales (shallow would not result in the extinction of any electronic mail (e-mail) to drainages that carry water seasonally), of the species involved. Lands excluded [email protected]. For directions and ephemeral freshwater habitats. from the final designation based on on how to submit electronic filing of None are known to occur in riverine policy and management plans or comments, see the ‘‘Public Comments waters, marine waters, or other programs that provide a benefit to the Solicited’’ section below. permanent bodies of water. The vernal species included: lands within specific Comments and materials received, as pool habitats of these species have a National Wildlife Refuges and Fish well as supporting documentation used discontinuous distribution west of the Hatcheries; Department of Defense in preparation of the previous Sierra Nevada that extends from lands; Tribal lands; State Wildlife Areas designation of critical habitat and southern Oregon through California into and Ecological Reserves; and lands economic analysis will be available for northern Baja California, Mexico. The covered by habitat conservation plans or inspection, by appointment, during species have all adapted to the generally other management plans that provide a normal business hours at our office mild climate and seasonal periods of benefit for the species. We also listed in the ADDRESSES section. Copies inundation and drying that help make excluded lands proposed as critical of the proposed and final designation of the vernal pool ecosystems of California habitat in Butte, Madera, Merced, critical habitat for these 15 species as and southern Oregon unique. Sacramento, and Solano counties based well as our economic analysis are also Section 4(b)(2) of the Act requires that on potential economic impacts. Thus, available on the Internet at http:// the Secretary of the Interior shall on July 15, 2003, we made a final sacramento.fws.gov/ or by writing or designate or revise critical habitat based determination of critical habitat for the calling Arnold Roessler, at the address upon the best scientific and commercial 15 vernal pool species; the final rule or telephone number listed above. data available, after taking into was published in the Federal Register consideration the economic impact, FOR FURTHER INFORMATION CONTACT: on August 6, 2003 (68 FR 46684). A total impact to national security, and any of approximately 1,184,513 ac (417,989 Arnold Roessler, at the address above other relevant impact of specifying any ha) of land falls within the boundaries (telephone 916/414–6600; facsimile particular area as critical habitat. The of designated critical habitat (the area 916/414–6710). Secretary may exclude any area from estimate does not reflect the exclusion SUPPLEMENTARY INFORMATION: critical habitat if she determines that the of lands based on potential economic benefit of such exclusion outweighs the Background impacts from the five California benefits of specifying such area as part counties). On September 24, 2002, we published of the critical habitat, unless the failure a proposed rule to designate critical to designate such area as critical habitat In January 2004, Butte Environmental habitat, pursuant to the Endangered will result in the extinction of the Council, and several other Species Act of 1973, as amended (Act) species concerned. Thus, to fulfill our organizations, filed a complaint alleging for 4 vernal pool crustaceans and 11 requirement to consider the potential that we: (1) Violated the Act, and the vernal pool plants (67 FR 59884). The economic impacts of the proposed Administrative Procedure Act (APA), by four vernal pool crustaceans involved in designation of critical habitat for the 15 excluding over 1 million acres from the this critical habitat designation are the vernal pool species, we conducted an final designation of critical habitat for Conservancy fairy shrimp (Branchinecta analysis of the potential economic the 15 vernal pool species; (2) violated conservatio), longhorn fairy shrimp impacts on the proposed designation mandatory notice-and-comment (Branchinecta longiantenna), vernal and published a notice on November 21, requirements under the Act and APA; pool fairy shrimp (Branchinecta lynchi), 2002 (67 FR 70201), announcing the and (3) have engaged in an unlawful and vernal pool tadpole shrimp availability of our draft economic pattern, practice, and policy by failing (Lepidurus packardi). The 11 vernal analysis. The notice opened a 30-day to properly consider the economic pool plant species are Butte County public comment period on the draft impacts of designating critical habitat. meadowfoam (Limnanthes floccosa ssp. economic analysis, and extended the On October 28, 2004, the court signed californica), Contra Costa goldfields comment period on the proposed a Memorandum and Order in that case. (Lasthenia conjugens), Hoover’s spurge critical habitat designation. The Memorandum and Order remanded (Chamaesyce hooveri), fleshy (or During the development of the final the final designation to the Service in succulent) owl’s-clover (Castilleja designation, we reviewed the lands part. In particular, the court ordered us campestris ssp. succulenta), Colusa proposed as critical habitat based on to: (1) Reconsider the exclusions from grass (Neostapfia colusana), Greene’s public comments and any new the final designation of critical habitat tuctoria (Tuctoria greenei), hairy Orcutt information that may have become for the 15 vernal pool species, with the grass (Orcuttia pilosa), Sacramento available and refined the boundaries of exception of those lands within the 5 Orcutt grass (Orcuttia viscida), San the proposal to remove lands California counties that were excluded Joaquin Valley Orcutt grass (Orcuttia determined not to be essential to the based on potential economic impacts, inaequalis), slender Orcutt grass conservation of the 15 vernal pool and publish a new final determination (Orcuttia tenuis), and Solano grass species. We then took into consideration as to those lands within 120 days; and (Tuctoria mucronata). We proposed a the potential economic impacts of the (2) reconsider the exclusion of the five
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California counties based on potential species, with the exception of those proposal for 30 days to solicit comments economic impacts and publish a new lands within the 5 California counties and any new information concerning final determination no later than July that were excluded based on potential the non-economic exclusions that were 31, 2005. The court also made it clear economic impacts, and reopens the made during the development of the that the partial remand would not affect public comment period. The second final designation of critical habitat for the areas included in the August 6, requirement of the order, concerning the the 15 vernal pool species. To facilitate 2003, final designation. This notice economic exclusions, will be addressed this process, Table 1 lists each specific addresses the first requirement of the through a future Federal Register area that was excluded from the remand—the reconsideration of the notice. proposed designation of critical habitat exclusions from the final designation of We are hereby reopening the public for the 15 vernal pool species based on critical habitat for the 15 vernal pool comment period on our September 2002 policy by category and size.
TABLE 1.—APPROXIMATE AREAS OF CRITICAL HABITAT EXCLUSIONS FOR THE VERNAL POOL CRUSTACEANS AND PLANTS IN CALIFORNIA AND OREGON
Exclusion Area Acres Hectares
National Wildlife Refuges (NWR) and Fish Hatchery Exclusions
Sacramento NWR Complex ...... 19,363 7,836 San Francisco Bay NWR ...... 617 250 San Luis NWR Complex ...... 18,014 7,290 Kern NWR Complex ...... 4,894 1,980 Coleman Nat. Fish Hatchery ...... 13 5
Total ...... 42,914 17,367
Department of Defense Exclusions
Beale Air Force Base ...... 10,033 4,060 Travis Air Force Base ...... 9,651 3,906 Fort Hunter Liggett ...... 16,583 6,711 Camp Roberts ...... 33,937 13,734
Total ...... 70,204 28,410
Tribal Land Exclusions
Mechoopda Tribe ...... 644 261
Total ...... 644 261
State Wildlife Areas (WA) and Ecological Reserve (ER) Exclusions
Allensworth ER ...... 1,141 462 Battle Creek WA ...... 637 258 Big Sandy WA ...... 478 194 Boggs Lake ER ...... 50 20 Butte Creek Canyon ER ...... 0.4 0.16 Calhoun Cut ER ...... 3,021 1,223 Carrizo Plains ER ...... 455 184 Dales Lake ER ...... 754 305 Fagen Marsh ER ...... 420 170 Grizzly Island WA ...... 10 4 Hill Slough WA ...... 1,559 631 North Grasslands WA ...... 5 2 Oroville WA ...... 39 16 Phoenix Field ER ...... 7 3 San Joaquin River ER ...... 278 113 Stone Corral ER ...... 3,074 1,244 Thomes Creek ER ...... 447 181
Total ...... 12,373 5,007
Habitat Conservation Plans (HCP) and Cooperatively Managed Land Exclusions
Skunk Hollow HCP ...... 239 97 Western Riverside Multiple Species HCP ...... 5,730 2,319 Santa Rosa Plateau Ecological Reserve ...... 4,246 1,718 San Joaquin County Multiple Species HCP ...... 10 4
Total ...... 10,224 4,138
Grand Total ...... 136,358 55,182
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Public Comment Solicited include ‘‘Attn: RIN 1018–AUO6’’ in ACTION: Proposed rule; notice of We intend that any final action your e-mail subject header and your availability of draft economic analysis resulting from our September 2002 name and return address in the body of and reopening of public comment proposal will be as accurate and as your message. If you do not receive a period. confirmation from the system that we effective as possible. Therefore, we SUMMARY: We, the U.S. Fish and solicit comments or suggestions from have received your Internet message, contact us directly by calling our Wildlife Service (Service), announce the the public, other concerned availability of a draft economic analysis governmental agencies, the scientific Sacramento Fish and Wildlife Office at telephone number 916/414–6600, for the proposed designation of critical community, industry, or any other habitat for the federally threatened interested party concerning the portion during normal business hours. Our practice is to make comments, Astragalus lentiginosus var. piscinensis of the proposed rule subject to the (Fish Slough milk-vetch), and the court’s remand order. On the basis of including names and home addresses of respondents, available for public review reopening of the public comment period public comment, during the on the proposed rule to designate development of our new, partial final during regular business hours. Individual respondents may request that critical habitat for this taxon. The determination we may find that areas comment period will provide the proposed are not essential, are we withhold their home addresses from the rulemaking record, which we will public, Federal, State, and local appropriate for exclusion under section agencies, and Tribes with an 4(b)(2), or not appropriate for exclusion; honor to the extent allowable by law. There also may be circumstances in opportunity to submit written in all of these cases, this information comments on this proposal and its would be incorporated into our new which we would withhold from the rulemaking record a respondent’s respective draft economic analysis. final determination with respect to Comments previously submitted on the those areas. We particularly seek identity, as allowable by law. If you wish us to withhold your name and/or proposed rule need not be resubmitted comments concerning: as they have been incorporated into the (1) Specific information on the address, you must state this prominently at the beginning of your public record as a part of this reopening amount and distribution of habitat for of the comment period, and will be fully the 15 vernal pool species, and what comment. However, we will not consider anonymous comments. We considered in preparation of the final habitat is essential to the conservation rule. of the species and why; will make all submissions from (2) The reasons why any areas should organizations or businesses, and from DATES: We will accept all comments and or should not be determined to be individuals identifying themselves as information until 5 p.m. on or before critical habitat as provided by section 4 representatives or officials of January 27, 2005. Any comments that of the Act; organizations or businesses, available we receive after the closing date may (3) Information related to the benefits for public inspection in their entirety. not be considered in the final decision of designating any of these areas as Comments and materials received will on this proposal. critical habitat for the 15 vernal pool be available for public inspection, by ADDRESSES: Written comments and species; appointment, during normal business materials may be submitted to us by one (4) Information related to the benefits hours at the above address. of the following methods: of excluding any of these areas as Authority (1) You may submit written comments critical habitat for the 15 vernal pool and information to the Field Supervisor, species; The authority for this action is the U.S. Fish and Wildlife Service, Ventura (5) Land use designations and current Endangered Species Act of 1973 (16 Fish and Wildlife Office, 2493 Portola or planned activities in or adjacent to U.S.C. 1531 et seq.). Road, Suite B, Ventura, CA 93003. the areas proposed, and their possible Dated: December 17, 2004. (2) You may hand-deliver written impacts on proposed critical habitat; Craig Manson, comments and information to our (6) Land use designations and current Assistant Secretary for Fish and Wildlife and Ventura Fish and Wildlife Office, at the or planned activities in or adjacent to Parks. above address, or fax your comments to the areas proposed, and the possible [FR Doc. 04–28164 Filed 12–27–04; 8:45 am] 805/644–3958. impacts on those uses and activities BILLING CODE 4310–55–P (3) You may send comments by from a critical habitat designation; electronic mail (e-mail) to: (7) Any foreseeable economic or other [email protected]. Please see the potential impacts resulting from the DEPARTMENT OF THE INTERIOR Public Comments Solicited section proposed designation, including any below for file format and other impacts on small entities; and Fish and Wildlife Service information about electronic filing. (8) Whether our approach to Comments and materials received, as designating critical habitat could be 50 CFR Part 17 well as supporting documentation used improved or modified in any way to in preparation of the proposed critical provide for greater public participation RIN 1018–AJ09 habitat rule for Astragalus lentiginosus and understanding, or to assist us in Endangered and Threatened Wildlife var. piscinensis (69 FR 31552), will be accommodating public concerns and and Plants; Notice of Availability of available for public inspection, by comments. Draft Economic Analysis and appointment, during normal business If you wish to comment, you may Reopening of the Public Comment hours at the above address. You may submit your comments and materials Period for the Proposed Designation of obtain copies of the draft economic concerning this proposal by any one of Critical Habitat for Astragalus analysis for this taxon by contacting the several methods (see ADDRESSES lentiginosus var. piscinensis (Fish Ventura Fish and Wildlife Office at the section). Please submit electronic Slough Milk-vetch) above address. The draft economic comments in ASCII file format and analysis and the proposed rule for avoid the use of special characters or AGENCY: Fish and Wildlife Service, critical habitat designation also are any form of encryption. Please also Interior. available on the Internet at http://
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ventura.fws.gov/. In the event that our (7) Information on how many of the There also may be circumstances in Internet connection is not functional, State and local environmental which we would withhold from the please obtain copies for documents protection measures referenced in the rulemaking record a respondent’s directly from the Ventura Fish and draft economic analysis were adopted identity, as allowable by law. If you Wildlife Office. largely as a result of the listing of wish for us to withhold your name and/ FOR FURTHER INFORMATION CONTACT: Mr. Astragalus lentiginosus var. piscinensis, or address, you must state this Douglas Threloff, Ventura Fish and and how many were either already in prominently at the beginning of your Wildlife Office, at the address listed place or enacted for other reasons; comment. However, we will not above (telephone 805/644–1766; (8) Whether the economic analysis consider anonymous comments. We facsimile 805/644–3958). identifies all State and local costs will make all submissions from attributable to the proposed critical organizations or businesses, and from SUPPLEMENTARY INFORMATION: habitat designation. If not, what costs individuals identifying themselves as Public Comments Solicited are overlooked; representatives or officials of (9) Whether the economic analysis We intend any final action resulting organizations or businesses, available makes appropriate assumptions from this proposal to be as accurate and for public inspection in their entirety. regarding current practices and likely Comments and materials received, as as effective as possible. Therefore, we regulatory changes imposed as a result well as supporting documentation used solicit comments and information from of the designation of critical habitat; in preparation of the proposal to the public, other concerned (10) Whether the economic analysis designate critical habitat, will be governmental agencies, the scientific correctly assesses the effect on regional available for inspection, by community, industry, or any other costs associated with water and land use appointment, during normal business interested party concerning the draft controls that derive from the hours, in our Ventura Fish and Wildlife economic analysis or the proposed rule designation; Office at the above address. to designate critical habitat for (11) Whether the designation will Astragalus lentiginosus var. piscinensis result in disproportionate economic Background (69 FR 31552). We particularly seek impacts to specific areas that should be Astragalus lentiginosus var. comments concerning: evaluated for possible exclusion from piscinensis is a prostrate perennial, with (1) The reasons why any habitat the final designation; few-branching stems that are up to 39 should or should not be determined to (12) Whether the economic analysis inches (1 meter) in length and covered be critical habitat as provided by section appropriately identifies all costs that with stiff, appressed hairs. We listed A. 4 of the Act, including whether the could result from the designation; and l. var. piscinensis as threatened under benefits of exclusion outweigh the (13) Whether our approach to critical the Endangered Species Act of 1973, as benefits of specifying such area as part habitat designation could be improved amended (16 U.S.C. 1531 et seq.) on of the critical habitat; or modified in any way to provide for October 6, 1998 (63 FR 53596). Please (2) Specific information on the greater public participation and refer to the final listing rule for a more amount and distribution of Astragalus understanding, or to assist us in detailed discussion of the species’ lentiginosus var. piscinensis habitat, and accommodating public concern and taxonomic history and description. what habitat is essential to the comments. On June 4, 2004, we published a conservation of this species and why; All comments and information proposed rule in the Federal Register (3) Land use designations and current submitted during the initial comment (69 FR 31552) to designate critical or planned activities in the subject area period on the proposed rule need not be habitat for Astragalus lentiginosus var. and their possible impacts on proposed resubmitted. If you wish to comment, piscinensis. We proposed to designate a habitat, and whether the proposed area you may submit your comments and total of approximately 8,490 acres (3,435 may need special management or materials concerning the draft economic hectares) of critical habitat in Inyo and protection; analysis and the proposed rule by any Mono Counties, CA. The first comment (4) Current or planned water one of several methods (see ADDRESSES period on the proposed critical habitat withdrawals or diversions in or adjacent section). rule for A. l. var. piscinensis closed on to the area proposed, or in more distant Please submit Internet comments to August 3, 2004. areas, that could impact the hydrology [email protected] in an ASCII Critical habitat identifies specific of Fish Slough, the nature of any file format and avoid the use of special areas, both occupied and unoccupied, impacts from these withdrawals, and characters and encryption. Please also that are essential to the conservation of whether there is a Federal nexus to such include ‘‘Attn: Fish Slough Milk-vetch a listed species and that may require withdrawals that could result in Critical Habitat’’ in your e-mail subject special management considerations or consultations under section 7 of the Act, header, and your name and return protection. If the proposed rule is made or a similar requirement under State address in the body of your message. If final, section 7 of the Act will prohibit law; you do not receive a confirmation from destruction or adverse modification of (5) Any foreseeable economic, the system that we have received your critical habitat by any activity funded, national security or other potential Internet message, contact us directly by authorized, or carried out by any impacts resulting from the proposed calling our Ventura Fish and Wildlife Federal agency. Federal agencies designation of critical habitat, in Office (see FOR FURTHER INFORMATION proposing actions affecting areas particular, any impacts on small entities CONTACT section). designated as critical habitat must or families; Our practice is to make comments, consult with us on the effects of their (6) Additional information that can be including names and home addresses of proposed actions, pursuant to section used to characterize or more completely respondents, available for public review 7(a)(2) of the Act. We note, however, understand the regional aquifer that during regular business hours. that a recent 9th Circuit judicial supports aquatic or riparian habitat in Individual respondents may request that opinion, Gifford Pinchot Task Force v. Fish Slough, or how local ground water we withhold their home addresses from United States Fish and Wildlife Service, pumping activities affect the hydrology the rulemaking record, which we will has invalidated the Service’s regulation of Fish Slough; honor to the extent allowable by law. defining destruction or adverse
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modification of critical habitat. We are Required Determinations mining concerns with fewer than 500 employees, wholesale trade entities currently reviewing the decision to Regulatory Planning and Review determine what effect it may have on with fewer than 100 employees, retail the outcome of consultations pursuant In accordance with Executive Order and service businesses with less than $5 to Section 7 of the Act. 12866, this proposed designation of million in annual sales, general and critical habitat is a significant rule only heavy construction businesses with less Section 4(b)(2) of the Act requires that in that the Office of Management and than $27.5 million in annual business, we designate or revise critical habitat on Budget (OMB) has determined that it special trade contractors doing less than the basis of the best scientific and may raise novel legal and policy issues. $11.5 million in annual business, and commercial data available, after taking However, the economic analysis agricultural businesses with annual into consideration the economic impact, indicates that the proposed designation sales less than $750,000. To determine impact to national security, and any will not have an annual effect on the if potential economic impacts to these other relevant impacts of specifying any economy of $100 million or more or small entities are significant, we particular area as critical habitat. We affect the economy in a material way. considered the types of activities that have prepared a draft economic analysis Due to the tight timeline for publication might trigger regulatory impacts under for the proposal to designate certain in the Federal Register, OMB has not this rule as well as the types of project areas as critical habitat for Astragalus formally reviewed this rule. modifications that may result. In lentiginosus var. piscinensis. This Regulatory Flexibility Act (5 U.S.C. 601 general, the term significant economic analysis considers the potential et seq.) impact is meant to apply to a typical economic effects of our proposed small business firm’s business Under the Regulatory Flexibility Act designation, and the economic effects of operations. (5 U.S.C. 601 et seq., as amended by the Designation of critical habitat only protective measures taken as a result of Small Business Regulatory Enforcement other Federal, State, and local laws that affects activities conducted, funded, or Fairness Act (SBREFA) of 1996), permitted by Federal agencies; non- aid habitat conservation in areas whenever an agency is required to Federal activities are not affected by the proposed for designation. publish a notice of rulemaking for any designation if they lack a Federal nexus. Approximately 64 percent of the proposed or final rule, it must prepare In areas where the species is present, proposed critical habitat designation is and make available for public comment Federal agencies funding, permitting, or under Federal ownership, 34 percent is a regulatory flexibility analysis that implementing activities are already owned by the city of Los Angeles, and describes the effects of the rule on small required to avoid jeopardizing the 2 percent is State owned. The economic entities (i.e., small businesses, small continued existence of Astragalus analysis addresses the effects of organizations, and small government lentiginosus var. piscinensis through conservation efforts for Astragalus jurisdictions). However, no regulatory consultation with us under section 7 of flexibility analysis is required if the lentiginosus var. piscinensis on the Act. If this critical habitat head of the agency certifies the rule will activities occurring on lands proposed designation is finalized, Federal not have a significant economic impact for designation. This economic analysis agencies must also consult with us to on a substantial number of small ensure that their activities do not focuses on the following activities as entities. The SBREFA amended the being potentially affected by destroy or adversely modify designated Regulatory Flexibility Act (RFA) to critical habitat. conservation considerations for A. l. var. require Federal agencies to provide a Should a federally funded, permitted, piscinensis: agricultural production, statement of the factual basis for or implemented project be proposed livestock grazing, recreation, certifying that the rule will not have a that may affect designated critical commercial mining, groundwater significant economic impact on a habitat, we will work with the Federal exportation, and resource management substantial number of small entities. action agency and any applicant, activities in the Bureau of Land However, the SBREFA does not through section 7 consultation, to Management-designated Area of Critical explicitly define ‘‘substantial number’’ identify ways to implement the Environmental Concern where A. l. var. or ‘‘significant economic impact.’’ proposed project while minimizing or piscinensis occurs. Consequently, to assess whether a avoiding any adverse effect to the Because of some uncertainty in ‘‘substantial number’’ of small entities is species or critical habitat. In our estimating the effects of conservation affected by this designation, this experience, the vast majority of such activities related to Astragalus analysis considers the relative number projects can be successfully lentiginosus var. piscinensis, the of small entities likely to be impacted in implemented with at most minor an area. The SBREFA also amended the economic analysis includes an upper changes that avoid significant economic RFA to require a certification statement. impacts to project proponents. and lower-bound cost estimate. The We are hereby certifying that this Based on our experience with section analysis includes both ‘‘pre- proposed rule will not have a significant 7 consultations for all listed species, designation’’ (occurring from the time of economic impact on a substantial virtually all projects—including those the listing of A. l. var. piscinensis to number of small entities, as explained that, in their initial proposed form, final designation of critical habitat) and below. would result in jeopardy or adverse ‘‘post-designation’’ (forecast to occur According to the Small Business modification determinations in section from 2005 to 2025) economic impacts. Administration, small entities include 7 consultations—can be implemented Estimated pre-designation costs range small organizations, such as successfully with, at most, the adoption from $749,000 to $808,000. Total post- independent nonprofit organizations, of reasonable and prudent alternatives. designation costs are approximately and small governmental jurisdictions, These measures, by definition, must be $946,000 to $978,000 (or $501,000 to including school boards and city and economically feasible and within the $518,000 in present value terms and town governments that serve fewer than scope of authority of the Federal agency $47,300 to $48,900 on an annualized 50,000 residents, as well as small involved in the consultation. The kinds basis over the 20-year post-designation businesses (13 CFR 121.201). Small of actions that may be included in analysis period). businesses include manufacturing and future reasonable and prudent
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alternatives include avoidance, jeopardy standard and likely would not proposed for designation include only conservation set-asides, management of trigger a section 7 consultation under Federal, State, and City-owned lands; competing non-native species, the adverse modification standard after the majority of forecast economic restoration of degraded habitat, designation of critical habitat. The impacts are anticipated to be associated construction of protective fencing, and proposed designation of critical habitat with direct costs to Federal, State, and regular monitoring. These measures are does not, therefore, create a new cost for municipal agencies. Therefore, we not likely to result in a significant the small entities to comply with the believe that this critical habitat economic impact to project proponents. proposed designation. Instead, proposed designation will not have an effect on In the case of Astragalus lentiginosus designation only impacts Federal the economy of $100 million or more, var. piscinensis, we anticipate that the agencies that conduct, fund, or permit will not cause a major increase in costs proposed designation of critical habitat activities that may affect critical habitat or prices for consumers, and will not is not likely to have a significant for A. l. var. piscinensis. have significant adverse effects on economic impact on any small entities In summary, we have considered competition, employment, investment, or classes of small entities. The only whether this proposed designation productivity, innovation, or the ability section 7 consultations since the taxon would result in a significant economic of U.S.-based enterprises to compete was listed have been associated with impact on a substantial number of small with foreign-based enterprises. U.S. Army Corps of Engineers Section entities, and we have concluded that it 404 permitting of the removal and re- would not. No future consultations are Takings construction of fish barriers at three currently anticipated, and we have no In accordance with Executive Order springs. No post-designation section 7 indication that the types of activities 12630 (‘‘Government Actions and consultations are currently anticipated that we review under section 7 of the Interference with Constitutionally for this taxon. The costs presented in Act will change significantly in the Protected Private Property Rights’’), we the economic analysis reflect, where future. Thus, we conclude that the data permit, ranges representing the proposed designation of critical habitat have analyzed the potential takings reasonably foreseeable future. All post- for Astragalus lentiginosus var. implications of designating critical designation costs are anticipated to be piscinensis is not likely to result in a habitat for Astragalus lentiginosus var. direct costs of projects intended to significant impact to this group of small piscinensis. Our assessment concludes benefit A. l. var. piscinensis. entities. Therefore, we are certifying that that this proposed rule does not pose We considered the potential relative the proposed designation of critical significant takings implications. cost of compliance to small entities and habitat for A. l. var. piscinensis will not Author evaluated only small entities that are have a significant economic impact on expected to be directly affected by the a substantial number of small entities, The primary author of this notice is proposed designation of critical habitat. and an initial regulatory flexibility the Ventura Fish and Wildlife Office Based on the economic analysis for A. analysis is not required. (see ADDRESSES section). l. var. piscinensis, we do not anticipate Authority: The authority for this action is that the proposed designation of critical Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et seq.) the Endangered Species Act of 1973 (16 habitat will result in increased U.S.C. 1531 et seq.). compliance costs for small entities. The Under the Small Business Regulatory business activities of these small entities Enforcement Fairness Act (5 U.S.C. 801 Dated: December 17, 2004. and their effects on Astragalus et seq.), this rule is not a major rule. The Craig Manson, lentiginosus var. piscinensis or its economic analysis indicates that the Assistant Secretary for Fish and Wildlife and proposed critical habitat have not proposed designation will not have an Parks. directly triggered a section 7 annual effect on the economy of $100 [FR Doc. 04–28163 Filed 12–27–04; 8:45 am] consultation with the Service under the million or more. In addition, lands BILLING CODE 4310–55–P
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Notices Federal Register Vol. 69, No. 248
Tuesday, December 28, 2004
This section of the FEDERAL REGISTER the collection of information unless it information is necessary for the proper contains documents other than rules or displays a currently valid OMB control performance of the functions of the proposed rules that are applicable to the number. agency, including whether the public. Notices of hearings and investigations, information will have practical utility; Farm Service Agency committee meetings, agency decisions and (b) the accuracy of the agency’s estimate rulings, delegations of authority, filing of Title: Request for Aerial Photography. of burden including the validity of the petitions and applications and agency OMB Control Number: 0560–0176. statements of organization and functions are methodology and assumptions used; (c) Summary of Collection: The Farm way to enhance the quality, utility and examples of documents appearing in this Service Agency (FSA) Aerial section. clarity of the information to be Photography Field Office (APFO) has collected; (d) ways to minimize the the authority to coordinate aerial burden of the collection of information DEPARTMENT OF AGRICULTURE photography work in USDA, develop on those who are to respond, including and carry out aerial photography and through the use of appropriate Submission for OMB Review; remote sensing programs and the automated, electronic, mechanical, or Comment Request Agency’s aerial photography flying other technological collection contract programs. The film secured by techniques or other forms of information December 22, 2004. FSA is public domain and technology should be addressed to: Desk The Department of Agriculture has reproductions are available at cost to Officer for Agriculture, Office of submitted the following information any customer with a need. The FSA– Information and Regulatory Affairs, collection requirements(s) to OMB for 441, Request for Aerial Imagery, is the Office of Management and Budget review and clearance under the form FSA supplies to its customers (OMB), Pamela_Beverly_ Paperwork Reduction Act of 1995, when placing an order for aerial [email protected] or Public Law 104–13. Comments photography products and services. fax (202) 395–5806 and to Departmental regarding (a) whether the collection of Need and Use of the Information: FSA Clearance Office, USDA, OCIO, Mail information is necessary for the proper will collect the name, address, contact Stop 7602, Washington, DC 20250– performance of the functions of the name, telephone, fax, e-mail, customer 7602. Comments regarding these agency, including whether the code, agency code, purchase order information collections are best assured information will have practical utility; number, credit card number/exp. date of having their full effect if received (b) the accuracy of the agency’s estimate and amount remitted/PO amount. within 30 days of this notification. of burden including the validity of the Customers have the option of placing Copies of the submission(s) may be methodology and assumptions used; (c) orders by mail, fax, telephone, walk-in obtained by calling (202) 720–8681. ways to enhance the quality, utility and or floppy disk. Furnishing this An agency may not conduct or clarity of the information to be information requires the customer to sponsor a collection of information collected; (d) ways to minimize the research and prepare their request unless the collection of information burden of the collection of information before submitting it to APFO. displays a currently valid OMB control on those who are to respond, including Description of Respondents: Farms, number and the agency informs through the use of appropriate Individuals or household; Business or potential persons who are to respond to automated, electronic, mechanical, or other for-profit; Federal Government; the collection of information that such other technological collection State, local or tribal government. persons are not required to respond to techniques or other forms of information Number of Respondents: 12,000. the collection of information unless it technology should be addressed to: Desk Frequency of Responses: Reporting; displays a currently valid OMB control Officer for Agriculture, Office of Other (when ordering). number. Information and Regulatory Affairs, Total Burden Hours: 8,000. Office of Management and Budget Animal Plant and Health Inspection (OMB), Pamela_Beverly_OIRA_ Ruth Brown, Service [email protected] or fax Departmental Information Collection Clearance Officer. Title: Update of the Nursery Stock (202) 395–5806 and to Departmental Regulations. [FR Doc. 04–28370 Filed 12–27–04; 8:45 am] Clearance Office, USDA, OCIO, Mail OMB Control Number: 0579–0190. Stop 7602, Washington, DC 20250– BILLING CODE 3410–05–M Summary of Collection: The Plant 7602. Comments regarding these Protection and Quarantine, a program information collections are best assured within the Animal and Plant Health DEPARTMENT OF AGRICULTURE of having their full effect if received Inspection Service (APHIS) is within 30 days of this notification. Submission for OMB Review; responsible for implementing the Plant Copies of the submission(s) may be Comment Request Protection Act (PPA) (7 U.S.C. 7701– obtained by calling (202) 720–8681. 7772). Regulations authorized by the An agency may not conduct or December 22, 2004 PPA concerning the importation of sponsor a collection of information The Department of Agriculture has nursery stock, plants, roots, bulbs, unless the collection of information submitted the following information seeds, and other plant products are displays a currently valid OMB control collection requirement(s) to OMB for contained in Title 7 of the Code of number and the agency informs review and clearance under the Federal Regulations, ‘‘Nursery Stock,’’ potential persons who are to respond to Paperwork Reduction Act of 1995, 319.37 through 319.34–14. the collection of information that such Public Law 104–13. Comments Implementing the nursery stock persons are not required to respond to regarding (a) whether the collection of regulations requires APHIS to collect
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information from a variety of Description of Respondents: State, Trade Adjustment Assistance for individuals who are involved in local or tribal government; Individuals Farmers, FAS, USDA, (202) 720–2916, growing, exporting, and importing or households; Farms. email: [email protected]. nursery stock. Number of Respondents: 150. Dated: December 15, 2004. Frequency of Responses: Reporting: Need and Use of the Information: A. Ellen Terpstra, APHIS will collect information to On occasion. Administrator, Foreign Agricultural Service. ensure that plant pest are not Total Burden Hours: 1,500. [FR Doc. 04–28277 Filed 12–27–04; 8:45 am] introduced into the United States. The Ruth Brown, BILLING CODE 3410–10–P information APHIS collects serves as the Departmental Information Collection supporting documentation needed to Clearance Officer. issue required PPQ forms and [FR Doc. 04–28386 Filed 12–27–04; 8:45 am] DEPARTMENT OF AGRICULTURE documents that allow importation of BILLING CODE 3410–34–M nursery stock. Foreign Agricultural Service Description of Respondents: Business or other for-profit; State, local or tribal DEPARTMENT OF AGRICULTURE Trade Adjustment Assistance for government; Individuals or households; Farmers Farms. Foreign Agricultural Service Number of Respondents: 20. AGENCY: Foreign Agricultural Service, Frequency of Responses: Reporting: Trade Adjustment Assistance for USDA. On occasion. Farmers ACTION: Notice. Total Burden Hours: 10. AGENCY: Foreign Agricultural Service, The Administrator, Foreign Animal Plant and Health Inspection USDA. Agricultural Service (FAS), approved for Service ACTION: Notice. a subsequent year the trade adjustment assistance (TAA) petition that was filed Title: Environmental Monitoring The Administrator, Foreign by the Organized Seafood Association of Form. Agricultural Service (FAS), approved a Alabama, Inc., on behalf of Alabama OMB Control Number: 0579–0117. petition for trade adjustment assistance shrimpers and initially certified on Summary of Collection: The mission (TAA) that was filed on November 18, January 12, 2004. The re-certification of the Animal and Plant Health 2004, by the Louisiana Shrimp date is January 10, 2005. Beginning on Inspection Service (APHIS) is to provide Association, Grand Isle, Louisiana. The this date, shrimpers who land their leadership in ensuring the health and certification date is January 10, 2005. catch in Alabama will be eligible to care of animals and plants, to improve Beginning on this date, shrimpers who apply for fiscal year 2005 benefits the agricultural productivity and land their catch in Louisiana will be during an application period ending on competitiveness, and to contribute to eligible to apply for fiscal year 2005 April 11, 2005. the national economy and the public benefits during an application period health. The National Environmental ending April 11, 2005. SUPPLEMENTARY INFORMATION: Upon Policy Act (NEPA), 42 U.S.C. 4321 et SUPPLEMENTARY INFORMATION: Upon investigation, the Administrator seq, and the regulations of the Council investigation, the Administrator determined that imports of farmed on Environmental Quality, which determined that increased imports of shrimp contributed importantly to a implements the procedural aspects of farmed shrimp contributed importantly decline in the average landed price of NEPA (40 CFR 1500–1508) requires to a decline in the landed prices of shrimp in Alabama by 23.4 percent APHIS to implement environmental shrimp in Louisiana by 27.5 percent during the 2003 marketing period monitoring for certain activities during January 2003 through December (January–December), compared to the conducted for pest and disease, control 2003, when compared with the previous 1997–2001 base period. and eradication programs. APHIS form 5-year average. Eligible producers must apply to the 2060, Environmental Monitoring Form, Eligible producers must apply to the Farm Service Agency for benefits. After will be used to collect information Farm Service Agency for benefits. After submitting completed applications, concerning the effects of pesticide used submitting completed applications, producers shall receive technical in sensitive habitats. producers shall receive technical assistance provided by the Extension Need and Use of the Information: assistance provided by the Extension Service at no cost and may receive an APHIS will collect information on the Service at no cost and may receive an adjustment assistance payment, if number of collected samples, adjustment assistance payment, if certain program criteria are satisfied. description of the samples, the certain program criteria are satisfied. Applicants in fiscal year 2005, who did environmental conditions at the Applicants must obtain the technical not receive technical assistance under collection site including wind speed assistance from the Extension Service by the fiscal year 2004 TAA program, must and direction, temperature, humidity of July 11, 2005, in order to be eligible for obtain the technical assistance from the rainfall, and topography. The financial payments. Extension Service by July 11, 2005, in supporting information contained on Producers of raw agricultural order to be eligible for financial the APHIS form 2060 is vital for commodities wishing to learn more payments. interpreting the laboratory tests APHIS about TAA and how they may apply Producers of raw agricultural conducts on its collected samples. should contact the Department of commodities wishing to learn more Failure to collect this information Agriculture at the addresses provided about TAA and how they may apply would prevent APHIS from actively below for General Information. should contact the Department of monitoring the effects of pesticides in Producers Certified as Eligible for Agriculture at the addresses provided areas where the inappropriate use of TAA, Contact: Farm Service Agency below for General Information. these chemicals could eventually service centers in Louisiana. Producers Certified as Eligible for produce disastrous results for For General Information About TAA, TAA, Contact: Farm Service Agency vulnerable habitats and species. Contact: Jean-Louis Pajot, Coordinator, service centers.
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For General Information About TAA, Type of Request: New. Estimated Total Annual Burden on Contact: Jean-Louis Pajot, Coordinator, Abstract: In June 2002, President Respondents: 450 hours. Trade Adjustment Assistance for Bush issued Executive Order (E.O.) Comment is invited on: (1) Whether Farmers, FAS, USDA, (202) 720–2916, 13266 for the purpose of improving the this collection of information is email: [email protected]. health of all Americans. Physical necessary for the stated purposes and Dated: December 15, 2004. activity was one of the four health- the proper performance of the functions A. Ellen Terpstra, protection pillars, and part of this E.O. of the agency, including whether the encouraged federal agencies to promote information will have practical or Administrator, Foreign Agricultural Service. physical activity on public lands. scientific utility; (2) the accuracy of the [FR Doc. 04–28278 Filed 12–27–04; 8:45 am] Users of urban public lands come agency’s estimate of the burden of the BILLING CODE 3410–10–P from a variety of ethnic, racial, income, collection of information, including the age, educational, and other socio- validity of the methodology and assumptions used; (3) ways to enhance DEPARTMENT OF AGRICULTURE demographic backgrounds. The activities pursued, health benefits the quality, utility, and clarity of the Forest Service realized, information sources utilized, information to be collected; and (4) and site attributes preferred are just ways to minimize the burden of the Information Collection; Request for some of the items affected by these collection of information on Comments; Perceived and Realized differences. respondents, including the use of Health Benefits of Urban Proximate The collected information will enable automated, electronic, mechanical, or and Distant Recreation Lands Forest Service personnel to more other technological collection effectively manage recreation areas for techniques or other forms of information AGENCY: Forest Service, USDA. the encouragement and promotion of technology. ACTION: Notice. potential physical health benefits. The Use of Comments collected information also will provide SUMMARY: In accordance with the information on visitor characteristics, All comments received in response to Paperwork Reduction Act of 1995, the such as educational level, race, this notice, including names and Forest Service is seeking comments ethnicity, and gender, and addresses when provided, will be a from all interested individuals and communication, such as preferred matter of public record. Comments will organizations on the new information language at home, and for radio, be summarized and included in the collection, Perceived and Realized television, and newspapers. submission request for Office of Health Benefits of Urban Proximate and Management and Budget approval. Distant Recreation Lands. Data will be collected using on-site surveys from visitors to urban parks and Dated: November 22, 2004. DATES: Comments must be received in more distant watershed sites in or writing on or before February 28, 2004 Barbara C. Weber, within an hour’s drive of Los Angeles, Associate Deputy Chief, State and Private to be assured of consideration. California; Minneapolis-St. Paul, Comments received after that date will Forestry. Minnesota; and Chicago, Illinois. [FR Doc. 04–28243 Filed 12–27–04; 8:45 am] be considered to the extent practicable. Subjects will be contacted by Forest BILLING CODE 3410–11–P ADDRESSES: Comments concerning this Service research personnel; cooperators notice should be addressed to Dr. at the University of Minnesota, Deborah Chavez, Pacific Southwest Department of Forest Resources and DEPARTMENT OF AGRICULTURE Research Station, Forest Service, USDA, Tourism Center; the University of 4955 Canyon Crest Drive, Riverside, CA Illinois, Department of Leisure Studies; Forest Service 92507. and park research staff site collaborators Comments also may be submitted via at Hawkins Park in California. Deep Lake Allotment, Coconino facsimile to (951) 680–1501 or by e-mail Respondents will be asked to answer National Forest; Coconino County, AZ to [email protected]. questions on the following topics: Area AGENCY: Forest Services, USDA. The public may inspect comments visitation history and patterns; activity received at Pacific Southwest Research patterns; site amenities and ACTION: Notice of intent to prepare an Station, 4955 Canyon Crest Drive, characteristics; constraints to more environmental impact statement. Riverside, California, during normal frequent visitation, such as physical business hours. Visitors are encouraged SUMMARY: The USDA Forest Service will health; and demographics. The data will prepare an environmental impact to call ahead to (951) 680–1558 to be analyzed by Forest Service research facilitate entry to the building. statement (EIS) to disclose the personnel and cooperators at the environmental effects of reauthorizing FOR FURTHER INFORMATION CONTACT: Dr. University of Minnesota, Department of Deborah Chavez, Pacific Southwest cattle grazing on the Deep Lake Forest Resources and Tourism Center, Allotment. Research Station at (951) 680–1558. and the University of Illinois, Individuals who use telecommunication Department of Leisure Studies. DATES: Comments concerning the scope devices for the deaf (TDD) may call the Estimate of Annual Burden: 10 of the analysis should be received Federal Relay Service (FRS) at 1–800– minutes. within 30 days of the date of publication 877–8339 twenty-four hours a day, Type of Respondents: Visitors to of this Notice of Intent in the Federal every day of the year, including urban parks and more distant watershed Register. The draft EIS is expected in holidays. sites within an hour’s drive of Los May 2005 and the final EIS is expected SUPPLEMENTARY INFORMATION: Angeles, California; Minneapolis-St. September 2005. Title: Perceived and Realized Health Paul, Minnesota; and Chicago, Illinois. ADDRESSES: Send written comments to Benefits of Urban Proximate and Distant Estimated Annual Number of Terri Marceron, Mormon Lake District Recreation Lands. Respondents: 2,700. Ranger, 4373 South Lake Mary Road, OMB Number: 0596–New. Estimated Annual Number of Flagstaff, Arizona 86001, Fax: (928) Expiration Date of Approval: N/A. Responses per Respondent: 1. 214–2460, E-mail: comments-
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southwestern-coconino-mormon- Proposed Action management adjustments is continued [email protected]. The Mormon Lake Ranger District of drought conditions. Future monitoring will evaluate FOR FURTHER INFORMATION CONTACT: the Coconino National Forest proposes Katherine Sa´nchez Meador, Range to reauthorize cattle grazing for up to rangeland condition. Monitoring and Specialist, Peaks Ranger District, 5075 N 105 cattle on the Deep Lake Allotment the timing for this monitoring over the Highway 89, Flagstaff, Arizona 86004, from May 1 through October 31. The next ten years would include: Permittee (928) 526–0866. authorization would be through a term compliance, allotment inspections, range readiness, forage production, and SUPPLEMENTARY INFORMATION: The Deep grazing permit. Five waterlots would be built around rangeland utilization (annually); Lake Allotment is a small grazing condition and trend (every five to ten allotment located approximately nine five stock tanks. These waterlots would be designed so water is accessible to years); soil and riparian condition miles southeast of Flagstaff, Arizona and including wetlands, threatened, along the northeastern edge of Anderson wildlife, which would include a smooth bottom wire, 18 inches high, as well as endangered, and sensitive species Mesa. The allotment consists of habitat (annually); archeological site approximately 11,010 acres, most of wildlife jumps on all side. The waterlots would allow the permittee to control condition (as needed); frequency and which are in one main pasture. The canopy cover plots and a soil condition current allotment permit is for 105 cattle access to water for cattle at these stock tanks. By closing or opening up these rating would be continued or from May 1 to October 31. established at long-term monitoring Primary vegetation on the Deep Lake stock tanks for cattle, the permittee can sites, in areas of concern or in areas Allotment consists of pinyon-juniper improve management of when and where changes in trend are expected or woodland that extends above and below where cattle graze in the main pasture. needed throughout the allotment. the Anderson Mesa Rim. Deep Lake is The waterlots would allow the the only semi-permanent wetland permittee the ability to control access to Possible Alternatives within the allotment. A band of water for cattle and improve In addition to the Proposed Action, ponderosa pine is found along the management of when and where cattle two other alternatives will initially be Anderson Mesa Rim and Mormon graze. Rangeland conditions on the analyzed. One alternative (Current Canyon. Pronghorn habitat is limited allotment would improve with better Management) will consider the effects of and of poor quality because it consists cattle distribution. continuing the current cattle grazing The emergent vegetation and the of only small, isolated meadows within management system on the allotment. surrounding upland buffer at Deep Lake the northern portion of the allotment. Another alternative (No Action/No will be excluded from cattle grazing by The Deep Lake Allotment is Grazing) will consider the effects of fencing approximately 29 acres of scheduled for environmental analysis of temporarily closing the Deep Lake emergent vegetation and 54 acres of grazing use on the Coconino National Allotment to cattle grazing for a ten-year upland buffer. There will be a lane for Forest, as required by the Burns period. The development of any other cattle to access the stock tank water at Amendment (1995). This project is alternatives will be completed following Deep Lake which will have being completed in order to ensure public response to scoping and approximately two acres of emergent cattle grazing on the Deep Lake published in the draft EIS. Allotment is consistent with goals, vegetation and six acres of upland objectives, and the standards and buffer. The lane would maintain the Responsible Official guidelines of the Coconino National permittee’s current (livestock) water The responsible official for this Forest Plan (1987, as amended). claim at Deep Lake. The bulrush plant project is the Mormon Lake District community in Deep Lake should Ranger. Purpose and Need for Action improve when cattle are excluded. The purpose of this project is to Utilization standards would be set for Nature of Decision To Be Made analyze the effects of reauthorizing up to 35% by cattle and/or elk during The Mormon Lake District Ranger will cattle grazing on the Deep Lake the cattle grazing season. When decide whether or not to reauthorize Allotment and to ensure the allotment is allotment use approaches 35% by cattle cattle grazing and in what manner as managed in a manner that moves the and/or elk, cattle would be moved to described in the proposed action, area toward Forest Plan objectives and another portion of the allotment. Once alternatives to the proposed action, or desired conditions. The analysis will this use standard is met across the current cattle management. The help determine whether or not to allotment, by cattle and/or elk, cattle reauthorization of cattle grazing would reauthorize cattle grazing and set would be moved off the allotment. be for a minimum of ten years. grazing levels within the carrying The Proposed Action includes However, future NEPA for additional capacity for the allotment. (Carrying adaptive management, which provides projects within the Deep Lake Allotment capacity refers to the average number of more flexibility for managing cattle. area, changing rangeland condition, or cattle and/or wildlife that may be This would be accomplished through violations of the term grazing permit sustained on a management unit, i.e. an changes in timing and duration of could change the length of this decision. allotment, compatible with management grazing, movement of cattle within the objectives for the unit.) allotment, and cattle numbers. If Scoping Process There is a need to continue adjustments are needed, they are Public questions and comments maintaining and improving rangeland implemented through the Annual regarding this proposal are an integral conditions on the Deep Lake Allotment. Operating Instructions which would part of this environmental analysis Recent monitoring indicates current adjust numbers so cattle use is process. Comments will be used to cattle grazing management is consistent with current productivity. identify issues and develop alternatives maintaining or improving rangeland This allows plant, soil, and watershed to the proposed action. To assist the conditions where cattle grazing occurs. conditions to be maintained or Forest Service in identifying and New fencing is also needed around improved while range improvements are considering issues and concerns on the stock tanks for better distribution of implemented over time. An example of proposed action, comments should be as cattle. a situation that could call for adaptive specific as possible. A copy of this
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Notice of Intent will be mailed to consider them and respond to them in ACTION: Notice of meeting. landowners within and immediately the final EIS. adjacent to the allotment area, as well as To assist the Forest Service in SUMMARY: The Eastern Washington those people and organizations on the identifying and considering issues and Cascades Provincial Advisory Coconino National Forest’s mailing list concerns on the proposed action, Committee and the Yakima Provincial that have indicated a specific interest in comments on the draft EIS should be as Advisory Committee will meet on the Deep Lake Allotment area or grazing specific as possible. It is also helpful if Wednesday, January 12, 2005, at the management in general. The public will comments refer to specific pages or Okanogan and Wenatchee National be notified of any meetings regarding chapters of the draft statement. Forests headquarters office, 215 Melody this proposal by mailings and press Comments may also address the Lane, Wenatchee, Washington. The releases sent to the local newspaper and adequacy of the draft EIS or the merits meeting will begin at 9 a.m. and media. There are no meetings planned of the alternatives formulated and continue until 3 p.m. During this at this time. discussed in the statement. Reviewers meeting we will share information on may wish to refer to the Council on new developments relating to the Comments Requested Environmental Quality Regulations for Northwest Forest Plan, learn about This Notice of Intent initiates the implementing the procedural provisions Hungry Hunter Stewardship Bidding scoping process under NEPA, which of the National Environmental Policy results, discuss recreating planning for will guide development of the EIS. Act at 40 CFR 1503.3 in addressing the Hungry Hunter area, and receive Comments concerning the scope of this these points. input on the White Pass Ski Area project should be received within 30 Comments received, including the Expansion Draft Environmental Impact days of the date of publication of this names and addresses of those who Statement. All Eastern Washington Notice of Intent. Our desire is to receive comment, will be considered part of the Cascades and Yakima Province substantive comments on the merits of public record on this proposal and will Advisory Committee meetings are open the Proposed Action, as well as be available for public inspection. to the public. comments that address errors, Comments submitted anonymously will FOR FURTHER INFORMATION CONTACT: misinformation, or information that has be accepted and considered; however, Direct questions regarding this meeting been omitted. Substantive comments are those who submit anonymous to Paul Hart, Designated Federal defined as comments within the scope comments will not have standing to Official, USDA, Wenatchee National of the proposal have a direct appeal the subsequent decision under Forest, 215 Melody Lane, Wenatchee, relationship to the proposal, and that 36 CFR part 215. Additionally, pursuant Washington 98801, 509–664–9200. include supporting reasons for the to 7 CFR 1.27(d), any person may Dated: December 17, 2004. Responsible Official’s consideration. request the agency to withhold a Paul Hart, Early Notice of Importance of Public submission from the public record by Designated Federal Official, Okanogan and Participation in Subsequent showing how the Freedom of Wenatchee National Forests. Environmental Review Information Act (FOIA) permits such [FR Doc. 04–28246 Filed 12–27–04; 8:45 am] confidentiality. BILLING CODE 3410–11–M A draft EIS will be prepared for Persons requesting such comment. The comment period on the confidentiality should be aware that, draft EIS will be 45 days from the date under the FOIA, confidentiality may be DEPARTMENT OF AGRICULTURE the Environmental Protection Agency granted in only very limited publishes the Notice of Availability in circumstances, such as to protect trade Forest Service the Federal Register. secrets. The Forest Service will inform The Forest Service believes, at this the requester of the agency’s decision Northwest Sacramento Provincial early stage, it is important to give regarding the request for confidentiality, Advisory Committee (SAC PAC) reviewers notice of several court rulings and if the request is denied, the agency related to public participation in the AGENCY: Forest Service, USDA. will return the submission and notify ACTION: Notice of meeting. environmental review process. First, the requester that the comments may be reviewers of a draft EIS must structure resubmitted with or without name and SUMMARY: The Northwest Sacramento their participation in the environmental address within a specified number of Provincial Advisory Committee (PAC) review of the proposal so that it is days. will meet on January 13, 2005, at Red meaningful and alerts an agency to the (Authority: 40 CFR 1501.7 and 1508.22; Bluff, California. The purpose of the reviewer’s position and contentions. meeting is to discuss issues relating to Vermont Yankee Nuclear Power Corp. v. Forest Service Handbook 1909.15, Section 21.) implementing the Northwest Forest NRDC, 435 U.S. 519, 553 (1978). Also, Plan. environmental objections that could be Dated: December 14, 2004. raised at the draft EIS stage but that are Nora B. Rasure, DATES: The meeting will be held on not raised until after completion of the Forest Supervisor, Coconino National Forest. January 13, 2005. Location: The meeting will be held in final EIS may be waived or dismissed by [FR Doc. 04–28344 Filed 12–27–04; 8:45 am] the Conference Room at the Fish and the courts. City of Angoon v. Hodel, 803 BILLING CODE 3410–11–M F.2d 1016, 1022 (9th Cir. 1986) and Wildlife Service office at 10950 Tyler Wisconsin Heritages, Inc. v. Harris, 490 Road, Red Bluff, CA. F. Supp. 1334, 1338 (E.D. Wis. 1980). DEPARTMENT OF AGRICULTURE FOR FURTHER INFORMATION CONTACT: Julie Because of these court rulings, it is very Nelson, Committee Coordinator, USDA, important that those interested in this Forest Service Shasta-Trinity National Forest, 3644 Avtech Parkway, Redding, CA 96002 proposed action participate by the close Eastern Washington Cascades of the 45-day comment period so that (530) 226–2429; or by e-mail: Provincial Advisory Committee and the [email protected]. substantive comments and objections Yakima Provincial Advisory Committee are made available to the Forest Service SUPPLEMENTARY INFORMATION: The at a time when it can meaningfully AGENCY: Forest Service, USDA. meeting is open to the public.
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Opportunity will be provided for public FOR FURTHER INFORMATION CONTACT: For Dated: December 21, 2004. input and individuals will have the more information regarding this Robert McCabe, opportunity to address the Committee at meeting, contact Designated Federal Acting Designated Federal Official. that time. Official Paul Matter; Willamette [FR Doc. 04–28304 Filed 12–27–04; 8:45 am] National Forest, Detroit Ranger District, Dated: December 17, 2004. BILLING CODE 3410–11–M J. Sharon Heywood, HC 73 Box 320, Mill City, OR 97360; (503) 854–3366. Forest Supervisor. [FR Doc. 04–28372 Filed 12–27–04; 8:45 am] Dated: December 20, 2004. DEPARTMENT OF AGRICULTURE BILLING CODE 3410–FK–M Dallas J. Emch, Forest Supervisor. Forest Service [FR Doc. 04–28245 Filed 12–27–04; 8:45 am] DEPARTMENT OF AGRICULTURE Glenn/Colusa County Resource BILLING CODE 3410–11–M Advisory Committee Opal Creek Scenic Recreation Area AGENCY: Forest Service, USDA. (SRA) Advisory Council DEPARTMENT OF AGRICULTURE AGENCY: Forest Service, USDA. ACTION: Notice of meeting. Forest Service ACTION: Notice of meeting. SUMMARY: The Glenn/Colusa County Tehama County Resource Advisory Resource Advisory Committee (RAC) SUMMARY: An Opal Creek Scenic Committee Recreation Area Advisory Council will meet in Willows, California. meeting will convene in Stayton, AGENCY: Forest Service, USDA. Agenda items to be covered include: (1) Oregon on Wednesday, January 26, Introductions, (2) Approval of Minutes, 2005. The meeting is scheduled to begin ACTION: Notice of meeting. (3) Public Comment, (4) Update on at 6:30 p.m., and will conclude at Roads Analysis, (5) Web site Update, (6) approximately 8:30 p.m. The meeting SUMMARY: The Tehama County Resource Water Assessment on Stony Creek, (7) will be held in the South Room of the Advisory Committee (RAC) will meet in General Discussion, (8) Next Agenda. Stayton Community Center located on Red Bluff, California. Agenda items to DATES: 400 West Virginia Street in Stayton, be covered include: (1) Introductions, The meeting will be held on Oregon. (2) Approval of Minutes, (3) Public January 24, 2005, from 1:30 p.m. and The Opal Creek Wilderness and Opal Comment, (4) County Supervisor Report end at approximately 4:30 p.m. Creek Scenic Recreation Area Act of (5) Vote on Reglan Ridge Project, (6) ADDRESSES: The meeting will be held at 1996 (Opal Creek Act) (Pub. L. 104–208) Status of Committee Assignments, (7) the Mendocino National Forest directed the Secretary of Agriculture to Report of Projects Funded, (8) General Supervisor’s Office, 825 N. Humboldt Discussion, (9) Next Agenda. establish the Opal Creek Scenic Ave., Willows, CA 95988. Individuals Recreation Area Advisory Council. The DATES: The meeting will be held on wishing to speak or propose agenda Advisory Council is comprised of January 13, 2005, from 9 a.m. and end items must send their names and thirteen members representing state, at approximately 12 p.m. proposals to Jim Giachino, DFO, 825 N. county and city governments, and Humboldt Ave., Willows, CA 95988. representatives of various organizations, ADDRESSES: The meeting will be held at which include mining industry, the Lincoln Street School, Conference FOR FURTHER INFORMATION CONTACT: environmental organizations, inholders Room A, 1135 Lincoln Street, Red Bluff, Bobbin Gaddini, Committee in Opal Creek Scenic Recreation Area, CA. Individuals wishing to speak or Coordinator, USDA, Mendocino economic development, Indian tribes, propose agenda items must send their National Forest, Grindstone Ranger adjacent landowners and recreation names and proposals to Jim Giachino, District, P.O. Box 164, Elk Creek, CA interests. The council provides advice to DFO, 825 N. Humboldt Ave., Willows, 95939. (530) 968–5329; e-mail the Secretary of Agriculture on CA 95988. [email protected]. preparation of a comprehensive Opal FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: The Creek Management Plan for the SRA, Bobbin Gaddini, Committee and consults on a periodic and regular Coordinator, USDA, Mendocino meeting is open to the public. basis on the management of the area. National Forest, Grindstone Ranger Committee discussion is limited to Tentative agenda items include: Current District, P.O. Box 164, Elk Creek, CA Forest Service staff and Committee project updates; begin identifying new 95939. (530) 968–5329; E-mail members. However, persons who wish projects using Council’s project ranking [email protected]. to bring matters to the attention of the process, and discuss District program of Committee may file written statements work. SUPPLEMENTARY INFORMATION: The with the Committee staff before or after A direct public comment period is meeting is open to the public. the meeting. Public input sessions will tentatively scheduled to begin at 8 p.m. Committee discussion is limited to be provided and individuals who made Time allotted for individual Forest Service staff and Committee written requests by January 21, 2005, presentations will be limited to 3 members. However, persons who wish will have the opportunity to address the minutes. Written comments are to bring matters to the attention of the Committee at those sessions. encouraged, particularly if the material Committee may file written statements cannot be presented within the time with the Committee staff before or after Dated: December 21, 2004. limits of the comment period. Written the meeting. Public input sessions will Robert McCabe, comments may be submitted prior to the be provided and individuals who made Acting Designated Federal Official. January 26th by sending them to written requests by January 10, 2005, [FR Doc. 04–28305 Filed 12–27–04; 8:45 am] Designated Federal Official Paul Matter will have the opportunity to address the BILLING CODE 3410–11–M at the address given below. committee at those sessions.
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DEPARTMENT OF AGRICULTURE FOR FURTHER INFORMATION CONTACT: Dated: December 13, 2004. Lynn Kolund, Acting District Ranger, Robin L. Thompson, Forest Service Ketchikan-Misty Fiords Ranger District, Associate Deputy Chief, State and Private Tongass National Forest, (907) 228– Forestry. Shasta County Resource Advisory 4100. Committee [FR Doc. 04–28241 Filed 12–27–04; 8:45 am] SUPPLEMENTARY INFORMATION: The BILLING CODE 3410–11–M AGENCY: Forest Service, USDA. meeting is open to the public. ACTION: Notice of meeting. Committee discussion is limited to Forest Service staff and Committee SUMMARY: The Shasta County Resource COMMISSION ON CIVIL RIGHTS Advisory Committee (RAC) will meet at members. However, public input opportunity will be provided and the USDA Service Center in Redding, Sunshine Act Meeting Notice California, on January 5, February 4, and individuals will have the opportunity to March 3 of 2005. The purpose of this address the Committee at that time. AGENCY: U.S. Commission Civil Rights. meeting is to discuss proposed projects Dated: December 14, 2004. DATE AND TIME: under Title II of the Secure Rural Forrest Cole, Friday, January 7, 2005, Schools and Community Self- 9:30 a.m. Determination Act of 2000. Forest Supervisor. [FR Doc. 04–28373 Filed 12–27–04; 8:45 am] PLACE: U.S. Commission on Civil Rights, DATES: January 5, February 4, and March 624 9th Street, NW., Room 540, 3, of 2005. BILLING CODE 3410–11–M Washington, DC 20425. ADDRESSES: The meetings will be held at STATUS: the USDA Service Center, 3644 Avtech DEPARTMENT OF AGRICULTURE Parkway, Redding, California 96002. Agenda FOR FURTHER INFORMATION CONTACT: Forest Service Michael R. Odle, Asst. Public Affairs I. Approval of Agenda Officer and RAC Coordinator. Privacy Act of 1974; Abolish Obsolete II. Approval of Minutes of November SUPPLEMENTARY INFORMATION: The System of Records 12, 2004 Meeting meetings are open to the public. Public III. Announcements input sessions will be provided and AGENCY: Forest Service, USDA. individuals will have the opportunity to • ACTION: Notice. Martin Luther King Day. address the Shasta County Resource • Introduction of New Commissioners Advisory Committee. SUMMARY: The Forest Service has and Staff Director. Dated: December 17, 2004. reviewed the Forest Service system of J. Sharon Heywood, records, USDA/FS–43, Emergency Fire IV. Staff Director’s Report Forest Supervisor, Shasta-Trinity National Mobilization Plan Director, and • Financial Status of the Commission. Forest. concluded that the system is obsolete. • [FR Doc. 04–28371 Filed 12–27–04; 8:45 am] That system is being abolished from the Status of GAO Recommendations. BILLING CODE 3410–11–M Forest Service Systems of Records in • Compliance with Congressional accordance with the Privacy Act of 1974 Oversight. (5 U.S.C. 552a), as amended. • Other. DEPARTMENT OF AGRICULTURE DATES: This notice is effective on V. Administrative Policies and Forest Service December 28, 2004. Procedures ADDRESSES: For additional information Ketchikan Resource Advisory • Policy Regarding Public Release of Committee contact Rita Morgan, Freedom of Information and Privacy Act Officer, Commission Reports. AGENCY: Forest Service, USDA. Forest Service, USDA, 1400 • Policy Regarding Posting of Reports ACTION: Notice of meeting. Independence Avenue, SW., Mail Stop on Commission Web Site. 1143, Washington, DC 20250–1143. • Immediate Changes to Commission SUMMARY: The Ketchikan Resource Advisory Committee will meet in FOR FURTHER INFORMATION CONTACT: Rita Web Site. Ketchikan, Alaska, February 17, 2005. Morgan, Freedom of Information and • Policy of Scheduling Out of Town The purpose of this meeting is to Privacy Act Officer, at (703) 605–4913. Commission Meetings. discuss potential projects under the SUPPLEMENTARY INFORMATION: The VI. Staff Progress Reports Secure Rural Schools and Community Privacy Act of 1974 (5 U.S.C. 552a), as Self-Determination Act of 2000. amended, requires that each agency • Terri Dickerson, Office of Civil DATES: The meeting will be held publish a notice of the existence and Rights Evaluation. February 17, 2005. character of each new or altered ‘‘system • Debra Carr, Office of General ADDRESSES: The meeting will be held at of records.’’ 5 U.S.C. 552a(a)(5). This Counsel. the Southeast Alaska Discovery Center Notice identifies and abolishes an • Theater (front entrance), 50 Main Street, obsolete Forest Service system of George Harbison, Chief Budget and Ketchikan, Alaska. Send written records. the Forest Service is abolishing Finance Unit. comments to Ketchikan Resource the following system of records which, • Tina Martin, Director of Advisory Committee, c/o Acting District upon review, is no longer used, and is, Management. Ranger, USDA Forest Service, 3031 therefore, obsolete: USDA/FS–43, • Pam Dunston, Administrative Tongass Ave., Ketchikan, AK 99901, or Emergency Fire Mobilization Plan Services & Clearinghouse Division. electronically to [email protected]. Directory.
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VII. Establishment of a Working Group Frequency: Annual. affected by directly competitive on Reform Respondent’s Obligation: Required to imported products. maintain license, mandatory. DATES: Proposals are accepted on a VIII. Future Agenda Items OMB Desk Officer: David Rostker, continuing basis and applications are CONTACT PERSON FOR FURTHER (202) 395–7340. Copies of the above information invited and processed as received. INFORMATION: Kenneth L. Marcus, Staff Normally, two months are required for Director (202) 376–7700. collection proposal can be obtained by calling or writing Diana Hynek, a final decision after the receipt of a Debra A. Carr, Departmental Paperwork Clearance completed application invited by EDA General Counsel. Officer, (202) 482–0266, Department of that meets all requirements. [FR Doc. 04–28484 Filed 12–23–04; 12:01 Commerce, Room 6625, 14th and ADDRESSES: For applicants in Alabama, pm] Constitution, NW., Washington, DC Florida, Georgia, Kentucky, Mississippi, BILLING CODE 6335–01–M 20230. E-mail: [email protected]. North Carolina, South Carolina or Written comments and Tennessee, please send proposals to: recommendations for the proposed Economic Development Administration, DEPARTMENT OF COMMERCE information collection should be sent Atlanta Regional Office, 401 West via e-mail to Peachtree Street, NW., Suite 1820, Submission for OMB Review; [email protected] or fax Atlanta, Georgia 30308–3510, Comment Request (202)395–7285, within 30 days of Telephone: (404) 730–3002, Fax: (404) publication of this Federal Register 730–3025. DOC has submitted to the Office of notice. Management and Budget (OMB) for For applicants in Arkansas, Louisiana, clearance the following proposal for Dated: December 21, 2004. New Mexico, Oklahoma or Texas, please collection of information under the Madeleine Clayton, send proposals to: Economic provisions of the Paperwork Reduction Management Analyst, Office of the Chief Development Administration, Austin Act of 1995, Public Law 104–13. Information Officer. Regional Office, 327 Congress Avenue, Bureau: International Trade [FR Doc. 04–28282 Filed 12–27–04; 8:45 am] Suite 200, Austin, Texas 78701–365, Telephone: (512) 381–8144, Fax: (512) Administration. BILLING CODE 3510–DS–P Title: Annual Report from Foreign- 381–8177. Trade Zones. For applicants in Illinois, Indiana, Agency Form Number: ITA–359P. DEPARTMENT OF COMMERCE Michigan, Minnesota, Ohio or OMB Number: 0625–0109. Wisconsin, please send proposals to: Economic Development Administration Type of Request: Regular Submission. Economic Development Administration, Estimated Burden: 14,330 hours. [991215339–4345–13] Chicago Regional Office, 111 North Estimated Number of Respondents: Canal Street, Suite 855, Chicago, IL 160. Solicitation of Proposals for Economic 60606, Telephone: (313) 353–7706, Fax: Est. Avg. Hours Per Response: 38 to Development Assistance Programs (313) 353–8575. For applicants in Colorado, Iowa, 211 hours (depending on the size and AGENCY: Economic Development Kansas, Missouri, Montana, Nebraska, structure of the foreign-trade zone). Administration (EDA) North Dakota, South Dakota, Utah or Needs and Uses: The Foreign-Trade ACTION: Notice and request for Wyoming, please send proposals to: Zone Annual Report is the vehicle by proposals. which Foreign Trade Zone (FTZ) Economic Development Administration, grantees report annually to the Foreign SUMMARY: The Economic Development Denver Regional Office, 1244 Speer Trade Zones Board, pursuant to the Administration (EDA) is soliciting Boulevard, Room 670, Denver, Colorado requirements of the Foreign Trade proposals for the following programs: 80204, Telephone: (303) 844–4715, Fax: Zones Act (19 U.S.C. 81a–81u). The Grants for Public Works and Economic (303) 844–3968. annual reports submitted by grantees are Development Facilities; Economic For applicants in Connecticut, the only complete source of compiled Development—Support for Planning Delaware, District of Columbia, Maine, information on FTZ’s. The data and Organizations; Economic Maryland, Massachusetts, New information contained in the reports Development—Technical Assistance; Hampshire, New Jersey, New York, relates to international trade activity in Economic Adjustment Assistance; and Pennsylvania, Puerto Rico, Rhode FTZ’s. The reports are used by the Economic Development—Trade Island, Vermont, U.S. Virgin Islands or Congress and the Department to Adjustment Assistance. EDA’s mission West Virginia, please send proposals to: determine the economic effect of the is to lead the Federal economic Economic Development Administration, FTZ program. The reports are also used development agenda by promoting Philadelphia Regional Office, Curtis by the FTZ Board and other trade policy innovation and competitiveness, Center, 601 Walnut Street, Suite 140 officials to determine whether zone preparing American regions for growth South, Philadelphia, PA 19106, activity is consistent with U.S. and success in the worldwide economy. Telephone: (215) 597–4603, Fax: (215) international trade policy, and whether EDA fulfills its mission by investing in 597–1063. it is in the public interest. The public the following: Public works, For applicants in Alaska, American uses the information regarding activities infrastructure and development Samoa, Arizona, California, Guam, carried on in FTZ’s to evaluate their facilities; the crafting and Hawaii, Idaho, Marshall Islands, effect on industry sectors. The implementation of comprehensive Micronesia, Nevada, Northern Mariana information contained in annual reports economic development strategies; local, Islands, Oregon or Washington, please also helps zone grantees in their national and University Center-based send proposals to: Economic marketing efforts. technical assistance projects; and Development Administration, Seattle Affected Public: State, local, or tribal revolving loan funds. Under separate Regional Office, Jackson Federal governments or not-for-profit statutory authority, EDA also provides Building, Room 1890, 915 Second institutions which are FTZ grantees. technical assistance to firms adversely Avenue, Seattle, Washington 98174,
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Telephone: (206) 220–7660, Fax: (206) assistance include Economic Firms, and (b) rates each proposal using 220–7669. Development Districts: Indian tribes or the general evaluation criteria set forth For a copy of the FFO announcement consortia of Indian tribes; states; cities at 304.2 as further defined by the for this request for proposals, please see or other political subdivision; Investment Policy Guidelines set forth the Web site below listed under institutions of higher education or in this notice below. University Center ‘‘Electronic Access.’’ consortia of institutions of higher and National Technical Assistance FOR FURTHER INFORMATION CONTACT: For education; public or private nonprofit funding proposals will be evaluated additional information or for a paper organizations or associations acting in pursuant to a separate Federal Register copy of the FFO announcement, contact cooperation with officials of a political notice published in this issue. the appropriate EDA regional office subdivision of a state. Projects eligible After completing its evaluation, the listed above. EDA’s Web site, http:// for financial assistance include those IRC recommends whether or not an www.eda.gov contains additional projects meeting ‘‘special needs’’ application should be invited, information on EDA and its program. criteria, as set forth in Section VIII.B. of documenting its recommendation in the the FFO. meeting minutes or in the Investment SUPPLEMENTARY INFORMATION: Cost Sharing Requirements: Proposal Summary and Evaluation Electronic Access: EDA is not Generally, the amount of the EDA grant Form. The IRC analysis of the project’s currently able to accept electronic may not exceed 50 percent of the cost fulfillment of the Investment Policy submission of proposal packages. of the project, unless the project meets Guidelines is reviewed at EDA However, the full funding opportunity the requirements in 42 U.S.C. 3144. headquarters for quality assurance. After announcement for the FY 2005 Projects meeting the criteria may receive receiving quality control clearance, the Economic Development Assistance an additional amount that shall not Selecting Official (depending on the Programs competition is available exceed 30 percent based on the relative program, either the Regional Director or through Grants.gov at http:// needs of the area in which the project the Assistant Secretary) selects the www.grants.gov. Additional information will be located. See 42 U.S.C. 3144. applications to be invited after is available through EDA’s Web site, While cash contributions are considering the evaluations provided by http://www.eda.gov. encouraged, in-kind contributions, fairly the IRC and the degree to which one or Funding Availability: Funding evaluated by EDA, may include more of the Funding Priorities provided appropriated under Public Law 108–447 assumptions of debt and contributions below are included (or packaged is available for economic development of space, equipment, and services and together) in making his/her decision as assistance programs authorized by the may provide the non-Federal share of to which preapplication proposals Public Works and Economic the project cost. 42 U.S.C. 3144. In-kind should be invited. The Selecting Official Development Act of 1965, as amended contributions must be eligible project then formally invites the successful (Public Law 89–136, 42 U.S.C. 3121, et costs and meet applicable Federal cost proponent to submit a formal seq.), and as most recently amended by principles and uniform administrative application. If the Selecting Official the Economic Development requirements. Id. EDA may supplement declines to invite a full application, he/ Administration Reauthorization Act of the costs of a project up to and she provides written notice to the 2004 (Public Law 108–373), and for including 100 percent of such project proponent. In the case of a continuation trade adjustment assistance authorized costs where the applicant is able to grant, no pre-application proposal is under title II, chapters 3 and 5 of the demonstrate that the project meets the required. Proposals received after the Trade Act of 1974, as amended (19 requirements of 42 U.S.C. 3144(c). date of this notice will be processed in U.S.C. 2341–2355; 2391), and as further Potential applicants should contact the accordance with the requirements set amended by Public Law 107–210. Funds appropriate EDA office to make this forth herein until the next annual in the amount of $253,984,652 have determination. Federal Register is published. been appropriated for FY 2005 and shall Intergovernmental Review: If a successful proponent submits a remain available until expended. Applications under this program are formal application, it is reviewed by Statutory Authority: The authority for subject to Executive Order 12372, EDA program officials to determine programs listed below is the Public ‘‘Intergovernmental Review of Federal whether it contains any deficiencies Works and Economic Development Act Programs.’’ under EDA regulations at 13 CFR of 1965, as amended (Public Law 89– Evaluation and Selection Procedures: chapter III. If deficiencies are noted, the 136, 42 U.S.C. 3121, et seq.), and as Each pre-application proposal is applicant is provided a written request further amended by Public Law 105–393 circulated by a project officer to the to amend the application to resolve any and 108–373. The authority for the appropriate regional office staff for deficiencies. EDA will negotiate with program listed in part II.6 is title II, review and comments. When the the applicant to resolve any chapters 3 and 5 of the Trade Act of necessary input and information are deficiencies. If deficiencies are not 1974, as amended by Public Law 93– obtained, the pre-application proposal is resolved 30 days after receipt of the 618, 98–120, 98–369, 99–272, 99–514, considered by the regional office written notice, the application may be 100–418, 103–66, 105–277, and 107–210 Investment Review Committee (IRC), rejected. If the full application is (19 U.S.C. 2341–2391) (Trade Act). made up of regional office staff. The IRC accepted, the applicant and EDR are CFDA: 11.300 Grants for Public Works discusses the proposal and all pertinent notified and it is forwarded for final and Economic Development Facilities; documentation and evaluates it on two reviews and processing in accordance 11.302 Economic Development— levels of analysis. The IRC (a) with EDA and DOC procedures. Support for Planning Organizations; determines if the proposal meets the Evaluation Criteria: EDA investment 11.303 Economic Development— program specific criteria provided under proposals will be competitively Technical Assistance; 11.307 Economic 13 CFR 305.2 for Public Works, 13 CFR evaluated primarily on their ability to Adjustment Assistance; 11.313 306.2 for Planning Assistance, 13 CFR meet or exceed the following Investment Economic Development—Trade 307.2 for Technical Assistance, 13 CFR Policy Guidelines (each criterion will be Adjustment Assistance. 308.2 and 308.4 for Economic given equal weight): Eligibility: Eligible applicants for and Adjustment and 13 CFR 315.5 and 315.6 1. Be market-based and results driven. eligible recipients of EDA financial for Trade Adjustment Assistance for An investment will capitalize on a
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region’s competitive strengths and will and training centers to implement a person be subject to a penalty for failure positively move a regional economic cluster strategy; to comply with, a collection of indicator measured on EDA’s Balanced d. Establish research and industrial information subject to the requirements Scorecard, such as: an increased number parks that encourage innovation-based of the PRA unless that collection of of higher-skill, higher-wage jobs; competition; information displays a currently valid increased tax revenue; or increased e. Implement cluster-focused and OMB control number. private sector investment. innovation-focused business Executive Order 12866 2. Have strong organizational development efforts; and leadership. An investment will have f. Develop or implement coordinated This notice has been determined to be strong leadership, relevant project economic and workforce development not significant for purposes of Executive management experience, and a strategies. Order 12866. 2. Upgrade core business significant commitment of human Executive Order 13132 (Federalism) resources talent to ensure a project’s infrastructure such as: successful execution. a. Transportation infrastructure; It has been determined that this notice 3. Advance productivity, innovation, b. Communications infrastructure; does not contain policies with and entrepreneurship. An investment and Federalism implications as that term is will embrace the principles of c. Specialized training program defined in Executive Order 13132. entrepreneurship, enhance regional infrastructure. Administrative Procedure Act/ clusters, and leverage and link 3. Help communities plan and Regulatory Flexibility Act implement economic adjustment technology innovators and local Prior notice and an opportunity for universities to the private sector to strategies in response to sudden and severe economic dislocation. public comments are not required by the create the conditions for greater Administrative Procedure Act or any productivity, innovation, and job Specifically, EDA will give highest priority to support manufacturing- other law for this rule concerning creation. grants, benefits and contracts (5 U.S.C. 4. Look beyond the immediate impacted communities by: a. Helping communities that 553(a)(2)). Because notice and economic horizon, anticipate economic opportunity for comment are not changes, and diversify the local and experience manufacturing job losses (e.g., major layoffs, plant closures or required pursuant to 5 U.S.C. 553 or any regional economy. An investment will other law, the analytical requirements of be part of an overarching, long term trade impacts); and b. Supporting innovation and the Regulatory Flexibility Act (5 U.S.C. comprehensive economic development competitiveness in American 601 et seq.) are inapplicable. Therefore, strategy that enhances a region’s success manufacturing. a regulatory flexibility analysis has not in achieving a rising standard of living 4. Support technology-led economic been prepared. by supporting existing industry clusters, development, for example, proposals developing emerging new clusters, or Dated: December 21, 2004. that: attracting new regional economic David A. Sampson, a. Reflect the important role of drivers. Assistant Secretary for Economic research and development capacity of Development. 5. Demonstrate a high degree of universities in regional development; commitment by exhibiting: [FR Doc. 04–28374 Filed 12–27–04; 8:45 am] • and High levels of local government or b. Create and support technology BILLING CODE 3510–24–M non-profit matching funds and private transfers. sector leverage; • 5. Advance community and faith- DEPARTMENT OF COMMERCE Clear and unified leadership and based social entrepreneurship in support by local elected officials; and redevelopment strategies for areas of • Economic Development Administration Strong cooperation between the chronic economic distress. business sector, relevant regional [991215339–4347–15] partners and local, state and federal The Department of Commerce Pre- governments. Award Notification Requirements for Solicitation of Proposals for National Funding Priorities: Highly rated Grants and Cooperative Agreements Technical Assistance preapplication proposals may or may The Department of Commerce Pre- AGENCY: Economic Development not be invited to submit full Award Notification Requirements for Administration (EDA), Department of applications based on the following Grants and Cooperative Agreements Commerce (DOC). Funding Priorities. Generally, all EDA contained in the Federal Register notice ACTION: Notice and request for proposals and applications should of October 1, 2001 (66 FR 49917), as proposals. enhance regional competitiveness and amended by the Federal Register notice support long-term development of the published on October 30, 2002 (67 FR SUMMARY: The Economic Development regional economy. Further priority will 66109), are applicable to this Administration (EDA) is soliciting be given to proposals that: solicitation, and are available on EDA’s proposals for the National Technical 1. Encourage innovation and regional Web Site, http://www.eda.gov. Assistance Program for Fiscal Year (FY) competitiveness: 2006. This notice also announces a. Reflect coordination of strong Paperwork Reduction Act general policies and application regional leadership committed to This document contains collection-of- procedures for grant-based technical regional cluster development; information requirements subject to the assistance investments that aim to b. Encourage a formal organization Paperwork Reduction Act (PRA). The increase prosperity by advancing structure and process for working on use of Form ED–900P has been comprehensive, entrepreneurial, and cluster development and maintaining approved by OMB under the control innovation-based economic consensus; number 0610–0094. Notwithstanding development efforts. The mission of c. Encourage a common vision and any other provision of law, no person is EDA is to lead the Federal economic collaboration among firms, universities, required to respond to, nor shall any development agenda by promoting
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innovation and competitiveness, of $1,122,000 are available for the NTA specified timeframe and in the manner preparing American regions for growth Program for FY 2005. These funds are provided in Section VII of the FFO. and success in the worldwide economy. available until expended. Proposals that do not meet all items Through the National Technical Statutory Authority: The authority for required as set forth in the FFO will be Assistance (NTA) program, EDA will programs listed below is the Public considered non-responsive. Non- work towards fulfilling its mission by Works and Economic Development Act responsive proposals will not be funding technical assistance projects to of 1965 (PWEDA), as amended (Pub. L. considered by the review panel. promote competitiveness and 89–136, 42 U.S.C. 3121, et seq.), and as Proposals that meet all the requirements innovation in urban and rural regions most recently amended by the Economic will be evaluated by a review panel throughout the United States and its Development Administration comprised of at least three members, all territories. By working in conjunction Reauthorization Act of 2004 (Public Law of whom will be full-time Federal with its research partners, EDA will 108–373). employees. The panel evaluates the help states, local governments, and CFDA: 11.303 Economic proposals and rates and ranks them community based organizations to Development—Technical Assistance. using the following criteria of achieve their highest economic Eligibility: Eligible applicants for and approximate equal weight: potential. eligible recipients of EDA financial 1. Relative severity of the economic DATES: Proposals for funding under this assistance include Economic problem of the area; 13 CFR 304.2(a)(1). program must be received by the EDA Development Districts; Indian tribes or 2. Quality and Degree of conformance representative listed in Section VII.B. of consortia of Indian tribes; states; cities of the scope of work; 13 CFR 304.2(a)(2). 3. Merits of the activities—13 CFR this competitive solicitation no later or other political subdivisions; 304.2(a)(3) As further defined by the than May 31, 2005 at 4 p.m. (EDT). institutions of higher education or Investment Policy Guidelines provided Proposals received after 4 p.m. (EDT) on consortia of institutions of higher below; May 31, 2005, will not be considered for education; public or private nonprofit 4. Ability to carry out the proposed funding. By June 15, 2005, EDA will organizations or associations acting in activities successfully—13 CFR notify proponents whether they will be cooperation with officials of a political subdivision of a state. 304.2(a)(4). given further funding consideration and 5. Cost to the Federal Government. will invite successful proponents to Cost Sharing Requirements: submit a formal application. Generally, the amount of the EDA grant B. Supplemental Evaluation Criteria: may not exceed 50 percent of the cost ADDRESSES: National Technical Investment Policy Guidelines of the project, unless the project meets Assistance proposals may be e-mailed to the requirements in 41 U.S.C. 3144. The mission of EDA is to lead the [email protected]. Projects meeting the criteria may receive Federal economic development agenda National Technical Assistance by promoting innovation and proposals may be hand-delivered to: Dr. an additional amount that shall not exceed 30 percent, based on the relative competitiveness, preparing American John J. McNamee, U.S. Department of regions for growth and success in the Commerce, Economic Development needs of the area in which the project will be located. See 42 U.S.C. 3144. worldwide economy. Administration, Room 1874, 1401 All potential EDA investments will be While cash contributions are Constitution Avenue, NW., Washington, analyzed using the following five encouraged, in-kind contributions, fairly DC 20230; or Investment Policy Guidelines, which evaluated by EDA, may include National Technical Assistance constitute supplemental evaluation assumptions of debt and contributions proposals may be mailed to: Dr. John J. criteria of approximate equal weight and of space, equipment, and services and McNamee, U.S. Department of which further define the criteria may provide the non-Federal share of Commerce, Economic Development provided at 13 CFR 304.2(a)(3). the project cost. 42 U.S.C. 3144. In-kind Administration, Room 7816, 1401 1. Be market-based and results driven. contributions must be eligible project Constitution Avenue, NW., Washington, An investment will capitalize on a costs and meet applicable Federal cost DC 20230, Phone: 202–482–3566; Fax region’s competitive strengths and will principles and uniform administrative 202–501–4828. positively move a regional economic requirements. Id. EDA may supplement FOR FURTHER INFORMATION CONTACT: For indicator measured on EDA’s Balanced the costs of a project up to and additional information or for a paper Scorecard, such as: an increased number including 100 percent of such project copy of the full Federal Funding of higher-skill, higher-wage jobs; costs where the applicant is able to Opportunity (FFO) announcement for increased tax revenue; or increased demonstrate that the project meets the this request for proposals, contact the private sector investment. requirements of 42 U.S.C. 3144(c). appropriate EDA officer listed above. 2. Have strong organizational Potential applicants should contact the The text of the full FFO announcement leadership. An investment will have appropriate EDA office to make this is available through Grants.gov at http:/ strong leadership, relevant project determination. /www.grants.gov. EDA’s Web site management experience, and a Intergovernmental Review: contains additional information on its significant commitment of human Applications under this program are not program at resources talent to ensure a project’s http://www.eda.gov. subject to Executive Order 12372, successful execution. ‘‘Intergovernmental Review of Federal SUPPLEMENTARY INFORMATION: 3. Advance productivity, innovation, Programs.’’ Electronic Access: The full FFO and entrepreneurship. An investment announcement for the FY 2005 Evaluation and Selection Procedures will embrace the principles of Economic Development Assistance and Criteria entrepreneurship, enhance regional Programs competition is available clusters, and leverage and link A. Evaluation and Selection Criteria/ through Grants.gov at http:// technology innovators and local Procedures www.grants.gov. universities to the private sector to Funding Availability: EDA may use To apply for an award under this create the conditions for greater funds appropriated under H.R. 4814 for request, an eligible applicant must productivity, innovation, and job the NTA Program. Funds in the amount submit a proposal to EDA during the creation.
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4. Look beyond the immediate Executive Order 13132 (Federalism) appropriated funds for the program. In economic horizon, anticipate economic It has been determined that this notice FY 2004, EDA began a phased changes, and diversify the local and does not contain policies with implementation of a three-year regional economy. An investment will federalism implications as that term is competitive grant cycle for all of its be part of an overarching, long term defined in Executive Order 13132. University Center projects, beginning comprehensive economic development with those in the Austin and Denver strategy that enhances a region’s success Administrative Procedure Act/ regional offices. With the competition in achieving a rising standard of living Regulatory Flexibility Act announced in this notice for University by supporting existing industry clusters, Prior notice and an opportunity for Center projects in the areas served by developing emerging new clusters, or public comments are not required by the EDA’s Philadelphia and Chicago attracting new regional economic Administrative Procedure Act or any regional offices, EDA is continuing to drivers. other law for rules concerning grants, phase in competition for University 5. Demonstrate a high degree of benefits and contracts (5 U.S.C. Center funding. commitment by exhibiting: DATES: Proposals must be received by • 553(a)(2)). Because notice and High levels of local government or opportunity for comment are not the appropriate EDA regional office by non-profit matching funds and private required pursuant to 5 U.S.C. 553 or any April 22, 2005, at 4 p.m. (EDT). sector leverage. other law, the analytical requirements of ADDRESSES: From proponents in • Clear and unified leadership and the Regulatory Flexibility Act (5 u.S.C. Connecticut, Delaware, District of support by local elected officials. 601 et seq.) are inapplicable. Therefore, Columbia, Maine, Maryland, • Strong cooperation between the a regulatory flexibility analysis has not Massachusetts, New Hampshire, New business sector, relevant regional been prepared. Jersey, New York, Pennsylvania, Puerto partners and local, State and Federal Rico, Rhode Island, Vermont, Virginia, governments. Dated: December 21, 2004. Virgin Islands, and West Virginia: Selection Factors: The Assistant David A. Sampson, Economic Development Administration, Secretary of Commerce for Economic Assistant Secretary for Economic Philadelphia Regional Office, Curtis Development is the Selecting Official, Development. Center, 601 Walnut Street, Suite 140 and will in the normal course accept the [FR Doc. 04–28376 Filed 12–27–04; 8:45 am] ranking of the proposals recommended South, Philadelphia, PA 19106. BILLING CODE 3510–24–M From proponents in Illinois, Indiana, by the review panel. However, the Michigan, Minnesota, Ohio, and Assistant Secretary may not make any Wisconsin: Economic Development selection, or he may substitute one of DEPARTMENT OF COMMERCE Administration, Chicago Regional the lower rated proposals, if he Office, 111 North Canal Street, Suite determines that it better meets the Economic Development Administration 844, Chicago, IL 60606. overall objectives of PWEDA, as [991215339–4346–14] For a copy of the FFO announcement amended. for this request for proposals, please see Solicitation of Proposals for the The Department of Commerce Pre- the Web site below listed under University Center (UC) Program Award Notification Requirements for ‘‘Electronic Access.’’ Grants and Cooperative Agreements AGENCY: Economic Development FOR FURTHER INFORMATION CONTACT: For The Department of Commerce Pre- Administration (EDA) Department of additional information or for a paper Award Notification Requirements for Commerce (DOC). copy of the FFO announcement, contact Grants and Cooperative Agreements ACTION: Notice and request for the appropriate EDA regional office contained in the Federal Register notice proposals. listed above. EDA’s Web site, http:// of October 1, 2001 (66 FR 49917), as 222.eda.gov contains additional amended by the Federal Register notice SUMMARY: EDA is soliciting proposals information on EDA and its program. published on October 30, 2002 (67 FR for FY 2005 University Center funding SUPPLEMENTARY INFORMATION: 66109), are applicable to this in the areas served by its Philadelphia Electronic Access: EDA is not solicitation. and Chicago regional offices. EDA’s currently able to accept electronic mission is to lead the federal economic submission of proposal packages. Paperwork Reduction Act development agenda by promoting However, the full funding opportunity This document contains collection-of- innovation and competitiveness, announcement for the FY 2005 information requirements subject to the preparing American regions for growth Economic Development Assistance Paperwork Reduction Act (PRA). The and success in the worldwide economy. Programs competition is available use of Form ED–900A has been Institutions of higher education have through Grants.gov at http:// approved by OMB under the control many assets, such as faculty, staff, www.grants.gov. Additional information number 0610–0094. Notwithstanding libraries, laboratories, and computer is available through EDA’s Web site, any other provision of law, no person is systems, which can help to address http://www.eda.gov. required to respond to, nor shall any local economic problems and Funding Availability: Funding person be subject to a penalty for failure opportunities. With funding from EDA, appropriated under Public Law 108–447 to comply with, a collection of institutions of higher education is available for technical assistance information subject to the requirements establish and operate University programs authorized by the Public of the PRA unless that collection of Centers, which provide technical Works and Economic Development Act information displays a currently valid assistance to public and private sector of 1965, as amended (Public Law 89– OMB control number. organizations with the goal of enhancing 136, 42 U.S.C. 3121, et seq.), and as local economic development. EDA has further amended by Public Law 105–393 Executive Order 12866 traditionally renewed an award to a and 108–373, and for trade adjustment This notice has been determined to be University Center on an annual basis as assistance authorized under title II, not significant for purposes of Executive long as it maintained a satisfactory level chapters 3 and 5 of the Trade Act of Order 12866. of performance and Congress 1974, as amended (19 U.S.C. 2341–2355;
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2391), and as further amended by Public encouraged, in-kind contributions, fairly 2. Have strong organizational Law 107–210. Funds in the amount of evaluated by EDA, may include leadership. An investment will have $8,322,335 have been appropriated for assumptions of debt and contributions strong leadership, relevant project FY 2005 and shall remain available of space, equipment, and services and management experience, and a until expended. may provide the non-Federal share of significant commitment of human EDA expects to allocate the project cost. 42 U.S.C. 3144. In-kind resources talent to ensure a high- approximately $6.8 M to the University contributions must be eligible project performing University Center. Center Program and the remaining funds costs and meet applicable Federal cost Specifically for University Center to LEDA’s Local and National Technical principles and uniform administrative investments, this includes; (a) the extent Assistance programs. The amount of requirements. Id. EDA may supplement to which the proposed University University Center funding available for the costs of a project up to and Center will maximize coordination with competition in FY 2005 is expected to including 100 percent of such project other relevant organizations and avoid be approximately $1,717,517 in the costs where the applicant is able to duplication of services offered by other Philadelphia Regional Office and demonstrate that the project meets the organizations, (b) the extent to which approximately $918,376 in the Chicago requirements of 42 U.S.C. 3144(c). the University Center will access, take Regional Office. Anticipated annual Potential applicants should contact the advantage of, and be supported by the awards for University Centers under the appropriate EDA office to make this other resources present at the FY 2005 competition are in the $75,000 determination. sponsoring institution—especially the to $200,000 range. Regional Offices may, Funds from other Federal awards may institution’s economic development however, choose to fund proposals not be considered matching funds. The activities, (c) the degree of evidence under this competition outside that nature of contribution (cash versus in- demonstrating the support and range. The remaining FY 2005 program kind) and the amount of matching funds commitment (both financial and non- funds will be used to continue support will be taken into consideration in the financial) of the proposed University for current University Centers. Subject review process. Cash contributions are Center’s mission from the leadership of to the availability of funding, the funds preferred. the sponsoring institution. made available under this Program are Intergovernmental Review: 3. Advance productivity, innovation anticipated to be available until Applications under this program are and entrepreneurship. An investment in expended. subject to Executive Order 12372, a proposed University Center will Statutory Authority: The authority for ‘‘Intergovernmental Review of Federal embrace the principles of programs listed below is the Public Programs.’’ entrepreneurship; enhance regional Works and Economic Development Act Evaluation and Section Procedures: industry clusters, and leverage and link of 1965, as amended (Public Law 89– technology innovators (university 136, 42 U.S.C. 3121, et seq.) and as EDA’s Philadelphia and Chicago regional offices will conduct an initial research) with the private sector to further amended by the Economic create the conditions for greater Development Administration administrative and technical review of each proposal package to determine its productivity, innovation and higher- Reauthorization Act (Public Law 108– skill, higher-wage job creation. 373). completeness and compliance with requirements. 4. Look beyond the immediate CFDA: 11.303, Economic economic horizon, anticipate economic EDA’s Philadelphia and Chicago Development—Technical Assistance. changes, and diversify the local and regional offices will then conduct an Eligibility: For the University Center regional economy. A University Center’s internal review of each proposal program, EDA considers all accredited activities will be part of an overarching, meeting the requirements of this institutions of higher education as long-term comprehensive economic solicitation. This review will be eligible applicants. development strategy that enhances a conducted by a minimum of three EDA For FY 2005 the University Center region’s success in achieving a rising staff using the criteria provided in the competition is open to eligible standard of living. ‘‘Evaluation Criteria’’ section below. applicants in areas served by EDA’s 5. Demonstrate a high degree of Successful proponents under this Philadelphia regional office and Chicago commitment by exhibiting: regional office. The Philadelphia competition solicitation will be invited • High levels of local government or regional office serves Connecticut, to submit a complete application by the non-profit matching funds and private Delaware, District of Columbia, Maine, Philadelphia or Chicago regional office. sector leverage. Maryland, Massachusetts, New Evaluation Criteria: EDA investments • Clear and unified leadership and Hampshire, New Jersey, New York, in proposed University Centers will be support by local elected officials. Pennsylvania, Puerto Rico, Rhodes competitively rated and ranked on their • Strong cooperation between the Island, Vermont, Virginia, Virgin ability to meet or exceed the criteria set business sector, relevant regional Islands, and West Virginia. The Chicago forth at 13 CFR 304.2, as further defined partners and local, state and federal region serves Illinois, Indiana, by the following investment policy governments. Michigan, Minnesota, Ohio, and guidelines (each criterion will be given In making its recommendations on Wisconsin. equivalent weight): which institutions should be invited to Cost Sharing Requirements: 1. Be market-based and results driven. submit a full application, the EDA Generally, the amount of the EDA grant An investment in an EDA University review team will strive to avoid the may not exceed 50 percent of the cost Center will capitalize on the university’s concentration of program funding in a of the project, unless the project meets competitive strengths and will bolster single or very limited number of the requirements in 42 U.S.C. 3144. regional economic competitiveness, geographic areas. For that reason, EDA Projects meeting the criteria may receive resulting in tangible, quantifiable cannot predict a minimum ranking of a an additional amount that shall not improvements in regional economic successful proposal. exceed 30 percent, based on the relative health—such as increased numbers of Selection Factors: EDA expects to needs of the area in which the project higher-skill, higher-wage jobs, increased fund the highest ranking proposals will be located. See 42 U.S.C. 3144. tax revenue or increased private sector submitted under this competition of While cash contributions are investment. solicitation. However, EDA may
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selected proposals out of order for information displays a currently valid copies of the information collection several reasons including: (1) OMB control number. instrument(s) and instructions should Availability of funding; (2) geographic be directed to Stephen Baker, BIS ICB Executive Order 12866 balance in distribution of funds; (3) Liaison, Department of Commerce, program priorities and policy factors as This notice has been determined to be Room 6622, 14th and Constitution set out in the full funding opportunity not significant for purposes of Executive Avenue, NW., Washington, DC, 20230. announcement; or (4) applicant’s Order 12866. SUPPLEMENTARY INFORMATION: performance under previous awards. Executive Order 13132 (Federalism) I. Abstract The Department of Commerce Pre- It has been determined that this notice Section 906 of the TSRA requires that Award Notification Requirements for does not contain policies with exports of agricultural commodities, Grants and Cooperative Agreements federalism implications as that term is medicine or medical devices to Cuba or defined in Executive Order 13132. The Department of Commerce Pre- to the government of a country that has Award Notification Requirements for Administrative Procedure Act/ been determined by the Secretary of Grants and Cooperative Agreements Regulatory Flexibility Act State to have repeatedly provide support contained in the Federal Register notice Prior notice and an opportunity for for acts of international terrorism, or to of October 1, 2001 (66 FR 49917), as public comments are not required by the any other entity in such a country, are amended by the Federal Register notice Administrative Procedure Act or any made pursuant to one-year licenses published on October 30, 2002 (67 FR other law for rules concerning grants, issued by the U.S. Government, while 66109), are applicable to this benefits, and contracts (5 U.S.C. further providing that the requirements solicitation. 553(a)(2)). Because notice and of one-year licenses shall be no more restrictive than license exceptions Teleconference opportunity for comment are not required pursuant to 5 U.S.C. 553 or any administered by the Department of EDA’s Philadelphia and Chicago other law, the analytical requirements of Commerce, except that procedures shall regional offices will each hold a the Regulatory Flexibility Act (5 U.S.C. be in place to deny licenses for exports teleconference to answer questions 601 et seq.) are inapplicable. Therefore, to any entity within such country about the FY 2005 competition for a regulatory flexibility analysis has not promoting international terrorism. University Center funding. been prepared. To meet the requirements of TSRA, BIS is imposing a prior notification Philadelphia: The Philadelphia Dated: December 21, 2004. regional office will hold its call on procedure under new License Exception David A. Sampson, March 23, 2005, at 2 p.m. EST. In order Agricultural Commodities (AGR). to assure enough incoming lines are Assistant Secretary for Economic Exports and certain reexports of Development. available, EDA requests colleges and agricultural commodities will be universities planning to participate in [FR Doc. 04–28375 Filed 12–27–04; 8:45 am] authorized under License Exception the conference call to send an email to BILLING CODE 3510–24–M AGR to Cuba. [email protected] with ‘‘Conference II. Method of Collection Call Registration’’ in the subject line no DEPARTMENT OF COMMERCE later than 5 p.m. EST on March 18, Submitted on forms. 2005. The number for the conference Bureau of Industry and Security III. Data call is 888–928–9122. The pass code for this conference call is ‘‘PRO.’’ Prior Notification of Exports Under OMB Number: 0694–0123. License Exception AGR Form Number: BIS–748P. Chicago: The Chicago regional office Type of Review: Regular submission will hold its call on March 22, 2005, at for extension of a currently approved 11 a.m. CST. In order to assure enough ACTION: Proposed Collection; comment request. collection. incoming lines are available, EDA Affected Public: Individuals, requests colleges and universities SUMMARY: The Department of businesses or other for-profit and not- planning to participate in the Commerce, as part of its continuing for-profit institutions. conference call to send an email to effort to reduce paperwork and Estimated Number of Respondents: [email protected] with ‘‘Conference respondent burden, invites the general 250. Call Registration’’ in the subject line no public and other Federal agencies to Estimated Time Per Response: 52–57 later than 5 p.m. CST on March 18, take this opportunity to comment on minutes per response. 2005. The number for conference call is proposed and/or continuing information Estimated Total Annual Burden 888–570–6152. The pass code for this collections, as required by the Hours: 926 hours. conference call is ‘‘54776.’’ Paperwork Reduction Act of 1995, Estimated Total Annual Cost: No Paperwork Reduction Act Public Law 104–13 (44 U.S.C. start-up capital expenditures. 3506(c)(2)(A)). This document contains collection-of- IV. Request for Comments DATES: information requirements subject to the Written comments must be Comments are invited on: (a) Whether Paperwork Reduction Act (PRA). The submitted on or before February 28, the proposed collection of information use of Form ED–900P has been 2005. is necessary for the proper performance approved by OMB under the control ADDRESSES: Direct all written comments of the functions of the agency, including number 0610–0094. Notwithstanding to Diana Hynek, Departmental whether the information shall have any other provision of law, no person is Paperwork Clearance Officer, (202) 482– practical utility; (b) the accuracy of the required to respond to, nor shall any 0266, Department of Commerce, Room agency’s estimate of the burden person be subject to a penalty for failure 6626, 14th and Constitution Avenue, (including hours and cost) of the to comply with, a collection of NW., Washington, DC 20230. proposed collection of information; (c) information subject to the requirements FOR FURTHER INFORMATION CONTACT: ways to enhance the quality, utility, and of the PRA unless that collection of Requests for additional information or clarity of the information to be
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collected; and (d) ways to minimize the National Defense Authorization Act how to reduce and/or consolidate the burden of the collection of information (NDAA) for fiscal year 1998 (Public Law current frequency of reporting. on respondents, including through the 105–85, 111 Stat. 1629), signed by the Comments submitted in response to use of automated collection techniques President on November 18, 1997. There this notice will be summarized and/or or other forms of information is one component of this information included in the request for OMB technology. collection authorization, a post- approval of this information collection; Comments submitted in response to shipment report on the export of high they will also become a matter of public this notice will be summarized and/or performance computers,as well as record. included in the request for OMB exports of items used to enhance Dated: December 21, 2004. approval of this information collection; previously exported or reexported Madeleine Clayton, they will also become a matter of public computers, to Tier 3 countries, where Management Analyst, Office of the Chief record. the CTP is greater than 85,000 MTOPS Information Officer. for commodities shipped on or after Dated: December 21, 2004. [FR Doc. 04–28284 Filed 12–27–04; 8:45 am] Madeleine Clayton, March 20, 2001. (For commodities shipped prior to that date, lower BILLING CODE 3510–DT–P Management Analyst, Office of the Chief Information Officer. reporting thresholds apply, per 15 CFR Parts 740.7 and 742.12.) Exporters are [FR Doc. 04–28283 Filed 12–27–04; 8:45 am] DEPARTMENT OF COMMERCE required to provide a written report to BILLING CODE 3510–33–P BIS no later than the last day of the Bureau of Industry and Security month following the month in which DEPARTMENT OF COMMERCE the export takes place. To simplify this Computers and Related Equipment; process, BIS is developing an electronic Notice and Request for Comments Bureau of Industry and Security form that will incorporate the relevant data elements and replace the written ACTION: Notice and request for National Defense Authorization Act; report, thereby standardizing the data comments. Notice and Request for Comments format for the applicant, and enabling SUMMARY: The Department of the use of information technology in the Commerce, as part of its continuing ACTION: Notice and Request for processing of the data. Comments. effort to reduce paperwork and II. Method of Collection respondent burden, invites the general SUMMARY: The Department of public and other Federal agencies to Commerce, as part of its continuing Submitted on forms. take this opportunity to comment on effort to reduce paperwork and III. Data proposed and/or continuing information respondent burden, invites the general collections, as required by the OMB Number: 0694–0107. public and other Federal agencies to Paperwork Reduction Act of 1995, take this opportunity to comment on Form Number: BIS 742R, BIS 742S. Public Law 104–13 (44 U.S.C. proposed and/or continuing information Type of Review: Regular submission 3506(c)(2)(A)). for extension of a currently approved collections, as required by the DATES: Written comments must be Paperwork Reduction Act of 1995, collection. Affected Public: Individuals, submitted on or before February 28, Public Law 104–13 (44 U.S.C. 2005. 3506(c)(2)(A)). businesses or other for-profit and not- for-profit institutions. ADDRESSES: Direct all written comments DATES: Written comments must be Estimated Number of Respondents: 5. to Diana Hynek, Departmental submitted on or before February 28, Estimated Time Per Response: 15 Paperwork Clearance Officer, 2005. minutes per response. Department of Commerce, Room 6625, ADDRESSES: Direct all written comments Estimated Total Annual Burden 14th and Constitution Avenue, NW., to Diana Hynek, Departmental Hours: 6 hours. Washington, DC 20230. Paperwork Officer, Department of Estimated Total Annual Cost: No FOR FURTHER INFORMATION CONTACT: Commerce, Room 6625, 14th and start-up capital expenditures. Requests for additional information or Constitution Avenue, NW., Washington copies of the information collection IV. Request for Comments DC 20230. instrument(s) and instructions should FOR FURTHER INFORMATION CONTACT: Comments are invited on: (a) Whether be directed to Stephen Baker, BIS ICB Requests for additional information or the proposed collection of information Liaison, Department of Commerce, copies of the information collection is necessary for the proper performance Room 6622, 14th and Constitution instrument(s) and instructions should of the functions of the agency, including Avenue, NW, Washington, DC 20230. be directed to Stephen Baker, BIS ICB whether the information shall have SUPPLEMENTARY INFORMATION: Liaison, Department of Commerce, practical utility; (b) the accuracy of the Room 6622, 14th & Constitution agency’s estimate of the burden I. Abstract Avenue, NW., Washington, DC, 20230. (including hours and cost) of the When BIS receives this information it SUPPLEMENTARY INFORMATION: proposed collection of information; (c) is thoroughly reviewed by a licensing ways to enhance the quality, utility, and officer who, depending on the limits of I. Abstract clarity of the information to be parameters of the system, may submit This collection of information is collected; and (d) ways to minimize the the application for review by other required as the result of the amending burden of the collection of information government agencies. If the application of the Export Administration on respondents, including through the is approved, the respondent is issued a Regulations (15 CFR parts 730–799) use of automated collection techniques validated export license that authorizes (EAR) by revising the (EAR) or other forms of information shipment of the computer system. If requirements for exports and reexports technology. In addition, the public is additional information is required, the contained in Sections 1211–1215 of the encouraged to provide suggestions on respondent will be notified.
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Applications may be rejected if it is ACTION: Announcement of change in rate without being unnecessarily determined that the export or reexport practice and request for comments. burdensome for the Department or for of the system poses a threat to U.S. importers. national security. SUMMARY: On May 3 and September 20, The second part of this notice, 2004, the Department of Commerce drawing on interested parties’ II. Method of Collection published notices in the Federal comments, describes the Department’s Submitted, as required, with form Register requesting comments on its proposal to introduce combination rates BIS–748P. separate rates practice (69 FR 24119 and in all of its NME antidumping cases in 69 FR 56188). This practice refers to the III. Data more detail, and clarifies how Department’s long-standing policy in combination rates would work in OMB Number: 0694–0013. antidumping proceedings of presuming practice. Because the Department Form Number: N/A. that all firms within a non-market recognizes that assigning combination Type of Review: Regular submission economy (‘‘NME’’) country are subject rates in all of its NME cases would be for extension of a currently approved to government control and thus should a change in practice, and because collection. all be assigned a single, country-wide parties have raised questions about the Affected Public: Individuals, rate unless a respondent can businesses or other for-profit and not- implementation and administration of demonstrate an absence of both de jure this method of assigning antidumping for-profit institutions. and de facto control over its export Estimated Number of Respondents: margins, the Department is giving the activities. In that case, the Department public an additional opportunity to 80. assigns the respondent its own comment on this proposed change in Estimated Time Per Response: 32 individually calculated rate or, in the practice. The Department is particularly minutes per response. case of a non-investigated or non- interested in comments addressing how Estimated Total Annual Burden reviewed firm, a weighted-average of the combination rates might work in Hours: 86. rates of the investigated companies, practice, on whether there are obstacles Estimated Total Annual Cost: No excluding any rates that were zero, de to its effective implementation, and start-up capital expenditures. minimis, or based entirely on facts what the implications of combination available. In the Department’s previous IV. Request for Comments rates might be for the Department or for NME antidumping investigations, Comments are invited on: (a) Whether respondents. exporters seeking a separate rate have the proposed collection of information The Department is not ruling out had to respond to section A of the NME is necessary for the proper performance additional changes to its separate rates questionnaire for purposes of providing of the functions of the agency, including practice, and will consider changes to the Department evidence of the whether the information shall have its policy and practice in other areas. exporters’ independence of government practical utility; (b) the accuracy of the For this notice, however, the control over their export activities. agency’s estimate of the burden Taking into account the comments it Department is most interested in (including hours and cost) of the has received and without ruling out any comments on the application process proposed collection of information; (c) additional changes in the future, the and on its draft application, as well as ways to enhance the quality, utility, and Department has provisionally decided on the proposal to institute combination clarity of the information to be to adopt an application process for rates for all NME exporters. The collected; and (d) ways to minimize the evaluating separate rate requests by non- proposed application and application burden of the collection of information investigated firms, and to consider process are not yet finalized and are on respondents, including through the instituting combination rates (also subject to modification. Furthermore, use of automated collection techniques known as ‘‘chain’’ or ‘‘channel’’ rates) the Department has not made a final or other forms of information for all firms receiving a separate rate in decision with respect to the draft technology. NME cases. Because several of the application on the Import Comments submitted in response to interested parties requested an Administration Web site or on this notice will be summarized and/or opportunity to comment on the combination rates for all NME exporters. included in the request for OMB application before a final decision is The Department’s position with respect approval of this information collection; made, the draft application has been to both of these issues will be finalized they will also become a matter of public posted on the Import Administration after it has analyzed the comments it record. Web site at the following address: will receive in response to this notice. Dated: December 21, 2004. http://ia.ita.doc.gov/. This model DATES: Comments must be submitted by Madeleine Clayton, application is based on a PRC January 24, 2005. Management Analyst, Office of the Chief investigation. We expect it would be ADDRESSES: Written comments (original Information Officer. modified on a case-by-case basis, and six copies) should be sent to James [FR Doc. 04–28285 Filed 12–27–04; 8:45 am] depending on the NME under J. Jochum, Assistant Secretary for Import BILLING CODE 3510–33–P investigation. This notice will also Administration, U.S. Department of describe how the application process Commerce, Central Records Unit, Room will function in greater detail and serve 1870, Pennsylvania Avenue and 14th DEPARTMENT OF COMMERCE as an opportunity to provide additional Street NW., Washington, DC 20230. The comments on both the shift from a Department recommends submission of International Trade Administration section A response to an application comments in electronic form to accompany the required paper copies. Separate-Rates Practice in process as well as on specific fields in the application itself. In particular, the Comments filed in electronic form Antidumping Proceedings Involving should be submitted either by e-mail to Non-Market Economy Countries Department welcomes comments on whether the fields in the application the webmaster below, or on CD–ROM. AGENCY: Import Administration, and the supporting documents it FOR FURTHER INFORMATION CONTACT: International Trade Administration, requires are sufficient for a firm to Lawrence Norton, Economist, or Department of Commerce. demonstrate its eligibility for a separate Anthony Hill, Senior International
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Economist, Office of Policy, Import NME cases only if an exporter can As it announced in its September 20, Administration, U.S. Department of demonstrate the absence of both de jure 2004 and May 3, 2004, notices in the Commerce, 14th Street and Constitution and de facto governmental control over Federal Register (69 FR 56188, 69 FR Avenue, NW., Washington DC, 20230, its export activities. See Silicon Carbide 24119), the Department is considering 202–482–1579 or 202–482–1843. and Final Determination of Sales at Less changes to the practice detailed above in SUPPLEMENTARY INFORMATION: Than Fair Value: Furfuryl Alcohol from response to the growing administrative the People’s Republic of China, 60 FR burden of analyzing requests for Background 22544, 22545 (May 8, 1995). In order to separate rates (especially inadequate In an NME antidumping proceeding, request and qualify for a separate rate, submissions requesting separate rates the Department presumes that all a company must have exported the treatment), and in response to concerns companies within the country are subject merchandise to the United that the separate rates test could be subject to governmental control and States during the period of investigation made more effective in determining should be assigned a single or review, and it must provide whether a company is eligible for a antidumping duty rate unless an information responsive to the following separate rate. The Department has faced exporter demonstrates the absence of considerations: a large number of separate rate requests both de jure and de facto governmental 1. Absence of De Jure Control: The in three recent investigations involving control over its export activities. See Department considers the following de two NME countries. See Notice of Final Final Determination of Sales at Less jure criteria in determining whether an Determination of Sales at Less Than Than Fair Value: Bicycles from the individual company may be granted a Fair Value: Wooden Bedroom Furniture People’s Republic of China, 61 FR separate rate: (1) An absence of from the People’s Republic of China, 69 19026, 19027 (April 30, 1996). If an restrictive stipulations associated with FR 67313 (November 17, 2004) (PRC exporter demonstrates this an individual exporter’s business and Furniture); Notice of Final Determination of Sales at Less Than independence in its export activities, it export licenses; (2) any legislative Fair Value: Certain Frozen and Canned is eligible for a rate that is separate from enactments decentralizing control of Warmwater Shrimp from the People’s the NME-wide rate. This separate rate is companies; and (3) any other formal Republic of China, 69 FR 70997 usually an individually calculated rate measures by the government (December 8, 2004) (PRC Shrimp); and or a weighted-average of the rates of the decentralizing control of companies. Notice of Final Determination of Sales investigated companies, excluding any 2. Absence of De Facto Control: at Less Than Fair Value: Certain Frozen rates that were zero, de minimis, or Typically, the Department considers and Canned Warmwater Shrimp from based entirely on facts available. The four factors in evaluating whether each the Socialist Republic of Vietnam, 69 FR Department’s separate rates test is not respondent is subject to de facto 71005 (December 8, 2004) (Vietnam governmental control of its export concerned, in general, with Shrimp). functions: (1) Whether the export prices macroeconomic border-type controls While the Department analyzed the (e.g., export licenses, quotas, and are set by, or subject to the approval of, large number of separate rates requests minimum export prices), particularly if a governmental authority; (2) whether in these three investigations, it has these controls are imposed to prevent the respondent has authority to become clear that these requests the dumping of merchandise in the negotiate and sign contracts and other consume an inordinate amount of the United States. Rather, the test focuses agreements; (3) whether the respondent Department’s resources. Various parties on controls over the decision-making has autonomy from the central, have also raised questions that the process on export-related investment, provincial, or local governments in Department’s separate rates test, as pricing, and output decisions at the making decisions regarding the currently constructed, may not offer the individual firm level. See, e.g., Final selection of its management; and (4) most effective means of determining Determination of Sales at Less Than whether the respondent retains the whether exporters act independently of Fair Value: Certain Cut-to-Length proceeds of its export sales and makes the government. Some parties have Carbon Steel Plate from Ukraine, 62 FR independent decisions regarding argued that the current separate rates 61754, 61757 (November 19, 1997); and disposition of profits or financing of test does not go far enough in analyzing Tapered Roller Bearings and Parts losses. whether a firm acts both de jure and de Thereof, Finished and Unfinished, from In an antidumping investigation or facto independently of the government the People’s Republic of China: Final review, the Department currently in its export activities, whereas others Results of Antidumping Duty assigns a weighted-average of the have argued that the test already goes Administrative Review, 62 FR 61276, individually calculated rates, excluding beyond what is necessary and poses an 61279 (November 17, 1997). any rates that were zero, de minimis, or unnecessary burden on respondents and To establish whether a firm is based entirely on facts available, to on the Department. sufficiently independent from exporters who have not been selected as Another issue that has been raised by government control in its export mandatory respondents if they fulfill parties concerns the potential evasion of activities to be eligible to be assigned a two requirements. First, they must duties. Under current practice, separate separate rate, the Department analyzes submit a request for separate rates rates are assigned only to exporters, and each exporting entity under a test treatment, along with a timely response this assigned rate applies to all of the arising from the Final Determination of to section A of the Department’s firm’s exports regardless of which entity Sales at Less Than Fair Value: Sparklers questionnaire. Second, the Department produced the subject merchandise. from the People’s Republic of China, 56 must determine, after reviewing the Various interested parties argued that FR 20588 (May 6, 1991), as modified in requesting companies’ submissions, that this practice is unfair, because while the the Final Determination of Sales at Less separate rates treatment is warranted. margins the Department calculates are Than Fair Value: Silicon Carbide from See, e.g., Final Determination of Sales at taken from a discrete set of suppliers, the People’s Republic of China, 59 FR Less Than Fair Value: Certain Circular the cash deposit applies to any 22585, 22587 (May 2, 1994) (Silicon Welded Carbon-Quality Steel Pipe from merchandise exported by the exporter in Carbide). Under this test, the the People’s Republic of China, 67 FR question, regardless of whether it was Department assigns separate rates in 36570, 36571 (May 24, 2002). supplied by the same producers that
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were investigated. The separate rate record and will be available for public firms will have clear notice of what is presumes that the exporters’ activities inspection and copying at Import required to document a separate rates claim, are free from government control, but in Administration’s Central Records Unit, firms submitting incomplete applications allowing other ‘‘non-investigated’’ firms Room B–099, between the hours of 8:30 will be rejected for separate rates status without supplementary questionnaires. to benefit from this rate, these interested a.m. and 5 p.m. on business days. The Because adequate substantiation of a separate parties claim the Department Department requires that comments be rates claim will be required and subject to undermines the effectiveness of its test. submitted in written form. The verification, the application will be a They argue further that the Department recommends submission of meaningful test of a firm’s eligibility for a Department’s current practice of comments in electronic form to separate rate. accounting for changes in suppliers accompany the required paper copies. The introduction of the application will be during administrative reviews is Comments filed in electronic form a dynamic process, where the Department unsuited to industries with rapid shifts should be submitted either by e-mail to would be ready to update the application as in sourcing and where suppliers can circumstances or experience warrants. In the webmaster below, or on CD–ROM as addition, the application would be tailored to appear and disappear frequently. comments submitted on diskettes are some extent to each case. For example, the Finally, under the current practice, likely to be damaged by postal radiation draft application’s de jure section asks about because the rates the Department treatment. Comments received in various PRC government laws, which would assigns often vary widely from exporter electronic form will be made available obviously be changed in cases involving to exporter (due partly to the NME- or to the public in Portable Document other NME countries. As discussed above, country-wide rate), exporters assigned Format (PDF) on the Internet at the the application is intended to remedy either the country-wide rate or a high Import Administration Web site at the problems that parties have identified with the current separate rates process. In the calculated rate, can easily shift their following address: http://ia.ita.doc.gov/. shipments of subject merchandise to recent PRC Furniture, PRC Shrimp and Any questions concerning file Vietnam Shrimp cases, the Department often another exporter assigned a lower rate. formatting, document conversion, required several rounds of questionnaires to Such diversion arguably undermines the access on the Internet, or other ascertain whether firms operated de jure and effect of other antidumping duty electronic filing issues should be de facto independently of the government in margins the Department calculates. addressed to Andrew Lee Beller, Import their export activities. In these cases, several As discussed above, the Department Administration Webmaster, at (202) firms the Department had rejected for has provisionally decided to introduce 482–0866, e-mail address: webmaster- separate rates status at the preliminary an application process for evaluating [email protected]. determination returned, post-preliminary separate-rate requests by companies that determination, with more evidence of their have not been selected as mandatory Dated: December 16, 2004. eligibility for a separate rate and then were respondents. The appendix to this James J. Jochum, granted a separate rate at the final notice describes the rationale behind the Assistant Secretary for Import determination. To the extent that such Administration. situations can be avoided in the future, both separate-rate application, and the draft the Department and applicants will save time application itself is posted on the Appendix and resources, without undermining the Import Administration Web site at the Department’s ability to enforce the following address: http://ia.ita.doc.gov/. (1) The Department has provisionally decided to change its separate rates antidumping law and without denying The appendix to this notice also procedure for non-investigated firms that respondents the full opportunity to describes the proposal to institute request a separate rate from a process in demonstrate their eligibility for a separate combination rates in all of its NME which an exporter fills out a Section A rate. cases in more detail and offers the questionnaire to an application process. A primary goal of the separate rates public another chance to comment on Exporters that the Department selects as application is to make it completely clear whether combination rates would be an mandatory respondents will continue to what documentation applicants must provide to demonstrate their eligibility for a separate effective remedy for the problems respond to the entire questionnaire, including Section A, but Section A will be rate, so as to avoid the need for the described above, and whether they Department to issue supplemental would be consistent with the statute and updated to conform with what is included in the application. The draft application can be questionnaires and avoid unnecessary regulations. found at the following address: http:// rejections of applicants. Having drawn on the Comments ia.ita.doc.gov/. The draft application was experiences of its recent investigations, as designed to take into account concerns that well as on comments from interested parties, Persons wishing to comment should the separate rates test could be improved to the Department considers the application file a signed original and six copies of be a better measure of the export process to be both an effective analytical tool each set of comments by the date independence of firms, as well as concerns and one which does not place on applicants specified above. The Department will that the current test is too time-consuming an unfair burden. consider all comments received before and burdensome on the Department and on The application is streamlined to focus on the close of the comment period. respondents. The application does not alter those issues most relevant to separate rate the standard laid out in Sparklers and Silicon eligibility; it requires firms to certify their Consideration of comments received eligibility for a separate rate, and it lists after the end of the comment period Carbide for evaluating whether an applicant is subject to de jure or de facto government documents that respondents must submit in cannot be assured. The Department will control. Rather, by drawing on the order to substantiate these certifications. not accept comments accompanied by a experiences of the recent NME investigations Furthermore, the Department has request that a part or all of the material and interested parties’ comments, the incorporated questions not addressed be treated confidentially because of its application process should be more currently in its standard NME Section A business proprietary nature or for any straightforward and thorough while saving questionnaire that are pertinent to separate other reason. The Department will both the Department and applicants time and rates eligibility, and welcomes further return such comments and materials to resources. In particular, by explicitly suggestions in this area. While the Department reserves the right to issue the persons submitting the comments detailing which documents the Department will accept to substantiate a separate rates supplemental questionnaires and verify and will not consider them in claim, the application should minimize the applicants, such questionnaires and development of any changes to its need for the extensive supplemental verifications function as further confirmation practice. All comments responding to questionnaires that have proven to be of firms’ export independence, rather than as this notice will be a matter of public burdensome and time-consuming. Since repetitions of what is expressly required by
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the application. As noted above, because the that issuing combination rates in NME Customs that this calculated rate would only application is clear about what is required, investigations and administrative reviews apply to subject merchandise that is exported the Department will reject incomplete would constitute a significant change in by the firm that has received that separate applications without issuing supplemental practice. Accordingly, the Department will rate, and has been produced by one of the questionnaires. make a final decision only after it has producers the firm certified as having To streamline the process further, the conducted a full analysis of the advantages supplied it during the period of investigation. application will be available for printing on and disadvantages of this change in practice, Merchandise produced by other suppliers but the Import Administration Web site, so that with an opportunity for public participation. exported by the respondent would receive firms that have not received paper copies of For this reason, and to clarify exactly how the NME-wide cash deposit rate until the the application will be aware of the the Department proposes to implement administrative review, when factors on this application, its requirements, and deadline combination rates, the Department is offering new supplier can be collected and final for submission. The Department may another opportunity for comment on this dumping duties assessed. This would happen consider in the future requiring firms to proposed change in practice. even if the producer(s) outside the submit the application electronically, but this Under current NME practice, the combination had supplied a different is not the case at the current time, and firms Department assigns exporter-specific separate respondent during the period of will be expected to submit their separate rates, and not exporter-producer combination investigation. rates application in the same way they rates, with three exceptions. The first The following is an example of how currently file any documents with the exception concerns exclusions, in which case combination rates would work in practice. Department. The Department has determined the exporter that is excluded receives an Exporter A seeks a separate rate during the that this application represents an exporter-producer combination rate so that investigation and supplies the Department improvement over current practice and is fair the exclusion from the antidumping order with the necessary certification and to all parties. Nonetheless, the Department only applies when the exporter sources from documentation to obtain separate rates status. welcomes comments on the application and the same supplier(s) as in the original Further, Exporter A certifies that it sourced on particular fields therein by the deadline investigation. See sections 733(b)(3) and 20 percent of its subject merchandise for listed above. 735(a)(4) of the Tariff Act of 1930, as export to the United States during the period (2) The Department is seriously amended, and 19 CFR 351.107(b)(1). The of investigation from Producer B, 30 percent considering adopting ‘‘combination rates’’ second exception involves the Department’s from Producer C, and 50 percent from (alternatively referred to as ‘‘chain’’ or enforcement of the law as it relates to Producer D. It makes no difference if ‘‘channel’’ rates) in all of its NME cases, as middleman dumping. When a producer/ Exporter A is affiliated with its producers or first proposed in the previous requests for exporter sells to an unaffiliated middleman not. Exporter A demonstrates its comments in (69 FR 24119) and (69 FR with the knowledge of the ultimate independence from the government in its 56188). In response to these requests for destination of the merchandise, and that export activities, and receives a separate rate comments, some parties have made powerful middleman subsequently sells merchandise for cash deposit in the preliminary arguments that combination rates are to the United States at less than fair value, determination based on the firm’s sales to the necessary for a more effective enforcement of the Department will calculate a combination United States, and on the weighted factors of the dumping margins the Department antidumping duty rate for the producer/ production of its three suppliers. calculates. In particular, parties have argued exporter and middleman in many cases. The After the preliminary and final that since the Department margin third exception concerns the Department’s determinations, this cash deposit rate would calculations are based on the factors of policy on new shipper reviews, where the apply to all of the merchandise exported by production of the producer that supplied the rate is assigned to the exporter-producer Exporter A and supplied by Producers B, C, exporter during the period of investigation or combination. See Import Administration and D (if they supplied Exporter A during the review, the rates the Department assigns Policy Bulletin 03.2: Combination Rates in period of review), in any proportion. That is, should only apply to those producers. In New Shipper Reviews, dated March 04, 2003. Exporter A would be free to source addition, these parties argue, NME exporters The Department is considering extending exclusively from Producer B, despite it assigned either a high margin or denied a this practice of assigning exporter-producer having been a relatively minor supplier separate rate are free to export their combination rates to NME exporters during the period of investigation. If Exporter merchandise through exporters assigned a receiving a separate rate so that only the A desired to introduce a new supplier, lower rate, leading to a ‘‘funneling’’ of all the specific exporter-producer combination that Producer E, it would have to make at least subject merchandise through the exporters was specifically investigated or reviewed on one sale of merchandise produced by with the lowest rates. the record by the Department receives the Producer E to the United States at the NME- Other parties, however, have questioned calculated rate for establishing the cash wide cash deposit rate. This is because the the usefulness of combination rates, and have deposit rate for estimated antidumping separate rate it was originally assigned was raised concerns that combination rates would duties. This would not mean that the derived from the factors of production only place a difficult burden on the Department, separate rates analysis would be extended from the three original suppliers and thus on U.S. Customs and Border Protection, and back to producers, or that producers would only applies to merchandise produced by the on respondents. These parties argue that it is in any way be required to demonstrate their three original suppliers. counterproductive to propose making independence of government control. The For the administrative review, Exporter A separate rates supplier-specific at a time separate rates test focuses exclusively on the would have the option to request that it be when the Department is seeking to expedite independence of respondent’s export reviewed. During the review, the Department the handling of the increasing number of activities from de jure and de facto would again collect factors information from separate rate requests it receives. These government control. Producers B, C, and D, as well as from the parties also argue that it would be a step back Under combination rates, firms qualifying new supplier, Producer E. Thus, the new for the Department to limit the application of for a separate rate, including both mandatory cash deposit rate going forward would be the separate rates it grants to subject respondents and other exporters applying for based on information from all four suppliers, merchandise produced by particular a separate rate, would be required to list all and the combination would then be suppliers, particularly when in many the suppliers whose merchandise they expanded to include Producer E. industries it is common for exporters to exported to the United States during the Furthermore, since the final dumping duties source their merchandise from whichever period of investigation. The rate the would be assessed during the administrative producer is currently offering the lowest Department would assign as a cash deposit review, any difference between the NME- price. Finally, these parties argue that to an NME exporter that had passed the wide cash deposit rate Exporter A paid for its whatever change in the margin that may separate rates test would only apply to exports from Producer E and its final result from a shift in supplier will be merchandise produced by those suppliers dumping margin would be refunded to accounted for in the next administrative that had supplied subject merchandise to the Exporter A. review. exporter for export to the United States The Department welcomes comments on The Department understands the concerns during the period of investigation. The the legal and administrative advisability of of both sides on this issue and recognizes Department would then issue instructions to introducing combination rates in all of its
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NME cases. In addition, the Department investigation, and the only U.S. capsule, powders or similar form for welcomes comments on how combination producer at the time the order was direct human consumption). Bulk rates might best be implemented. issued, closed its sole production aspirin may be imported in two forms, [FR Doc. 04–28324 Filed 12–27–04; 8:45 am] facility related to the manufacture of as pure ortho–acetylsalicylic acid or as BILLING CODE 3510–DS–P bulk aspirin in the United States on or mixed ortho–acetylsalicylic acid. Pure about December 20, 2002. Bimeda ortho–acetylsalicylic acid can be either provided a press release, a news article, in crystal form or granulated into a fine DEPARTMENT OF COMMERCE an excerpt from Rhodia’s 2001 annual powder (pharmaceutical form). This report to the Securities and Exchange product has the chemical formula International Trade Administration Commission, and a product datasheet C9H8O4. It is defined by the official A–570–853 posted on Rhodia’s corporate website to monograph of the United States support its contention. (See Notice of Pharmacopoeia 23 (‘‘USP’’). It is Notice of Final Results of Changed Initiation and Preliminary Results of currently classifiable under the Circumstances Review and Revocation Changed Circumstances Review and Harmonized Tariff Schedule of the of the Antidumping Duty Order: Bulk Intent to Revoke the Antidumping Duty United States (‘‘HTSUS’’) subheading Aspirin from the People’s Republic of Order: Bulk Aspirin from the People’s 2918.22.1000. China Republic of China, 69 FR 35286 (June Mixed ortho–acetylsalicylic acid 24, 2004) (‘‘Preliminary Results’’)). consists of ortho–acetylsalicylic acid AGENCY: Import Administration, In response to a request from the combined with other inactive International Trade Administration, Department, on May 25, 2004, Rhodia substances such as starch, lactose, Department of Commerce. stated that it had ceased production at cellulose, or coloring materials and/or ACTION: Notice of Final Results of its U.S. aspirin plant on February 28, other active substances. The presence of Changed Circumstances Review and 2003. Rhodia also indicated that it is other active substances must be in Revocation of the Antidumping Duty still liquidating its inventory of bulk concentrations less than that specified Order. aspirin produced in the United States. for particular nonprescription drug On June 17, 2004, Bimeda submitted SUMMARY: On June 24, 2004, the combinations of aspirin and active Department of Commerce published a additional information to support its substances as published in the notice of initiation and preliminary request for a changed circumstances Handbook of Nonprescription Drugs, results of changed circumstances review review. Bimeda asserted that it eighth edition, American purchases only veterinary–grade bulk and intent to revoke the antidumping Pharmaceutical Association. This aspirin from Rhodia. According to duty order on bulk aspirin from the product is currently classifiable under Bimeda, Rhodia confirmed via a phone People’s Republic of China (69 FR HTSUS subheading 3003.90.0000. call to Bimeda’s sales personnel that 35286). We gave interested parties an Although the HTSUS subheadings are U.S.-produced subject merchandise was opportunity to comment on the provided for convenience and customs still being liquidated out of inventory, preliminary results. Based on our purposes, the written description of the but not veterinary–grade aspirin. analysis of the comments received, we merchandise under review is Bimeda further asserted that the intend to revoke this order effective July dispositive. changed circumstances review was still 1, 2003, the earliest date for which Analysis of Comments Received warranted and requested revocation of entries of bulk aspirin have not been the order in full or alternatively, to We have addressed the comments of subject to an administrative review. exclude veterinary–grade bulk aspirin the parties in the ‘‘Issues and Decision EFFECTIVE DATE: December 28, 2004. from the scope of the order. Memorandum’’ from Barbara E. Tillman, FOR FURTHER INFORMATION CONTACT: Based on Bimeda’s April 30, 2004, Acting Deputy Assistant Secretary, Scott Holland, Import Administration, submission and Rhodia’s May 25, 2004, Import Administration to James J. International Trade Administration, submission, the Department initiated Jochum, Assistant Secretary, Import U.S. Department of Commerce, 14th this changed circumstances review and Administration, dated December 9, 2004 Street and Constitution Avenue, NW, issued preliminary results on June 24, (‘‘Decision Memorandum’’), which is on Washington, DC 20230; telephone (202) 2004. Since the publication of the file in the Department’s Central Records 482–1279. Preliminary Results of this review the Unit (‘‘CRU’’) in room B–099 of the SUPPLEMENTARY INFORMATION: following events have occurred: main Department building. In addition, We invited parties to comment on the a complete version of the Decision Background Preliminary Results. On July 26, 2004, Memorandum can be accessed directly On July 11, 2000, the Department of Perrigo Company (‘‘Perrigo’’), an on the Web at http://ia.ita.doc.gov/frn. Commerce (‘‘the Department’’) importer of bulk aspirin from the PRC, The paper copy and electronic version published an antidumping duty order Bimeda, Rhodia, and Shandong Xinhua of the Decision Memorandum are on bulk aspirin from the People’s Pharmaceutical Co., Ltd. (‘‘Shandong’’), identical in content. Republic of China (‘‘PRC’’). See Notice a Chinese producer and exporter of bulk Final Results of Changed of Antidumping Duty Order: Bulk aspirin from the PRC and a respondent Circumstances Review and Revocation Aspirin from the People’s Republic of in the original investigation, submitted of the Antidumping Duty Order China, 65 FR 42673 (July 11, 2000). On comments on the Preliminary Results. April 30, 2004, Bimeda Inc. (‘‘Bimeda’’), No rebuttal comments were submitted, Pursuant to sections 751(b) and (d) a U.S. importer of bulk aspirin and an nor was a public hearing held. and 782(h) of Tariff Act of 1930, as interested party in this proceeding, amended (‘‘the Act’’), as well as 19 requested that the Department conduct Scope of the Order C.F.R 351.222(g) of the Department’s a changed circumstances review for the The product covered by this review is regulations, and consistent with the purpose of revoking the antidumping bulk acetylsalicylic acid, commonly Preliminary Results, we determine that duty order on bulk aspirin from the referred to as bulk aspirin, whether or the continued relief provided by the PRC. According to Bimeda, Rhodia, Inc. not in pharmaceutical or compound order with respect to bulk aspirin from (‘‘Rhodia’’), the petitioner in the original form, not put up in dosage form (tablet, the PRC is no longer of interest to the
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domestic interested party in this DEPARTMENT OF COMMERCE pursuant to sections 751(a)(1) and proceeding. See Decision Memorandum 777(i)(1) of the Act. International Trade Administration at Comment 1. The Department also Dated: December 20, 2004. determines that the effective date of A–423–808 Barbara E. Tillman, revocation for this order is July 1, 2003, Acting Deputy Assistant Secretary for Import the earliest date for which entries of Notice of Extension of Time Limit for Administration. Preliminary Results of Administrative bulk aspirin have not been subject to an [FR Doc. E4–3824 Filed 12–27–04; 8:45 am] Review: Stainless Steel Plate in Coils administrative review. See Decision BILLING CODE 3510–DS–S Memorandum at Comment 2. from Belgium Instructions to U.S. Customs and AGENCY: Import Administration, DEPARTMENT OF COMMERCE Border Protection International Trade Administration, U.S. Department of Commerce. International Trade Administration In accordance with section 351.222 of EFFECTIVE DATE: December 28, 2004. the Department’s regulations, the FOR FURTHER INFORMATION CONTACT: Toni United States Travel and Tourism Department will instruct U.S. Customs Page or Thomas Gilgunn at (202) 482– Promotion Advisory Board and Border Protection (‘‘CBP’’) to 1398 and (202) 482–4236, respectively; terminate the suspension of liquidation AD/CVD Operations, Office 6, Import AGENCY: International Trade and to liquidate, without regard to Administration, International Trade Administration, U.S. Department of antidumping duties, all unliquidated Administration, U.S. Department of Commerce. entries of bulk aspirin from the PRC, Commerce, 14th Street and Constitution ACTION: Notice of open meeting. entered, or withdrawn from warehouse, Avenue, NW, Washington, DC 20230. Date: January 12, 2005. for consumption on or after July 1, 2003, Background Time: 9–10:30 a.m the effective date of the revocation of On June 30, 2004, the Department of Place: U.S. Department of Commerce, the order. The Department will further Commerce (the Department) initiated an Room 5855, 1401 Constitution Avenue, instruct CBP to refund with interest any administrative review of the NW., Washington, DC 20230. estimated duties collected with respect antidumping duty order on stainless Summary: The United States Travel to unliquidated entries of bulk aspirin steel plate in coils from Belgium with and Tourism Promotion Advisory Board from the PRC entered, or withdrawn respect to Ugine & ALZ, NV Belgium (‘‘Board’’) will hold a Board meeting on from warehouse, for consumption on or (U&A Belgium). See Notice of Initiation January 12, 2005 at the U.S. Department after July 1, 2003, in accordance with of Antidumping and Countervailing of Commerce. section 778 of the Act. Duty Administrative Reviews and The Board will discuss the The Department will issue the Requests for Revocation in Part, 69 FR implementation of an international appropriate instructions directly to CBP 39409 (June 30, 2004). The period of advertising and promotional campaign, which seeks to encourage individuals to within 15 days of publication of these review (POR) is May 1, 2003, through travel to the United States for the final results of review. April 30, 2004. express purpose of engaging in tourism. Extension of Time Limits for Notification Regarding APOs The meeting will be open to the public. Preliminary Results Time will be permitted for public This notice also serves as a reminder Pursuant to section 751(a)(3)(A) of the comment. To sign up for public to parties subject to administrative Tariff Act of 1930, as amended (the Act), comment, please contact Julie Heizer at protective orders (‘‘APO’s’’) of their the Department shall issue preliminary least 24 hours before the start of the responsibility concerning the results in an administrative review of an meeting. disposition of proprietary information antidumping duty order within 245 All non-U.S. Government visitors disclosed under APO in accordance days after the last day of the anniversary must be cleared into the Department of with 19 CFR 351.305(a)(3), which month of the date of publication of the Commerce Building. Additionally, all continues to govern business order. The Act further provides, foreign nationals must provide their full proprietary information in this segment however, that the Department may name, country of residence, passport of the proceeding. Timely written extend that 245-day period to 365 days number and date/place of birth to gain notification of the return/destruction of if it is not practicable to complete the entry to the Department of Commerce APO materials or conversion to judicial review within the foregoing time period. Building. Please contact Julie Heizer so protective order is hereby requested. Due to the complexity of issues related that you can be cleared by the Failure to comply with the regulations to determining the appropriate quantity Department of Commerce Office of and value of sales to be reported by and the terms of an APO is a Security. U&A Belgium, the Department finds that Julie Heizer may be contacted at U.S. sanctionable violation. it is not practicable to complete this Department of Commerce, 1401 We are issuing and publishing this review by the current deadline of Constitution Avenue, NW., Room 7025, finding and notice in accordance with January 31, 2005. Consequently, in Washington, DC 20230; via fax at (202) sections 751(b)(1) and 777(i)(1) of the accordance with section 751(a)(3)(A) of 482–2887; or, via e-mail at Act and section 351.216 of the the Act and section 351.213(h)(2) of the [email protected]. Department’s regulations. Department’s regulations, the Written comments concerning Board Dated: December 15, 2004. Department is extending the time limit affairs are welcome anytime before or for the completion of the preliminary after the meeting. Written comments James J. Jochum, results by 120 days, from January 31, should be directed to Julie Heizer. Assistant Secretary for Import 2005, until no later than May 31, 2005. Minutes will be available within 30 Administration. The final results continue to be due 120 days of this meeting. [FR Doc. E4–3829 Filed 12–27–04; 8:45 am] days after publication of the preliminary The Board is mandated by Public Law BILLING CODE 3510–DS–S results. This notice is published 108–7, Section 210. As directed by
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Public Law 108–7, Section 210, the Conference on Weights and Measures in Handbook 130, ‘‘Uniform Laws and Secretary of Commerce shall design, order to promote uniformity among the Regulations in the area of legal develop and implement an international States in the complexity of laws, metrology and engine fuel quality,’’ and advertising and promotional campaign, regulations, methods, and testing NIST Handbook 133, ‘‘Checking the Net which seeks to encourage individuals to equipment that comprises regulatory Contents of Packaged Goods.’’ travel to the United States. The Board control by the States of commercial NCWM Specifications and Tolerances shall recommend to the Secretary of weighing and measuring. Committee Commerce the appropriate coordinated DATES: January 23–26, 2004. activities for funding. This campaign ADDRESSES: The Fairmont Miramar General Code shall be a multi-media effort that seeks Hotel, Santa Monica, CA. Item 310–1: The issue addresses an to leverage the Federal dollars with SUPPLEMENTARY INFORMATION: The extensive series of marking contributions of cash and in-kind National Conference on Weights and requirements for commercial products unique to the travel and Measures (NCWM) has the following measurement systems. In particular, the tourism industry. The Board was topics scheduled for discussion and topic examines which marking chartered in August of 2003 and will development at the Interim Meeting in requirements should apply to electronic expire on August 8, 2005. January. This is a work session of the instruments that are not specifically This meeting is physically accessible NCWM Committees to finalize designed for weighing or measuring to people with disabilities. Requests for recommendations for items that are systems, but which increasingly are sign language interpretation or other considered sufficiently developed for a being used in commercial weighing and auxiliary aids should be directed to vote in July 2005 or to modify or measuring systems. OTTI. withdraw from committee agendas those Item 310–2: Clarify the tolerances to Dated: December 21, 2004. items that need additional development be applied during the type evaluation of Cary G. Justice, or are not considered adequately weighing and measuring instruments, Senior Policy Advisor, Office of Services. developed for vote in July. The NCWM that is, whether or not special test [FR Doc. 04–28258 Filed 12–27–04; 8:45 am] will have a special joint session of the tolerances should apply to instruments BILLING CODE 3510–DR–P Laws and Regulations Committee and undergoing type evaluation. the Specifications and Tolerances Committee to receive input on the Scales Code DEPARTMENT OF COMMERCE temperature compensation of refined Item 320–1: Clarify the requirement’s petroleum products. The temperature original intent for marking zero National Institute of Standards and compensation issues have been on the indications on scales and point-of-sale Technology agenda for several years, but there hasn’t systems, where a zero-balance condition been a clear majority position to resolve is represented by other than a digital Announcement of Public Meeting of the specific items before the NCWM. zero indication. the National Conference on Weights Please see NCWM Publication 15, which Item 320–2: The proposal is to drop and Measures is available on the NIST Web site the ‘‘#’’ mark as a symbol for ‘‘pound’’ AGENCY: National Institute of Standards (http://www.nist.gov/owm) and the on a receipt printed by a point-of-sale and Technology. NCWM Web site (http://www.ncwm.net) system, i.e., a cash register interfaced ACTION: Announcement of public for additional information. Written with a scale. meeting of the National Conference on comments may be submitted to the Item 320–3: Add new device-specific Weights and Measures. Chief, NIST Weights and Measures requirements to the Scales Code to Division, 100 Bureau Drive, Stop 2600, address the proper interface of SUMMARY: Notice is hereby given that Gaithersburg, MD 20899–2600, or via e- computing scales with electronic cash the Interim Meeting of the National mail at [email protected]. registers (ECR). Conference on Weights and Measures The following provides a brief Item 320–4: Change the zero-tracking will be held January 23 through 26, description of the agenda items. At this requirement (the amount of weight that 2004, at the Fairmont Miramar Hotel, stage, the items are proposals. The can automatically be rezeroed) for class Santa Monica, CA. This meeting is open Committees will decide which items III scales to be consistent with the to the public. Meeting registration and will move forward as recommendations international standard recommended by hotel information can be found on the for vote in July 2005, which ones will the International Organization of Legal NCWM Web site (http:// be withdrawn, and which ones will be Metrology (OIML). www.ncwm.net). The National information items for further Item 320–5: Provide guidelines on the Conference on Weights and Measures is development. The NCWM placement of the required nominal an organization of weights and measures Specifications and Tolerances capacity and scale division information enforcement officials of the States, Committee addresses proposed changes on scales. counties, and cities of the United States, or amendments to NIST Handbook 44, Item 320–6: Delete the definitions for and private sector representatives. The ‘‘Specifications, Tolerances, and other bench and counter scales, because interim meeting of the Conference Technical Requirements for Weighing current scale designs no longer brings together enforcement officials, and Measuring Devices.’’ The items distinguish between these two types of other government officials, and address commercial weighing and scales. Additionally, the proposal is to representatives of business, industry, measuring devices that may be used in change the test load and test positions trade associations, and consumer commercial measurement applications, for the shift test for scales, particularly organizations to discuss subjects related that is, devices that are normally used for small capacity scales. to the field of weights and measures to buy from or sell to the general public Item 320–7: The proposal is to drop technology and administration. or used for determining the quantity of the fourth tolerance step for Class III Pursuant to (15 U.S.C. 272(b)(6)), the product sold among businesses. Issues and Class IIII scales to align the National Institute of Standards and on the agenda of the NCWM Laws and tolerances with the OIML standard. This Technology supports the National Regulations Committee relate to NIST is a significant issue because there are
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many scales to which these tolerances Item 331–2: Clarify that the unit price current international terminology, add apply. on a vehicle-tank meter does not have definitions regarding traceability, Item 320–8: Align the U.S. to be displayed continuously on a price- accreditation, calibration, uncertainty, requirements for the time dependence computing meter register. However, the and other technical terms to recognize (creep) test for scales and load cells with unit price must be clearly displayed and current roles of accredited laboratories. the OIML requirements. understood by the operator and an Additionally, amendments to the Item 320–9: Include in NIST observer of the delivery. Uniform Weights and Measures Law are Handbook 44 the list of accepted Item 331–3: The proposal is to require proposed to allow the recognition of international symbols for marking an automatic zero-set-back interlock on calibrations performed by accredited operational controls, indications and vehicle-tank meters to force meters to be laboratories and to broaden references to features on scales. set back to zero for each delivery. documentary standards to allow the Complications that must be considered recognition and use of documentary Belt-Conveyor Scale Systems are multiple deliveries in one location standards developed by other national Item 321–1: Add a requirement for to a single customer and deliveries for and international standards developing users of belt-conveyor scales to prevent aircraft refueling. organizations. the reweighing of material that has Item 331–4: Modify the ‘‘split- Item 232–1: Amend the Uniform already been weighed, but which may compartment’’ test for vehicle-tank Method of Sale Regulation to address have fallen off the belt-conveyor before meters and rename the test as a the temperature compensation of ‘‘product depletion’’ test. A specific refined petroleum products to the delivery to the customer. Additionally, ° ° another user requirement would be tolerance is specified for the volume at 15 C (60 F) for deliveries changed to require that records be performance of the vapor (air) from wholesale through retail (service maintained for 3 years regarding the eliminator system. station) transactions. This subject is the focus of a special joint session of the calibration and adjustment of belt- Other Items conveyor scales. Laws and Regulations Committee and Item 360–1: Add a tentative code for the Specifications and Tolerances Automatic Bulk Weighing Systems livestock, meat, and poultry evaluation Committee to receive input on the systems used to measure the fat content Item 322–1: The proposal is to specify temperature compensation of refined on carcasses and other quality the tolerance for automatic bulk petroleum products. characteristics that affect the price paid Item 234–1: Amend the Uniform weighing systems in terms of scale for the commodities. The proposed Regulation for the Voluntary divisions rather than as a percentage of tentative code is based upon four Registration of Servicepersons and the test load. The concern is that, based recently completed ASTM standards Service Agencies regarding the upon the amount of test weights that are that have been developed over the past references to the physical standards that normally available to test these three years. are used and to expand the reference to weighing systems, this may result an Item 360–2: Amend the Fundamental national and international documentary tolerance that is effectively larger than Considerations in Handbook 44 to standards that may be acceptable for the what is currently being applied to these recognize additional standards that are physical standards used by these service scales. acceptable for field standards and agencies. The proposed changes would Liquid-Measuring Devices update the terminology and references also broaden the range of laboratories for field standards, reference and that could verify compliance of the Item 330–1: This item is to address secondary standards, corrections, and physical standards to these ‘‘computer jump’’ on gasoline and diesel uncertainties. These changes are related documentary standards. fuel dispensers as the price of gasoline to items 221–1 and 234–1 on the agenda Item 237–1: This item examines the and diesel fuel continues to increase. of the Laws and Regulations Committee. identification and labeling of biodiesel Item 330–2: Change the value of the Item 360–3: Contact information is fuels and blends at the service station rated flow rate for retail motor fuel provided for current OIML activities for sale to the general public. (gasoline and diesel fuel) dispensers at regarding the development of Item 237–2: This item is to modify the which special tests are to be conducted international legal metrology standards. lubricity requirement for premium at low flow rates to be consistent with Item 360–4: The proposal is to add the diesel fuel to be current with the other requirements in the code. The OIML terminology to Handbook 44 for evolving ASTM standard for this proposal also clarifies that dispensers features and operational controls on product. are not to operate at flow rates below the commercial weighing and measuring Item 260–1: The item is to reexamine rated minimum flow rate stated by the devices. proposed changes to the maximum meter manufacturer. Item 360–5: Two issues are identified allowable variations for meat and Vehicle-Tank Meters for continued development. The first is poultry products subject to USDA General Code paragraph G-S.5.6.1. regulations. Item 331–1: Add a number of Recorded Representation of Metric Item 260–2: This proposal seeks to specifications, test notes, and tolerances Units on Equipment with Limited have the maximum allowable variations to recognize automatic temperature Character Sets. The second is Scales apply to packages of wood shavings. compensation on vehicle-tank meters Code Table 4. Minimum Test Weights Item 260–3: This item proposes that a and specify the tests to be conducted on and Test Loads; Device Capacity work group be established to examine meters equipped with automatic 500,000 lb. all of the maximum allowable variations temperature compensation. This subject stated in NIST Handbook 133 to see if is the focus of a special joint session of NCWM Laws and Regulations they should be modified based upon the Laws and Regulations Committee Committee current packaging methods and and the Specifications and Tolerances Item 221–1: Amend the Uniform international standards for these Committee to receive input on the Weights and Measures Law to modify products. temperature compensation of refined definitions for different types of Item 270–1: Since more meat and petroleum products physical standards to be consistent with poultry products are being packaged in
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centralized locations and then Chinook salmon (Oncorhynchus annual reports stating the take types and distributed to stores for sale, the tshawytscha): Threatened Lower amounts. proposal explores if tare weights should Columbia River (LCR). The proposed activities will be be required to be printed on the Steelhead (O. mykiss): Threatened carried out solely for the benefit of individual ‘‘case-ready’’ packages. LCR. listed salmon; that is, for the FOR FURTHER INFORMATION CONTACT: Coho (O. kisutch): Proposed enhancement of survival of listed Henry V. Oppermann, Chief, NIST, threatened LCR. salmonids. The LCFEG will take specific Weights and Measures Division, 100 measures such as designing, scheduling, Authority Bureau Drive, Stop 2600, Gaithersburg, and sequencing construction work to MD 20899–2600. Telephone (301) 975– Scientific research and enhancement minimize any adverse impacts. 4004, or email: [email protected]. of survival permits are issued in Complete details of conservation measures are provided in the permit Dated: December 17, 2004. accordance with section 10(a)(1)(A) of the Endangered Species Act of 1973 (16 application. Hratch G. Semerjian, U.S.C. 1531 et seq.) (ESA) and This notice is provided pursuant to Acting Director. regulations governing listed fish and section 10 (c) of the ESA. NMFS will [FR Doc. 04–28350 Filed 12–27–04; 8:45 am] wildlife permits (50 CFS 222–226). evaluate the application, associated BILLING CODE 3510–13–P NMFS issues permits based on findings documents and comments submitted to that such permits/modifications: (1) are determine whether the application applied for in good faith; (2) if granted meets the requirements of section 10 (a) DEPARTMENT OF COMMERCE and exercised, would not operate to the of the ESA and Federal regulations. The disadvantage of the listed species that final permitdecision will not be made National Oceanic and Atmospheric until after the end of the 30–day Administration are the subject of the permits; and (3) are consistent with the purposes and comment period. NMFS will publish notice of its final action in the Federal [I.D. 120304A] policies set forth in section 2 of the Register. ESA. The authority to take listed species Endangered and Threatened Species; is subject to conditions set forth in the Dated: December 21, 2004. Take of Anadromous Fish permits. Phil Williams, AGENCY: National Marine Fisheries Anyone requesting a hearing on the Chief, Endangered Species Division, Office Service (NMFS), National Oceanic and application listed in this notice should of Protected Resources, National Marine Atmospheric Administration (NOAA), set out the specific reason why a hearing Fisheries Service. Commerce. would be appropriate (see ADDRESSES). [FR Doc. 04–28369 Filed 12–27–04; 8:45 am] BILLING CODE 3510–22–S ACTION: Application for enhancement of The holding of such a hearing is at the survival permit. discretion of the Assistant Administrator for Fisheries, NOAA. SUMMARY: DEPARTMENT OF COMMERCE Notice is hereby given that Application Received NMFS has received an application for National Oceanic and Atmospheric The LCFEG is requesting a 5–year an enhancement of survival permit from Administration the Lower Columbia Fisheries permit to annually take juvenile Enhancement Group (LCFEG). The threatened LCR chinook salmon, [I.D. 122104D] proposed action is intended to enhance threatened LCR steelhead, and proposed and restore salmonid habitat in threatened LCR coho. They propose to Mid-Atlantic Fishery Management southwest Washington. undertake projects that will enhance Council; Public Meeting DATES: Comments or requests for a and restore salmon habitat in southwest AGENCY: National Marine Fisheries public hearing on the application Washington. The primary tributaries Service (NMFS), National Oceanic and request must be received at the they propose to work in are the Atmospheric Administration (NOAA), appropriate address or fax number (see Washougal, Lewis, Kalama, Cowlitz, Commerce. ADDRESSES) no later than 5 p.m. Pacific Toutle, Elochman, Grays, and Chinook ACTION: Notice of a public meeting. daylight-saving time on January 27, River watersheds. The LCFEG is one of 2005. 14 Regional Fisheries Enhancement SUMMARY: The Trawl Survey Advisory Group’s (RFEG’s) created by the Panel, composed of representatives from ADDRESSES: Written comments on the Washington State legislature in 1990. the Northeast Fisheries Science Center application should be sent to Habitat Each RFEG is an independent 501(c)(3) (NEFSC), the Mid-Atlantic Fishery Conservation Division, NMFS, 510 non-profit organization with the mission Management Council (MAFMC), the Desmond Drive SE, Suite 103, Lacy, WA to increase salmonid populations. New England Fishery Management 98503. Comments may also be sent via The proposed projects were Council (NEFMC), and several fax to 360–753–9517 or by e-mail to developed using the Lead Entity’s independent scientific researchers, will [email protected]. Interim Strategy for Habitat Restoration hold a public meeting. FOR FURTHER INFORMATION CONTACT: (http://www.lcfrb.gen.wa.us.gtml) and DATES: The meeting will be held on Stephanie Ehinger, Lacey, WA (phone: the Limiting Factors Analysis completed January 26, 2005, from noon to 5 p.m. 360–534–9341, fax: 360–753–9517, e- by the Washington State Conservation and January 27, 2005, from 9 a.m. to 4 mail: [email protected]); or Commission (http://salmon.scc.wa.gov/ p.m. Dan Guy at the same office (phone: 360– reports/index.html). ADDRESSES: The meeting will be held at 534–9342, email: [email protected]). The projects would be carefully the Brookshire Suites (Inner Harbor), SUPPLEMENTARY INFORMATION: monitored, and the LCFEG would 711 Eastern Ave., Baltimore, MD; provide annual reports to NMFS so that telephone: (410) 625-1300. Species Covered in this Notice the actions can be evaluated and, if Council address: Mid-Atlantic Fishery The following listed species are needed, modified. The LCFEG will also Management Council; 300 S. New covered in this notice: monitor take and provide NMFS with Street, Room 2115, Dover, DE 19904.
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FOR FURTHER INFORMATION CONTACT: ADDRESSES: The meeting will be held at Dated: December 22, 2004. Daniel T. Furlong, Executive Director, the Holiday Inn, 31 Hampshire Street, Alan D. Risenhoover, Mid-Atlantic Fishery Management Mansfield, MA 02048; telephone: (978) Acting Director, Office of Sustainable Council; 300 S. New Street, Room 2115, 339–2200. Fisheries, National Marine Fisheries Service. Dover, DE 19904; telephone: (302) 674– Council address: New England [FR Doc. E4–3838 Filed 12–27–04; 8:45 am] 2331, ext. 19. Fishery Management Council, 50 Water BILLING CODE 3510–22–S SUPPLEMENTARY INFORMATION: The Street, Mill 2, Newburyport, MA 01950. purpose of this meeting is to review the results of the October Northeast FOR FURTHER INFORMATION CONTACT: Paul DEPARTMENT OF COMMERCE Fisheries Science Center’s experimental J. Howard, Executive Director, New trawl survey cruise. England Fishery Management Council; National Oceanic and Atmospheric Although non-emergency issues not telephone: (978) 465–0492. Administration contained in this agenda may come [I.D. 121404C] before this group for discussion, those SUPPLEMENTARY INFORMATION: The issues may not be the subject of formal Groundfish Committee will meet to Endangered Species; File No. 1508 action during this meeting. Action will consider changes to the management be restricted to those issues specifically measures, if necessary, in order to meet AGENCY: National Marine Fisheries identified in this notice and any issues the objectives of Amendment 13. In Service (NMFS), National Oceanic and arising after publication of this notice addition to changes that may be needed Atmospheric Administration (NOAA), that require emergency action under to respond to the updated assessments, Commerce. section 305(c) of the Magnuson-Stevens the Committee may consider changes to ACTION: Receipt of application for Fishery Conservation and Management other management measures. These permit. Act, provided the public has been could include, but are not limited to, an SUMMARY: Notice is hereby given that notified of the Council’s intent to take extension of the days-at-sea leasing Duke Power Company (Mr. Gene final action to address the emergency. program, modifications to the default Vaughan, Principal Investigator), 13339 Special Accommodations measures, modifications to existing Hagers Ferry Rd., Huntersville, NC This meeting is physically accessible Special Access Programs (SAPs) or 28078, has applied in due form for a to people with disabilities. Requests for additional SAPs, changes to permitting permit for scientific research on sign language interpretation or other conditions, reviews of bycatch shortnose sturgeon (Acipenser auxiliary aids should be directed to information, etc. brevirostrum). Debbie Donnangelo at the Mid-Atlantic As a result of the extensive scope of DATES: Written or telefaxed comments Council Office (see ADDRESSES) at least this next management action, the must be received on or before January 5 days prior to the meeting date. Groundfish Committee will also meet to 27, 2005. develop recommendations on the broad Dated: December 22, 2004. ADDRESSES: The application and related Alan D. Risenhoover, issues to be addressed in the next documents are available for review Acting Director, Office of Sustainable adjustment, identify the information upon written request or by appointment Fisheries, National Marine Fisheries Service. that will be needed to support decisions in the following office(s): [FR Doc. E4–3837 Filed 12–27–04; 8:45 am] on those issues, develop a timeline for Permits, Conservation and Education BILLING CODE 3510–22–S the Committee’s work, and may begin to Division, Office of Protected Resources, identify specific measures that will be NMFS, 1315 East-West Highway, Room included. The Committee’s 13705, Silver Spring, MD 20910; phone DEPARTMENT OF COMMERCE recommendations will be presented to (301)713–2289; fax (301)427–2521; and, the full Council for consideration at a National Oceanic and Atmospheric Southeast Region, NMFS, 9721 Administration later date. Executive Center Drive North, St. Although non-emergency issues not Petersburg, FL 33702–2432; phone [I.D. 122104E] contained in this agenda may come (727)570–5301; fax (727)570–5320. before this group for discussion, those Written comments or requests for a New England Fishery Management public hearing on this application Council; Public Meetings issues may not be the subject of formal action during this meeting. Action will should be mailed to the Chief, Permits, Conservation and Education Division, AGENCY: National Marine Fisheries be restricted to those issues specifically F/PR1, Office of Protected Resources, Service (NMFS), National Oceanic and listed in this notice and any issues NMFS, 1315 East-West Highway, Room Atmospheric Administration (NOAA), arising after publication of this notice Commerce 13705, Silver Spring, MD 20910. Those that require emergency action under ACTION: Notice of a public meeting. individuals requesting a hearing should section 305(c) of the Magnuson-Stevens set forth the specific reasons why a SUMMARY: The New England Fishery Act, provided the public has been hearing on the particular request would Management Council (Council) is notified of the Council’s intent to take be appropriate. scheduling a public meeting of its final action to address the emergency. Comments may also be submitted by Groundfish Oversight Committee in Special Accommodations facsimile at (301)427–2521, provided January, 2005 to consider actions the facsimile is confirmed by hard copy affecting New England fisheries in the This meeting is physically accessible submitted by mail and postmarked no exclusive economic zone (EEZ). to people with disabilities. Requests for later than the closing date of the Recommendations from this group will sign language interpretation or other comment period. be brought to the full Council for formal auxiliary aids should be directed to Paul Comments may also be submitted by consideration and action, if appropriate. J. Howard (see ADDRESSES) at least 5 e-mail. The mailbox address for DATES: The meeting will be held on days prior to the meeting dates. providing email comments is January 13, 2005, at 9:30 a.m. [email protected]. Include
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in the subject line of the e-mail DATES: Written or telefaxed comments saliva, fecal, and urine sampling is also comment the following document must be received on or before January authorized to monitor pregnancy and identifier: File No. 1508. 27, 2005. test the hypothesis that physiological FOR FURTHER INFORMATION CONTACT: ADDRESSES: The amendment request adaptations for the marine environment Jennifer Jefferies or Carrie Hubard, and related documents are available for result in elevated energetic costs in (301)713–2289. review upon written request or by otariids compared to terrestrial SUPPLEMENTARY INFORMATION: The appointment in the following office(s): mammals. subject permit is requested under the Permits, Conservation and Education This amendment request is to authority of the Endangered Species Act Division, Office of Protected Resources, supplement the current research of 1973, as amended (ESA; 16 U.S.C. NMFS, 1315 East-West Highway, Room program on otariid reproductive 1531 et seq.) and the regulations 13705, Silver Spring, MD 20910; phone energetics with two juvenile California governing the taking, importing, and (301)713–2289; fax (301)427–2521; and sea lions born at the pinniped facility at exporting of endangered and threatened Southwest Region, NMFS, 501 West Long Marine Laboratory, University of species (50 CFR 222–226). Ocean Blvd., Suite 4200, Long Beach, California at Santa Cruz. These As part of the Federal Energy CA 90802–4213; phone (562)980–4001; additions will allow the Permit Holder Regulatory Commission’s 2008 fax (562)980–4018. to evaluate the effects of nutrition on relicensing of Duke Power’s Catawba- Written comments or requests for a growth in immature sea lions. In Wateree Hydropower Project, various public hearing on this request should be addition, these animals have been environmental studies will be submitted to the Chief, Permits, determined unfit for release. All animals conducted in the years prior to comply Conservation and Education Division, will follow the research protocols of the with the Electric Consumer’s Protection F/PR1, Office of Protected Resources, original permit. Act of 1986. One particular study would NMFS, 1315 East-West Highway, Room In compliance with the National determine the use of the Wateree River 13705, Silver Spring, MD 20910. Those Environmental Policy Act of 1969 (42 and a section of the Congaree River near individuals requesting a hearing should U.S.C. 4321 et seq.), an initial Columbia, SC as spawning grounds by set forth the specific reasons why a determination has been made that the certain diadromous fish species hearing on this particular amendment activity proposed is categorically including shortnose sturgeon. Duke request would be appropriate. excluded from the requirement to Power Company seeks authorization to Comments may also be submitted by prepare an environmental assessment or sample shortnose sturgeon in the facsimile at (301)427–2521, provided environmental impact statement. Wateree and Congaree Rivers in South the facsimile is confirmed by hard copy Concurrent with the publication of Carolina. Annually, up to 10 fish would submitted by mail and postmarked no this notice in the Federal Register, be captured via gill nets, trap nets, and later than the closing date of the NMFS is forwarding copies of this electrofishing; measured; weighed; comment period. application to the Marine Mammal scanned for PIT tags; and subsequently Comments may also be submitted by Commission and its Committee of released. This research would be e-mail. The mailbox address for Scientific Advisors. providing email comments is conducted for five years from issuance Dated: December 21, 2004. of the permit. [email protected]. Include in the subject line of the e-mail Jennifer Skidmore, Dated: December 21, 2004. comment the following document Acting Chief, Permits, Conservation and Jennifer Skidmore, identifier: File No. 984–1587–04. Education Division, Office of Protected Resources, National Marine Fisheries Service. Acting, Chief, Permits, Conservation and FOR FURTHER INFORMATION CONTACT: [FR Doc. 04–28368 Filed 12–27–04; 8:45 am] Education Division, Office of Protected Jennifer Skidmore or Amy Sloan, BILLING CODE 3510–22–S Resources, National Marine Fisheries Service. (301)713–2289. [FR Doc. 04–28367 Filed 12–27–04; 8:45 am] SUPPLEMENTARY INFORMATION: The BILLING CODE 3510–22–S subject amendment to Permit No. 984– DEPARTMENT OF COMMERCE 1587–03, issued on July 1, 2003 (68 FR Patent and Trademark Office DEPARTMENT OF COMMERCE 40912), is requested under the authority of the Marine Mammal Protection Act of Public User ID Badging National Oceanic and Atmospheric 1972, as amended (16 U.S.C. 1361 et seq.), and the Regulations Governing the Administration ACTION: Taking and Importing of Marine Proposed collection; comment [I.D. 121704D] Mammals (50 CFR part 216). request. Permit No. 984–1587–03 authorizes Marine Mammals; File No. 984–1587 SUMMARY: The United States Patent and the permit holder to examine the Trademark Office (USPTO), as part of its AGENCY: National Marine Fisheries physiological responses of two adult continuing effort to reduce paperwork Service (NMFS), National Oceanic and male dolphins (Tursiops truncatus) and and respondent burden, invites the Atmospheric Administration (NOAA), five adult female California sea lions general public and other Federal Commerce. (Zalophus californianus) during agencies to take this opportunity to ACTION: Receipt of application for swimming and diving. Testing involves comment on the continuing information amendment. measuring locomotor, thermal, and collection, as required by the Paperwork maintenance costs using voluntary Reduction Act of 1995, Public Law 104– SUMMARY: Notice is hereby given that Dr. behaviors through training at Long 13 (44 U.S.C. 3506(c)(2)(A)). Terrie Williams, Long Marine Lab, Marine Laboratory. Types of take for DATES: Institute of Marine Sciences, University dolphins and sea lions include open Written comments must be of California at Santa Cruz, 100 Shaffer flow respirometry, swimming, and submitted on or before February 28, Road, Santa Cruz, CA 95060, has voluntary breath holding. For the female 2005. requested an amendment to scientific sea lions, mating with an adult male on ADDRESSES: You may submit comments research Permit No. 984–1587–03. temporary loan, ultrasound, blood, milk, by any of the following methods:
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• E-mail: [email protected]. Search Facilities and other office areas II. Method of Collection Include ‘‘0651–0041 comment’’ in the of the USPTO under the current subject line of the message. collection 0651–0041. The USPTO is The applications for online access • Mail: Susan K. Brown, Records currently in the process of moving to a cards and security identification badges Officer, Office of the Chief Information new location in Alexandria, Virginia. At are completed on site and handed to a Officer, Office of Data Architecture and the new facility, the public will USPTO staff member for issuance. User Services, Data Administration Division, continue to receive user identification training application forms may be U.S. Patent and Trademark Office, P.O. badges for Public Search Room use. mailed, faxed, or hand delivered to the Box 1450, Alexandria, VA 22313–1450. The application procedures for USPTO. FOR FURTHER INFORMATION CONTACT: identification badges are being updated. III. Data Requests for additional information Users will now apply for a badge in regarding online access cards or user person at the USPTO Office of Security OMB Number: 0651–0041. training should be directed to Terry by providing the necessary information Form Number(s): PTO–2030, PTO– Howard, Acting Manager, Public Search and presenting a valid form of 2224. Facilities, U.S. Patent and Trademark identification with photograph. As Type of Review: Revision of a Office, P.O. Box 1450, Alexandria, VA before, badges will include a color currently approved collection. 22313–1450; by telephone at (571) 272– photograph of the user and must be 3258; or by electronic mail at worn at all times while at the USPTO Affected Public: Individuals or [email protected]. facilities. households; businesses or other for- Requests for additional information In order to maintain and control the profits; not-for-profit institutions; farms; regarding security identification badges patent and trademark collections so that the Federal Government; and state, local should be directed to J.R. Garland, the information is available to the or tribal governments. Director, Security Office, U.S. Patent public, the USPTO will issue online Estimated Number of Respondents: and Trademark Office, P.O. Box 1450, access cards to customers who wish to 13,138 responses per year. Alexandria, VA 22313–1450; by use the Public Search Facilities. Online Estimated Time Per Response: The telephone at (703) 306–9000; or by access cards are required for access to USPTO estimates that it will take the electronic mail at all Public Search Facilities and their public approximately 5 minutes (0.08 [email protected]. online systems. Customers may apply hours) to gather the necessary SUPPLEMENTARY INFORMATION for an online access card by completing information, prepare the form, and the application at the Public Search submit the completed application for an I. Abstract Room reception desk and providing online access card (PTO–2030), and The United States Patent and proper identification. User information approximately 10 minutes (0.17 hours) Trademark Office (USPTO) is required is stored in an electronic database and to verify the information with the by 35 U.S.C. 41(i)(1) to maintain a can be updated as necessary. USPTO staff and be issued the card. Public Search Facility to provide patent Replacements for lost cards can also be Renewal or replacement of an online and trademark collections for the public reissued upon verification of the access card is estimated to take to search and retrieve information. The identity of the requestor. The plastic approximately 5 minutes (0.08 hours). Public Search Facilities are maintained online access cards include a bar-coded The USPTO also estimates that it will for public use with paper and user number and an expiration date. take the public approximately 5 minutes automated search files and trained staff Users may renew their cards by (0.08 hours) to prepare and submit the to assist searchers. validating and updating the required application for a security identification The public user identification cards information. badge (PTO–2224) or to obtain a included in this collection are being The online access card system is replacement security identification modified to allow for a separate security designed to enable the USPTO to badge, and 10 minutes (0.17 hours) to identification badge with photograph control access to the resources at the prepare and submit a user training that will be issued by the USPTO Office Patent Search Facilities and to track application form. of Security. Users of the public search statistics for patent and trademark facilities will continue to need a user search services. The online access cards Estimated Total Annual Respondent identification card, now referred to as also allow the USPTO to identify and Burden Hours: 1,260 hours per year. an online access card, in order to access contact anyone misusing the search Estimated Total Annual Respondent the search systems in the Public Search facilities. The USPTO counsels and Cost Burden: $187,740 per year. The Facilities. In addition to the security sanctions users who mishandle its USPTO estimates that of those users badges and online access cards, the equipment or destroy, misfile, or requesting online access cards, security USPTO is adding forms to this remove documents from its collections. identification badges, and training collection for public users who wish to The USPTO offers public searchers courses, approximately 1⁄3 of the users register for training classes in using the training courses on the advanced online are attorneys and 2⁄3 are electronic search systems. search systems available at the USPTO paraprofessionals. Using 1⁄3 of the Under the authority provided in 41 Public Search Facilities. Customers may professional rate of $286 per hour for CFR Part 102–81, the USPTO is register for a training course by associate attorneys in private firms and upgrading the security procedures at its submitting the enrollment form by mail, 2⁄3 of the paraprofessional rate of $81 per facilities. The USPTO issues public user fax, or in person at the Public Search hour, the estimated rate for respondents identification badges to those in the Facilities and paying the appropriate to this collection will be approximately public who wish to use the Public fee. $149 per hour.
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Estimated Estimated time for re- Estimated annual bur- Item sponse annual den (minutes) responses hours
Application for Public User ID (Online Access Card) (PTO–2030) ...... 5 4,817 385 Issue Online Access Card ...... 10 2,259 384 Renew Online Access Card ...... 5 2,558 205 Replace Online Access Card ...... 5 140 11 User Training Application Forms ...... 10 64 11 Security Identification Badges for Public Users (PTO–2224) ...... 5 3,000 240 Replace Security Identification Badge ...... 5 300 24
Total ...... 13,138 1,260
Estimated Total Annual Non-hour online access card or a replacement individual instruction may also be Respondent Cost Burden: $8,397. There security identification badge. The arranged for $120 per class. The USPTO are no capital start-up, maintenance, or USPTO estimates that it will reissue estimates that it will receive 62 recordkeeping costs associated with this approximately 140 online access cards registrations for public courses and 2 information collection. However, this and 300 security badges annually that registrations for individual instruction collection does have annual (non-hour) have been lost or need to be replaced, per year, for a total of $1,790 in training costs in the form of filing fees and for a total of $6,600 per year in registration fees. Therefore, this postage costs. replacement fees. collection has a total of $8,390 in filing There are no application or renewal There are registration fees for the user fees in the form of online access card fees for online access cards or security training courses offered at the Public replacement fees, security identification identification badges. However, there is Search Facilities. The regular cost for a badge replacement fees, and training a $15 fee for issuing a replacement public course is $25 per class, and registration fees.
Estimated Estimated Item annual Fee amount annual fee responses ($) costs ($)
Application for Public User ID (Online Access Card) (PTO–2030) ...... 4,817 0.00 0.00 Issue Online Access Card ...... 2,259 0.00 0.00 Renew Online Access Card ...... 2,558 0.00 0.00 Replace Online Access Card ...... 140 15.00 2,100.00 User Training Application Forms (Public Course) ...... 62 25.00 1,550.00 User Training Application Forms (Individual Course) ...... 2 120.00 240.00 Security Identification Badges for Public Users (PTO–2224) ...... 3,000 0.00 0.00 Replace Security Identification Badge ...... 300 15.00 4,500.00
Total ...... 13,138 ...... 8,390.00
Users may incur postage costs when ways to enhance the quality, utility, and COMMODITY FUTURES TRADING submitting a user training application clarity of the information to be COMMISSION form to the USPTO by mail. The USPTO collected; and (d) ways to minimize the expects that approximately 20 of the burden of the collection of information Global Market Advisory Committee estimated 64 training forms received per on respondents, e.g., the use of meeting year will be submitted by mail. The automated collection techniques or This is to give notice, pursuant to USPTO estimates that the average first- other forms of information technology. class postage cost for a mailed training Section 10(a) of the Federal Advisory form will be 37 cents, for a total postage Comments submitted in response to Committee Act, 5 U.S.C. App. 2, 10(a), cost of approximately $7 per year for this notice will be summarized or that the Commodity Futures Trading this collection. included in the request for OMB Commission’s Global Markets Advisory The total non-hour respondent cost approval of this information collection; Committee will conduct a public burden for this collection in the form of they also will become a matter of public meeting on Wednesday, January 12, filing fees and postage costs is estimated record. 2005. The meeting will take place in the to be $8,397 per year. Dated: December 20, 2004. first floor hearing room of the Commission’s Washington, DC IV. Request for Comments Susan K. Brown, headquarters, Three Lafayette Centre, Comments are invited on: (a) Whether Records Officer, USPTO, Office of the Chief 1155 21st Street, NW., Washington, DC the proposed collection of information Information Officer, Office of Data 20581 from 1 to 4 p.m. Architecture and Services, Data is necessary for the proper performance Administration Division. The agenda will consist of the of the functions of the agency, including following: whether the information shall have [FR Doc. 04–28247 Filed 12–27–04; 8:45 am] (1) Call to order. practical utility; (b) the accuracy of the BILLING CODE 3510–16–P agency’s estimate of the burden (2) Briefing on China currency issues. (including hours and cost) of the (3) Report of subcommittee on proposed collection of information; (c) bankruptcy issues.
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(4) Commodity Exchange Act for oral presentations of no more than ACTION: Notice. reauthorization: global markets issues five minutes each in duration. and legislative update. For further information concerning SUMMARY: The Department of Defense is (5) Other business. this meeting, please contact David publishing the unclassified text of a (6) Adjourn. Stanwick, a member of Commissioner section 36(b)(1) arms sales notification. The meeting is open to the public. Lukken’s staff, at 202–418–5014. This is published to fulfill the The Chairman of the Global Markets Advisory Committee is Commissioner Issued by the Commission in Washington, requirements of section 155 of Public DC on December 22, 2004. Walter L. Lukken. any member of the Law 104–164 dated 21 July 1996. Jean A. Webb, public who wishes to file a written FOR FURTHER INFORMATION CONTACT: Ms. Secretary of the Commission. statement with the committee should J. Hurd, DSCA/OPS–ADMIN, (703) 604– mail a copy of the statement to the [FR Doc. 04–28474 Filed 12–27–04; 8:45 am] 6575. attention of: Global Markets Advisory BILLING CODE 6351–01–M Committee, c/o Commissioner Walter L. The following is a copy of a letter to Lukken, Commodity Futures Trading the Speaker of the House of Commission, Three Lafayette Centre, DEPARTMENT OF DEFENSE Representatives, Transmittal 05–04 with 1155 21st Street, NW., Washington, DC attached transmittal, policy justification, 20581, before the meeting. Members of Office of the Secretary and Sensitivity of Technology. the public who wish to make oral [Transmittal No. 05–04] Dated: December 21, 2004. statements should inform Commissioner Jeannette Owings-Ballard, Lukken in writing at the foregoing 36(b)(1) Arms Sales Notification address at least three business days OSD Federal Register Liaison Officer, Department of Defense. before the meeting. Reasonable AGENCY: Department of Defense, Defense provision will be made, if time permits, Security Cooperation Agency. BILLING CODE 5001–06–M
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[FR Doc. 04–28265 Filed 12–27–04; 8:45 am] PITAC’s draft report on cyber security. the meeting will be posted at PITAC’s BILLING CODE 5001–06–C Public input will be solicited during a Web site when it becomes available. public comment period. A small FOR FURTHER INFORMATION: Contact Alan fraction of the meeting time may be Inouye at the National Coordination DEPARTMENT OF DEFENSE allocated for other PITAC updates at the Office for Information Technology discretion of the co-chairs and the Research and Development at 703–292– Office of the Secretary designated Federal officer. 4873 or by e-mail at [email protected]. President’s Information Technology DATES: Wednesday, January 12, 2005, 9 Dated: December 21, 2004. Advisory Committee (PITAC) a.m.–3 p.m. eastern time. Jeannette Owings-Ballard, ADDRESSES: National Science OSD Federal Register Liaison Officer, ACTION: Notice of meeting. Foundation, Stafford I, Room 1235, 4201 Department of Defense. Wilson Boulevard, Arlington, Virginia [FR Doc. 04–28259 Filed 12–27–04; 8:45 am] SUMMARY: PITAC’s Subcommittee on 22230. BILLING CODE 5001–06–M Computational Science will provide an update of its activities. PITAC will SUPPLEMENTARY INFORMATION: This discuss the Subcommittee’s meeting will also be held via a DEPARTMENT OF DEFENSE presentation and provide feedback for teleconference and the Internet through use in guiding the Subcommittee’s the WebEx application. Information Office of the Secretary work. There will be an update on the about registration for in-person or dissemination of PITAC’s report remote participation will be posted at Defense Science Board Revolutionizing Health Care Through PITAC’s Web site (http://www.nitrd.gov/ AGENCY: Department of Defense. Information Technology. The latter pitac) by December 23. Meeting ACTION: Notice of Advisory Committee portion of the meeting focuses on a information may also be obtained by meeting date change. presentation and deliberation on calling 703–292–4873. The agenda for
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SUMMARY: On Monday, October 4, 2004 apply the methodology to develop a list including what changes might be (69 FR 59214) the Department of of defense critical technologies. necessary to implement such processes Defense announced closed meetings of The mission of the Defense Science where needed. the Defense Science Board (DSB) Task Board is to advise the Secretary of The mission of the Defense Science Force on December 9–10, 2004, at the Defense and the Under Secretary of Board is to advise the Secretary of Institute for Defense Analyses, 4850 Defense for Acquisition, Technology & Defense and the Under Secretary of Park Center Drive, Alexandria, VA. Logistics on scientific and technical Defense for Acquisition, Technology & These meetings will now be held at matters as they affect the perceived Logistics on scientific and technical Strategic Analysis Inc., 3601 Wilson needs of the Department of Defense. At matters as they affect the perceived Boulevard, Suite 500, Arlington, VA. these meetings, the Defense Science needs of the Department of Defense. At Dated: November 29, 2004. Board Task Force should focus its effort these meetings, the Defense Science Jeannette Owings-Ballard, on high leverage, differentiated and Board Task Force will examine the transformational technologies. The oversight function with respect to Title OSD Federal Register Liaison Officer, Department of Defense. Study may then use this list of defense 10 and military department regulations [FR Doc. 04–28260 Filed 12–27–04; 8:45 am] critical technologies to further assess the to ensure that proper checks and tools available to the U.S. DoD or UK balances exist. The Task Force will BILLING CODE 5001–06–M MoD to develop its critical technology review whether simplification of the needs. Some of the considerations the acquisition structure could improve DEPARTMENT OF DEFENSE Study should examine include both efficiency and oversight. mechanisms to develop niches in pre- In accordance with section 10(d) of Office of the Secretary existing technologies, foster new the Federal Advisory Committee Act, technology until the commercial Public Law 92–463, as amended (5 Defense Science Board marketplace takes over, or develop U.S.C. App. 2), it has been determined that these Defense Science Board Task AGENCY: Department of Defense. technology without any expectation of commercial development; the analysis Force meetings concern matters listed in ACTION: Notice of Advisory Committee should include a review of the 5 U.S.C. 552b(c)(1) and that, meeting date change. applicable acquisition/business case. accordingly, these meetings will be SUMMARY: On Thursday, July 8, 2004 (69 Finally, the Study should consider the closed to the public. FR 41231), the Department of Defense impact of technology development in Dated: December 20, 2004. announced closed meetings of the other countries and the implications Jeannette Owings-Ballard, that this may have on Anglo-U.S. Defense Science Board (DSB) Task Force OSD Federal Register Liaison Officer, on Future Strategic Strike Forces. The unique needs. Department of Defense. In accordance with Section 10(d) of meeting originally scheduled for [FR Doc. 04–28263 Filed 12–27–04; 8:45 am] December 15–16, 2004, has been moved the Federal Advisory Committee Act, BILLING CODE 5001–06–M to December 14–16, 2004. The meeting Public Law 92–463, as amended (5 will be held at Strategic Analysis Inc., U.S.C. App. 2), it has been determined 3601 Wilson Boulevard, Suite 500, that these Defense Science Board Task DEPARTMENT OF DEFENSE Arlington, VA. Force meetings concern matters listed in 5 U.S.C. 552b(c)(1) and that, Dated: November 29, 2004. Office of the Secretary accordingly, these meetings will be Jeannette Owings-Ballard, closed to the public. Defense Science Board OSD Federal Register Liaison Officer, Department of Defense. Dated: December 20, 2004. AGENCY: Department of Defense. [FR Doc. 04–28261 Filed 12–27–04; 8:45 am] Jeannette Owings-Ballard, ACTION: Notice of Advisory Committee BILLING CODE 5001–06–M OSD Federal Register Liaison Officer, meeting. Department of Defense. [FR Doc. 04–28262 Filed 12–27–04; 8:45 am] SUMMARY: The Defense Science Board DEPARTMENT OF DEFENSE BILLING CODE 5001–06–M Task Force on Red Lessons Learned will meet in closed session on December 16– Office of the Secretary 17, 2004, at SAIC, 4001 N. Fairfax Drive, DEPARTMENT OF DEFENSE Arlington, VA. This Task Force will Defense Science Board assess what useful information can our Office of the Secretary AGENCY: Department of Defense. adversaries learn from U.S. military engagement and, particularly, what ACTION: Notice of Advisory Committee Defense Science Board meeting. might they have learned from Operation AGENCY: Department of Defense. Iraqi Freedom and Operation Enduring SUMMARY: The Defense Science Board ACTION: Notice of Advisory Committee Freedom; identify the channels through Task Force on Identifying and Meeting. which adversaries learn about U.S. Sustaining U.S. Department of Defense/ capabilities; is there any evidence an UK Ministry of Defence Defense Critical SUMMARY: The Defense Science Board adversary is adjusting to U.S. Technologies (Study) will meet in Task Force on Management Oversight of capabilities and what might the U.S. do closed session on January 11, 2005, at Acquisition Organizations will meet in to counter this; what are the indicators Strategic Analysis, Inc., 3601 Wilson open session on January 10–11, 2005, or observables that the Intelligence Boulevard, Arlington, VA. This Task and January 17–18, 2005, at SAIC, 4001 Community can focus on to determine Force will develop a methodology to N. Fairfax Drive, Arlington, VA. This if an adversary is engaging in this type identify unique defense technologies as Task Force should assess whether all of practice and do the indicators change well as commercially developed major acquisition organizations within in peacetime or wartime; do different technologies needing augmentation to the Department have adequate technology insertion models exist; is fulfill defense niche areas, and then management and oversight processes, there any evidence potential adversaries
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are targeting the seams in the U.S. FOR FURTHER INFORMATION CONTACT: Ms. CATEGORIES OF RECORDS IN THE SYSTEM: command and control alignment and Janice Thornton at (703) 428–6504. Delete entry and replace with planning process; and the preceding SUPPLEMENTARY INFORMATION: The ‘Operator’s/user’s name, Social Security areas of concern focus primarily on the Department of the Army systems of Number, organization, telephone military operations phases, are the records notices subject to the Privacy number, and office symbol; security potential adversaries observing, Act of 1974, (5 U.S.C. 552a), as clearance; level of access; subject analyzing and adapting during the amended, have been published in the interest code; user identification code; preparation and stabilization phase? Federal Register and are available from data files retained by users; assigned The mission of the Defense Science the address above. password; magnetic tape reel Board is to advise the Secretary of The proposed system report, as identification; abstracts of computer Defense and the Under Secretary of required by 5 U.S.C. 552a(r) of the programs and names and phone Defense for Acquisition, Technology & Privacy Act of 1974, as amended, was numbers of contributors; similar Logistics on scientific and technical submitted on November 24, 2004, to the relevant information; biometrics matters as they affect the perceived House Committee on Government templates, biometric images, supporting needs of the Department of Defense. Reform, the Senate Committee on documents, and biographic information In accordance with Section 10(d) of Governmental Affairs, and the Office of including, but not limited to, name, date the Federal Advisory Committee Act, Management and Budget (OMB) of birth, place of birth, height, weight, Public Law 92–463, as amended (5 pursuant to paragraph 4c of Appendix I eye color, hair color, race and gender.’ U.S.C. App. 2), it has been determined to OMB Circular No. A–130, ‘Federal that these Defense Science Board Task AUTHORITY FOR MAINTENANCE OF THE SYSTEM: Agency Responsibilities for Maintaining Delete entry and replace with ‘Public Force meetings concern matters listed in Records About Individuals,’ dated 5 U.S.C. 552b(c)(1) and that, Law 106–246, Section 112; 10 U.S.C. February 8, 1996 (February 20, 1996, 61 3013, Secretary of the Army; 10 U.S.C. accordingly, these meetings will be FR 6427). closed to the public. 5013, Secretary of the Navy; 10 U.S.C. Dated: November 29, 2004. 8013, Secretary of the Air Force; Dated: November 29, 2004. Jeannette Owings-Ballard, Department of Defense Directive 8500.1, Jeannette Owings-Ballard, OSD Federal Register Liaison Officer, Information Assurance (IA); DoD OSD Federal Register Liaison Officer, Department of Defense. Instruction 8500.2, Information Department of Defense. Assurance Implementation; Army [FR Doc. 04–28264 Filed 12–27–04; 8:45 am] A0380—19 SAIS Regulation 25—2, Information BILLING CODE 5001–06–M SYSTEM NAME: Assurance; and E.O. 9397 (SSN).’ Information Assurance For PURPOSE(S): DEPARTMENT OF DEFENSE Automated Information Systems (AIS) Delete second paragraph and replace and Defense Biometric Technology Files with ‘To Control logical and physical Department of the Army (July 28, 2003, 68 FR 44309). access to DoD information and facilities, and to recognize the identity or verify CHANGES: Privacy Act of 1974; System of the identity of individuals by using a Records SYSTEM IDENTIFIER: measurable physical or behavioral characteristic.’ AGENCY: Department of the Army, DoD. Replace entry with ‘A0025—2 SAIS’. * * * * * ACTION: Notice to alter a system of SYSTEM NAME: records. Delete entry and replace with RETRIEVABILITY: Add to entry ‘and other biometric SUMMARY: The Department of the Army ‘Information Assurance for Automated data’. is proposing to alter a system of records Information Systems (AIS) and notice in its existing inventory of Department of Defense Biometric * * * * * Information Systems’. records systems subject to the Privacy RECORD SOURCE CATEGORIES: Act of 1974, (5 U.S.C. 552a), as SYSTEM LOCATION: Delete entry and replace with ‘From amended. the individual, DoD security offices, The Department of the Army is Delete entry and replace with ‘Defense Biometrics Fusion Center, 347 system managers, computer facility proposing to alter the existing system of managers, automated interfaces for user records to add new records being West Main Street, Clarksburg, WV 26306—2947 and at any Department of codes on file at Department of Defense maintained, i.e., biographic information sites.’ including, but not limited to, name, date Defense system that collects, stores, of birth, place of birth, height, weight, accesses, retrieves, or uses biometrics * * * * * technology to recognize the identity, or eye color, hair color, race and gender. A0025—2 SAIS verify the claimed identity of an DATES: This proposed action will be effective without further notice on individual.’ SYSTEM NAME: Information Assurance for Automated January 27, 2005, unless comments are CATEGORIES OF INDIVIDUALS COVERED BY THE Information systems (AIS) and received which result in a contrary SYSTEM: determination. Department of Defense Biometric Delete entry and replace with Information Systems. ADDRESSES: Department of the Army, ‘Individuals covered include, but is not Freedom of Information Privacy limited to, military, civilian, and SYSTEM LOCATION: Division, U.S. Army Records contractor personnel; military reserve Department of Defense Biometrics Management and Declassification personnel; Army and Air National Fusion Center, 1600 Aviation Way, Agency, ATTN: AHRC–PDD–FPZ, 7701 Guard personnel; and other persons Bridgeport, WV 26330–9476, and at any Telegraph Road, Casey Building, Suite requiring or requesting access to DoD Department of Defense system that 144, Alexandria, VA 22325–3905. information and facilities.’ collects, stores, accesses, retrieves, or
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uses biometrics technology to recognize DoD as a routine use pursuant to 5 CONTESTING RECORD PROCEDURES: the identity, or verify the claimed U.S.C. 552a(b)(3) as follows: The Army’s rules for accessing identity of an individual. The DoD ‘Blanket Routine Uses’ set records, and for contesting contents and forth at the beginning of the Army’s appealing initial agency determinations CATEGORIES OF INDIVIDUALS COVERED BY THE are contained in Army Regulation 340– SYSTEM: compilation of systems of records notices also apply to this system. 21; 32 CFR part 505; or may be obtained Individuals covered include, but is from the system manager. not limited to, military, civilian, and POLICIES AND PRACTICES FOR STORING, contractor personnel; military reserve RETRIEVING, ACCESSING, RETAINING, AND RECORD SOURCE CATEGORIES: personnel; Army and Air National DISPOSING OF RECORDS IN THE SYSTEM: From the individual, DoD security Guard personnel, and other persons STORAGE: offices, system managers, computer requiring or requesting access to DoD facility managers, automated interfaces information and facilities. Paper records in file folders and for user codes on file at Department of electronic storage media. Defense sites. CATEGORIES OF RECORDS IN THE SYSTEM: Operator’s/user’s name, Social RETRIEVABILITY: EXEMPTIONS CLAIMED FOR THE SYSTEM: Security Number, organization, Name, Social Security Number, None. telephone number, and office symbol; subject, application program key word/ [FR Doc. 04–28266 Filed 12–27–04; 8:45 am] security clearance; level of access; author, and biometric template, and BILLING CODE 5001–06–M subject interest code; user identification other biometric data. code; data files retained by users; SAFEGUARDS: assigned password; magnetic tape reel DEPARTMENT OF DEFENSE identification; abstracts of computer Computerized records maintained in a programs and names and phone controlled area are accessible only to Department of the Army numbers of contributors; similar authorized personnel. Physical and relevant information; biometrics electronic access is restricted to Privacy Act of 1974; System of templates, biometric images, supporting designated individuals having a need Records therefore in the performance of official documents, and biographic information AGENCY: Department of the Army, DoD. including, but not limited to, name, date duties. ACTION: Notice to amend a system of of birth, place of birth, height, weight, records. eye color, hair color, race and gender. RETENTION AND DISPOSAL: Individual data remain on file while SUMMARY: The Department of the Army AUTHORITY FOR MAINTENANCE OF THE SYSTEM: a user of computer facility; destroyed on is proposing to amend a system of Public Law 106–246, Section 112; 10 person’s reassignment or termination. records notice in its existing inventory U.S.C. 3013, Secretary of the Army; 10 of records systems subject to the Privacy SYSTEM MANAGER(S) AND ADDRESS: U.S.C. 5013, Secretary of the Navy; 10 Act of 1974, (5 U.S.C. 552a), as U.S.C. 8013, Secretary of the Air Force; Chief Information Officer, Department amended. Department of Defense Directive 8500.1, of the Army, 107 Army Pentagon, Information Assurance (IA); DoD Washington, DC 20310–0107. DATES: This proposed action will be effective without further notice on Instruction 8500.2, Information Director, Department of Defense January 27, 2005, unless comments are Assurance Implementation; Army Biometrics Management Office, 2530 received which result in a contrary Regulation 25–2, Information Crystal Drive, Arlington, VA 22202– determination. Assurance; and E.O. 9397 (SSN). 3934. ADDRESSES: Department of the Army, PURPOSE(S): NOTIFICATION PROCEDURE: Freedom of Information/Privacy Office To administer passwords and Individuals seeking to determine Division, U.S. Army Records identification numbers for operators/ whether information about themselves Management and Declassification users of data in automated media; to is contained in this system should Agency, ATTN: AHRC–PDD–FPZ, 7701 identify data processing and address written inquiries to the Chief Telegraph Road, Casey Building, Suite communication customers authorized Information Officer, Department of the 144, Alexandria, VA 22325–3905. access to or disclosure from data Army, 107 Army Pentagon, Washington, FOR FURTHER INFORMATION CONTACT: Ms. residing in information processing and/ DC 20310–0107. Janice Thornton at (703) 428–6597. or communication activities; and to For verification purposes, individual SUPPLEMENTARY INFORMATION: determine propriety of individual access The should provide full name, sufficient into the physical data residing in Department of the Army systems of details to permit locating pertinent automated media. records notices subject to the Privacy records, and signature. To control logical and physical access Act of 1974, (5 U.S.C. 552a), as amended, have been published in the to DoD information and facilities and to RECORD ACCESS PROCEDURES: identify or verify the identity of Federal Register and are available from Individuals seeking access to individuals by using a measurable the address above. information about themselves contained The specific changes to the records physical or behavioral characteristic. in this system should address written systems being amended are set forth ROUTINE USES OF RECORDS MAINTAINED IN THE inquiries to the Chief Information below by the notices, as amended, SYSTEM, INCLUDING CATEGORIES OF USERS AND Officer, Department of the Army, 107 published in their entirety. The THE PURPOSES OF SUCH USES: Army Pentagon, Washington, DC proposed amendments are not within In addition to those disclosures 20310–0107. the purview of subsection (r) of the generally permitted under 5 U.S.C. For verification purposes, individual Privacy Act of 1974, (5 U.S.C. 552a), as 552a(b) of the Privacy Act, these records should provide full name, sufficient amended, which requires the or information contained therein may details to permit locating pertinent submission of a new or altered system specifically be disclosed outside the records, and signature. report.
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Dated: December 20, 2004. CATEGORIES OF RECORDS IN THE SYSTEM: SAFEGUARDS: Jeannette Owings-Ballard, Records include name of injured Paper records are maintained in OSD Federal Register Liaison Officer, individual, Social Security Number, job locked file cabinets. Information is Department of Defense. title, date of injury, location of accident, accessible only by authorized personnel activity at time of injury, type of injury, with appropriate clearance/access in the A0385–10/40 ASO board findings, recommendations, performance of their duties. Remote SYSTEM NAME: witness statements, wreckage terminal accessible only by authorized Army Safety Management Information distribution diagrams, maintenance and personnel. System (ASMIS) (May 15, 2002, 67 FR material data, and other personal and At USACE and USACHPPM the 34684). accident related and environmental computer stored records are secured information. behind security doors, accessible only CHANGES: by authorized personnel provided AUTHORITY FOR MAINTENANCE OF THE SYSTEM: * * * * * password access. 10 U.S.C. 3013, Secretary of the Army; SYSTEM LOCATION: 5 U.S.C. 7902, Safety Programs; Public RETENTION AND DISPOSAL: Add to first paragraph ‘‘and U.S. Law 91–596, Occupational Safety and Accident and incident case records Army Center for Health Promotion and Health Act of 1970; DoD Instruction and aviation accident and incident case Preventive Medicine, 5158 Blackhawk 6055.1, DoD Safety and Occupational records maintain for 5 years then Road, Aberdeen Proving Ground, MD Health Program; Army Regulations 385– destroy, except for: U.S. Army Safety 21010–5403.’’ 10, Army Safety Program; Army Center and U.S. Army Corps of Regulation 385–40, Accident Reporting * * * * * Engineers maintain for 30 years in and Records; and E.O. 9397 (SSN). current file area then destroy; Office of AUTHORITY FOR MAINTENANCE OF THE SYSTEM: PURPOSE(S): Corps of Engineers records created prior to 1 January 1982 maintain for 30 years Add to entry ‘‘DoD Instruction 6055.1, Information will be used to monitor then destroy. Environmental restoration DoD Safety and Occupational Health and facilitate the U.S. Army’s and the reports are maintained for 50 years then Program’’. USACE Safety and Occupational Health destroyed (5 years in current file area * * * * * Offices’ safety programs; to analyze then transferred to records holding accident experience and exposure SYSTEM MANAGER(S) AND ADDRESS: area). Reports of artillery mis-firings or information; and to support the Army’s accidents and harmful chemical, Add to entry ‘‘Commander, U.S. Army accident prevention efforts. Center for Health Promotion and biological and radiological exposures Preventive Medicine, 5158 Blackhawk ROUTINE USES OF RECORDS MAINTAINED IN THE accumulated in combat or combat Road, Aberdeen Proving Ground, MD SYSTEM, INCLUDING CATEGORIES OF USERS AND support elements are permanent. THE PURPOSES OF SUCH USES: 21010–5403.’’ SYSTEM MANAGER(S) AND ADDRESS: * * * * * In addition to those disclosures generally permitted under 5 U.S.C. Commander, U.S. Army Safety Center, A0385–10/40 ASO 552a(b) of the Privacy Act, these records 4905 5th Avenue, Fort Rucker, AL or information contained therein may 36362–5363. SYSTEM NAME: specifically be disclosed outside the Commander, U.S. Army Center for Army Safety Management Information DoD as a routine use pursuant to 5 Health Promotion and Preventive System (ASMIS). U.S.C. 552a(b)(3) as follows: Medicine, 5158 Blackhawk Road, To the Department of Labor, the Aberdeen Proving Ground, MD 21010– SYSTEM LOCATION: Federal Aviation Agency, the National 5403. U.S. Army Safety Center, 4905 5th Transportation Safety Board, and to Chief, Safety and Occupational Health Avenue, Fort Rucker, AL 36362–5363, Federal, State, and local agencies, and Office, Headquarters, U.S. Army Corps and the U.S. Army Center for Health applicable civilian organizations, such of Engineers, 441 G Street, NW., Promotion and Preventive Medicine, as the National Safety Council, for use Washington, DC 20314–1000. 5158 Blackhawk Road, Aberdeen in a combined effort of accident NOTIFICATION PROCEDURE: Proving Ground, MD 21010–5403. prevention. U.S. Army Corps of Engineers: Chief, In some cases, data must also be Individuals seeking to determine Safety and Occupational Health Office, disclosed to an employee’s whether information about themselves Headquarters, U.S. Army Corps of representative under the provisions of is contained in this system should Engineers, 441 G Street, NW., 29 CFR 1960.29. address written inquiries to the Washington, DC 20314—1000, and all The DoD ‘‘Blanket Routine Uses’’ set appropriate system manager. U.S. Army Corps of Engineers (USACE) forth at the beginning of the Army’s Individual must furnish his/her full Safety and Occupational Health Offices. compilation of systems of records name, Social Security Number, current Official mailing addresses are published notices also apply to this system. address and telephone number, when as an Appendix to the Army’s and where the accident occurred, type compilation of systems of records POLICIES AND PRACTICES FOR STORING, of equipment involved in the accident, notices. RETRIEVING, ACCESSING, RETAINING, AND and signature. DISPOSING OF RECORDS IN THE SYSTEM: RECORD ACCESS PROCEDURES: CATEGORIES OF INDIVIDUALS COVERED BY THE STORAGE: SYSTEM: Magnetic tapes, electronic storage Individuals seeking access to Individuals (includes contractors, media and printouts. information about themselves contained volunteer personnel, and members of in this system should address written the public) involved in accidents RETRIEVABILITY: inquiries to the appropriate system incident to Army and U.S. Army Corps Information is retrieved by manager. of Engineers operations and recreational individual’s name and Social Security Individual must furnish his/her full facilities. Number. name, Social Security Number, current
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address and telephone number, when portions of 14 municipalities in two construction assistance to the New and where the accident occurred, type counties; Carlstadt, East Rutherford, Jersey Meadowlands Commission of the of equipment involved in the accident, Little Ferry, Lyndhurst, Moonachie, State of New Jersey for the development and signature. North Arlington, Ridgefield, Rutherford, of an environmental Improvement South Hackensack, and Teterboro in Program within the Hackensack CONTESTING RECORD PROCEDURES: Bergen County and Jersey City, Kearny, Meadowlands District. The Army’s rules for accessing North Bergen, and Secaucus in Hudson 2. To advance the restoration of records, and for contesting contents and County. The District is bisected by the specific sites during the preparation of appealing initial agency determinations Hackensack River and the western spur the EIS, separate Environmental are contained in Army Regulation 340– of the NJ Turnpike (US Interstate 95) Assessments will be completed for 21; 32 CFR part 505; or may be obtained and approximately bordered to the Anderson Creek in Secaucus and other from the system manager. north by State Route 46; to the east by sites throughout the Hackensack RECORD SOURCE CATEGORIES: US routes 1 and 9 (Tonnelle Avenue) Meadowlands District. 3. Federal agencies interested in Records and reports of accident, and the freight railroad owned by participating as a Cooperating Agency injury, fire, morbidity, law enforcement, Norfolk Southern and CSX Corporation are requested to submit a letter of intent traffic accident investigations, vehicle (the former Conrail main line); to the to Colonel Richard J. Polo, Jr., District accident reports, and marine accident/ south by the Port Authority Trans Engineer (see ADDRESSES). casualty reports, individual sick clips, Hudson (PATH) railroad and the Pulaski 4. It is estimated that a draft EIS will and military aviation records/reports. Skyway; and to the west by the Pascack Valley and (former) Kingsland railroads be completed by April 2007, subject to EXEMPTIONS CLAIMED FOR THE SYSTEM: and State Route 17. availability of funds. None. ADDRESSES: U.S. Army Corps of Leonard Houston, [FR Doc. 04–28267 Filed 12–27–04; 8:45 am] Engineers, New York District, 26 Chief, Environmental Analysis Branch, BILLING CODE 5001–06–M Federal Plaza, New York, NY, 10278– Planning Division. 0090. [FR Doc. 04–28331 Filed 12–27–04; 8:45 am] FOR FURTHER INFORMATION CONTACT: Mr. BILLING CODE 3710–06–M DEPARTMENT OF DEFENSE Bill Shadel, Project Biologist and NEPA Coordinator, Planning Division, Department of the Army; Corps of Environmental Analysis Branch; (212) DEPARTMENT OF DEFENSE Engineers 264–0570; or [email protected]. Department of the Army; Corps of Intent To Prepare an Environmental Engineers Impact Statement for the Proposed SUPPLEMENTARY INFORMATION: 1. The Hackensack Meadowlands Ecosystem Hackensack Meadowlands Ecosystem Intent To Prepare an Environmental Restoration Project, Hackensack Restoration Study is being carried out Impact Statement for the Proposed Meadowlands District, Bergen and under the Corps’ General Investigations Lower Passaic River Ecosystem Hudson Counties, NJ: Feasibility Program. The study was authorized Restoration Project, Essex, Hudson, Phase under the authorization of the Hudson- Passaic, and Bergen Counties, NJ: Raritan Estuary Feasibility Study in a Feasibility Phase AGENCY: Department of the Army, U.S. resolution of the Committee on Army Corps of Engineers, DoD. Transportation and Infrastructure of the AGENCY: Department of the Army, U.S. ACTION: Notice of intent. U.S. House of Representatives, dated Army Corps of Engineers, DoD. April 15, 1999, which reads: ACTION: Notice of intent. SUMMARY: In compliance with the National Environmental Policy Act Resolved by the Committee on SUMMARY: In compliance with the (NEPA), the New York District of the Transportation and Infrastructure of the National Environmental Policy Act U.S. Army Corps of Engineers (Corps) is United States House of Representatives, That, (NEPA), the New York District of the the Secretary of the Army is requested to preparing an Environmental Impact review the reports of the Chief of Engineers U.S. Army Corps of Engineers (Corps) is Statement (EIS) in accordance with on the New York and New Jersey Channels, preparing an Environmental Impact Council on Environmental Quality published as House Document 133, 74th Statement (EIS) in accordance with regulations as defined and amended in Congress, 1st Session; the New York and Council on Environmental Quality 40 CFR parts 1500–1508 (promulgated New Jersey Harbor Entrance Channels and regulations as defined and amended in pursuant to NEPA); Corps’ principles Anchorage Areas, published as Senate 40 CFR parts 1500–1508 (promulgated and guidelines as defined in Document 45, 84th Congress, 1st Session; pursuant to NEPA); Corps’ principles Engineering Regulations (ER) 1105–2– and the New York Harbor, NY Anchorage and guidelines as defined in Channel, published as House Document 18, 100, Planning Guidance Notebook, and 71st Congress, 2nd Session, as well as other Engineering Regulations (ER) 1105–2– ER 200–2–2, Procedures for related reports with a view to determining 100, Planning Guidance Notebook, and Implementing NEPA; and other the feasibility of environmental restoration ER 200–2–2, Procedures for applicable Federal and State and protection relating to water resources Implementing NEPA; and other environmental laws for the proposed and sediment quality within the New York applicable Federal and State ecosystem restoration project in the and New Jersey Port District, including but environmental laws for the proposed Hackensack Meadowlands District, not limited to creation, enhancement, and ecosystem restoration project in the Bergen and Hudson Counties, New restoration of aquatic, wetland, and adjacent Lower Passaic River Basin located in the Jersey. upland habitats. counties of Essex, Hudson, Passaic, and The study area, known as the Section 324 of the Water Resources Bergen in New Jersey. Hackensack Meadowlands District, is Development Act (WRDA) of 1992, as The study area is identified as the located approximately five miles west of amended by Section 550 of the WRDA Lower Passaic River and its basin, New York City in northern New Jersey, of 1996, authorized the Secretary of the which comprises the tidally influenced and comprises 30.4 square miles in Army to provide design and portion of the river from the Dundee
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Dam to Newark Bay and the watershed the feasibility of environmental restoration proposed information collection, of this portion of the river; the study and protection relating to water resources grouped by office, contains the area does not include the watershed and and sediment quality within the New York following: (1) Type of review requested, river upstream of the dam. Extensive and New Jersey Port District, including but e.g. new, revision, extension, existing or habitat loss and degradation have not limited to creation, enhancement, and restoration of aquatic, wetland, and adjacent reinstatement; (2) Title; (3) Summary of greatly reduced the functional and upland habitats. the collection; (4) Description of the structural integrity of ecosystems within need for, and proposed use of, the the Lower Passaic River Basin. Both the A public scoping meeting is information; (5) Respondents and U.S. Environmental Protection Agency scheduled for spring 2005. Results from frequency of collection; and (6) and the Corps will develop a the public scoping meeting with Reporting and/or Recordkeeping comprehensive watershed-based plan Federal, State, and local agencies, as burden. OMB invites public comment. for both the remediation and restoration well as the public, will be addressed in The Department of Education is of the Lower Passaic River Watershed. the EIS. especially interested in public comment This will include the identification of 3. Federal agencies interested in addressing the following issues: (1) Is remediation actions and ecosystem participating as a Cooperating Agency this collection necessary to the proper restoration opportunities in the study are requested to submit a letter of intent functions of the Department; (2) will area to support broader estuary-wide to Colonel Richard J. Polo, Jr., District this information be processed and used restoration efforts. Remediation actions Engineer (see ADDRESSES). in a timely manner; (3) is the estimate may include sediment removal, cap 4. It is estimated that a draft EIS will of burden accurate; (4) how might the placement, in-situ or ex-situ sediment be completed by March 2007, subject to Department enhance the quality, utility, decontamination, and shoreline availability of funds. and clarity of the information to be stabilization, while complimentary Leonard Houston, collected; and (5) how might the restoration goals may include the Chief, Environmental Analysis Branch, Department minimize the burden of this restoration, creation, and enhancement Planning Division. collection on the respondents, including of benthic habitat, aquatic habitat, tidal [FR Doc. 04–28332 Filed 12–27–04; 8:45 am] through the use of information and non-tidal wetlands, riparian habitat, technology. BILLING CODE 3710–06–M flood plains and other terrestrial Dated: December 22, 2004. habitats as well as shoreline Angela C. Arrington, stabilization. The Corps intends to DEPARTMENT OF EDUCATION Leader, Information Management Case prepare an EIS for the ecosystem Services Team, Regulatory Information restoration portion of this joint study. Notice of Proposed Information Management Services, Office of the Chief ADDRESSES: U.S. Army Corps of Collection Requests Information Officer. Engineers, New York District, 26 Federal Plaza, New York, NY 10278– AGENCY: Department of Education. Office of Postsecondary Education 0090. SUMMARY: The Leader, Information Type of Review: Extension. Management Case Services Team, Title: Final Performance Report for FOR FURTHER INFORMATION CONTACT: Mr. Regulatory Information Management the Jacob K. Javits Fellowship Program. Bill Shadel, Project Biologist and NEPA Services, Office of the Chief Information Frequency: Annually. Coordinator, Planning Division, Officer, invites comments on the Affected Public: Not-for-profit Environmental Analysis Branch; (212) proposed information collection institutions; Businesses or other for- 264–0570; or requests as required by the Paperwork profit. [email protected]. Reduction Act of 1995. Reporting and Recordkeeping Hour SUPPLEMENTARY INFORMATION: 1. The Burden: DATES: Interested persons are invited to Lower Passaic River Ecosystem Responses: 115. submit comments on or before February Burden Hours: 690. Restoration Study, the Water Resources 28, 2005. Development Act component of this Abstract: This information collection joint study, is being carried out under SUPPLEMENTARY INFORMATION: Section provides the U.S. Department of the Corps’ General Investigations 3506 of the Paperwork Reduction Act of Education with information needed to Program. The study was authorized 1995 (44 U.S.C. Chapter 35) requires determine if grantees have made under the Hudson-Raritan study that the Office of Management and substantial progress toward meeting the authorization, in a resolution of the Budget (OMB) provide interested Program’s objectives and allow Program Committee on Transportation and Federal agencies and the public an early staff to monitor and evaluate the Infrastructure of the U.S. House of opportunity to comment on information Program. The Congress has mandated Representatives, dated 15 April 1999, collection requests. OMB may amend or (through the Government’s Performance which reads: waive the requirement for public and Results Act of 1993) that the U.S. consultation to the extent that public Department of Education provide Resolved by the Committee on participation in the approval process documentation about the progress being Transportation and Infrastructure of the would defeat the purpose of the United States House of Representatives, That, made by the Program. the Secretary of the Army is requested to information collection, violate State or Requests for copies of the proposed review the reports of the Chief of Engineers Federal law, or substantially interfere information collection request may be on the New York and New Jersey channels, with any agency’s ability to perform its accessed from http://edicsweb.ed.gov, published as House Document 133, 74th statutory obligations. The Leader, by selecting the ‘‘Browse Pending Congress, 1st Session; the New York and Information Management Case Services Collections’’ link and by clicking on New Jersey Habor Entrance Channels and Team, Regulatory Information link number 2656. When you access the Anchorage Areas, published as Senate Management Services, Office of the information collection, click on Document 45, 84th Congress, 1st Session; and the New York Harbor, NY Anchorage Chief Information Officer, publishes that ‘‘Download Attachments’’ to view. channel, published as House Document 18, notice containing proposed information Written requests for information should 71st Congress, 2nd Session, as well as other collection requests prior to submission be addressed to Department of related reports with a view to determining of these requests to OMB. Each Education, 400 Maryland Avenue, SW.,
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Potomac Center Plaza, 9th Floor, of these requests to OMB. Each telecommunications device for the deaf Washington, DC 20202. Requests may proposed information collection, (TDD) may call the Federal Information also be electronically mailed to the grouped by office, contains the Relay Service (FIRS) at 1–800–877– Internet address [email protected] or following: (1) Type of review requested, 8339. faxed to 202–245–6623. Please specify e.g. new, revision, extension, existing or [FR Doc. E4–3825 Filed 12–27–04; 8:45 am] the complete title of the information reinstatement; (2) title; (3) summary of BILLING CODE 4000–01–P collection when making your request. the collection; (4) description of the Comments regarding burden and/or need for, and proposed use of, the the collection activity requirements information; (5) respondents and DEPARTMENT OF EDUCATION should be directed to Joseph Schubart at frequency of collection; and (6) his e-mail address [email protected]. reporting and/or recordkeeping burden. Submission for OMB Review; Individuals who use a OMB invites public comment. Comment Request telecommunications device for the deaf Dated: December 21, 2004. (TDD) may call the Federal Information Angela C. Arrington, AGENCY: Department of Education. Relay Service (FIRS) at 1–800–877– Leader, Information Management Case SUMMARY: The Leader, Regulatory 8339. Services Team, Regulatory Information Information Management Group, Office [FR Doc. 04–28301 Filed 12–27–04; 8:45 am] Management Services, Office of the Chief of the Chief Information Officer invites BILLING CODE 4000–01–P Information Officer. comments on the submission for OMB Office of Special Education and review as required by the Paperwork DEPARTMENT OF EDUCATION Rehabilitative Services Reduction Act of 1995. Type of Review: Reinstatement. DATES: Interested persons are invited to Submission for OMB Review; Title: Section 704 Annual submit comments on or before January Comment Request Performance Report (Parts I and II). 27, 2005. Frequency: Annually. AGENCY: Department of Education. Affected Public: State, local, or tribal ADDRESSES: Written comments should SUMMARY: The Leader, Information gov’t, SEAs or LEAs; not-for-profit be addressed to the Office of Management Case Services Team, institutions. Information and Regulatory Affairs, Regulatory Information Management Reporting and Recordkeeping Hour Attention: Carolyn Lovett, Desk Officer, Services, Office of the Chief Information Burden: Department of Education, Office of Officer invites comments on the Responses: 319. Management and Budget, 725 17th submission for OMB review as required Burden Hours: 11,165. Street, NW., Room 10235, New Abstract: Section 706(d), 721(b)(3), by the Paperwork Reduction Act of Executive Office Building, Washington, 1995. and 725(c) of the Rehabilitation Act of 1973, as amended (Act) and DC 20503 or faxed to (202) 395–6974. DATES: Interested persons are invited to corresponding program regulations in SUPPLEMENTARY INFORMATION: submit comments on or before January Section 34 CFR parts 364, 365, and 366 require 27, 2005. 3506 of the Paperwork Reduction Act of centers for independent living, 1995 (44 U.S.C. Chapter 35) requires ADDRESSES: Written comments should Statewide Independent Living Councils that the Office of Management and be addressed to the Office of (SILCs) and Designated State Units Budget (OMB) provide interested Information and Regulatory Affairs, (DSUs) supported under Parts B and C Attention: Carolyn Lovett, Desk Officer, Federal agencies and the public an early of Chapter 1 of Title VII of the Act to opportunity to comment on information Department of Education, Office of submit to the Secretary of Education Management and Budget, 725 17th collection requests. OMB may amend or (Secretary) annual performance waive the requirement for public Street, NW., Room 10235, New information and identify training and Executive Office Building, Washington, consultation to the extent that public technical assistance needs. participation in the approval process DC 20503 or faxed to (202) 395–6974. Requests for copies of the submission would defeat the purpose of the SUPPLEMENTARY INFORMATION: Section for OMB review; comment request may information collection, violate State or 3506 of the Paperwork Reduction Act of be accessed from http:// Federal law, or substantially interfere 1995 (44 U.S.C. Chapter 35) requires edicsweb.ed.gov, by selecting the that the Office of Management and ‘‘Browse Pending Collections’’ link and with any agency’s ability to perform its Budget (OMB) provide interested by clicking on link number 2628. When statutory obligations. The Leader, Federal agencies and the public an early you access the information collection, Regulatory Information Management opportunity to comment on information click on ‘‘Download Attachments’’ to Group, Office of the Chief Information collection requests. OMB may amend or view. Written requests for information Officer, publishes that notice containing waive the requirement for public should be addressed to U.S. Department proposed information collection consultation to the extent that public of Education, 400 Maryland Avenue, requests prior to submission of these participation in the approval process SW., Potomac Center, 9th Floor, requests to OMB. Each proposed would defeat the purpose of the Washington, DC 20202–4700. Requests information collection, grouped by information collection, violate State or may also be electronically mailed to the office, contains the following: (1) Type Federal law, or substantially interfere Internet address [email protected] or of review requested, e.g. new, revision, with any agency’s ability to perform its faxed to 202–245–6621. Please specify extension, existing or reinstatement; (2) statutory obligations. The Leader, the complete title of the information title; (3) summary of the collection; (4) Information Management Case Services collection when making your request. description of the need for, and Team, Regulatory Information Comments regarding burden and/or proposed use of, the information; (5) Management Services, Office of the the collection activity requirements respondents and frequency of Chief Information Officer, publishes that should be directed to Sheila Carey at her collection; and (6) reporting and/or notice containing proposed information e-mail address [email protected]. recordkeeping burden. OMB invites collection requests prior to submission Individuals who use a public comment.
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Dated: December 21, 2004. Advisory Committee Act (Public Law and 4 p.m., Monday–Friday, except Angela C. Arrington, No. 92–463, 86 Stat. 770) requires that Federal holidays. Minutes will also be Leader, Regulatory Information Management public notice of this meeting be available by writing to the Fernald Group, Office of the Chief Information Officer. announced in the Federal Register. Citizens’ Advisory Board, Phoenix Environmental Corporation, MS–76, Office of Special Education and DATES: Saturday, January 8, 2005, 8:30 Post Office Box 538704, Cincinnati, OH Rehabilitative Services a.m.–12 noon. ADDRESSES: Fernald Closure Project 43253–8704, or by calling the Advisory Type of Review: Reinstatement. Site, Crosby Township Senior Center, Board at (513) 648–6478. Title: Independent Living Services for 8910 Willey Road, Harrison, Ohio Issued at Washington, DC on December 22, Older Individuals Who Are Blind. 45030. 2004. Frequency: Annually. Carol A. Matthews, Affected Public: Individuals or FOR FURTHER INFORMATION CONTACT: household; not-for-profit institutions. Doug Sarno, The Perspectives Group, Acting Advisory Committee Management Reporting and Recordkeeping Hour Inc., 1055 North Fairfax Street, Suite Officer. Burden: 204, Alexandria, VA 22314, at (703) [FR Doc. 04–28387 Filed 12–27–04; 8:45 am] Responses: 55. 837–1197, or e-mail; BILLING CODE 6450–01–P Burden Hours: 440. [email protected]. Abstract: The new form will be used SUPPLEMENTARY INFORMATION: DEPARTMENT OF ENERGY to evaluate and monitor Independent Purpose of the Board: The purpose of Living Services for Older Individuals the Board is to make recommendations Office of Science who are blind related to: (a) The type of to DOE in the areas of environmental services provided and the number of restoration, waste management, and High Energy Physics Advisory Panel persons receiving each type of service related activities. AGENCY: Department of Energy. and (b) the amounts and percentage of Tentative Agenda: ACTION: funds reported on each type of service Goals: Notice of open meeting. provided. • Finalize outline for History of the SUMMARY: Requests for copies of the submission This notice announces a Fernald Citizens’ Advisory Board. meeting of the High Energy Physics for OMB review; comment request may • Develop plans for March History Advisory Panel (HEPAP). Federal be accessed from http:// Workshop. edicsweb.ed.gov, by selecting the Advisory Committee Act (Public Law 8:30 a.m.—Call to Order ‘‘Browse Pending Collections’’ link and 92–463, 86 Stat. 770) requires that 8:35 a.m.—Updates and by clicking on link number 2629. When public notice of these meetings be Announcements you access the information collection, announced in the Federal Register. 9:30 a.m.—Plans to Document History of click on ‘‘Download Attachments‘‘to DATES: Monday, February 14, 2005; 8:30 the Fernald Citizens’ Advisory Board view. Written requests for information a.m. to 6 p.m. and Tuesday, February 10:15 a.m.—Break 15, 2005; 8:30 a.m. to 4 p.m. should be addressed to U.S. Department 10:30 a.m.—Planning for March Public ADDRESSES: Hilton Washington Embassy of Education, 400 Maryland Avenue, Workshop on Fernald History SW., Potomac Center, 9th Floor, Row, 2015 Massachusetts Avenue, NW., 11:40 a.m.—Revised FY 2005 Meeting Washington, DC 20036. Washington, DC 20202–4700. Requests Plan may also be electronically mailed to the 12:00 p.m.—Adjourn FOR FURTHER INFORMATION CONTACT: Internet address [email protected] or Bruce Strauss, Executive Secretary; High faxed to 202–245–6621. Please specify Public Participation: The meeting is Energy Physics Advisory Panel; U.S. the complete title of the information open to the public. Written statements Department of Energy; SC–20/ collection when making your request. may be filed with the Board chair either Germantown Building, 1000 Comments regarding burden and/or before or after the meeting. Individuals Independence Avenue, SW., the collection activity requirements who wish to make oral statements Washington, DC 20585–1290; should be directed to Sheila Carey at her pertaining to agenda items should Telephone: 301–903–3705. contact the Board chair at the address or e-mail address [email protected]. SUPPLEMENTARY INFORMATION: telephone number listed below. Individuals who use a Purpose of Meeting: To provide Requests must be received five days telecommunications device for the deaf advice and guidance on a continuing prior to the meeting and reasonable (TDD) may call the Federal Information basis with respect to the high energy provisions will be made to include the Relay Service (FIRS) at 1–800–877– physics research program. 8339. presentation in the agenda. The Deputy Tentative Agenda: Agenda will Designated Federal Officer, Gary [FR Doc. E4–3826 Filed 12–27–04; 8:45 am] include discussions of the following: Stegner, Public Affairs Office, Ohio BILLING CODE 4000–01–P Field Office, U.S. Department of Energy, Monday, February 14, 2005, and is empowered to conduct the meeting in Tuesday, February 15, 2005 a fashion that will facilitate the orderly • DEPARTMENT OF ENERGY Discussion of Department of Energy conduct of business. Individuals High Energy Physics Programs. wishing to make public comment will • Environmental Management Site- Discussion of National Science be provided a maximum of five minutes Specific Advisory Board, Fernald Foundation Elementary Particle Physics to present their comments. Program. AGENCY: Department of Energy. Minutes: The minutes of this meeting • Reports on and Discussions of ACTION: Notice of open meeting. will be available for public review and Topics of General Interest in High copying at the Department of Energy’s Energy Physics. SUMMARY: This notice announces a Freedom of Information Public Reading • Public Comment (10-minute rule). meeting of the Environmental Room, 1E–190, Forrestal Building, 1000 Public Participation: The meeting is Management Site-Specific Advisory Independence Avenue, SW., open to the public. If you would like to Board (EMSSAB), Fernald. The Federal Washington, DC, 20585 between 9 a.m. file a written statement with the Panel,
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you may do so either before or after the development and implementation of the import facilities that was previously meeting. If you would like to make oral Nuclear Energy research program. granted in Docket No. CP02–378–000. statements regarding any of these items Cameron notes that, order issued on Tentative Agenda on the agenda, you should contact Bruce September 11, 2003, Cameron was Strauss, 301–903–3705 or Tuesday January 11, 2005 authorized to construct and operate [email protected] (e-mail). Welcome Remarks. facilities to import liquefied natural gas You must make your request for an oral Status of Office of Nuclear Energy, (LNG) near Hackberry, Cameron Parish, statement at least 5 business days before Science and Technology Programs and Louisiana. Cameron seeks amended authority to the meeting. Reasonable provision will Budget. make modifications to the berthing be made to include the scheduled oral • R&D Programs. facilities at its LNG terminal. Cameron statements on the agenda. The • Idaho Site. requests approval to modify the Chairperson of the Panel will conduct Subcommittee Reports. terminal’s berthing facilities to allow a the meeting to facilitate the orderly Organizational Issues. conduct of business. Public comment larger variety of LNG tankers to use the will follow the 10-minute rule. Wednesday, January 12, 2005 approved LNG terminal. Cameron says Minutes: The minutes of the meeting Subcommittee Reports and that it has determined that certain will be available for public review and Organization Issues (continued). limited changes to facilities appurtenant copying within 90 days at the Freedom Open Discussion. to its LNG import terminal are desirable of Information Public Reading Room; Public comment period. in order to: (1) Enhance operational Room 1E–190; Forrestal Building; 1000 Public Participation: The day and a safety; (2) improve the ability of LNG Independence Avenue, SW.; half meeting is open to the public on a tankers to perform emergency Washington, DC, between 9 a.m. and 4 first-come, first-served basis because of departures; and (3) accommodate the p.m., Monday through Friday, except limited seating. Written statements may berthing of the next generation of larger Federal holidays. be filed with the committee before or LNG tankers. The proposed modifications will require increased after the meeting. Members of the public Issued at Washington, DC on December 22, dredging and the addition of soil 2004. who wish to make oral statements depositional areas to accommodate pertaining to agenda items should Carol A. Matthews, increased dredge material. The contact Mark Roth at the address or Acting Advisory Committee Management modifications also will require either telephone listed above. Requests to Officer. the abandonment in place or relocation make oral statements must be made and [FR Doc. 04–28390 Filed 12–27–04; 8:45 am] of portions of pipeline(s) owned by received five days prior to the meeting; BILLING CODE 6450–01–P Hilcorp Energy I, L.P. that transverse reasonable provision will be made to through the terminal and berthing area. include the statement in the agenda. Any person desiring to intervene or to DEPARTMENT OF ENERGY The Chair of the committee is protest this filing must file in empowered to conduct the meeting in a accordance with Rules 211 and 214 of Nuclear Energy Research Advisory fashion that will facilitate the orderly the Commission’s Rules of Practice and Committee conduct of business. Procedure (18 CFR 385.211 and Minutes: The minutes of this meeting AGENCY: Department of Energy. 385.214). Protests will be considered by will be available for public review and ACTION: Notice of open meeting. the Commission in determining the copying at the Freedom of Information appropriate action to be taken, but will SUMMARY: This notice announces a Reading Room. 1E–190, Forrestal not serve to make protestants parties to meeting of the Nuclear Energy Research Building, 1000 Independence Avenue, the proceeding. Any person wishing to Advisory Committee. The Federal SW., Washington, DC, between 9 a.m. become a party must file a notice of Advisory Committee Act (Public Law and 4 p.m., Monday through Friday, intervention or motion to intervene, as No. 92–463, 86 Stat. 770), requires that except holidays. appropriate. Such notices, motions, or public notice of the meetings be Issued in Washington, DC on December 22, protests must be filed on or before the announced in the Federal Register. 2004. comment date. Anyone filing a motion DATES: Tuesday January 11, 2005, 8:30 Carol A. Matthews, to intervene or protest must serve a copy a.m. to 5 p.m. and Wednesday, January Acting Advisory Committee Management of that document on the Applicant. On 12, 2005, 9 a.m. to 12:15 p.m. Officer. or before the comment date, it is not ADDRESSES: Hyatt Arlington, 1325 [FR Doc. 04–28389 Filed 12–27–04; 8:45 am] necessary to serve motions to intervene Wilson Blvd., Arlington, VA 22209. BILLING CODE 6450–01–P or protests on persons other than the Applicant. FOR FURTHER INFORMATION CONTACT: Mr. The Commission encourages Mark Roth, Designated Federal Officer, DEPARTMENT OF ENERGY electronic submission of protests and Nuclear Energy Research Advisory interventions in lieu of paper using the Committee, U.S. Department of Energy, Federal Energy Regulatory ‘‘eFiling’’ link at http://www.ferc.gov. NE–20, 1000 Independence Avenue, Commission Persons unable to file electronically SW., Washington DC 20585, Telephone [Docket No. CP02–378–002] should submit an original and 14 copies Number 301–903–5501, E-mail: of the protest or intervention to the [email protected]. Cameron LNG, LLC; Notice of Federal Energy Regulatory Commission, SUPPLEMENTARY INFORMATION: Purpose of Amendment To Authorization 888 First Street, NE., Washington, DC the Meeting: To provide advice to the 20426. Director of the Office of Nuclear Energy, December 20, 2004. This filing is accessible on-line at Science and Technology (NE) of the Take notice that on December 9, 2004, http://www.ferc.gov, using the Department of Energy on the many Cameron LNG, LLC (Cameron) filed a ‘‘eLibrary’’ link and is available for complex planning, scientific and request under section 3 of the NGA for review in the Commission’s Public technical issues that arise in the an amendment to its authorization for Reference Room in Washington, DC.
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There is an ‘‘eSubscription’’ link on the The Commission encourages In order to provide its customers with Web site that enables subscribers to electronic submission of protests and the refund amounts set forth in this receive e-mail notification when a interventions in lieu of paper using the refund plan as soon as possible, document is added to a subscribed ‘‘eFiling’’ link at http://www.ferc.gov. Enbridge KPC also requests that the docket(s). For assistance with any FERC Persons unable to file electronically Commission grant expedited treatment Online service, please e-mail should submit an original and 14 copies of this filing and issue an order [email protected], or call of the protest or intervention to the accepting the terms of Enbridge KPC’s (866) 208–3676 (toll free). For TTY, call Federal Energy Regulatory Commission, refund plan by December 30, 2004. (202) 502–8659. 888 First Street, NE., Washington, DC Comment Date: January 12, 2005. 20426. Enbridge KPC states that copies of this This filing is accessible on-line at filing are being mailed or, if requested, Magalie R. Salas, http://www.ferc.gov, using the transmitted by e-mail to all affected Secretary. ‘‘eLibrary’’ link and is available for customers of Enbridge KPC and [FR Doc. E4–3836 Filed 12–27–04; 8:45 am] review in the Commission’s Public interested state commissions, as well as BILLING CODE 6717–01–P Reference Room in Washington, DC. to all parties appearing on the There is an ‘‘eSubscription’’ link on the Commission’s official service list in this Web site that enables subscribers to docket. DEPARTMENT OF ENERGY receive e-mail notification when a Any person desiring to protest this Federal Energy Regulatory document is added to a subscribed filing must file in accordance with Rule Commission docket(s). For assistance with any FERC 211 of the Commission’s Rules of Online service, please e-mail Practice and Procedure (18 CFR [email protected], or call [Docket No. RP05–123–000] 385.211). Protests to this filing will be (866) 208–3676 (toll free). For TTY, call considered by the Commission in Destin Pipeline Company, L.L.C.; (202) 502–8659. determining the appropriate action to be Notice of Proposed Changes In FERC Magalie R. Salas, taken, but will not serve to make Gas Tariff Secretary. protestants parties to the proceeding. Such protests must be filed on or before December 20, 2004. [FR Doc. E4–3833 Filed 12–27–04; 8:45 am] the date as indicated below. Anyone Take notice that on December 15, BILLING CODE 6717–01–P filing a protest must serve a copy of that 2004, Destin Pipeline Company, L.L.C. document on all the parties to the (Destin) tendered for filing as part of its DEPARTMENT OF ENERGY proceeding. FERC Gas Tariff, Original Volume No. 1, the tariff sheets listed on Appendix A to Federal Energy Regulatory The Commission encourages the filing, to become effective January Commission electronic submission of protests in lieu 14, 2005. of paper using the ‘‘eFiling’’ link at Destin states that this filing, made in http://www.ferc.gov. Persons unable to [Docket No. CP96–152–032] accordance with the provisions of file electronically should submit an section 154.204 of the Commission’s Enbridge Pipelines (KPC); Notice of original and 14 copies of the protest to regulations, is to make minor Refund Report the Federal Energy Regulatory administrative and clarifying changes to Commission, 888 First Street, NE., its Tariff. December 21, 2004. Washington, DC 20426. Destin states that copies of this filing Take notice that on December 13, This filing is accessible on-line at are being served on all affected shippers 2004, Enbridge Pipelines (KPC), http://www.ferc.gov, using the and applicable state regulatory agencies. formerly Kansas Pipeline Company Any person desiring to intervene or to (KPC), (Enbridge KPC) submitted a ‘‘eLibrary’’ link and is available for protest this filing must file in refund plan pursuant to Enbridge review in the Commission’s Public accordance with Rules 211 and 214 of Pipelines (KPC), 109 FERC ¶ 61,042 Reference Room in Washington, DC. the Commission’s Rules of Practice and (2004) (October 8 Order), issued in There is an ‘‘eSubscription’’ link on the Procedure (18 CFR 385.211 and Docket No. CP96–152–030. Web site that enables subscribers to 385.214). Protests will be considered by Enbridge KPC states that the refund receive e-mail notification when a the Commission in determining the plan describes the calculation of refunds document is added to a subscribed appropriate action to be taken, but will relating to the initial rates ultimately docket(s). For assistance with any FERC not serve to make protestants parties to approved by the Commission for Online service, please e-mail the proceeding. Any person wishing to Enbridge KPC in Docket No. CP96–152– [email protected], or call become a party must file a notice of 030. Enbridge KPC states that the (866) 208–3676 (toll free). For TTY, call intervention or motion to intervene, as proposed refund is calculated in (202) 502–8659. appropriate. Such notices, motions, or accordance with the agreement it has Protest Date: 5 p.m. Eastern Time on protests must be filed in accordance reached with its various firm and December 29, 2004. with the provisions of Section 154.210 interruptible transportation customers of the Commission’s regulations (18 CFR and the October 8 Order. Enbridge KPC Magalie R. Salas, 154.210). Anyone filing an intervention explains that, consistent with the Secretary. or protest must serve a copy of that October 8 Order, the refund plan details [FR Doc. E4–3840 Filed 12–27–04; 8:45 am] document on the Applicant. Anyone the amount of any refund due to each BILLING CODE 6717–01–P filing an intervention or protest on or customer, with separately stated before the intervention or protest date estimates of interest due; the need not serve motions to intervene or calculations supporting the refund protests on persons other than the amounts; and a proposal for distribution Applicant. of any such refunds.
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DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY 3. Sweetwater Wind 2 LLC Federal Energy Regulatory Federal Energy Regulatory [Docket No. EG05–24–000] Commission Commission Take notice that on December 15, 2004, Sweetwater Wind 2 LLC, a [Docket No. EC05–27–000, et al.] [Docket No. RP98–52–057] Delaware limited liability company (SWW2), filed with the Federal Energy WPS Energy Services, Inc.; Electric Regulatory Commission an application Southern Star Central Gas Pipeline, Rate and Corporate Filings Inc.; Notice of Refund Report for determination of exempt wholesale December 17, 2004. generator status pursuant to part 365 of December 21, 2004. The following filings have been made the Commission’s regulations. Take notice that on December 15, with the Commission. The filings are SWW2 states that it intends to operate 2004, Southern Star Central Gas listed in ascending order within each a 91.5–MW wind powered generation Pipeline, Inc. (Southern Star), formerly docket classification. facility currently under construction Williams Gas Pipelines Central, Inc., near Sweetwater, Nolan County, Texas submitted a compliance filing pursuant 1. WPS Energy Services, Inc., WPS (the Facility). SWW2 explains that, to Commission order issued September Power Development, Inc. when completed, the electric energy 10, 1997, in Docket Nos. RP97–369–000, [Docket No. EC05–27–000] produced by the facility will be sold et al., regarding collection of Kansas ad Take notice that on December 8, 2004, into the wholesale power market of the valorem taxes and the subsequent WPS Energy Services, Inc. (ESI) and Electric Reliability Council of Texas. refunds. WPS Power Development, Inc. (PDI) SWW2 states that the facility is Southern Star states that copies of the (collectively, Applicants) filed pursuant expected to begin commercial operation filing were served on parties on the to section 203 of the Federal Power Act by December 31, 2004. official service list in the above- U.S.C. 16 and part 33 of the Comment Date: 5 p.m. Eastern Time captioned proceeding. Commission’s regulations 18 CFR part on January 5, 2005. Any person desiring to protest this 33 (2004), an application requesting 4. New York Independent System filing must file in accordance with Rule Commission authorization to engage in Operator, Inc. 211 of the Commission’s Rules of an internal restructuring whereby: (1) Practice and Procedure (18 CFR PDI will be merged into ESI; and (2) ESI [Docket No. EL03–26–003] 385.211). Protests to this filing will be will transfer the assets formerly owned Take notice that on December 2, 2004, considered by the Commission in by PDI into a new, wholly-owned the New York Independent System determining the appropriate action to be subsidiary of ESI called WPS Power Operator, Inc., (NYISO) tendered for taken, but will not serve to make Development, LLC. filing a refund report as required by the protestants parties to the proceeding. Applicants state that copies of the Commission’s November 17 order in the Such protests must be filed on or before filing were served upon the Public above captioned docket. the date as indicated below. Anyone Service Commission of Wisconsin and Comment Date: 5 p.m. Eastern Time filing a protest must serve a copy of that the Michigan Public Service on December 27, 2004. document on all the parties to the Commission. 5. Credit Suisse First Boston proceeding. Comment Date: 5 p.m. Eastern Time International The Commission encourages on December 29, 2004. electronic submission of protests in lieu [Docket No. ER01–2656–003] 2. Klondike Wind Power II LLC of paper using the ‘‘eFiling’’ link at Take notice that on December 13, http://www.ferc.gov. Persons unable to [Docket No. EG05–23–000] 2004, Credit Suisse First Boston file electronically should submit an On December 14, 2004, Klondike International (CSFBI) submitted a original and 14 copies of the protest to Wind Power II LLC (Klondike II), 1125 response to the Commission’s November the Federal Energy Regulatory NW Couch, Suite 700, Portland, Oregon 23, 2004 deficiency letter issued in Commission, 888 First Street, NE., 97209, filed with the Federal Energy Docket No. ER01–2656–002. CBFBI Washington, DC 20426. Regulatory Commission an application states that the filing serves as an This filing is accessible on-line at for determination of exempt wholesale amendment to CSFBI’s September 20, http://www.ferc.gov, using the generator status pursuant to part 365 of 2004 filing of a triennial market power ‘‘eLibrary’’ link and is available for the Commission’s regulations. analysis. review in the Commission’s Public Klondike II, states that it is an Oregon Comment Date: 5 p.m. Eastern Time Reference Room in Washington, DC. limited liability company and that it on January 3, 2005. There is an ‘‘eSubscription’’ link on the will be engaged directly and exclusively 6. ISO New England Inc. Web site that enables subscribers to in the business of owning all or part of receive e-mail notification when a one or more eligible facilities, and [Docket No. ER02–2330–032] document is added to a subscribed selling electric energy at wholesale. Take notice that on December 13, docket(s). For assistance with any FERC Klondike II explains that it developing 2004, ISO New England Inc. (ISO) Online service, please e-mail a 75-megawatt wind power generation submitted a compliance filing providing [email protected], or call facility to be located in Sherman a status report on the implementation of (866) 208–3676 (toll free). For TTY, call County, Oregon and that the project will standard market design in New England. (202) 502–8659. be an eligible facility under section Comment Date: 5 p.m. Eastern Time Protest Date: 5 p.m. Eastern Time on 32(a)(2) of PUHCA. on January 3, 2005. December 29, 2004. Klondike II states that it has served a 7. New York Independent System copy of the filing on the Securities and Operator, Inc. Magalie R. Salas, Exchange Commission and the Oregon Secretary. Public Utility Commission. [Docket No. ER04–1188–001] [FR Doc. E4–3839 Filed 12–27–04; 8:45 am] Comment Date: 5 p.m. Eastern Time Take notice that on December 10, BILLING CODE 6717–01–P on January 4, 2005. 2004, the New York Independent
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System Operator, Inc. (NYISO) Edison Company of Indiana, Inc., and 12. PSEG Fossil LLC and PSEG Nuclear submitted a proposed revision to its Dayton Power and Light Company LLC market administration and control area (collectively, Companies) submitted a [Docket No. ER05–324–000] services tariff that would extend a compliance filing in response to the sunset provision for demand reduction Commission’s order issued November Take notice that on December 13, incentive payments under the day- 18, 2004, as clarified by the 2004, PSEG Fossil LLC and PSEG Nuclear LLC (PSEG Fossil) and PSEG ahead demand response program Commission’s November 30, 2004 order Nuclear LLC (collectively, the through October 31, 2005. The NYISO in Docket Nos. ER05–6–000, EL04–135– Applicants) pursuant to section 205 of states that this tariff revision was 000, EL02–111–010 and EL03–212–018. submitted to comply with the the Federal Power Act (FPA), 16 U.S.C. AEP states that the Companies request 824b (2000), and section 35.13 of the Commission’s letter order issued an effective date of December 1, 2004. October 29, 2004 in Docket No. ER04– regulations of the Commission, 18 CFR 1188–000. AEP states that copies of this filing part 335.13 (2004), requests Commission The NYISO states that it has served a have been served on the entities listed approval to amend their respective tariff copy of this filing upon all parties that on the official service list. regarding the manner in which their have executed service agreements and Comment Date: January 7, 2005. revenues are billed on a monthly basis, the electric utility regulatory agencies in and to clarify the cost elements that New York, New Jersey and 10. TransCanada Hydro Northeast Inc. comprise the actual operating costs and Pennsylvania. [Docket No. ER05–111–001] to explicitly include two additional cost Comment Date: 5 p.m. Eastern Time elements to the list of operating costs. on January 3, 2005. Take notice that on December 13, Applicants state that copies of this 2004, TransCanada Hydro Northeast Inc. 8. Midwest Independent Transmission filing have been served on the official (TC Hydro NE) filed with the System Operator, Inc.; Midwest service list in the above-referenced Commission an amendment to its Independent Transmission System docket. Operator, Inc., PJM Interconnection, October 29, 2004 application for market- Comment Date: 5 p.m. Eastern Time L.L.C., et al.; Midwest Independent based rate authority. TC Hydro NE notes on January 3, 2005. Transmission System Operator, Inc., that the application requested that the Commission accept for filing a Market- 13. Credit Suisse First Boston Energy, PJM Interconnection, L.L.C., et al.; LLC; Credit Suisse First Boston Ameren Services Company, et al. Based Tariff for TC Hydro NE, and otherwise grant TC Hydro NE the International [Docket Nos. ER05–6–001, EL04–135–003, authority to sell energy and capacity [Docket Nos. ER05–325–000, ER05–327–000] EL02–111–020, EL03–212–017] and ancillary services in wholesale Take notice that, on December 10, Take notice that on December 13, transactions at negotiated, market-based 2004, PJM Interconnection L.L.C. (PJM) 2004, Credit Suisse First Boston Energy, rates pursuant to part 35 of the and the PJM Transmission Owners, LLC (CSFBE) petitioned the Commission’s regulations. acting through the PJM and PJM West Commission for acceptance of CSFBE Transmission Owners Agreement Comment Date: 5 p.m. Eastern Time Rate Schedule FERC No. 1; the granting Administrative Committees, tendered on January 3, 2005. of certain blanket approvals, including the authority to sell electricity at for filing with the Commission a 11. PSEG Power New York, Inc. correction to the revisions to the PJM market-based rates; and the waiver of open access transmission tariff that were [Docket No. ER05–323–000] certain Commission regulations. CSFBE submitted with a compliance filing in states that on December 13, 2004, Credit Take notice that on December 13, this proceeding on November 24, 2004. Suisse First Boston International 2004, PSEG Power New York, Inc. PJM requests an effective date of (CSFBI) tendered for filing pursuant to (PSEG Power NY) pursuant to section December 1, 2004. section 35.15 of the Commission’s PJM states that copies of this filing 205 of the Federal Power Act (FPA), 16 regulations, 18 CFR 35.15 (2004), a were served upon all PJM members and U.S.C. 824b (2000), and section 35.13 of notice of CSFBI’s Electric Rate Schedule utility regulatory commissions in the the regulations of the Commission, 18 FERC No. 1. CSFBI states that it intends PJM Region and on parties on the CFR part 335.13 (2004), requests to cancel its rate schedule conditioned official service list in the above- Commission approval to: (1) Add the on the acceptance of CSFBE’s Rate captioned proceeding. Bethlehem Energy Center generating Schedule FERC No. 1 and requests that Comment Date: 5 p.m. Eastern Time station to the definition of ‘‘Generating the cancellation of its rate schedule on January 7, 2005. Unit;’’ (2) modify their respective tariff become effective as of the date on which regarding the manner in which their the market-based rate tariff of CSFBE 9. Midwest Independent Transmission revenues are billed on a monthly basis; becomes effective. System Operator, Inc.; Midwest and (3) clarify the cost elements that CSFBE states that it intends to engage Independent Transmission System comprise the actual operating costs, to in wholesale electric energy and Operator, Inc. and PJM explicitly include two additional cost capacity transactions as a marketer and Interconnection, LLC, et al.; Midwest a broker. CSFBE further states that it is Independent Transmission System elements to the list of operating costs and to eliminate the corresponding SAP not in the business of generating or Operator, Inc. and PJM transmitting electric power. CSFBE Interconnection, LLC, et al.; Ameren references. PSEG Power NY requests an effective date of January 1, 2005. explains that it is a Limited Liability Services Company, et al. Company formed under the laws of the [Docket Nos. ER05–6–007, EL04–135–009, PSEG Power NY states that it served State of Delaware with its principal EL02–111–026, EL03–212–023] a copy of this filing on the parties on the executive offices in New York, New Take notice that, on December 13, Commission’s official service list for York. CSFBE indicates that in 2004, American Electric Power Service this docket. transactions where CSFBE sells electric Corporation, (AEP) Commonwealth Comment Date: 5 p.m. Eastern Time power, it proposes to make such sales Edison Company and Commonwealth on January 3, 2005. on rates, terms and conditions to be
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mutually agreed to with the purchasing 17. ISO New England Inc., et al., Participants (electronically), non- party. Bangor Hydro-Electric Company, et al., participant transmission customers, and Comment Date: 5 p.m. Eastern Time Consumers of New England v. New the governors and regulatory agencies of on January 3, 2005. England Power Pool the six New England states. Comment Date: 5 p.m. Eastern Time [Docket Nos. RT04–2–008 and ER04–116– 14. Southwest Power Pool, Inc. 008, ER04–157–010, EL01–39–008] on January 3, 2005. [Docket No. ER05–326–000] Take notice that on December 10, Standard Paragraph 2004, the New England Power Pool Take notice that on December 13, Any person desiring to intervene or to (NEPOOL), through the NEPOOL protest this filing must file in 2004, Southwest Power Pool, Inc. (SPP) Participants Committee, ISO New submitted to the Commission revision to accordance with Rules 211 and 214 of England Inc. (ISO–NE) and the New the Commission’s Rules of Practice and its regional Open Access Transmission England transmission owners Procedure (18 CFR 385.211 and Tariff (OATT). Specifically, SPP states (collectively, the Settling Parties) 385.214). Protests will be considered by that it proposes to revise attachments J submitted a compliance filing to explain the Commission in determining the and P of its OATT in order to ensure how a review board process will operate appropriate action to be taken, but will proper cost allocation and capacity under the regional transmission not serve to make protestants parties to administration. SPP requests an organization arrangements for New the proceeding. Any person wishing to effective date of February 1, 2005. England. NEPOOL states that the filing become a party must file a notice of SPP states that it has served a copy of is in response to the requirements of the intervention or motion to intervene, as its transmittal letter on each of its Commission’s order issued on appropriate. Such notices, motions, or members and customers. SPP also states November 3, 2004. protests must be filed on or before the that a complete copy of this filing will NEPOOL states that the copies of the comment date. Anyone filing a motion be posted on the SPP Web site http:// compliance filing were sent to the to intervene or protest must serve a copy NEPOOL Participants and the New www.spp.org, and is also being served of that document on the Applicant and England state governors and regulatory on all affected state commissions. all parties to this proceeding. commissions, as well as all parties on The Commission encourages Comment Date: 5 p.m. Eastern Time the official service lists in the above- electronic submission of protests and on January 3, 2005. captioned proceedings. interventions in lieu of paper using the Comment Date: 5 p.m. Eastern Time 15. Rainbow Energy Marketing ‘‘eFiling’’ link at http://www.ferc.gov. on January 3, 2005. Persons unable to file electronically Corporation 18. ISO New England Inc., et al., should submit an original and 14 copies [Docket No. ER94–1061–024 of the protest or intervention to the Bangor Hydro-Electric Company, et al., Federal Energy Regulatory Commission, Take notice that on December 13, The Consumers of New England v. New 888 First Street, NE., Washington, DC England Power Pool 2004, Rainbow Energy Marketing 20426. Corporation (Rainbow) tendered for [Docket Nos. RT04–2–009 and ER04–116– This filing is accessible on-line at filing a triennial review pursuant to the 009, ER04–157–011, EL01–39–009] http://www.ferc.gov, using the Commission’s order issued June 10, Take notice that on December 10, ‘‘eLibrary’’ link and is available for 1994 in Docket No. ER94–1061–000. 2004, ISO New England Inc., (ISO) and review in the Commission’s Public Comment Date: 5 p.m. Eastern Time the New England transmission owners Reference Room in Washington, DC. on January 3, 2005. New England transmission owners There is an ‘‘eSubscription’’ link on the consist of Bangor Hydro-Electric Web site that enables subscribers to 16. Southern Indiana Gas and Electric Company; Central Maine Power receive e-mail notification when a Company Company; New England Power document is added to a subscribed [Docket No. ER96–2734–003] Company; Northeast Utilities Service docket(s). For assistance with any FERC Company on behalf of its operating Online service, please e-mail Take notice that on December 10, companies: The Connecticut Light and [email protected], or call 2004, Southern Indiana Gas and Electric Power Company, Western (866) 208–3676 (toll free). For TTY, call Company, d/b/a Vectren Energy Massachusetts Electric Company, Public (202) 502–8659. Delivery of Indiana, Inc. (Vectren) Service Company of New Hampshire, Linda Mitry, tendered for filing an application for Holyoke Power and Electric Company, Deputy Secretary. renewal of its market-based rate and Holyoke Water Power Company; authority and its three-year updated NSTAR Electric & Gas Corporation on [FR Doc. E4–3832 Filed 12–27–04; 8:45 am] market power analysis as well as other behalf of its operating affiliates: Boston BILLING CODE 6717–01–P revisions to its MBR Tariff, including Edison Company, Commonwealth revisions to incorporate the Electric Company, Canal Electric DEPARTMENT OF ENERGY Commission’s new market behaviour Company, and Cambridge Electric Light rules. Company; The United Illuminating Federal Energy Regulatory Company; Vermont Electric Power Commission Vectren states that copies of the filing Company, Inc.; Fitchburg Gas and were served upon the public utility’s Electric Light Company; and Unitil [Docket No. CP05–29–000; CP05–30–000; and CP05–31–000] jurisdictional customers who are located Energy Systems, Inc., submitted a report in its control area and the Indiana in response to the Commission’s order Utility Regulatory Commission. Freebird Gas Storage, L.L.C.; Notice of issued November 3, 2004, 109 FERC Site Visit Comment Date: 5 p.m. Eastern Time ¶61,147 (2004). on January 3, 2005. ISO states that copies of said filing December 20, 2004. have been served upon all parties to this On January 5, 2005, the Office of proceeding, upon all NEPOOL Energy Projects (OEP) staff will conduct
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a pre-certification site visit of Freebird DEPARTMENT OF ENERGY communication, and may request that Gas Storage, L.L.C.’s (Freebird) planned the Commission place the prohibited Freebird Gas Storage Project. The Federal Energy Regulatory communication and responses thereto project consists of about 4.28 miles of Commission in the decisional record. The Commission will grant such a request 16-inch-diameter pipeline that would [Docket No. RM98–1–000] connect Freebird’s gas storage to the only when it determines that fairness so ‘‘500 leg’’ of Tennessee Gas Pipeline Records Governing Off-the Record requires. Any person identified below as Company in Lamar County, Alabama. Communications; Public Notice having made a prohibited off-the-record communication shall serve the We will view the proposed route and December 20, 2004. document on all parties listed on the variations that are being considered for This constitutes notice, in accordance official service list for the applicable the planned pipeline and gas storage. with 18 CFR 385.2201(b), of the receipt proceeding in accordance with Rule Examination will be by automobile and of exempt and prohibited off-the-record 2010, 18 CFR 385.2010. on foot. Representatives of Freebird will communications. Exempt off-the-record be accompanying the OEP staff. Order No. 607 (64 FR 51222, communications will be included in the All interested parties may attend. September 22, 1999) requires decisional record of the proceeding, Those planning to attend must provide Commission decisional employees, who unless the communication was with a their own transportation. Those make or receive an exempt or prohibited cooperating agency as described by 40 interested in attending should meet at 8 off-the-record communication relevant CFR 1501.6, made under 18 CFR a.m. (c.s.t.) in the parking lot/area of the to the merit’s of a contested on-the- 385.2201(e)(1)(v). Econolodge Hamilton, located at 2031 record proceeding, to deliver a copy of The following is a list of exempt Military Street South in Hamilton, the communication, if written, or a communications recently received in Alabama. summary of the substance of any oral the Office of the Secretary. The communication, to the Secretary. communications listed are grouped by For additional information, please Prohibited communications will be docket numbers. These filings are contact the Commission’s Office of included in a public, non-decisional file available for review at the Commission External Affairs at 1–866–208–FERC. associated with, but not a part of, the in the Public Reference Room or may be Magalie R. Salas, decisional record of the proceeding. viewed on the Commission’s Web site at Unless the Commission determines that http://www.ferc.gov using the eLibrary Secretary. the prohibited communication and any (FERRIS) link. Enter the docket number [FR Doc. E4–3834 Filed 12–27–04; 8:45 am] responses thereto should become a part excluding the last three digits in the BILLING CODE 6717–01–P of the decisional record, the prohibited docket number field to access the off-the-record communication will not document. For Assistance, please be considered by the Commission in contact FERC, Online Support at reaching its decision. Parties to a [email protected] or toll proceeding may seek the opportunity to free at (866) 208–3676, or for TTY, respond to any facts or contentions contact (202) 502–8659. made in a prohibited off-the-record Exempt:
Presenter or Docket No. Date filed requester
1. CP04–36–000 ...... 12–8–04 Hon. Edward M. Lambert, Jr. 2. CP04–36–000 CP04–223–000 ...... 12–15–04 Hugh Thomas.1 3. CP04–223–000 ...... 12–15–04 Hugh Thomas.2 4. Project No. 2105–000 ...... 12–15–04 Lorie Jaimes. 5. Project No. 2114–000 ...... 12–15–04 Roger D. Whitlam, Ph.D. 1 Workshop Summary—11–17–04 2 Workshop Summary—12–07–04
Magalie R. Salas, ACTION: Notice of teleconference seeking accreditation under the National Secretary. meetings. Environmental Laboratory Accreditation [FR Doc. E4–3835 Filed 12–27–04; 8:45 am] Conference (NELAC) program; (2) BILLING CODE 6717–01–P SUMMARY: The Environmental Protection homeland security issues affecting the Agency’s Environmental Laboratory laboratory community; (3) ELAB Advisory Board (ELAB), as previously support to the Agency’s Forum on announced, will have teleconference Environmental Measurements (FEM); (4) ENVIRONMENTAL PROTECTION meetings on January 19, 2005 at 1 p.m. what needs to be done to facilitate the AGENCY ET; February 15, 2005 at 1 p.m. ET; implementation of the use of a March 16, 2005 at 1 p.m. ET; April 20, performance approach in environmental [FRL–7855–8] 2005 at 1 p.m. ET; May 18, 2005 at 1 monitoring; (5) increasing state p.m. ET; and June 15, 2005 at 1 p.m. ET participation in NELAC; and (6) follow- Environmental Laboratory Advisory to discuss the ideas and views presented up on some of ELAB’s past Board (ELAB) Meeting Dates, and at the previous ELAB meetings, as well recommendations and issues. In Agenda as new business. Items to be discussed addition to these teleconference, ELAB by ELAB over these coming meetings will be hosting their next, public face- AGENCY: Environmental Protection include: (1) What actions can be taken to-face meeting on February 2, 2005 at Agency. to expand the number of laboratories the Sheraton Society Hill in
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Philadelphia, Pennsylvania from 8:30– registration-only basis. For further EXECUTIVE OFFICE OF THE 11:30 a.m. ET. An Open Forum session information regarding the PRESIDENT for the public to present ideas to ELAB teleconference meeting, please contact for consideration will also be hosted the the individual listed below. Office of Administration evening prior to their face-to-face Background: NACEPT is a federal meeting on February 1, 2005, 30 Notice of Meeting of the Commission advisory committee under the Federal on the Intelligence Capabilities of the minutes following the close of the Advisory Committee Act, PL 92463. conference sessions being held that day. United States Regarding Weapons of NACEPT provides advice and Mass Destruction Written comments on laboratory recommendations to the Administrator accreditation issues and/or and other EPA officials on a broad range ACTION: Notice. environmental monitoring issues are of domestic and international encouraged and should be sent to the environmental policy issues. NACEPT SUMMARY: The Commission on the ELAB Designated Federal Official, Ms. consists of a representative cross-section Intelligence Capabilities of the United Lara P. Autry, U.S. EPA (E243–05), 109 of EPA’s partners and principle States Regarding Weapons of Mass T. W. Alexander Drive, Research constituents who provide advice and Destruction (‘‘Commission’’) will meet Triangle Park, NC 27709, faxed to (919) recommendations on policy issues and in closed session on Wednesday, 541–4261, or e-mailed to serves as a sounding board for new January 12, 2005, and Thursday, January [email protected]. Members of the strategies that the Agency is developing. 13, 2005, in its offices in Arlington, public are invited to listen to the Virginia. teleconference calls and attend the face- Purpose of Meeting: A workgroup to-face meetings. Time permitting, the under the auspices of NACEPT has Executive Order 13328 established the public will be allowed to comment on prepared a draft advice letter on the Commission for the purpose of assessing issues discussed during current and environmental indicators database. The whether the Intelligence Community is previous ELAB meetings. Those persons purpose of this teleconference is for the sufficiently authorized, organized, interested in attending should call Lara NACEPT Council to review, discuss, equipped, trained, and resourced to P. Autry at (919) 541–5544 to obtain and decide whether to approve the identify and warn in a timely manner of, teleconference information. The number letter. and to support the United States of lines available for the Availability of Review Materials: If Government’s efforts to respond to, the teleconferences, however, are limited you wish to receive a copy of the draft development of Weapons of Mass and will be distributed on a first come, advice letter developed by the NACEPT Destruction, related means of delivery, first serve basis. Preference will be given workgroup, please contact Ms. Altieri. and other related threats of the 21st to a group wishing to attend over a Century. This meeting will consist of SUPPLEMENTARY INFORMATION: request from an individual. Members briefings and discussions involving of the public wishing to gain access to classified matters of national security, Henry L. Longest, II, the conference room on the day of the including classified briefings from Deputy Assistant Administrator, Office of meeting must contact Ms. Sonia Altieri, representatives of agencies within the Research and Development. Designated Federal Officer for NACEPT, Intelligence Community; Commission [FR Doc. 04–28360 Filed 12–27–04; 8:45 am] U.S. Environmental Protection Agency discussions based upon the content of BILLING CODE 6560–50–P (1601E), Office of Cooperative classified intelligence documents the Environmental Management, 655 15th Commission has received from agencies Street, NW., Suite 800, Washington, DC within the Intelligence Community; and ENVIRONMENTAL PROTECTION 20005; telephone/voice mail at (202) presentations concerning the United AGENCY 233–0061 or via e-mail at States’ intelligence capabilities that are [FRL–7855–7] [email protected]. The agenda will based upon classified information. be available to the public upon request. While the Commission does not EPA National Advisory Council for If you wish to make oral comments or concede that it is subject to the Environmental Policy and Technology; to submit written comments to the requirements of the Federal Advisory Notification of Public Advisory Council, please contact Ms. Altieri by Committee Act (FACA), 5 United States Committee Teleconference Meeting January 7, 2005. Code Appendix 2, it has been General Information: Additional determined that the January 12–13 AGENCY: Environmental Protection information concerning the National meeting would fall within the scope of Agency (EPA) . Advisory Council for Environmental exceptions (c)(1) and (c)(9)(B) of the ACTION: Notification of Public Advisory Policy and Technology (NACEPT) can Sunshine Act, 5 United States Code, Committee Teleconference Meeting. be found on our Web site (http:// Sections 552b(c)(1) & (c)(9)(B), and thus www.epa.gov/ocem). could be closed to the public if FACA SUMMARY: Pursuant to the Federal did apply to the Commission. Advisory Committee Act, Public Law Meeting Access: Individuals requiring 92–463, notice is hereby given that the special accommodation at this meeting, DATES: Wednesday, January 12, 2005 (9 National Advisory Council for including wheelchair access to the a.m. to 5 p.m.) and Thursday, January Environmental Policy and Technology conference room, should contact Ms. 13, 2005. (9 a.m. to 2 p.m.). (NACEPT) will meet in a public Altieri at least five business days prior ADDRESSES: Members of the public who teleconference on January 13, 2005, to the meeting so that appropriate wish to submit a written statement to from 3:00 p.m. to 4:30 Eastern Time. arrangements can be made. the Commission are invited to do so by The meeting will be hosted out of the Dated: December 16, 2004. facsimile at (703) 414–1203, or by mail main conference room, U.S. EPA, 655 at the following address: Commission 15th Street, NW., Suite 800, Sonia Altieri, on the Intelligence Capabilities of the Washington, DC 20005. The meeting is Designated Federal Officer. United States Regarding Weapons of open to the public, however, due to [FR Doc. 04–28361 Filed 12–27–04; 8:45 am] Mass Destruction, Washington, DC, limited space, seating will be on a BILLING CODE 6560–50–P 20503. Comments also may be sent to
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the Commission by e-mail at DEPARTMENT OF HEALTH AND follow-up and the provision of [email protected]. HUMAN SERVICES appropriate individually provided support services. Cooperative agreement FOR FURTHER INFORMATION CONTACT: Centers for Disease Control and funds supporting public education and Brett C. Gerry, Associate General Prevention outreach, professional education, Counsel, Commission on the [Program Announcement 02060] quality assurance and improvement, Intelligence Capabilities of the United surveillance and program evaluation, States Regarding Weapons of Mass National Cancer Prevention and partnerships, and management may not Destruction, by facsimile, or by Control Program; Notice of Availability exceed 40 percent of the approved telephone at (703) 414–1200. of Funds; Amendment 4 budget [Section 1503(a)(1) and (4) of the PHS Act, as amended].’’ and replace Keith L. Roberts, A notice announcing the availability with ‘‘Not less than 60 percent of Executive Office of the President, Office of of fiscal year (FY) 2002 funds for cooperative agreement funds must be Administration, Deputy General Counsel. cooperative agreements for the National spent for screening & diagnostic [FR Doc. 04–28345 Filed 12–27–04; 8:45 am] Cancer Prevention and Control Program services, to include case management, (NCPCP) was published in the Federal BILLING CODE 3130–W5–P tracking and follow-up and the Register April 23, 2002, Volume 67, provision of appropriate individually Number 78, pages 19932–19950. The provided support services. Cooperative notice is amended as follows: agreement funds supporting program Page 19935, Column 1, Section G.2.d. FEDERAL RESERVE SYSTEM management; data management; quality Funding Preference, was amended in assurance/quality improvement; Amendment 2 to read ‘‘Funding Sunshine Act Meeting evaluation; partnerships; professional preference may be given to applicants development and recruitment, to from the prior year’s applications who AGENCY HOLDING THE MEETING: Board of include public education, outreach and were considered Approved but Governors of the Federal Reserve in reach may not exceed 40 percent of Unfunded (ABU). Those applicants will System. the approved budget [Section 1503(a)(1) be named in the annual open season and (4) of the PHS Act, as amended].’’ TIME AND DATE: 11:30 a.m., Monday, announcement.’’ Delete and replace January 3, 2005. Page 19941, Column 2, Section with ‘‘There are no funding preferences H.4.a.(4), replace ‘‘period September 30, applicable to this component.’’ PLACE: Marriner S. Eccles Federal 2002 through June 29, 2003’’ with Page 19937, Column 3, Section Reserve Board Building, 20th and C ‘‘project year’’ and replace ‘‘Attachment G.4.a.(6)(b) delete ‘‘November 1, 2002’’ C’’ with ‘‘Attachment B’’. Streets, N.W., Washington, D.C. 20551. and replace with ‘‘August 1, of the Page 19941, Column 2, last paragraph STATUS funding year’’ : Closed. and continuing to Column 3, starting Page 19938, Column 1, Section G.4.b, with ‘‘Applicants should include an MATTERS TO BE CONSIDERED: after the sentence ‘‘For each proposal, attachment to the workplan * * *, and 1. Personnel actions (appointments, the following information should be ending after * * * ‘‘Screening promotions, assignments, submitted:’’, move the following Projections Matrix’’ in the appendices.’’, reassignments, and salary actions) sentence ‘‘An Executive Summary delete. consisting of a brief summary of involving individual Federal Reserve Page 19941, Column 3, replace proposed project, including goals, System employees. ‘‘Attachment E’’ with ‘‘Attachment C’’. objectives, and description of who will 2. Any items carried forward from a Page 19942, Column 1, Section complete the work.’’, which was added previously announced meeting. H.4.a.(5)(a)[6], which was added in in Amendment 2 to read: G.4.b.(a) Amendment 2, replace ‘‘National Cancer FOR FURTHER INFORMATION CONTACT: Executive Summary: ‘‘A brief summary Conference’’ with ‘‘National Cancer Michelle A. Smith, Director, Office of of proposed project, including goals, Prevention and Control Conference’’. Board Members; 202–452–2955. objectives, and description of who will Page 19942, Column 1, in fourth full complete the work.’’ Renumber the SUPPLEMENTARY INFORMATION: You may paragraph, replace ‘‘Attachment F’’ with current G.4.b.(a) through G.4.b.(e) to ‘‘Attachment D’’. call 202–452–3206 beginning at G.4.b.(b) through G.4.b.(f). approximately 5 p.m. two business days Page 19942, Column 1, Section Page 19938, Column 2, under Section H.4.a.(6)(a), replace ‘‘Attachment G’’ before the meeting for a recorded G.5.b. ‘‘Moving from a Planning announcement of bank and bank with ‘‘Attachment E’’. Program to an Implementation Program Page 19942, Column 2, Section holding company applications within the five-year Project Period:’’, H.4.a.(6)(c), which was added in scheduled for the meeting; or you may delete G.5.b.(1) through G.5.b.(3) and Amendment 3, delete entire section. contact the Board’s Web site at http:// replace with: G.5.b.(1) Demonstrates Page 19943, Column 3, Section H.5.d., www.federalreserve.gov for an electronic success in meeting Planning Program replace ‘‘Attachment H’’, which was announcement that not only lists Performance Measures as outlined in added in Amendment 3, with applications, but also indicates G.5.a.(1), (2) and (3). G.5.b.(2) Responds ‘‘Attachment F’’. procedural and other information about to Implementation Program ‘‘Content’’, Page 19944, Column 3, Section the meeting. section G.4. and ‘‘Implementation I.2.e.(3), replace ‘‘Attachment I’’ with Activities’’, Page 19935, Column 3, ‘‘Attachment G’’. Board of Governors of the Federal Reserve section G.3.a.(2) of this program System, December 23, 2004. announcement. Dated: December 20, 2004. Jennifer J. Johnson, Page 19939, Column 3, Section William P. Nichols, Secretary of the Board. H.2.b.(1) 60/40 Requirement:, delete the Director, Procurement and Grants Office, [FR Doc. 04–28500 Filed 12–23–04; 1:21 pm] first two sentences, ‘‘Not less than 60 Centers for Disease Control and Prevention. BILLING CODE 6210–01–S percent of cooperative agreement funds [FR Doc. 04–28248 Filed 12–27–04; 8:45 am] must be spent for screening, tracking, BILLING CODE 4163–18–P
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DEPARTMENT OF HEALTH AND ‘‘Class II Special Controls Guidance procedures. This guidance describes HUMAN SERVICES Document: Assisted Reproduction Laser FDA’s recommendations regarding Systems.’’ This guidance document performance characteristics, safety Centers for Disease Control and describes a means by which assisted testing, and appropriate labeling. Prevention reproduction laser systems may comply Elsewhere in this issue of the Federal with the requirement of special controls Register, FDA is publishing a final rule Statement of Organization, Functions, for class II devices. Elsewhere in this codifying the classification of assisted and Delegations of Authority issue of the Federal Register, FDA is reproduction laser systems into class II Part C (Centers for Disease Control publishing a final rule to classify the (special controls) under section 513(f)(2) of the Federal Food, Drug, and Cosmetic and Prevention) of the Statement of assisted reproduction laser systems into Act (the act) (21 U.S.C. 360c(f)(2)). This Organization, Functions, and class II (special controls). This guidance guidance document will serve as the Delegations of Authority of the document is immediately in effect as the special control for assisted reproduction Department of Health and Human special control for assisted reproduction laser systems. Section 513(f)(2) of the Services (45 FR 67772–76, dated laser systems, but it remains subject to act provides that any person who October 14, 1980, and corrected at 45 FR comment in accordance with the submits a premarket notification under 69296, October 20, 1980, as amended agency’s good guidance practices section 510(k) of the act (21 U.S.C. most recently at 69 FR 63154–63156, (GGPs). 360(k)) for a device that has not dated October 29, 2004, is amended to DATES: Submit written or electronic comments on this guidance at any time. previously been classified may, within reflect the Order of Succession for the 30 days after receiving an order Centers for Disease Control and General comments on agency guidance documents are welcome at any time. classifying the device in class III under Prevention. section 513(f)(1) of the act, request FDA ADDRESSES: Submit written requests for Section C–C, Order of Succession: to classify the device under the criteria single copies on a 3.5″ diskette of the Delete in its entirety Section C–C, set forth in section 513(a)(1) of the act. Order of Succession, and insert the guidance document entitled ‘‘Class II FDA shall, within 60 days of receiving following: Special Controls Guidance Document: such a request, classify the device by During the absence or disability of the Assisted Reproduction Laser Systems’’ written order. This classification shall Director, Center for Disease Control and to the Division of Small Manufacturers, be the initial classification of the device. Prevention (CDC), or in the event of a International, and Consumer Assistance Within 30 days after the issuance of an vacancy in that office, the first official (HFZ–220), Center for Devices and order classifying the device, FDA must listed below who is available shall act Radiological Health, Food and Drug publish a notice in the Federal Register as Director, except that during a Administration, 1350 Piccard Dr., announcing such classification. planned period of absence, the Director Rockville, MD 20850. Send one self- Because of the timeframes established may specify a different order of addressed adhesive label to assist that by section 513(f)(2) of the act, FDA has succession: office in processing your request, or fax determined, under § 10.115(g)(2) (21 1. Chief Operating Officer, CDC. your request to 301–443–8818. See the CFR 10.115(g)(2)), that it is not feasible 2. Chief of Science, CDC. SUPPLEMENTARY INFORMATION section for to allow for public participation before 3. Chief of Public Health information on electronic access to the issuing this guidance. Therefore, FDA is Improvement. guidance. issuing this guidance document as a 4. Director, Coordinating Center for Submit written comments concerning level 1 guidance document that is * Infectious Diseases. this guidance to the Division of Dockets immediately in effect. FDA will * official organizational structure Management (HFA–305), Food and Drug consider any comments that are pending approval. Administration, 5630 Fishers Lane, rm. received in response to this notice to Dated: December 13, 2004. 1061, Rockville, MD 20852. Submit determine whether to amend the electronic comments to http:// William H. Gimson, guidance document. www.fda.gov/dockets/ecomments. Chief Operating Officer, Centers for Disease Identify comments with the docket II. Significance of Guidance Control and Prevention (CDC). number found in brackets in the [FR Doc. 04–28377 Filed 12–27–04; 8:45 am] This guidance is being issued heading of this document. consistent with FDA’s good guidance BILLING CODE 4160–18–M FOR FURTHER INFORMATION CONTACT: practices regulation (§ 10.115). The Michael T. Bailey, Center for Devices guidance represents the agency’s current DEPARTMENT OF HEALTH AND and Radiological Health (HFZ–470), thinking on assisted reproduction laser HUMAN SERVICES Food and Drug Administration, 9200 systems. It does not create or confer any Corporate Blvd., Rockville, MD 20850, rights for or on any person and does not Food and Drug Administration 301–594–1180, ext. 130. operate to bind FDA or the public. An SUPPLEMENTARY INFORMATION: alternative approach may be used if [Docket No. 2004D–0531] such approach satisfies the I. Background Guidance for Industry and FDA Staff requirements of the applicable statute on Class II Special Controls Guidance This guidance describes a means by and regulations. which assisted reproduction laser Document: Assisted Reproduction III. Electronic Access Laser Systems; Availability systems may comply with the requirement of special controls for class To receive ‘‘Class II Special Controls AGENCY: Food and Drug Administration, II devices. An assisted reproduction Guidance Document: Assisted HHS. laser system images, targets, and Reproduction Laser Systems’’ by fax, ACTION: Notice. controls the power and pulse duration call the CDRH Facts-On-Demand system of a laser beam used to ablate a small at 800–899–0381 or 301–827–0111 from SUMMARY: The Food and Drug tangential hole in, or to thin, the zona a touch-tone telephone. Press 1 to enter Administration (FDA) is announcing the pellucida of an embryo for assisted the system. At the second voice prompt, availability of the guidance entitled hatching or other assisted reproduction press 1 to order a document. Enter the
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document number (1539) followed by Dated: December 16, 2004. number found in brackets in the the pound sign (#). Follow the Linda S. Kahan, heading of this document. remaining voice prompts to complete Deputy Director, Center for Devices and FOR FURTHER INFORMATION CONTACT: your request. Radiological Health. Janine Morris, Center for Devices and Persons interested in obtaining a copy [FR Doc. 04–28254 Filed 12–27–04; 8:45 am] Radiological Health (HFZ–470), Food of the guidance may also do so by using BILLING CODE 4160–01–S and Drug Administration, 9200 the Internet. CDRH maintains an entry Corporate Blvd., Rockville, MD 20850, on the Internet for easy access to 301–594–2194. DEPARTMENT OF HEALTH AND information, including text, graphics, SUPPLEMENTARY INFORMATION: HUMAN SERVICES and files that may be downloaded to a I. Background personal computer with Internet access. Food and Drug Administration Updated on a regular basis, the CDRH In the Federal Register of March 17, home page includes device safety alerts, [Docket No. 2004D–0071] 2004 (69 FR 12701), FDA announced the Federal Register reprints, information availability of a draft of this guidance Guidance for Industry and Food and on premarket submissions (including document and invited interested Drug Administration Staff; Class II lists of approved applications and persons to comment on it by June 15, Special Controls Guidance Document: manufacturers’ addresses), small 2004. FDA received no comments on the External Penile Rigidity Devices; manufacturer’s assistance, information proposed guidance and classification Availability on video conferencing and electronic rule. The guidance document provides a means by which external penile rigidity submissions, Mammography Matters, AGENCY: Food and Drug Administration, devices may comply with the and other device-oriented information. HHS. requirement of special controls for class The CDRH Web site may be accessed at ACTION: Notice. II devices. Following the effective date http://www.fda.gov/cdrh. A search of the final classification rule, capability for all CDRH guidance SUMMARY: The Food and Drug manufacturers will need to address the documents is available at http:// Administration (FDA) is announcing the issues covered in this special control www.fda.gov/cdrh/guidance.html. availability of the guidance entitled ‘‘Class II Special Controls Guidance guidance. However, the manufacturer Guidance documents are also available need only show that its device meets the on the Division of Dockets Management Document: External Penile Rigidity Devices.’’ This guidance document recommendations of the guidance or in Internet site at http://www.fda.gov/ some other way provides equivalent ohrms/dockets. describes a means by which external penile rigidity devices may comply with assurances of safety and effectiveness. IV. Paperwork Reduction Act of 1995 the requirement of special controls for Also in the Federal Register of March class II devices. Elsewhere in this issue 17, 2004 (69 FR 12598), FDA proposed This guidance contains information of the Federal Register, FDA is to classify external penile rigidity collection provisions that are subject to publishing a final rule to classify this devices into class II with this guidance review by the Office of Management and device type into class II (special document as the special control. Budget (OMB) under the Paperwork controls) and to exempt it from Elsewhere in this issue of the Federal Reduction Act of 1995 (the PRA) (44 premarket notification requirements. Register, FDA is publishing a final rule U.S.C. 3501–3520) . The collections of to classify external penile rigidity DATES: information addressed in the guidance Submit written or electronic devices into class II (special controls) document have been approved by OMB comments on this guidance at any time. and exempt the devices from premarket General comments on agency guidance in accordance with the PRA under the notification requirements. documents are welcome at any time. regulations governing premarket II. Significance of Guidance notification submissions (21 CFR part ADDRESSES: Submit written requests for ″ 807, subpart E, OMB control number single copies on a 3.5 diskette of the This guidance is being issued 0910–0120) and the quality system guidance document entitled ‘‘Class II consistent with FDA’s good guidance regulation (21 CFR part 820, OMB Special Controls Guidance Document: practices regulation (21 CFR 10.115). control number 0910–0073). The External Penile Rigidity Devices’’ to the The guidance represents the agency’s labeling provisions addressed in the Division of Small Manufacturers, current thinking on external penile guidance have been approved by OMB International, and Consumer Assistance rigidity devices. It does not create or under OMB control number 0910–0485. (HFZ–220), Center for Devices and confer any rights for or on any person Radiological Health, Food and Drug and does not operate to bind FDA or the V. Comments Administration, 1350 Piccard Dr., public. An alternative approach may be Rockville, MD 20850. Send one self- used if such approach satisfies the Interested persons may submit to the addressed adhesive label to assist that requirements of the applicable statute Division of Dockets Management (see office in processing your request, or fax and regulations. ADDRESSES), written or electronic your request to 301–443–8818. See the III. Electronic Access comments regarding this document. SUPPLEMENTARY INFORMATION section for Submit a single copy of electronic information on electronic access to the To receive ‘‘Class II Special Controls comments or two paper copies of any guidance. Guidance Document: External Penile mailed comments, except that Submit written comments concerning Rigidity Devices’’ by fax, call the CDRH individuals may submit one paper copy. this guidance to the Division of Dockets Facts-On-Demand system at 800–899– Comments are to be identified with the Management (HFA–305), Food and Drug 0381 or 301–827–0111 from a touch- docket number found in brackets in the Administration, 5630 Fishers Lane, rm. tone telephone. Press 1 to enter the heading of this document. Received 1061, Rockville, MD 20852. Submit system. At the second voice prompt, comments may be seen in the Division electronic comments to http:// press 1 to order a document. Enter the of Dockets Management between 9 a.m. www.fda.gov/dockets/ecomments. document number (1231) followed by and 4 p.m., Monday through Friday. Identify comments with the docket the pound sign (#). Follow the
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remaining voice prompts to complete DEPARTMENT OF HEALTH AND DEPARTMENT OF HEALTH AND your request. HUMAN SERVICES HUMAN SERVICES Persons interested in obtaining a copy National Institutes of Health of the guidance may also do so by using National Institutes of Health the Internet. CDRH maintains an entry National Cancer Institute; Notice of National Cancer Institute; Notice of on the Internet for easy access to Closed Meeting Closed Meeting information including text, graphics, and files that may be downloaded to a Pursuant to section 10(d) of the Pursuant to section 10(d) of the Federal Advisory Committee Act, as personal computer with Internet access. Federal Advisory Committee Act, as Updated on a regular basis, the CDRH amended (5 U.S.C. Appendix 2), notice amended (5 U.S.C. Appendix 2), notice is hereby given of the following home page includes device safety alerts, is hereby given of the following meeting. Federal Register reprints, information meeting. The meeting will be closed to the on premarket submissions (including The meeting will be closed to the public in accordance with the lists of approved applications and public in accordance with the provisions set forth in sections manufacturers’ addresses), small provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., manufacturer’s assistance, information 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and on video conferencing and electronic as amended. The contract proposals and the discussions could disclose submissions, Mammography Matters, the discussions could disclose confidential trade secrets or commercial and other device-oriented information. property such as patentable material, confidential trade secrets or commercial The CDRH Web site may be accessed at and personal information concerning property such as patentable material, http://www.fda.gov/cdrh. A search individuals associated with the contract and personal information concerning capability for all CDRH guidance proposals, the disclosure of which individuals associated with the contract documents is available at http:// would constitute a clearly unwarranted proposals, the disclosure of which www.fda.gov/cdrh/guidance.html. invasion of personal privacy. would constitute a clearly unwarranted Guidance documents are also available invasion of personal privacy. Name of Committee: National Cancer on the Division of Dockets Management Institute Special Emphasis Panel, RFP SBIR Internet site at http://www.fda.gov/ Name of Committee: National Cancer Topic 208—Targetry Systems for Production ohrms/dockets. Institute Special Emphasis Panel, RFP SBIR of Research Radionuclides. Topic 209—Establishment of Benchmark Date: February 7, 2005. IV. Paperwork Reduction Act of 1995 Data Sets for Radiotherapy Quality Time: 12 p.m. to 4:30 p.m. Assurance. Agenda: To review and evaluate contract This guidance contains information proposals. Date: February 11, 2005. collection provisions that are subject to Place: National Institutes of Health, 6130 Time: 12 p.m. to 3:30 p.m. Executive Blvd., Rockville, MD 20852, review by the Office of Management and Agenda: To review and evaluate contract Budget (OMB) under the Paperwork (Telephone Conference Call). proposals. Contact Person: Kenneth L. Bielat, PhD, Reduction Act of 1995 (44 USC 3501– Place: National Institutes of Health, 6130 Scientific Review Administrator, Division of 3520). The quality system regulation Executive Blvd., Rockville, MD 20852, Extramural Activities, National Cancer provisions addressed in the guidance (Telephone Conference Call). Institute, National Institutes of Health, 6116 have been approved by OMB under Contact Person: Kenneth L. Bielat, PhD, Executive Boulevard, Room 7147, Bethesda, OMB control number 0910–0773. The Scientific Review Administrator, Division of MD 20892, (301) 496–7576, labeling provisions addressed in the Extramural Activities, National Cancer [email protected]. guidance have been approved by OMB Institute, National Institutes of Health, 6116 (Catalogue of Federal Domestic Assistance under OMB control number 0910–0485. Executive Boulevard, Room 7147, Bethesda, Program Nos. 93.392, Cancer Construction; MD 20892, (301) 496–7576, 93.393, Cancer Cause and Prevention V. Comments [email protected]. Research; 93.394, Cancer Detection and Diagnosis Research; 93.395, Cancer Interested persons may submit to the (Catalogue of Federal Domestic Assistance Treatment Research; 93.396, Cancer Biology Division of Dockets Management (see Program Nos. 93.392, Cancer Construction; Research; 93.397, Cancer Centers Support; ADDRESSES) written or electronic 93.393, Cancer Cause and Prevention 93.398, Cancer Research Manpower; 93.399, comments regarding this document. Research; 93.394, Cancer Detection and Cancer Control, National Institutes of Health, HHS). Submit a single copy of electronic Diagnosis Research; 93.395, Cancer Treatment Research; 93.396, Cancer Biology Dated: December 20, 2004. comments or two paper copies of any Research; 93.397, Cancer Centers Support; LaVerne Y. Stringfield, mailed comments, except that 93.398, Cancer Research Manpower; 93.399, Director, Office of Federal Advisory individuals may submit one paper copy. Cancer Control, National Institutes of Health, Committee Policy. Comments are to be identified with the HHS.) [FR Doc. 04–28308 Filed12–27–04; 8:45 am] docket number found in brackets in the Dated: December 20, 2004. BILLING CODE 4140–01–M heading of this document. Received LaVerne Y. Stringfield, comments may be seen in the Division Director, Office of Federal Advisory of Dockets Management between 9 a.m. Committee Policy. DEPARTMENT OF HEALTH AND and 4 p.m., Monday through Friday. [FR Doc. 04–28307 Filed 12–27–04; 8:45 am] HUMAN SERVICES Dated: December 15, 2004. BILLING CODE 4140–01–M National Institutes of Health Linda S. Kahan, Deputy Director, Center for Devices and National Cancer Institute; Notice of Radiological Health. Closed Meeting [FR Doc. 04–28255 Filed 12–27–04; 8:45 am] Pursuant to section 10(d) of the BILLING CODE 4160–01–S Federal Advisory Committee Act, as
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amended (5 U.S.C. Appendix 2), notice property such as patentable material, Population Sciences Career Development is hereby given of the following and personal information concerning Award (K07) PAR–04–055. meeting. individuals associated with the contract Date: January 27, 2005. The meeting will be closed to the proposals, the disclosure of which Time: 2 p.m. to 3 p.m. public in accordance with the Agenda: To review and evaluate grant would constitute a clearly unwarranted applications. provisions set forth in sections invasion of personal privacy. Place: National Institutes of Health, 6116 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Name of Committee: National Cancer Executive Boulevard, Rockville, MD 20852, as amended. The contract proposals and Institute Special Emphasis Panel. RFP SBIR (Telephone Conference Call). the discussions could disclose TOPIC 207—Synthesis Modules of Radio Contact Person: Robert Bird, PhD, confidential trade secrets of commercial Pharmaceutical Production. Scientific Review Administrator, Resources property such as patentable material, Date: February 23, 2005. and Training Review Branch, National and personal information concerning Time: 12 p.m. to 4:30 p.m. Cancer Institute, National Institutes of individuals associated with the contract Agenda: To review and evaluate contract Health, 6116 Executive Blvd., MSC 8328, proposals. proposals, the disclosure of which Room 8113, Bethesda, MD 20892–8328, (301) Place: National Institutes of Health, 6130 496–7978, [email protected]. would constitute a clearly unwarranted Executive Blvd., Rockville, MD 20852, invasion of personal privacy. (Telephone Conference Call). (Catalogue of Federal Domestic Assistance Contact Person: Kenneth L Bielat, PhD, Program Nos. 93.392, Cancer Construction; Name of Committee: National Cancer 93.393, Cancer Cause and Prevention Institute Special Emphasis Panel SBIR Topic Scientific Review Administrator, Division of Extramural Activities, National Cancer Research; 93.394, Cancer Detection and 206: Methods of Innovative Pharmaceutical Diagnosis Research; 93.395, Cancer Manufacturing & Quality Assurance. Institute, National Institutes of Health, 6116 Executive Boulevard, Room 7147, Bethesda, Treatment Research; 93.396, Cancer Biology Date: February 16, 2005. Research; 93.397, Cancer Centers Support; Time: 12 p.m. to 4:30 p.m. MD 20892, (301) 496–7576, [email protected]. 93.398, Cancer Research Manpower; 93.399, Agenda: To review and evaluate contract Cancer Control, National Institutes of Health, (Catalogue of Federal Domestic Assistance proposals. HHS.) Place: National Institutes of Health, 6130 Program Nos. 93.392, Cancer Construction; Executive Blvd., Rockville, MD 20852, 93.393, Cancer Cause and Prevention Dated: December 20, 2004 (Telephone conference call). Research; 93.394, Cancer Detection and LaVerne Y. Stringfield, Diagnosis Research; 93.395, Cancer Contact Person: Kenneth L. Bielat, PhD, Director, Office of Federal Advisory Treatment Research; 93.396, Cancer Biology Scientific Review Administrator, Division of Committee Policy. Extramural Activities, National Cancer Research; 93.397, Cancer Centers Support; [FR Doc. 04–28319 Filed 12–27–04; 8:45 am] Institute, National Institutes of Health, 6116 93.398, Cancer Research Manpower; 93.399, Executive Boulevard, Room 7147, Bethesda, Cancer Control, National Institutes of Health, BILLING CODE 4140–01–M MD 20892, (301) 496–7576, HHS.) [email protected]. Dated: December 20, 2004. (Catalogue of Federal Domestic Assistance DEPARTMENT OF HEALTH AND Program Nos. 93.392, Cancer Construction; LaVerne Y. Stringfield, HUMAN SERVICES 93.393, Cancer Cause and Prevention Director, Office of Federal Advisory Research; 93.394, Cancer Detection and Committee Policy. National Institutes of Health Diagnosis Research; 93.395, Cancer [FR Doc. 04–28314 Filed 12–27–04; 8:45 am] National Center for Complementary Treatment Research; 93.396, Cancer Biology BILLING CODE 4140–01–M Research; 93.397, Cancer Centers Support; and Alternative Medicine, Notice of 93.398, Cancer Research Manpower; 93.399, Meeting Cancer Control, National Institutes of Health, DEPARTMENT OF HEALTH AND HHS.) Pursuant to Section 10(d) of the HUMAN SERVICES Federal Advisory Committee Act, as LaVerne Y. Stringfield, amended (5 U.S.C. appendix 2), notice National Institutes of Health Director, Office of Federal Advisory is hereby given of the National Advisory Committee Policy. National Cancer Institute; Notice of Council for Complementary and [FR Doc. 04–28312 Filed 12–27–04; 8:45 am] Closed Meeting Alternative Medicine (NACCAM) BILLING CODE 4140–01–M meeting. Pursuant to section 10(d) of the The meeting will be open to the Federal Advisory Committee Act, as public as indicated below, with DEPARTMENT OF HEALTH AND amended (5 U.S.C. Appendix 2), notice attendance limited to space available. HUMAN SERVICES is hereby given of the following Individuals who plan to attend and meeting. need special assistance, such as sign National Institutes of Health The meeting will be closed to the language interpretation or other public in accordance with the reasonable accommodations, should National Cancer Institute; Notice of provisions set forth in sections Closed Meeting notify the Contact Person listed below 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., in advance of the meeting. Pursuant to section 10(d) of the as amended. The grant applications and A portion of the meeting will be Federal Advisory Committee Act, as the discussions could disclose closed to the public in accordance with amended (5 U.S.C. Appendix 2), notice confidential trade secrets or commercial the provisions set forth in sections is hereby given of the following property such as patentable material, 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., meeting. and personal information concerning as amended. The grant applications The meeting will be closed to the individuals associated with the grant and/or contract proposals and the public in accordance with the applications, the disclosure of which discussion could disclose confidential provisions set forth in sections would constitute a clearly unwarranted trade secrets or commercial property 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., invasion of personal privacy. such a patentable material, and personal as amended. The contract proposals and Name of Committee: National Cancer information concerning individuals the discussions could disclose Institute Special Emphasis Panel Cancer associated with the grant applications confidential trade secrets or commercial Prevention, Control, Behavioral and and/or contract proposals, the
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disclosure of which would constitute a DEPARTMENT OF HEALTH AND amended (5 U.S.C. Appendix 2), notice clearly unwarranted invasion of HUMAN SERVICES is hereby given of the following personal privacy. meetings. National Institutes of Health Name of Committee: National Advisory The meetings will be closed to the Council for Complementary and Alternative National Heart, Lung, and Blood public in accordance with the Medicine. provisions set forth in sections Date: January 28, 2005. Institute; Notice of Closed Meeting Closed: 8:30 a.m. to 12:30 p.m. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Pursuant to section 10(d) of the as amended. The grant applications and Agenda: To review and evaluate grant Federal Advisory Committee Act, as applications and/or proposals. the discussions could disclose amended (5 U.S.C. Appendix 2), notice Open: 12:30 p.m. to adjournment. confidential trade secrets or commercial is hereby given of the following Agenda: The agenda includes Opening property such as patentable material, meeting. Remarks by Director, NCCAM, NCCAM’s and personal information concerning second five-year Strategic Plan and other The meeting will be closed to the business of the Council. public in accordance with the individuals associated with the grant Place: Neuroscience Conference Center, provisions set forth in sections applications, the disclosure of which 6001 Executive Boulevard, Conference 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., would constitute a clearly unwarranted Rooms C and D, Rockville, MD 20892. as amended. The grant applications and invasion of personal privacy. Contact Person: Jane F. Kinsel, PhD., the discussions could disclose M.B.A., Executive Secretary, National Center Name of Committee: National Institute of for Complementary and Alternative confidential trade secrets or commercial Allergy and Infectious Diseases Special Medicine, National Institutes of Health, 6707 property such as patentable material, Emphasis Panel, Genetic Pathway to SLE. Democracy Blvd., Suite 401, Bethesda, MD and personal information concerning Date: January 12, 2005. 20892, 301–496–6701. individuals associated with the grant Time: 1 p.m. to 4 p.m. The public comments session is applications, the disclosure of which Agenda: To review and evaluate grant scheduled from 4:30–5 p.m., but could would constitute a clearly unwarranted applications. change depending on the actual time invasion of personal privacy. Place: National Institutes of Health, spent on each agenda item. Each Name of Committee: National Heart, Lung, Rockledge 6700, 6700B Rockledge Drive, speaker will be permitted 5 minutes for and Blood Institute Special Emphasis Panel, Room 3143, Bethesda, MD 20817; (Telephone their presentation. Interested Review of Heart Study Applications. Conference Call). individuals and representatives of Date: January 6, 2005. Contact Person: Kenneth E. Santora, PhD, Time: 1 p.m. to 3 p.m. organizations are requested to notify Dr. Scientific Review Administrator, Scientific Agenda: To review and evaluate grant Review Program, Division of Extramural Jane Kinsel, National Center for applications. Activities, National Institutes of Health/ Complementary and Alternative Place: National Institutes of Health, 6701 NIAID/DHHS, 6700B Rockledge Drive, MSC Medicine, NIH, 6707 Democracy Rockledge Drive, Bethesda, MD 20892, 7616, Bethesda, MD 20892–7616; 301–496– Boulevard, Suite 401, Bethesda, (Telephone conference call). 2550; [email protected]. Maryland, 20892, 301–496–6701, Fax: Contact Person: Valerie L. Prenger, PhD, 301–480–0087. Letters of intent to Health Scientist Administrator, Review Name of Committee: National Institute of present comments, along with a brief Branch, Room 7194, Division of Extramural Allergy and Infectious Diseases Special Affairs, National Heart, Lung, and Blood description of the organization Emphasis Panel, SLE Pathogenesis. Institute, National Institutes of Health, Date: January 13, 2005. represented, should be received no later Bethesda, MD 20892–7924, (301) 435–0288. than 5 p.m. on January 20, 2005. Only Time: 1 p.m. to 5 p.m. This notice is being published less than 15 Agenda: To review and evaluate grant one representative of an organization days prior to the meeting due to the timing applications. may present oral comments. Any person limitations imposed by the review and Place: National Institutes of Health, attending the meeting who does not funding cycle. Rockledge 6700, 6700B Rockledge Drive, request an opportunity to speak in (Catalogue of Federal Domestic Assistance Room 3265, Bethesda, MD 20817; (Telephone advance of the meeting may be Program Nos. 93.233, National Center for Sleep Disorders Research; 93.837, Heart and Conference Call). considered for oral presentation, if time Contact Person: Kenneth E. Santora, PhD, permits, and at the discretion of the Vascular Diseases Research; 93.838, Lung Diseases Research; 93.839, Blood Diseases Scientific Review Administrator, Scientific Chairperson. In addition, written and Resources Research, National Institutes Review Program, Division of Extramural comments may be submitted to Dr. Jane of Health, HHS.) Activities, National Institutes of Health/ Kinsel at the address listed above up to NIAID/DHHS, 6700B Rockledge Drive, MSC ten calendar days (February 9, 2005) Dated: December 20, 2004. LaVerne Y. Stringfield, 7616, Bethesda, MD 20892–7616; 301–496– following the meeting. 2550; [email protected]. Copies of the meeting agenda and the Director, Office of Federal Advisory roster of members will be furnished Committee Policy. (Catalogue of Federal Domestic Assistance Program Nos. 93.855, Allergy Immunology, upon request by contacting Dr. Jane [FR Doc. 04–28310 Filed 12–27–04; 8:45 am] and Transplantation Research; 93.856, Kinsel, Executive Secretary, NACCAM, BILLING CODE 4140–01–M Microbiology and Infectious Diseases National Institutes of Health, 6707 Research, National Institutes of Health, HHS.) Democracy Boulevard, Suite 401, Bethesda, Maryland 20892, 301–496– DEPARTMENT OF HEALTH AND Dated: December 20, 2004. 6701, Fax 301–480–0087, or via e-mail HUMAN SERVICES LaVerne Y. Stringfield, at [email protected]. National Institutes of Health Director, Office of Federal Advisory Dated: December 20, 2004. Committee Policy. Laverne Y. Stringfield, National Institute of Allergy and [FR Doc. 04–28306 Filed 12–27–04; 8:45 am] Infectious Diseases; Notice of Closed Director, Office of Federal Advisory BILLING CODE 4140–01–M Committee Policy, NIH. Meetings [FR Doc. 04–28309 Filed 12–27–04; 8:45 am] Pursuant to section 10(d) of the BILLING CODE 4140–01–M Federal Advisory Committee Act, as
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DEPARTMENT OF HEALTH AND The meeting will be closed to the Name of Committee: National Institute of HUMAN SERVICES public in accordance with the Mental Health Initial Review Group, provisions set forth in sections Interventions Research Review Committee. National Institutes of Health 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Date: February 8–9, 2005. Time: 9 a.m. to 5 p.m. as amended. The grant applications and National Institute of Allergy and Agenda: To review and evaluate grant the discussions could disclose applications. Infectious Diseases; Notice of Closed confidential trade secrets or commercial Meeting Place: Hyatt Regency Bethesda, One property such as patentable material, Bethesda Metro Center, 7400 Wisconsin Pursuant to section 10(d) of the and personal information concerning Avenue, Bethesda, MD 20814. Federal Advisory Committee Act, as individuals associated with the grant Contact Person: David I. Sommers, PhD, amended (5 U.S.C. Appendix 2), notice applications, the disclosure of which Scientific Review Administrator, Division of is hereby given of the following would constitute a clearly unwarranted Extramural Activities, National Institute of invasion of personal privacy. Mental Health, NIH, Neuroscience Center, meeting. 6001 Executive Blvd., Room 6144, MSC 9606, The meeting will be closed to the Name of Committee: National Institute of Bethesda, MD 20892–9606, 301–443–6470, public in accordance with the Allergy and Infectious Diseases Special [email protected]. provisions set forth in sections Emphasis Panel Immune Regulation of Name of Committee: National Institute of 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Autoimmune Diseases. Mental Health Initial Review Group, Services as amended. The grant applications and Date: January 12, 2005. Research Review Committee. the discussions could disclose Time: 8:30 a.m. to 5 p.m. Date: February 9–10, 2005. confidential trade secrets or commercial Agenda: To review and evaluate grant Time: 8 a.m. to 5 p.m. property such as patentable material, applications. Agenda: To review and evaluate grant and personal information concerning Place: Gaithersburg Marriott applications. Washingtonian Center, 9751 Washingtonian individuals associated with the grant Place: The Fairmont Washington, DC, 2401 Boulevard, Gaithersburg, MD 20878. M Street, NW., Washington, DC 20037. applications, the disclosure of which Contact Person: Geetha P. Bansal, PhD, would constitute a clearly unwarranted Contact Person: Marina Broitman, PhD, Scientific Review Administrator, Scientific Scientific Review Administrator, Division of invasion of personal privacy. Review Program, Division of Extramural Extramural Activities, National Institute of Name of Committee: National Institute of Activities, NIAID/NIH/DHHS, Room 3145, Mental Health, NIH, Neuroscience Center, Allergy and Infectious Diseases Special 6700–B Rockledge Drive, MSC 7616, 6001 Executive Blvd., Room 6153, MSC 9608, Emphasis Panel Unsolicited P01. Bethesda, MD 20892, (301) 402–5658, Bethesda, MD 20892–9608, 301–402–8152, Date: January 18, 2005. [email protected]. [email protected]. Time: 2 p.m. to 5 p.m. (Catalogue of Federal Domestic Assistance (Catalogue of Federal Domestic Assistance Agenda: To review and evaluate grant Program Nos. 93.855, Allergy, Immunology, Program Nos. 93.242, Mental Health Research applications. and Transplantation Research; 93.856, Grants; 93.281, Scientist Development Place: National Institutes of Health, Microbiology and Infectious Diseases Award, Scientist Development Award for Rockledge 6700, 6700B Rockledge Drive, Research, National Institutes of Health, HHS.) Clinicians, and Research Scientist Award; Bethesda, MD 20817, (Telephone Conference Dated: December 20, 2004. 93.282, Mental Health National Research Call). LaVerne Y. Stringfield, Service Awards for Research Training, Contact Person: Thomas J. Hiltke, PhD, National Institutes of Health, HHS) Scientific Review Administrator, Scientific Director, Office of Federal Advisory Review Program, Division of Extramural Committee Policy. Dated: December 20, 2004. Activities, National Institutes of Health/ [FR Doc. 04–28315 Filed 11–27–04; 8:45 am] LaVerne Y. Stringfield, NIAID, 6700B Rockledge Drive, MSC 7616, BILLING CODE 4140–01–M Director, Office of Federal Advisory Bethesda, MD 20892–7616, (301) 496–2550, Committee Policy. [email protected]. [FR Doc. 04–28317 Filed 12–27–04; 8:45 am] (Catalogue of Federal Domestic Assistance DEPARTMENT OF HEALTH AND Program Nos. 93.855, Allergy, Immunology, BILLING CODE 4140–01–M and Transplantation Research; 93.856, HUMAN SERVICES Microbiology and Infectious Diseases Research, National Institutes of Health, HHS.) National Institutes of Health DEPARTMENT OF HEALTH AND HUMAN SERVICES Dated: December 20, 2004. National Institute of Mental Health; LaVerne Y. Stringfield, Notice of Closed Meetings National Institutes of Health Director, Office of Federal Advisory Committee Policy. Pursuant to section 10(d) of the National Institute of Mental Health; [FR Doc. 04–28313 Filed 12–27–04; 8:45 am] Federal Advisory Committee Act, as Notice of Meeting BILLING CODE 4140–01–M amended (5 U.S.C. Appendix 2), notice is hereby given of the following Pursuant to section 10(d) of the meetings. Federal Advisory Committee Act, as DEPARTMENT OF HEALTH AND The meetings will be closed to the amended (5 U.S.C. Appendix 2), notice HUMAN SERVICES public in accordance with the is hereby given of a meeting of the provisions set forth in sections National Advisory Mental Health National Institutes of Health 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Council. National Institute of Allergy and as amended. The grant applications and The meeting will be open to the Infectious Diseases; Notice of Closed the discussions could disclose public as indicated below, with Meeting confidential trade secrets or commercial attendance limited to space available. property such as patentable material, Individuals who plan to attend and Pursuant to section 10(d) of the and personal information concerning need special assistance, such as sign Federal Advisory Committee Act, as individuals associated with the grant language interpretation or other amended (5 U.S.C. Appendix 2), notice applications, the disclosure of which reasonable accommodations, should is hereby given of the following would constitute a clearly unwarranted notify the Contact Person listed below meeting. invasion of personal privacy. in advance of the meeting.
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The meeting will be closed to the www.nimh.nih.gov/council/advis.cfm, where Molecular Libraries Screening Centers public in accordance with the an agenda and any additional information for Network (MLSCN). provisions set forth in sections the meeting will be posted when available. Date: January 18–19, 2005. Time: 9 a.m. to 5 p.m. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., (Catalogue of Federal Domestic Agenda: To review and evaluate grant as amended. The grant applications and Assistance Program No. 93.242, Mental applications. the discussions could disclose Health Research Grants; 93.281, Place: Hyatt Regency Bethesda, One confidential trade secrets or commercial Scientist Development Award, Scientist Bethesda Metro Center, 7400 Wisconsin property such as patentable material, Development Award for Clinicians, and Avenue, Bethesda, MD 20814. and personal information concerning Research Scientist Award; 93.282, Contact Person: Yong Yao, PhD, Scientific individuals associated with the grant Mental Health National Research Review Administrator, Division of applications, the disclosure of which Extramural Activities, National Institute of Service Awards for Research Training, Mental Health, NIH, Neuroscience Center, would constitute a clearly unwarranted National Institutes of Health, HHS.) 6001 Executive Blvd., Room 6149, MSC 9606, invasion of personal privacy. Dated: December 20, 2004. Bethesda, MD 20892–9606, (301) 443–6102, Name of Committee: National Advisory LaVerne Y. Stringfield, [email protected]. Mental Health Council. Director, Office of Federal Advisory Name of Committee: National Institute of Date: February 3–4, 2005. Committee Policy. Mental Health Special Emphasis Panel, State Closed: February 3, 2005, 10 a.m. to 3:30 Implementation of EBP’s II. p.m. [FR Doc. 04–28318 Filed 12–27–04; 8:45 am] Date: January 24, 2005. Agenda: To review and evaluate grant BILLING CODE 4140–01–M Time: 8:30 a.m. to 5 p.m. applications and the NIMH Intramural Agenda: To review and evaluate grant Research Programs. applications. Place: National Institutes of Health, DEPARTMENT OF HEALTH AND Place: Marriott Bethesda North Hotel & Neuroscience Center, 6001 Executive HUMAN SERVICES Conference Center, 5701 Marinelli Road, Boulevard, Rockville, MD 20852. North Bethesda, MD 20852. Open: February 3, 2005, 4 p.m. to 5 p.m. National Institutes of Health Contact Person: Marina Broitman, PhD, Agenda: Discussion on NIMH program and Scientific Review Administrator, Division of policy issues. National Institute of Mental Health; Extramural Activities, National Institute of Place: National Institutes of Health, Notice of Closed Meetings Mental health,NIH, Neuroscience Center, Neuroscience Center, 6001 Executive 6001 Executive Blvd., Room 6153, MSC 9608, Boulevard, Rockville, MD 20852. Pursuant to section 10(d) of the Bethesda, MD 20892–9608, (301) 402–8152, Open: February 4, 2005, 8:30 a.m. to 12:30 [email protected]. p.m. Federal Advisory Committee Act, as (Catalogue of Federal Domestic Assistance Agenda: Presentation of NIMH Director’s amended (5 U.S.C. Appendix 2), notice Program Nos. 93.242, Mental Health Research report and discussion on NIMH program and is hereby given of the following Grants; 93.281, Scientist Development policy issues. meetings. Award, Scientist Development Award for Place: National Institutes of Health, The meetings will be closed to the Building 31, 31 Center Drive, Conference Clinicians, and Research Scientist Award; Room 6C10, Bethesda, MD 20892. public in accordance with the 93.282, Mental Health National Research Contact Person: Jane A. Steinberg, PhD, provisions set forth in sections Service Awards for Research Training, Director, Division of Extramural Activities, 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., National Institutes of Health, HHS.) National Institute of Mental Health, NIH, as amended. The grant applications and Dated: December 20, 2004. Neuroscience Center, 6001 Executive Blvd., the discussions could disclose LaVerne Y. Stringfield, Room 6154, MSC 9609, Bethesda, MD 20892– confidential trade secrets or commercial Director, Office of Federal Advisory 9609, 301–443–5047. property such as patentable material, Committee Policy. Any member of the public interested in and personal information concerning presenting oral comments to the committee [FR Doc. 04–28320 Filed 12–27–04; 8:45 am] may notify the Contact Person listed on this individuals associated with the grant BILLING CODE 4140–01–M notice at least 10 days in advance of the applications, the disclosure of which meeting. Interested individuals and would constitute clearly unwarranted representatives of organizations may submit invasion of personal privacy. DEPARTMENT OF HEALTH AND a letter of intent, a brief description of the Name of Committee: National Institute of HUMAN SERVICES organization represented, and a short Mental Health Special Emphasis Panel, description of the oral presentation. Only one Health Economics Applications. National Institutes of Health representative of an organization may be Date: January 10, 2005. allowed to present oral comments and if Time: 1:30 p.m. to 3:30 p.m. National Library of Medicine; Notice of accepted by the committee, presentations Closed Meeting may be limited to five minutes. Both printed Agenda: To review and evaluate grant applications. and electronic copies are requested for the Pursuant to section 10(d) of the record. in addition, any interested person Place: National Institutes of Health, Neuroscience Center, 6001 Executive Federal Advisory Committee Act, as may file written comments with the amended (5 U.S.C. Appendix 2), notice committee by forwarding their statement to Boulevard, Rockville, MD 20852, (Telephone the Contact Person listed on this notice. The Conference Call). is hereby given of the following statement should include the name, address, Contact Person: Marina Broitman, PhD, meeting. telephone number and when applicable, the Scientific Review Administrator, Division of The meeting will be closed to the business or professional affiliation of the Extramural Activities, National Institute of public in accordance with the interested person. Mental Health, NIH, Neuroscience Center, provisions set forth in sections In the interest of security, NIH has 6001 Executive Blvd., Room 6153, MSC 9608, 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Bethesda, MD 20892–9608, (301) 402–8152, instituted stringent procedures for entrance as amended. The grant applications and into the building by non-government [email protected]. This notice is being published less than 15 the discussions could disclose employees. Persons without a government confidential trade secrets or commercial I.D. will need to show a photo I.D. and sign days prior to the meeting due to the timing in at the security desk upon entering the limitations imposed by the review and property such as patentable material, building. funding cycle. and personal information concerning Information is also available on the Name of Committee: National Institute of individuals associated with the grant Institute’s/Center’s home page: http:// Mental Health Special Emphasis Panel, applications, the disclosure of which
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would constitute a clearly unwarranted applications, the disclosure of which copy of the information collection invasion of personal privacy. would constitute a clearly unwarranted plans, call the SAMHSA Reports Name of Committee: Biomedical Library invasion of personal privacy. Clearance Officer on (240) 276–1243. and Informatics Review Committee. Name of Committee: Center for Scientific Comments are invited on: (a) Whether Date: March 10–11, 2005. Review Special Emphasis Panel Cognition the proposed collections of information Time: March 10, 2005, 8 a.m. to 6 p.m. and Social Judgment. are necessary for the proper Agenda: To review and evaluate grant Date: January 3, 2005. performance of the functions of the applications. Time: 12 p.m. to 1 p.m. agency, including whether the Place: National Library of Medicine, Agenda: To review and evaluate grant Building 38, Second Floor, Board Room, applications. information shall have practical utility; 8600 Rockville Pike, Bethesda, MD 20892. Place: National Institutes of Health, 6701 (b) the accuracy of the agency’s estimate Time: March 11, 2005, 8 a.m. to 12:30 p.m. Rockledge Drive, Bethesda, MD 20892, of the burden of the proposed collection Agenda: To review and evaluate grant (Telephone Conference Call). of information; (c) ways to enhance the applications. Contact Person: Michael Micklin, PhD, quality, utility, and clarity of the Place: National Library of Medicine, Chief, RPHB IRG, Center for Scientific information to be collected; and (d) Building 38, Second Floor, Board Room, Review, National Institutes of Health, 6701 ways to minimize the burden of the 8600 Rockville Pike, Bethesda, MD 20892. Rockledge Drive, Room 3136, MSC 7759, Bethesda, MD 20892, (301) 435–1258, collection of information on Contact Person: Hua-Chuan Sim, MD, respondents, including through the use Health Science Administrator, National [email protected]. Library of Medicine, Extramural Programs, This notice is being published less than 15 of automated collection techniques or Bethesda, MD 20892. days prior to the meeting due to the timing other forms of information technology. limitations imposed by the review and (Catalogue of Federal Domestic Assistance funding cycle. Proposed Project: Data Collection Tool Program Nos. 93.879, Medical Library (Catalogue of Federal Domestic Assistance for the Decision Support Simulation Assistance, National Institutes of Health, Pilot Cost-Effective Study—NEW HHS.) Program Nos. 93.306, Comparative Medicine; 93.333, Clinical Research, 93.306, 93.333, Dated: December 20, 2004. 93.337, 93.393–93.396, 93.837–93.844, SAMHSA’s Center for Mental Health LaVerne Y. Stringfield, 93.846–93.878, 93.892, 93.893, National Services will conduct a pilot study to examine ‘‘cost efficiencies’’ in the Director, Office of Federal Advisory Institutes of Health, HHS.) Committee Policy. Dated: December 20, 2004. implementation of Evidence Based Practices (EBPs). This data collection on [FR Doc. 04–28311 Filed 12–27–04; 8:45 am] LaVerne Y. Stringfield, mental health and substance abuse BILLING CODE 4140–01–M Director, Office of Federal Advisory service utilization and functional level Committee Policy. data will be done through the utilization [FR Doc. 04–28316 Filed 12–27–04; 8:45 am] of a computer simulation model DEPARTMENT OF HEALTH AND BILLING CODE 4140–01–M HUMAN SERVICES developed by Human Services Research Institute. National Institutes of Health DEPARTMENT OF HEALTH AND The survey instrument will be used to HUMAN SERVICES collect information on services that Center for Scientific Review; Notice of should have been received by Closed Meeting Substance Abuse and Mental Health consumers and services that were Pursuant to section 10(d) of the Services Administration actually received. Demographic data and functional level scores will also be Federal Advisory Committee act, as Agency Information Collection amended (5 U.S.C. Appendix 2), notice collected. The data collection tool is a Activities: Proposed Collection; paper and pencil survey to be is hereby given of the following Comment Request meeting. completed by case managers or other The meeting will be closed to the In compliance with section knowledgeable care givers on current public in accordance with the 3506(c)(2)(A) of the Paperwork mental health service users. provisions set forth in sections Reduction Act of 1995 concerning This data collection tool is aimed at 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., opportunity for public comment on providing information on what as amended. The grant applications and proposed collections of information, the combination of EBPs would be most the discussions could disclose Substance Abuse and Mental Health cost effective in a system of care. The confidential trade secrets or commercial Services Administration will publish goal of this project is consistent with the property such as patentable material, periodic summaries of proposed direction described in The President’s and personal information concerning projects. To request more information New Freedom Commission Report on a individuals associated with the grant on the proposed projects or to obtain a wider adoption of EBPs.
ESTIMATES OF ANNUALIZED HOUR BURDEN
Responses Number of respondents per respond- Hours per Total hour ents response burden
2250 ...... 1 .25 562.50
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Send comments to Summer King, Director, Regulatory Management Dated: December 21, 2004. SAMHSA Reports Clearance Officer, Division, U.S. Citizenship and Richard A. Sloan, OAS, Room 7–1045, 1 Choke Cherry Immigration Services, Department of Director, Regulatory Management Division, Road, Rockville, MD 20857. Written Homeland Security, 111 Massachusetts U.S. Citizenship and Immigration Services. comments should be received by Avenue, NW., Washington, DC 20529; [FR Doc. 04–28268 Filed 12–27–04; 8:45 am] February 28, 2005. 202–616–7600. Written comments and BILLING CODE 4410–10–M Dated: December 20, 2004. suggestions from the public and affected Patricia S. Bransford, agencies concerning the proposed DEPARTMENT OF HOMELAND Acting Executive Officer, SAMHSA. collection of information should address one or more of the following four points: SECURITY [FR Doc. 04–28249 Filed 12–27–04; 8:45 am] (1) Evaluate whether the proposed BILLING CODE 4162–20–P collection of information is necessary U.S. Citizenship and Immigration for the proper performance of the Services functions of the agency, including Agency Information Collection DEPARTMENT OF HOMELAND whether the information will have Activities: Extension of Existing SECURITY practical utility; (2) Evaluate the accuracy of the Collection; Comment Request U.S. Citizenship and Immigration agencies estimate of the burden of the Services ACTION: Notice of 60-day information proposed collection of information, collection under review: biographic Agency Information Collection including the validity of the information; Form G–325. Activities: Extension of Existing methodology and assumptions used; Collection; Comment Request (3) Enhance the quality, utility, and Department of Homeland Security clarity of the information to be (DHS), U.S. Citizenship and ACTION: Notice of 60-day Information collected; and Immigration Services (USCIS) has collection under review: petitioning (4) Minimize the burden of the submitted an emergency information requirements for H–1C Nonimmigrant collection of information on those who collection request (ICR) utilizing Classification; Form OMB–26. are to respond, including through the emergency review procedures, to the use of appropriate automated, Office of Management and Budget The Department of Homeland electronic, mechanical, or other (OMB) for review and clearance in Security (DHS), U.S. Citizenship and technological collection techniques or accordance with section Immigration Services (USCIS) has other forms of information technology, 1320.13(a)(1)(ii) and (a)(2)(iii) of the submitted an emergency information e.g., permitting electronic submission of Paperwork Reduction Act of 1995. The collection request (ICR) utilizing responses. USCIS has determined that it cannot emergency review procedures, to the Overview of this information comply with the normal clearance Office of Management and Budget collection: procedures under this part because (OMB) for review and clearance in (1) Type of Information Collection: normal clearance procedures are likely accordance with section Extension of a currently approved to prevent or disrupt the collection of 1320.13(a)(1)(ii) and (a)(2)(iii) of the information collection. information. Paperwork Reduction Act of 1995. The (2) Title of the Form/Collection: If granted, the emergency approval is USCIS has determined that it cannot Petitioning Requirements for H–1C only valid for 180 days. All comments comply with the normal clearance Nonimmigrant Classification. and/or questions pertaining to this procedures under this part because (3) Agency form number, if any, and pending request for emergency approval normal clearance procedures are likely the applicable component of the must be directed to OMB, Office of to prevent or disrupt the collection of Department of Homeland Security Information and Regulatory Affairs, information. sponsoring the collection: The agency Attention: Desk Officer, Department of If granted, the emergency approval is form number is 1615–0065; the file Homeland Security, 725—17th Street, only valid for 180 days. All comments number is OMB–26. U.S. Citizenship NW., Suite 10235, Washington, DC and/or questions pertaining to this and Immigration Services (USCIS). 20503; 202–395–5806. pending request for emergency approval (4) Affected public who will be asked During the first 60 days of this period, must be directed to OMB, Office of or required to respond, as well as a brief a regular review of this information Information and Regulatory affairs, abstract: Primary: Individuals or collection is also being undertaken. Attention: Desk Officer, Department of Households. Public Law 106–95, During the regular review period, the Homeland Security, 725—17th Street, Section 101(a)(15)(H)(i)(c) of the USCIS requests written comments and NW., Suite 10235, Washington, DC Immigration and Nationality Act allows suggestions from the public and affected 20503; 202–3950–5806. petitioning hospitals to import agencies concerning this information During the first 60 days of this period, registered nurses to work at those collection. Comments are encouraged a regular review of this information hospitals as nonimmigrants. The and will be accepted until February 28, collection is also being undertaken. information collection is necessary for 2005. During the 60-day regular review, During the regular review period, the the USCIS to determine that the all comments and suggestions, or USCIS requests written comments and eligibility requirements and conditions questions regarding the information suggestions from the public and affected are met regarding the nurse/beneficiary. collection instrument should be agencies concerning this information (5) An estimate of the total number of directed to Mr. Richard A. Sloan, collection. Comments are encouraged respondents and the amount of time Director, Regulatory Management and will be accepted until February 28, estimated for an average respondent to Division, U.S. Citizenship and 2005. During the 60-day regular review, respond: 2,000 responses at 2 hours per Immigration Services, Department of all comments and suggestions, or response. Homeland Security, 111 Massachusetts questions regarding the information (6) An estimate of the total public Avenue, NW., Washington, DC 20529; collection instrument should be burden (in hours) associated with the 202–616–7600. Written comments and directed to Mr. Richard A. Sloan, collection: 4,000 annual burden hours suggestions from the public and affected
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agencies concerning the proposed DEPARTMENT OF HOMELAND functions of the agency, including collection of information should address SECURITY whether the information will have one or more of the following four points: practical utility; Citizenship and Immigration Services (1) Evaluate whether the proposed (2) Evaluate the accuracy of the collection of information is necessary Agency Information Collection agencies estimate of the burden of the for the proper performance of the Activities: Extension of Existing proposed collection of information, functions of the agency, including Collection; Comment Request including the validity of the whether the information will have methodology and assumptions used; practical utility; ACTION: Notice of 60-day information (2) Evaluate the accuracy of the (3) Enhance the quality, utility, and collection under review: Request for clarity of the information to be agencies estimate of the burden of the premium processing service; Form I– collected; and proposed collection of information, 907. including the validity of the (4) Minimize the burden of the methodology and assumptions used; The Department of Homeland collection of information on those who (3) Enhance the quality, utility, and Security (DHS), U.S. Citizenship and are to respond, including through the clarity of the information to be Immigration Services (USCIS) has use of appropriate automated, collected; and submitted an emergency information electronic, mechanical, or other (4) Minimize the burden of the collection request (ICR) utilizing technological collection techniques or collection of information on those who emergency review procedures, to the other forms of information technology, are to respond, including through the Office of Management and Budget e.g., permitting electronic submission of use of appropriate automated, (OMB) for review and clearance in responses. electronic, mechanical, or other accordance with section 1320.13(a)(1)(ii) and (a)(2)(iii) of the Overview of this information technological collection techniques or collection: other forms of information technology, Paperwork Reduction Act of 1995. The e.g., permitting electronic submission of USCIS has determined that it cannot (1) Type of Information Collection: response. comply with the normal clearance Extension of a currently approved procedures under this part because Overview of this information information collection. normal clearance procedures are likely collection: (2) Title of the Form/Collection: to prevent or disrupt the collection of Request for Premium Processing (1) Type of Information Collection: information. Extension of a currently approved If granted, the emergency approval is Service. information collection. only valid for 180 days. All comments (3) Agency form number, if any, and (2) Title of the Form/Collection: and/or questions pertaining to this the applicable component of the Biographic Information. pending request for emergency approval Department of Homeland Security (3) Agency form number, if any, and must be directed to OMB, Office of sponsoring the collection: The agency the applicable component of the Information and Regulatory Affairs, form number is I–907. U.S. Citizenship Department of Homeland Security Attention: Desk Officer, Department of and Immigration Services (USCIS). sponsoring the collection: The agency Homeland Security, 725–17th Street, (4) Affected public who will be asked form number is G–325. U.S. Citizenship NW., Suite 10235, Washington, DC or required to respond, as well as a brief and Immigration Services (USCIS). 20503; 202–395–5806. abstract: Primary: Business or other for- During the first 60 days of this period, (4) Affected public who will be asked profit. The data collected on this form a regular review of this information or required to respond, as well as a brief is used by the Service to process abstract: Primary: Individuals or collection is also being undertaken. requests for premium processing of households. This form is used to check During the regular review period, the certain employment-based petitions or various agency records on applications USCIS requests written comments and or petitions submitted for benefits under suggestions from the public and affected applications in accordance with section the Immigration and Nationality Act. agencies concerning this the 286(u) of the District of Columbia Additionally, this form is required for information collection. Comments are Appropriations Act of 2002. applications for adjustment to encouraged and will be accepted until (5) An estimate of the total number of permanent resident status, and may be February 28, 2005. During the 60-day respondents and the amount of time used, in some cases, for naturalization regular review, all comments and estimated for an average respondent to purposes. suggestions, or questions regarding the respond: 80,000 responses at 30 minutes (5) An estimate of the total number of information collection instrument per response. should be directed to Mr. Richard A. respondents and the amount of time (6) An estimate of the total public estimated for an average respondent to Sloan, Director, Regulatory Management Division, U.S. Citizenship and burden (in hours) associated with the respond: 1,444,994 responses at 15 collection: 40,000 annual burden hours. minutes (.25) per response. Immigration Services, Department of (6) An estimate of the total public Homeland Security, 111 Massachusetts Dated: December 21, 2004. burden (in house) associated with the Avenue, NW., Washington, DC 20529; Richard A. Sloan, collection: 286,249 annual burden 202–616–7600. Written comments and Director, Regulatory Management Division, hours. suggestsions from the public and U.S. Citizenship and Immigration Services. affected agencies concerning the [FR Doc. 04–28270 Filed 12–27–04; 8:45 am] Dated: December 21, 2004. proposed collection of information Richard A. Sloan, should address one or more of the BILLING CODE 4410–10–M Director, Regulatory Management Division, following four points: U.S. Citizenship and Immigration Services. (1) Evaluate whether the proposed [FR Doc. 04–28269 Filed 12–27–04; 8:45 am] collection of information is necessary BILLING CODE 4410–10–M for the proper performance of the
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DEPARTMENT OF HOMELAND whether the information will have DEPARTMENT OF HOMELAND SECURITY practical utility; SECURITY (2) Evaluate the accuracy of the Citizenship and Immigration Services Citizenship and Immigration Services agencies estimate of the burden of the Agency Information Collection proposed collection of information, Agency Information Collection Activities: Extension of Existing including the validity of the Activities: Extension of Existing Collection; Comment Request methodology and assumptions used; Collection; Comment Request (3) Enhance the quality, utility, and ACTION: Notice of 60-day information clarity of the information to be ACTION: Notice of 60-day information collection under review: petition to collected; and collection under review: application for remove conditions on residence; Form advance permission to enter as I–751. (4) Minimize the burden of the nonimmigrant pursuant to 212(d)(3) of collection of information on those who the Immigration and Nationality Act; The Department of Homeland are to respond, including through the Form I–192 Security (DHS), U.S. Citizenship and use of appropriate automated, Immigration Services (USCIS) has electronic, mechanical, or other The Department of Homeland submitted an emergency information technological collection techniques or Security (DHS), U.S. Citizenship and collection request (ICR) utilizing other forms of information technology, Immigration Services (USCIS) has emergency review procedures, to the e.g., permitting electronic submission of submitted an emergency information Office of Management and Budget responses. collection request (ICR) utilizing (OMB) for review and clearance in emergency review procedures, to the accordance with section Overview of this information Office of Management and Budget 1320.13(a)(1)(ii) and (a)(2)(iii) of the collection: (OMB) for review and clearance in Paperwork Reduction Act of 1995. The (1) Type of Information Collection: accordance with section USCIS has determined that it cannot Extension of a currently approved 1320.13(a)(1)(ii) and (a)(2)(iii) of the comply with the normal clearance information collection. Paperwork Reduction Act of 1995. The procedures under this part because (2) Title of the Form/Collection: USCIS has determined that it cannot normal clearance procedures are likely comply with the normal clearance Petition to Remove Conditions on to prevent or disrupt the collection of procedures under this part because Residence. information. normal clearance procedures are likely If granted, the emergency approval is (3) Agency form number, if any, and to prevent or disrupt the collection of only valid for 180 days. All comments the applicable component of the information. and/or questions pertaining to this Department of Homeland Security If granted, the emergency approval is pending request for emergency approval sponsoring the collection: The agency only valid for 180 days. ALL comments must be directed to OMB, Office of number is 1615–0038; the form number and/or questions pertaining to this Information and Regulatory Affairs, is I–751. U.S. Citizenship and pending request for emergency approval Attention: Desk Officer, Department of Immigration Services (USCIS). must be directed to OMB, Office of Homeland Security, 725–17th Street, (4) Affected public who will be asked Information and Regulatory Affairs, NW., Suite 10235, Washington, DC or required to respond, as well as a brief Attention: Desk Officer, Department of 20503; 202–395–5806. Homeland Security, 725–17th Street, abstract: Primary: Individuals or During the first 60 days of this period, NW., Suite 10235, Washington, DC households. Persons granted conditional a regular review of this information 20503; 202–395–5806. collection is also being undertaken. residence through marriage to a United During the first 60 days of this period, During the regular review period, the States citizen or permanent resident use a regular review of this information USCIS requests written comments and this form to petition for the removal of collection is also being undertaken. suggestions from the public and affected those conditions. During the regular review period, the agencies concerning this information (5) An estimate of the total number of USCIS requests written comments and collection. Comments are encouraged respondents and the amount of time suggestions from the pubic and affected and will be accepted until February 28, estimated for an average respondent to agencies concerning this the 2005. During the 60-day regular review, respond: 118,008 responses at 80 information collection. Comments are all comments and suggestions, or minutes per response. encouraged and will be accepted until questions regarding the information February 28, 2005. During the 60-day (6) An estimate of the total public collection instrument should be regular review, all comments and burden (in hours) associated with the directed to Mr. Richard A. Sloan, suggestions, or questions regarding the Director, Regulatory Management collection: 156,951 annual burden information collection instrument Division, U.S. Citizenship and hours. should be directed to Mr. Richard A. Immigration Services, Department of Dated: December 21, 2004. Sloan, Director, Regulatory Management Homeland Security, 111 Massachusetts Richard A. Sloan, Division, U.S. Citizenship and Avenue, NW., Washington, DC 20529; Director, Regulatory Management Division, Immigration Services, Department of 202–616–7600. Written comments and U.S. Citizenship and Immigration Services. Homeland Security, 111 Massachusetts suggestions from the public and affected [FR Doc. 04–28271 Filed 12–27–04; 8:45 am] Avenue, NW., Washington, DC, 20529; agencies concerning the proposed 202–616–7600. Written comments and collection of information should address BILLING CODE 4410–10–M suggestions from the public and affected one or more of the following four points: agencies concerning the proposed (1) Evaluate whether the proposed collection of information should address collection of information is necessary one or more of the following four points: for the proper performance of the (1) Evaluate whether the proposed functions of the agency, including collection of information is necessary
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for the proper performance of the DEPARTMENT OF HOMELAND functions of the agency, including functions of the agency, including SECURITY whether the information will have whether the information will have practical utility; U.S. Citizenship and Immigration practical utility; (2) Evaluate the accuracy of the Services (2) Evaluate the accuracy of the agencies estimate of the burden of the agencies estimate of the burden of the Agency Information Collection proposed collection of information, proposed collection of information, Activities: Extension of Existing including the validity of the including the validity of the Collection; Comment Request methodology and assumptions used; methodology and assumptions used; (3) Enhance the quality, utility, and ACTION: (3) Enhance the quality, utility, and Notice of 60-day information clarity of the information to be collection under review: Request for clarity of the information to be collected; and cancellation of public charge bond; collected; and Form I–356. (4) Minimize the burden of the (4) Minimize the burden of the collection of information on those who collection of information on those who The Department of Homeland are to respond, including through the are to respond, including through the Security (DHS), U.S. Citizenship and use of appropriate automated, use of the appropriate automated, Immigration Services (USCIS) has electronic, mechanical, or other electronic, mechanical, or other submitted an emergency information technological collection techniques or technological collection techniques or collection request (ICR) utilizing other forms of information technology, other forms of information technology, emergency review procedures, to the e.g., permitting electronic submission of e.g., permitting electronic submission of Office of Management and Budget responses. responses. (OMB) for review and clearance in accordance with section Overview of this information Overview of this information 1320.13(a)(1)(ii) and (a)(2)(iii) of the collection: collection: Paperwork Reduction Act of 1995. The (1) Type of Information Collection: (1) Type of Information Collection: USCIS has determined that it cannot Extension of a currently approved Extension of a currently approved comply with the normal clearance information collection. procedures under this part because information collection. (2) Title of the Form/Collection: normal clearance procedures are likely (2) Title of the Form/Collection: Request for Cancellation of Public to prevent or disrupt the collection of Application for Advance Permission to information. Charge Bond. Enter as Nonimmigrant Pursuant to If granted, the emergency approval is (3) Agency form number, if any, and 212(d)(3) of the Immigration and only valid for 180 days. All comments the applicable component of the Nationality Act. and/or questions pertaining to this Department of Homeland Security (3) Agency form number, if any, and pending request for emergency approval sponsoring the collection: The agency the applicable component of the must be directed to OMB, Office of form number is I–356. U.S. Citizenship Department of Homeland Security Information and Regulatory Affairs, and Immigration Services (USCIS). sponsoring the collection: the agency Attention: Desk Officer, Department of (4) Affected public who will be asked number is 1615–0017; the form number Homeland Security, 725—17th Street, or required to respond, as well as brief NW., Suite 10235, Washington, DC if I–192. U.S. Citizenship and abstract: Primary: Individuals or 20503; 202–395–5806. Immigration Services (USCIS). Households. This form is used by the During the first 60 days of this period, (4) Affected public who will be asked a regular review of this information USCIS to determine if the bond posted or required to respond, as well as a brief collection is also being undertaken. on behalf of an alien in the United abstract: Primary: Individual or During the regular review period, the States should be canceled. Households. The information furnished USCIS requests written comments and (5) An estimate of the total number of on Form I–192 will be used by the suggestions from the public and affected respondents and the amount of time USCIS to determine if the applicant is agencies concerning this information estimated for an average respondent to eligible to enter the U.S. temporarily collection. Comments are encouraged respond: 2,000 responses at 15 minutes under the provisions of section and will be accepted until February 28, (.25 hours) per response. 212(d)(3) of the Immigration and 2005. During the 60-day regular review, (6) An estimate of the total public Nationality Act. all comments and suggestions, or burden (in hours) associated with the questions regarding the information (5) An estimate of the total number of collection: 500 annual burden hours. respondents and the amount of time collection instrument should be estimated for an average respondent to directed to Mr. Richard A. Sloan, Dated: December 22, 2004. respond: 12,000 responses at 15 (.25) Director, Regulatory Management Richard A. Sloan, minutes per response. Division, U.S. Citizenship and Director, Regulatory Management Division, Immigration Services, Department of U.S. Citizenship and Immigration Services. (6) An estimate of the total public Homeland Security, 111 Massachusetts [FR Doc. 04–28300 Filed 12–27–04; 8:45 am] burden (in hours) associated with the Avenue, NW., Washington, DC 20529; BILLING CODE 4410–10–M collection: 3,000 annual burden hours. 202–616–7600. Written comments and Dated: December 21, 2004. suggestions from the public and affected Richard A. Sloan, agencies concerning the proposed collection of information should address Director, Regulatory Management Division, one or more of the following four points: U.S. Citizenship and Immigration Services. (1) Evaluate whether the proposed [FR Doc. 04–28272 Filed 12–27–04; 8:45 am] collection of information is necessary BILLING CODE 4410–10–M for the proper performance of the
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DEPARTMENT OF HOMELAND Avenue, NW., Room 1000, Washington, this proposal. Comments should refer to SECURITY DC 20529, Telephone (202) 272–1001. the proposal by name and/or OMB SUPPLEMENTARY INFORMATION: Control number and should be sent to: U.S. Citizenship and Immigration Reports Liaison Officer, Office of Policy Services Notice for Correction Development and Research, Department As published in the Federal Register of Housing and Urban Development, [CIS No. 2273–03] on November 19, 2004 (69 FR 67751), 451 7th Street, SW., Room 8226, Direct Mail Program for Submitting the notice contains two errors that are Washington, DC 20410–5000. Form I–485, Application To Register in need of correction. FOR FURTHER INFORMATION CONTACT: Permanent Resident or Adjust Status; Correction of Publication Marina L. Myhre, (202) 708–3700, Form I–765, Application for extension 5705 (this is not a toll-free Employment Authorization; and Form Accordingly, the publication on number), for copies of the proposed I–131, Application for Travel November 19, 2004 (69 FR 67751), of forms and other available documents. the notice that was the subject of FR Document; Correction SUPPLEMENTARY INFORMATION: The Doc. 04–25679 is corrected as follows: Department will submit the proposed AGENCY: 1. On page 67752, in the first column, U.S. Citizenship and information collection to OMB for Immigration Services, Department of in the eighth bullet, the reference to ‘‘Aliens described as special immigrants review, as required by the Paperwork Homeland Security. Reduction Act of 1995 (44 U.S.C. ACTION: Notice of correction. under sections 101(a)(27)(J), (K), and (I) of the Act’’ is corrected to read: ‘‘Aliens Chapter 35, as amended). This notice is soliciting comments from members of SUMMARY: U.S. Citizenship and described as special immigrants under the public and affected agencies Immigration Services (USCIS) is sections 101(a)(27)(J) and (K), of the concerning the proposed collection of correcting a notice that was published Act’’ information to: (1) Evaluate whether the in the Federal Register on November 19, 2. On page 67752, in the middle proposed collection of information is 2004, at 69 FR 67751 which announced column, in the fifth bullet, the reference necessary for the proper performance of the expansion of the Direct Mail to ‘‘(c)(14)—Aliens granted deferred the functions of the agency, including Program to provide that certain filings of action;’’ is corrected to read: ‘‘(c)(14)— whether the information will have Forms I–485, I–765, and I–131, be filed Aliens granted deferred action, except practical utility; (2) evaluate the at a designated Chicago, Illinois lockbox those aliens who have been granted accuracy of the agency’s estimate of the facility for initial processing. In the deferred action based upon (1) an burden of the proposed collection of supplementary information to the approved Form I–360 (as a battered information; (3) enhance the quality, notice, USCIS inadvertently advised spouse or child of a U.S. citizen or utility, and clarity of the information to aliens applying for adjustment of status lawful permanent resident), (2) a be collected; and (4) minimize the as special immigrants under section pending bona fide application for T burden of the collection of information 101(a)(27)(I) of the Immigration and nonimmigrant status, or (3) U on those who are to respond, including Nationality Act (Act) (i.e. certain nonimmigrant status interim relief;’’ through the use of appropriate officers and employees of international Dated: December 22, 2004. automated collection techniques or organizations and their eligible family Richard A. Sloan, other forms of information technology members) to submit their Form I–485 to Director, Regulatory Management Division, (e.g., permitting electronic submission the lockbox facility. Accordingly, USCIS U.S. Citizenship and Immigration Services. of responses). is issuing this correction to remove this [FR Doc. 04–28299 Filed 12–27–04; 8:45 am] This notice also lists the following category of aliens from the listing. In BILLING CODE 4410–10–P information: addition, the notice directed all aliens Title of Proposal: Voucher applying for work authorization through Homeownership Survey. a grant of deferred action (8 CFR DEPARTMENT OF HOUSING AND Description of the need for the 274a.12(c)(14)) to submit their Forms I– URBAN DEVELOPMENT information and proposed use: This 765 to the Chicago lockbox facility. The request is for the clearance of a survey [Docket No. FR–4909–N–12] adjudications for Forms I–765 filed by instrument designed to provide a broad, aliens who have been granted deferred Notice of Proposed Information statistically accurate picture of the action based upon (1) an approved Form program and how it operates I–360 (as a battered spouse or child of Collection for Public Comment: The Voucher Homeownership Survey nationwide. This survey would be based a U.S. citizen or lawful permanent on a sample of 350 PHAs that have resident), (2) a pending bona fide AGENCY: Office of the Assistant implemented the Voucher application for T nonimmigrant status Secretary for Policy Development and Homeownership Program. The purpose (Form I–914), or (3) U nonimmigrant Research, HUD. of the survey is to: (1) Provide an status interim relief were centralized at ACTION: Notice. accurate, but general, picture of the the Vermont Service Center. program’s implementation nationwide Accordingly, the notice is being SUMMARY: The proposed information and (2) help the Department identify the corrected to exempt those three classes collection requirement described below operational characteristics that of aliens from filing their Forms I–765 will be submitted to the Office of contribute to the success of a voucher with the Chicago lockbox facility. Management and Budget (OMB) for homeownership program and use the DATES: This correction is effective review, as required by the Paperwork resulting detailed analysis of those December 28, 2004. Reduction Act. The Department is operational characteristics to further FOR FURTHER INFORMATION CONTACT: S. soliciting public comments on the improve the program. Rebecca Watson, Lockbox Project subject proposal. Estimation of the total number of Manager, U.S. Citizenship and DATES: February 28, 2005. hours needed to prepare the information Immigration Services, Department of ADDRESSES: Interested persons are collection including number of Homeland Security, 20 Massachusetts invited to submit comments regarding respondents, frequency of response, and
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hours of response: 350 PHAs will be and Universities Program grants information to: (1) Evaluate whether the surveyed. Average time to complete the application and grants management. proposed collection of information is survey is 60 minutes. Respondents will Grants assist Tribal Colleges and necessary for the proper performance of only be contacted once. Total burden Universities to build, expand, renovate, the functions of the agency, including hours are 350. and equip their own facilities. whether the information will have Status of the proposed information DATES: Comments Due Date: January 27, practical utility; (2) evaluate the collection: Pending OMB approval. 2005. accuracy of the agency’s estimate of the Authority: Section 3506 of the Paperwork ADDRESSES: Interested persons are burden of the proposed collection of Reduction Act of 1995, 44 U.S.C. Chapter 35, invited to submit comments regarding information; (3) enhance the quality, as amended. this proposal. Comments should refer to utility, and clarity of the information to Dated: December 20, 2004 the proposal by name and/or OMB be collected; and (4) minimize the Dennis C. Shea, approval Number (2528–0215) and burden of the collection of information on those who are to respond; including Assistant Secretary for Policy Development should be sent to: HUD Desk Officer, and Research. Office of Management and Budget, New through the use of appropriate automated collection techniques or [FR Doc. 04–28281 Filed 12–27–04; 8:45 am] Executive Office Building, Washington, DC 20503; fax: 202–395–6974. other forms of information technology, BILLING CODE 4210–62–M e.g., permitting electronic submission of FOR FURTHER INFORMATION CONTACT: responses. Wayne Eddins, Reports Management DEPARTMENT OF HOUSING AND Officer, AYO, Department of Housing This notice also lists the following URBAN DEVELOPMENT and Urban Development, 451 Seventh information: Title of Proposal: Tribal Colleges and [Docket No. FR–4903-N–104] Street, SW., Washington, DC 20410; e- mail [email protected]; or Universities Program. Notice of Submission of Proposed Lillian Deitzer at OMB Approval Number: 2528–0215. Information Collection to OMB; Tribal [email protected] or Form Numbers: SF–424, SF–424 Colleges and Universities Program telephone (202) 708–2374. This is not a Supplement, HUD–424CB, SFLLL, toll-free number. Copies of available HUD–27300, HUD–2880, HUD–2994, AGENCY: Office of the Chief Information documents submitted to OMB may be HUD–32004 and HUD–96010, HUD– Officer, HUD. obtained from Mr. Eddins or Ms Deitzer 96010–1. ACTION: Notice. and at HUD’s Web site at http:// Description of the Need for the www5.hud.gov:63001/po/i/icbts/ SUMMARY: The proposed information Information and Its Proposed Use: HUD collectionsearch.cfm. collection requirement described below is request approval to continue to has been submitted to the Office of SUPPLEMENTARY INFORMATION: This collect this information facilitate the Management and Budget (OMB) for notice informs the public that the Tribal Colleges and Universities review, as required by the Paperwork Department of Housing and Urban Program grants application and grants Reduction Act. The Department is Development has submitted to OMB a management. Grants assist Tribal soliciting public comments on the request for approval of the information Colleges and Universities to build, subject proposal. collection described below. This notice expand, renovate, and equip their own HUD is requesting approval to is soliciting comments from members of facilities. continue to collect this information the public and affecting agencies Frequency of Submission: On which to facilitates the Tribal Colleges concerning the proposed collection of occasion, Quarterly.
Number of re- Annual re- × Hours per re- spondents sponses sponse = Burden hours
Reporting burden: ...... 24 4.33 × 21.92 = 2,280.
Total Estimated Burden Hours: 2,280. DEPARTMENT OF THE INTERIOR ADDRESSES: Two Rivers Chamber Office, Status: Extension of a currently 1 South Third Street, 9th Floor, Easton, approved collection. Office of the Secretary PA 18042. The agenda for the meeting will focus Authority: Section 3507 of the Delaware & Lehigh National Heritage on implementation of the Management Paperwork Reduction Act of 1995, 44 Corridor Commission Meeting Action Plan for the Delaware and U.S.C. 35, as amended. Lehigh National Heritage Corridor and Dated: December 17, 2004. AGENCY: Department of Interior, Office State Heritage Park. The Commission of the Secretary. Wayne Eddins, was established to assist the Departmental Reports Management Officer, ACTION: Notice of meeting. Commonwealth of Pennsylvania and its Office of the Chief Information Officer. political subdivisions in planning and [FR Doc. E4–3828 Filed 12–27–04; 8:45 am] SUMMARY: This notice announces an implementing an integrated strategy for protecting and promoting cultural, BILLING CODE 4210–72–P upcoming meeting of the Delaware & Lehigh National Heritage Corridor historic and natural resources. The Commission. Notice of this meeting is Commission reports to the Secretary of the Interior and to Congress. required under the Federal Advisory Committee Act (Public Law 92–463). SUPPLEMENTARY INFORMATION: The Delaware & Lehigh National Heritage DATES: Friday, January 14, 2005, time Corridor Commission was established 1:30 p.m. to 4 p.m. by Public Law 100–692, November 18,
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1988, and extended through Public Law DEPARTMENT OF THE INTERIOR We listed Deinandra conjugens as a 105–355, November 13, 1998. federally threatened species on October Fish and Wildlife Service 13, 1998 (63 FR 54938); we designated FOR FURTHER INFORMATION CONTACT: C. critical habitat on December 10, 2002 Allen Sachse, Executive Director, Recovery Plan for Deinandra (67 FR 76030). Deinandra conjugens is Delaware & Lehigh National Heritage conjugens (Otay tarplant) Corridor Commission, 1 South Third annual plant typically found on clay Street, 8th Floor, Easton, PA 18042, AGENCY: Fish and Wildlife Service, soils in grasslands, open coastal sage (610) 923–3548. Interior. scrub, and maritime succulent scrub. It ACTION: Notice of document availability. is restricted to southwestern San Diego Dated: December 21, 2004. County, California, and northwestern C. Allen Sachse, SUMMARY: The U.S. Fish and Wildlife Baja California, Mexico; its status in Executive Director, Delaware & Lehigh Service (we) announces the availability Mexico is unclear. National Heritage Corridor Commission. of the Recovery Plan for Deinandra [= Urban development and agricultural Hemizonia] conjugens (Otay tarplant). [FR Doc. 04–28379 Filed 12–27–04; 8:45 am] activities, invasion of nonnative species, This plant species is found in BILLING CODE 6820–PE–M and habitat fragmentation and southwestern San Diego County, degradation have resulted in the loss of California, and northwestern Baja suitable habitat across the Deinandra DEPARTMENT OF THE INTERIOR California, Mexico. conjugens’ range. The species annual ADDRESSES: Printed copies of this habit and self-incompatible breeding Office of the Secretary recovery plan are available by request system potentially create additional from the U.S. Fish and Wildlife Service, threats from population fluctuations, Exxon Valdez Oil Spill Trustee Council; Carlsbad Fish and Wildlife Office, 6010 reduced populations of pollinators, and Notice of Meeting Hidden Valley Road, Carlsbad, California 92009 (telephone: 760–431– a decline in genetic variation. AGENCY: Office of the Secretary, 9440). An electronic copy of the Maintenance of the genetic variability Department of the Interior. recovery plan is available on the World within the species, through cross- pollination, may be critical to long-term ACTION: Notice of meeting. Wide Web at: http:// endangered.fws.gov/recovery/ survival. The extensive fragmentation of remaining populations may exacerbate SUMMARY: The Department of the index.html#plans. these threats by reducing connectivity Interior, Office of the Secretary is FOR FURTHER INFORMATION CONTACT: between populations and potentially announcing a public meeting of the Field Supervisor, at the above Carlsbad limiting suitable pollinators, and hence Exxon Valdez Oil Spill Public Advisory address. Committee. gene flow between populations. SUPPLEMENTARY INFORMATION: Deinandra conjugens is a species that DATES: January 27, 2005, at 9 a.m. Background receives benefit from multi-species preservation and management under the ADDRESSES: Hilton Anchorage, 500 West Recovery of endangered or threatened Multiple Species Conservation Program, 3rd Avenue, Anchorage, Alaska. animals and plants is a primary goal of a regional habitat conservation program FOR FURTHER INFORMATION CONTACT: the Endangered Species Act (ESA) (16 U.S.C. 1531 et seq.) and our endangered in southwestern San Diego County, Douglas Mutter, Department of the California. Interior, Office of Environmental Policy species program. Recovery means The objective of this plan is to and Compliance, 1689 ‘‘C’’ Street, Suite improvement of the status of listed 119, Anchorage, Alaska, 99501, (907) species to the point at which listing is provide a framework for the recovery of 271–5011. no longer required under the criteria set Deinandra conjugens so that protection out in section 4(a)(1) of the Act. by the ESA is no longer necessary. SUPPLEMENTARY INFORMATION: The Recovery plans describe actions Actions necessary to accomplish this Public Advisory Committee was created considered necessary for the objective include: (1) Stabilize and by Paragraph V.A.4 of the Memorandum conservation of the species, establish protect habitat supporting known of Agreement and Consent Decree criteria for downlisting or delisting populations; (2) assess the status of all entered into by the United States of listed species, and estimate time and known populations; (3) conduct surveys America and the State of Alaska on cost for implementing the measures to search for new populations and August 27, 1991, and approved by the needed for recovery. implement actions to protect United States District Court for the The ESA requires the development of populations outside of established District of Alaska in settlement of a recovery plan for endangered or reserves when necessary; (4) adaptively United States of America v. State of threatened species unless such a plan manage and monitor conserved areas; Alaska, Civil Action No. A91–081 CV. would not promote the conservation of (5) identify research needs and conduct The meeting agenda will feature an the species. Section 4(f) of the ESA studies on the biology and ecology of orientation for new Committee members requires that public notice, and an Deinandra conjugens; and (6) develop and discussions about the Trustee opportunity for public review and and implement a community outreach Council’s proposed invitation to bid on comment, be provided during recovery projects for fiscal year 2006. plan development. The Draft Recovery program. Plan for Deinandra conjugens was Dated: December 21, 2004. Authority available for public comment from Willie R. Taylor, December 18, 2003, to March 2, 2004 The authority for this action is section Director, Office of Environmental Policy and (68 FR 70526). Information presented 4(f) of the Endangered Species Act, 16 Compliance. during the public comment period has U.S.C. 1533(f). [FR Doc. 04–28279 Filed 12–27–04; 8:45 am] been considered in the preparation of BILLING CODE 4310–RG–P this final recovery plan.
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Dated: December 3, 2004. ACTION: Arizona Resource Advisory of the WM Rice #1 Well from a surface Steve Thompson, Council Meeting notice. location north of County Road 4825 Manager, California/Nevada Operations within Big Thicket National Preserve, Office, U.S. Fish and Wildlife Service. SUMMARY: This notice announces a Tyler County, Texas. The notice also meeting and tour of the Arizona [FR Doc. 04–28380 Filed 12–27–04; 8:45 am] announced the availability of an Resource Advisory Council (RAC). BILLING CODE 4310–55–P accompanying Environmental The business meeting will be held on Assessment and draft Floodplain and January 25, 2005, at the Bureau of Land Wetland Statements of Findings. These DEPARTMENT OF THE INTERIOR Management National Training Center documents are not, in fact, yet ready for located at 9828 North 31st Avenue, review. When they are available, Geological Survey Phoenix, Arizona. It will begin at 9 a.m. another notice will be published. and conclude at 4 p.m. The agenda FOR FURTHER INFORMATION CONTACT: Scientific Earthquake Studies Advisory items to be covered include: Review of Mr. Committee the October 27, 2004, Meeting Minutes; Dusty Pate, Range Technician, Big BLM State Director’s Update on Thicket National Preserve, 3785 Milam AGENCY: U.S. Geological Survey. Statewide Issues; RAC Orientation on Street, Beaumont, Texas 77701, ACTION: Notice of meeting. BLM Programs and Arizona BLM Telephone: 409 839–2689 ext. 232, e- mail at [email protected]. SUMMARY: Pursuant to Public Law 106– Priorities, Presentations on Dated: November 30, 2004. 503, the Scientific Earthquake Studies Transportation and Rights-of-Way, and Advisory Committee (SESAC) will hold Collecting and Interpreting Rangeland Stephen P. Martin, its ninth meeting. The meeting location Health Monitoring Data; Arizona Land Director, Intermountain Region, National is the U.S. Geological Survey, John Use Planning Updates; RAC Questions Park Service. Wesley Powell National Center, Rm. on Written Reports from BLM Field [FR Doc. 04–28295 Filed 12–27–04; 8:45 am] 3B457, 12201 Sunrise Valley Drive, Managers; Field Office Rangeland BILLING CODE 4312–CB–P Reston, Virginia 20192. The Committee Resource Team Proposals; Reports by is comprised of members from the Standards and Guidelines, academia, industry, and State Recreation, Off-Highway Vehicle Use, DEPARTMENT OF THE INTERIOR Public Relations, Land Use Planning government. The Committee shall National Park Service advise the Director of the U.S. and Tenure, and Wild Horse and Burro Working Groups; Reports from RAC Geological Survey (USGS) on matters Plan of Operations, Environmental relating to the USGS’s participation in members; and Discussion of future meetings. A public comment period will Assessment, Big Thicket National the National Earthquake Hazards Preserve, Texas Reduction Program. be provided at 11:30 a.m. on January 25, The Committee will review the 2005, for any interested publics who AGENCY: National Park Service, overall direction of the U.S. Geological wish to address the Council. Department of the Interior. Survey’s Earthquake Hazards Program FOR FURTHER INFORMATION CONTACT: ACTION: Notice of Availability of a Plan in the current and next fiscal years. Deborah Stevens, Bureau of Land of Operations and Environmental They will also discuss the Management, Arizona State Office, 222 Assessment for a 30-day public review reauthorization of the National North Central Avenue, Phoenix, Arizona at Big Thicket National Preserve. Earthquake Hazards Reduction Program. 85004–2203, (602) 417–9215. SUMMARY: Notice is hereby given in Meetings of the Scientific Earthquake Elaine Y. Zielinski, Studies Advisory Committee are open to accordance with section 9.52(b) of Title Arizona State Director. the public. 36 of the Code of Federal Regulations, [FR Doc. 04–28381 Filed 12–27–04; 8:45 am] DATES: January 11, 2005, commencing at Part 9, Subpart B, that the National Park 9 a.m. and adjourning at 5 p.m. on BILLING CODE 4130–32–M Service (NPS) has received from Famcor January 12, 2005. Oil Inc., a Plan of Operations to directionally drill the Roberts/Duke #1 FOR FURTHER INFORMATION CONTACT: Dr. DEPARTMENT OF THE INTERIOR flowline beneath the Menard Creek David Applegate, U.S. Geological Corridor Unit of Big Thicket National Survey, MS 905, 12201 Sunrise Valley National Park Service Preserve, within Liberty and Polk Drive, Reston, Virginia 20192, (703) Counties, Texas. The NPS has prepared 648–6714. Plan of Operations, Environmental Assessment, and Draft Floodplains an Environmental Assessment on this Dated: December 17, 2004. and Wetlands Statements of Findings, proposal. James F. Devine, Big Thicket National Preserve, TX; DATES: The above documents are Senior Advisor for Science Applications. Correction available for public review and [FR Doc. 04–28244 Filed 12–27–04; 8:45 am] AGENCY comment through January 27, 2005. BILLING CODE 4310–Y7–M : National Park Service, Department of the Interior. ADDRESSES: The Plan of Operations and ACTION: Notice of availability; Environmental Assessment are available DEPARTMENT OF THE INTERIOR correction. for public review and comment in the Office of the Superintendent, Art Bureau of Land Management SUMMARY: The National Park Service Hutchinson, Big Thicket National (NPS) published a Notice of Availability Preserve, 3785 Milam Street, Beaumont, [AR–910–0777–XP–241A] on November 24, 2004 in accordance Texas 77701. Copies of the Plan of State of Arizona Resource Advisory with Section 9.52(b) of Title 36 of the Operations are available, for a Council Meeting Code of Federal Regulations, Part 9, duplication fee; and copies of the Subpart B, of a Plan of Operations Environmental Assessment are available AGENCY: Bureau of Land Management, submitted by Sanchez Oil and Gas upon request, and at no cost, from the Interior. Corporation for drilling and production Superintendent, Art Hutchinson, Big
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Thicket National Preserve, 3785 Milam DATES: The draft GMP/EIS will remain organizations or businesses, and from Street, Beaumont, Texas 77701. available for public review for 60 days individuals identifying themselves as FOR FURTHER INFORMATION CONTACT: Mr. following the publishing of the notice of representatives or officials of Dusty Pate, Range Technician, Big availability in the Federal Register by organizations or businesses, available Thicket National Preserve, 3785 Milam the Environmental Protection Agency. for public inspection in their entirety. Street, Beaumont, Texas 77701, Public meetings will be announced in Dated: November 4, 2004. Telephone: 409 839–2689 ext. 232, e- the local media. Ernest Quintana, mail at [email protected]. ADDRESSES: Copies of the GMP/EIS are Regional Director, Midwest Region. SUPPLEMENTARY INFORMATION: If you available by request by writing to the [FR Doc. 04–28288 Filed 12–27–04; 8:45 am] First Ladies National Historic Site, c/o wish to submit comments on these BILLING CODE 4312–86–P documents within the 30 days; mail Site Manager, 8095 Mentor Avenue, them to the street address provided Mentor, Ohio 44060, by telephoning 440–974–2993 or by e-mail to DEPARTMENT OF THE INTERIOR above, hand-deliver them to the park at _ _ the street address provided above, or carol j [email protected]. The document electronically file them to the e-mail is also available to be picked up in National Park Service address provided above. Our practice is person at the First Ladies National Historic Site, 331 Market Avenue South, AGENCY: National Park Service. to make comments, including names ACTION: Notice of availability of the draft and home addresses of respondents, Canton, Ohio 44702. The document can be found on the Internet in the NPS wilderness and backcountry available for public review during management plan/draft environmental regular business hours. Individual Planning Web site at: http:// planning.nps.gov/plans.cfm. impact statement, Isle Royale National respondents may request that we Park, Michigan. withhold their home address from the FOR FURTHER INFORMATION CONTACT: Ms. record, which we will honor to the Carol J. Spears, Site Manager, 8095 SUMMARY: Pursuant to the National extent allowable by law. There also may Mentor Avenue, Mentor, Ohio 44060, Environmental Policy Act of 1969, 42 be circumstances in which we would telephone 440–974–2993, or Sharon U.S.C. 4332(2)(C), the National Park withhold from the record a respondent’s Miles, Job Captain, Midwest Regional Service (NPS) announces the identity, as allowable by law. If you Office, 601 Riverfront Drive, Omaha, NE availability of a draft wilderness and wish us to withhold your name and/or 68102–4226, telephone 402–661–1850. backcountry management plan/ address, you must state this SUPPLEMENTARY INFORMATION: The FILA environmental impact statement prominently at the beginning of your is owned by the NPS and operated by (WBMP EIS) for Isle Royale National comment. We will make all submissions the National First Ladies’ Library. The Park (ISRO), Michigan. from organizations or businesses, and park encompasses the Ida Saxton DATES: There will be a 60-day public from individuals identifying themselves McKinley House. The Education and review period for comments on this as representatives or officials or Resource Center (formerly the City document. Comments on the draft organizations or businesses, available National Bank Building) is owned and WBMP EIS must be received no later for public inspection in their entirety. operated by the National First Ladies’ than 60 days after the Environmental Library, and is part of the visitor Dated: October 25, 2004. Protection Agency publishes its notice experience at the park. The park was of availability in the Federal Register. John T. Crowley, established to preserve and interpret the Acting Regional Director, Intermountain ADDRESSES: Copies of the draft WBMP role and history of FILA. EIS or a summary document are Region, National Park Service. The purpose of the general available by request by writing to [FR Doc. 04–28296 Filed 12–27–04; 8:45 am] management plan is to set forth the Phyllis Green, Superintendent, Attn: BILLING CODE 4312–CB–M basic management philosophy for the WBMP, Isle Royale National Park, 800 park and to provide strategies for East Lakeshore Drive, Houghton, addressing issues and achieving Michigan 49931, or by e-mail message at DEPARTMENT OF THE INTERIOR identified management objectives. The [email protected]. The document can GMP/EIS describes and analyzes the National Park Service be picked up at the park’s headquarters environmental impacts of the proposed at the same address, or viewed over the action and two other action alternatives Draft General Management Plan and Internet at the park’s Web site at http:/ for the future management direction of Environmental Impact Statement for /www.nps.gov/isro/home.htm. Copies of the park. A no-action alternative is also the First Ladies National Historic Site, the draft or summary document will be Ohio evaluated. Our practice is to make comments, sent to over 500 interested parties, as well as to public libraries throughout AGENCY: National Park Service. including names and home addresses of Michigan, Minnesota, and Wisconsin. ACTION: Notice of availability of the draft respondents, available for public review. Individual respondents may FOR FURTHER INFORMATION CONTACT: Jean general management plan and draft Battle, Chief of Resource Management, environmental impact statement for the request that we withhold their home address from the record, which we will Isle Royale National Park, 800 East First Ladies’ National Historic Site, Lakeshore Drive, Houghton, Michigan Ohio. honor to the extent allowable by law. There may also be circumstances where 49931, 906–487–9080 extension 34 or _ SUMMARY: Pursuant to section 102(2)(C) we would withhold from the record a jean [email protected]. of the National Environmental Policy respondent’s identity, as allowable by SUPPLEMENTARY INFORMATION: The NPS Act of 1969, the National Park Service law. If you wish us to withhold your management policies require the (NPS) announces the availability of the name and/or address, you must state superintendent of each park containing draft general management plan and this prominently at the beginning of wilderness resources will develop and environmental impact statement (GMP/ your comment. However, we will not maintain a wilderness management plan EIS) for the First Ladies’ National consider anonymous comments. We to guide the preservation, management, Historic Site (FILA). will make all submissions from and use of these resources. The IRSO’s
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wilderness was designated in 1976, and Dated: November 5, 2004. environmental consequences was the park does not have an approved Ernest Quintana, assessed, and appropriate mitigation wilderness management plan. The Regional Director, Midwest Region. measures identified, for each purpose of this draft WBMP EIS is to [FR Doc. 04–28287 Filed 12–27–04; 8:45 am] alternative. Beginning with early satisfy that requirement and bring ISRO BILLING CODE 4312–92–P scoping, through the preparation of the into compliance with NPS policies. This Draft and Final EIS, several public draft WBMP EIS does not propose any meetings and numerous interagency changes in wilderness boundaries DEPARTMENT OF THE INTERIOR reviews were conducted, and newsletter within ISRO, but it does propose updates were regularly provided (only formalizing and implementing some National Park Service seven written comments responding to changes in how that wilderness is the Draft EIS were received, with minor managed. The draft plan proposes Final Environmental Impact Statement/ points raised). Key consultations which several alternatives for management Fire Management Plan Point Reyes aided in preparing the Draft and Final actions that would achieve the goals of National Seashore Marin County, CA; EIS involved (but were not limited to) wilderness management in the park Notice of Approval of Record of the U.S. Fish and Wildlife Service, consistent with The Wilderness Act and Decision National Marine Fisheries Service, NPS policies. The primary issues being SUMMARY: Pursuant to § 102(2)(C) of the California Department of Fish and addressed in the plan that may result in National Environmental Policy Act of Game, State Historic Preservation management changes include: managing 1969 (Public Law 91–190, as amended) Office, native American Tribes, regional permitting for overnight camping and and the implementing regulations air quality management districts, and boating in the park, managing organized promulgated by the Council on adjoining land managing agencies. Local day tours in the park, managing Environmental Quality (40 CFR 1505.2), communities, county and city officials, campfires, the maintenance or removal the Department of the Interior, National and interested organizations were of fire towers, the maintenance or Park Service has prepared, and the contacted extensively during initial removal of picnic tables in wilderness Regional Director, Pacific West Region scoping and throughout the fire campgrounds, the use of treated lumber has approved, the Record of Decision for planning process. for trail maintenance, and the the updated Fire Management Plan for Copies: Interested parties desiring to application of the minimum tool review the Record of Decision may decision tree to determining the Point Reyes National Seashore. The formal no-action period was officially obtain a complete copy by contacting appropriate tools for maintenance, the Superintendent, Point Reyes research, and other management initiated September 10, 2004, with the U.S. Environmental Protection Agency’s National Seashore, Point Reyes, CA practices within the park’s wilderness. 94956; or via telephone request at (415) Persons wishing to comment may do Federal Register notification of the 464–5100. so by any one of several methods. They filing of the Final Environmental Impact may mail comments to the Statement (EIS). Dated: October 29, 2004. Superintendent, Attn: WBMP, Isle Decision: As soon as practicable the Jonathan B. Jarvis, Royale National Park, 800 East park will begin to implement as its Regional Director, Pacific West Region. updated Fire Management Plan the Lakeshore Drive, Houghton, Michigan [FR Doc. 04–28293 Filed 12–27–04; 8:45 am] ‘‘Increase Natural Resource 49931, or call the Chief of Resource BILLING CODE 4312–FW–P Management at 906–487–9080 extension Enhancement and Expand Hazardous 34. They may comment via e-mail to Fuel Reduction’’ alternative contained [email protected] (include name and in the Draft and Final EIS (also DEPARTMENT OF THE INTERIOR return address in the e-mail message). described and analyzed as the Finally, they may hand-deliver Alternative C). The selected plan National Park Service comments to park headquarters at 800 features a long-term, coordinated East Lakeshore Drive, Houghton, strategy to restore native plant cover, General Management Plan, Final Michigan. reduce infestations of invasive non- Environmental Impact Statement, Rio The NPS practice is to make native plants, increase abundance of Grande Wild and Scenic River, Texas comments, including names and home federally listed species, and protect or AGENCY: National Park Service, addresses of respondents, available for enhance cultural resources and historic Department of the Interior. public review during regular business scenes. Use of prescribed fire or hours. Individual respondents may mechanical treatments on up to 3,500 ACTION: Notice of Availability of the request we withhold their home address acres could be undertaken, so as to Final Environmental Impact Statement from the record, which we will honor to protect high priority areas having for the General Management Plan, Rio the extent allowable by law. There also hazardous fuels (any actions deemed Grande Wild and Scenic River. may be circumstances in which we essential to occur within Wilderness would withhold from the record a would be executed only after first SUMMARY: The National Park Service respondent’s identity, as allowable by determining the ‘‘minimum tool’’ announces the availability of the Final law. If you wish us to withhold your appropriate to accomplish the necessary Environmental Impact Statement for the name and/or address, you must state work). As documented through the EIS General Management Plan for Rio this prominently at the beginning of process, this plan was also deemed to be Grande Wild and Scenic River, Texas. your comment. However, we will not the ‘‘environmentally preferred’’ This is being done pursuant to the consider anonymous comments. alternative. National Environmental Policy Act of We will make all submissions from This course of action and two 1969, 42 U.S.C. 4332(C). organizations or businesses, and from alternatives were identified and DATES: The National Park Service will individuals identify themselves as analyzed in the Final EIS, and execute a Record of Decision (ROD) no representatives or officials of previously in the Draft EIS (the latter sooner than 30 days following organizations or businesses, available was distributed in spring, 2004). The publication by the Environmental for public inspection in their entirety. full spectrum of foreseeable Protection Agency of the notice of
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availability of the Final Environmental elements of the system, while action, the NPS will provide additional Impact Statement. maintaining continuous service to and more convenient access to ADDRESSES: Copies of the General existing users, to provide available significant national lakeshore features, Management Plan and Environmental capacity for future users, and implement thus expanding opportunities for visitor Impact Statement are available from the a cost-effective project that minimizes use in the national lakeshore. Natural Superintendent, John King, Rio Grande capital and operating costs. ecological processes will be allowed to Wild and Scenic River, P.O. Box 129, DATES: The Environmental Assessment, occur, and restoration programs will be Big Bend National Park, TX 79834– upon which the decision and FONSI initiated where necessary. Federal lands 0129, (432) 477–1101. Public reading were made, was available for public in the Beaver Basin area in the national copies of the document will be available comment for 30 days in June—July lakeshore (about 16 percent of the at the following locations: 2003. Three responses were received in lakeshore) will be proposed for Office of the Superintendent, Rio favor of the preferred alternative. designation as wilderness. Vehicular access to Little Beaver Lake campground Grande Wild and Scenic River, c/o ADDRESSES: The Decision Notice and Big Bend National Park, 1 FONSI will be available for public will remain, however structures within Headquarters Dr., Big Bend National inspection Monday through Friday, 8 the proposed wilderness will be Park, TX 79834. a.m. through 4 p.m. at the GWMP removed. Other roads in Beaver Basin NPS Intermountain Support Office, Headquarters, Turkey Run Park, will be closed and converted to trails or Planning and Environmental Quality, McLean, Virginia. The FONSI can also allowed to revert to natural vegetation. 12795 W. Alameda Parkway, be viewed on the GWMP Web site at To accommodate possible increased use Lakewood, CO 80228, Telephone: http://www.nps.gov/gwmp. and to increase ease of access in the (303) 987–6671. portion of the national lakeshore not SUPPLEMENTARY INFORMATION: The FOR FURTHER INFORMATION CONTACT: Lou proposed for wilderness, certain roads Decision Notice and FONSI completes will be upgraded (upgrading portions of Good, Management Assistant, Rio the Environmental Assessment process. Grande Wild and Scenic River, P.O. Box County Road H–58 will be 129, Big Bend National Park, TX 79834– FOR FURTHER INFORMATION CONTACT: Ms. recommended), and a drive-in 0129, 432–477–1103. Sarah Koenen (703) 289–2540. campground in the Miners area and a boat-in campsite on Grand Sable Lake Dated: November 3, 2004. Dated: October 18, 2004. will be added. Operational facilities will Steven P. Martin, Audrey F. Calhoun, Superintendent, George Washington be consolidated at the ends of the Director, Intermountain Region, National national lakeshore for efficiency. The Park Service. Memorial Parkway. selected action and four other [FR Doc. 04–28294 Filed 12–27–04; 8:45 am] [FR Doc. 04–28292 Filed 12–27–04; 8:45 am] BILLING CODE 4312–52–P alternatives were analyzed in the draft BILLING CODE 4310–KF–P and final EIS. The full range of foreseeable environmental DEPARTMENT OF THE INTERIOR DEPARTMENT OF THE INTERIOR consequences was assessed. Among the alternatives the NPS National Park Service National Park Service considered, the selected action best protects PIRO’s natural and cultural Decision Notice and Finding of No Environmental Statements; Record of resources, and its core wilderness Significant Impact (FONSI) for the Decision: Pictured Rocks National resource, while also providing a range of Proposal To Improve the Arlington Lakeshore, MI quality recreational and educational County, VA Potomac Interceptor Sewer experiences. It also meets NPS goals for AGENCY: National Park Service, managing the lakeshore, and meets System Department of the Interior. national environmental policy goals. AGENCY: National Park Service, Interior. ACTION: Notice of Availability of a The preferred alternative will not result ACTION: Availability of the Decision Record of Decision on the Final in the impairment of resources and Notice and FONSI for the proposal to Environmental Impact Statement for the values. improve the Arlington County, Virginia General Management Plan/Wilderness The ROD includes a statement of the Potomac Interceptor Sewer System. Study, Pictured Rocks National decision made, synopses of other Lakeshore. alternatives considered, the basis for the SUMMARY: Pursuant to Council on decision, the rationale for why the Environmental Quality regulations and SUMMARY: Pursuant to section 102(2)(C) National Park Service (NPS) policy, the of the National Environmental Policy selected action is the environmentally NPS announces the availability of the Act of 1969, Public Law 91–190, 83 Stat. preferred alternative, a finding of no Decision Notice and FONSI for the 852, 853, as codified as amended at 42 impairment of park resources and Improvements to the Arlington County, U.S.C. 4332(2)(C), the National Park values, and an overview of public Virginia Potomac Interceptor Sewer Service (NPS) announces the involvement in the decision-making System. The Decision Notice and FONSI availability of the Record of Decision process. identify Alternative A as selected by the (ROD) for the General Management FOR FURTHER INFORMATION CONTACT: NPS for action. It is the preferred and Plan/Wilderness Study (GMP/WS), Karen Gustin, Superintendent, Pictured environmentally preferred alternative in Pictured Rocks National Lakeshore Rocks National Lakeshore, P.O. Box 40, the Environmental Assessment. Under (PIRO), Michigan. The Midwest N8391 Sand Point Rd., Munising, MI this alternative, improvements will be Regional Director has approved the ROD 49862–0040, or by calling 906–387– made to the existing sewer system for the GMP/WS. Specifically, the NPS 2607. The official responsible for this which will minimize impacts to the has selected the preferred alternative as decision is Ernest Quintana, the environment and the community by described in the Final General Regional Director, Midwest Region. providing additional sewer capacity to Management/Wilderness Study/ SUPPLEMENTARY INFORMATION: Copies of eliminate sewer overflows, back-ups Environmental Impact Statement the ROD may be obtained from the and surcharging, to address the aging (FGMP/WS/EIS). Under the selected contact listed above or may be viewed
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online at http://www.nps.gov/piro.htm. should be made to the Superintendent Spevacek, Mrs. Mary E. Woodward, With the concurrence of the NPS at least seven days prior to the meeting. Mrs. Donna Printz, Mrs. Ferial S. Director, the wilderness proposal will Further information concerning this Bishop, Ms. Nancy C. Long, Mrs. Jo be sent to the Assistant Secretary for meeting may be obtained from the Reynolds, Dr. James H. Gilford, Brother Fish, Wildlife and Parks and the Superintendent, Acadia National Park, James Kirkpatrick. Secretary of the Interior, who may revise P.O. Box 177, Bar Harbor, Maine 04609, Dated: November 23, 2004. tel: (207) 288–3338. or approve the proposal. The Secretary Kevin D. Brandt, may then forward a wilderness Dated: December 1, 2004. Superintendent, Chesapeake and Ohio Canal recommendation to the President, who Sheridan Steele, National Historical Park. in turn may approve or revise the Superintendent. [FR Doc. 04–28291 Filed 12–27–04; 8:45 am] recommendation and then transmit the recommendation to Congress for [FR Doc. 04–28290 Filed 12–27–04; 8:45 am] BILLING CODE 4310–52–M consideration. BILLING CODE 4312–52–M Approved: November 23, 2004. DEPARTMENT OF THE INTERIOR Ernest Quintana, DEPARTMENT OF THE INTERIOR Regional Director. National Advisory Commission National Park Service [FR Doc. 04–28297 Filed 12–27–04; 8:45 am] Flight 93 National Memorial Advisory BILLING CODE 4310–52–P Chesapeake and Ohio Canal National Commission Historical Park Advisory Commission; AGENCY: Notice of Public Meeting National Park Service. DEPARTMENT OF THE INTERIOR ACTION: Notice of January 15, 2005, AGENCY: Department of the Interior, meeting. National Park Service National Park Service, Chesapeake and SUMMARY: This notice sets forth the date Acadia National Park, Bar Harbor, ME; Ohio Canal National Historical Park Advisory Commission. of the January 15, 2005, meeting of the Acadia National Park Advisory Flight 93 Advisory Commission. Commission; Notice of Meeting ACTION: Notice of meeting. DATES: The public meeting of the Notice is hereby given in accordance SUMMARY: Notice is hereby given that a Advisory Commission will be held on with the Federal Advisory Committee meeting of the Chesapeake and Ohio Saturday, January 15, 2005, from 1 p.m. Act (Public Law 92–463, 86 Stat. 770, 5 Canal National Historical Park Advisory to 4 p.m. Additionally, the Commission U.S.C. App. 1, Sec. 10), that the Acadia Commission (the Commission) will be will attend the Flight 93 Memorial Task National Park Advisory Commission held on Friday, January 21, 2005, at Force meeting the same day from 8 a.m. will hold a meeting on Monday, park headquarters, 1850 Dual Highway, to 11 a.m., which is also open to the February 7, 2005. Hagerstown, Maryland. The meeting public. The Commission was established will begin at 10 a.m. Location: The Commission meeting pursuant to Public Law 99–420, Sec. Items on the agenda include planning will be held at the Somerset County 103. The purpose of the commission is initiatives, construction and Courthouse, Courtroom #1; 2nd floor; to consult with the Secretary of the development projects, and park 111 East Union Street, Somerset, Interior, or his designee, on matters operational issues. Pennsylvania, 15501. The Flight 93 relating to the management and The meeting will be open to the Memorial Task Force meeting will be development of the park, including but public. Any person may file with the held in the same location. not limited to the acquisition of lands Commission a written statement Agenda and interests in lands (including concerning the matters to be discussed. conservation easements on islands) and Persons who wish to file a written The January 15, 2005 Commission termination of rights of use and statement or testify at the meeting or meeting will consist of: occupancy. who want further information (1) Opening of meeting and pledge of The meeting will convene at park concerning the meeting may contact allegiance. Headquarters, McFarland Hill, Bar Superintendent Kevin Brandt at (301) (2) Review and approval of minutes Harbor, Maine, at 1 p.m. to consider the 714–2201. from May 14, 2004. following agenda: DATES: January 21, 2005, at 10 a.m. (3) Reports from the Flight 93 1. Review and approval of minutes ADDRESSES: 1850 Dual Highway, Memorial Task Force and the National from the meeting held September 13, Hagerstown, Maryland 21740. Park Service. Comments from the public will be received after each report. 2004. FOR FURTHER INFORMATION CONTACT: 2. Committee reports: Superintendent Kevin Brandt, (301) (4) Old business. —Land Conservation. 714–2201. (5) New business. (6) Closing remarks. —Park Use. SUPPLEMENTARY INFORMATION: The FOR FURTHER INFORMATION CONTACT: —Science. Commission was established by Public —Historic. Law 91–664 to meet and consult with Joanne M. Hanley, Superintendent, 3. Old business. the Secretary of the Interior on general Flight 93 National Memorial, 109 West 4. Superintendent’s report. policies and specific matters related to Main Street, Somerset, PA 15501, 5. Public comments. the administration and development of 814.443.4557. 6. Proposed agenda for next the Chesapeake and Ohio Canal SUPPLEMENTARY INFORMATION: The Commission meeting, June 6, 2005. National Historical Park. meeting will be open to the public. Any The meeting is open to the public. Members of the Commission are: Mrs. member of the public may file with the Interested persons may make oral/ Sheila Rabb Weidenfeld, Chairman, Mr. Commission a written statement written presentations to the Commission Charles J. Weir, Mr. Barry A. Passett, concerning agenda items. The statement or file written statements. Such requests Mr. Terry W. Hepburn, Ms. JoAnn M. should be addressed to the Flight 93
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Advisory Commission, 109 West Main public hearing to be held in connection 1. This investigation be remanded to Street, Somerset, PA 15501. therewith was given by posting copies Administrative Law Judge Paul J. Dated: November 30, 2004. of the notice in the Office of the Luckern in order that he may conduct Joanne M. Hanley, Secretary, U.S. International Trade such further proceedings as may be Commission, Washington, DC, and by necessary to carry out the mandates of Superintendent, Flight 93 National Memorial. publishing the notice in the Federal the Court and conclude the proceedings. [FR Doc. 04–28289 Filed 12–27–04; 8:45 am] Register of July 23, 2004 (69 FR 44059). 2. The presiding administrative law BILLING CODE 4310–WH–M The hearing was held in Washington, judge shall issue an initial DC, on November 10, 2004, and all determination in which he shall persons who requested the opportunity determine: INTERNATIONAL TRADE were permitted to appear in person or a. Whether claim 15 of U.S. Patent No. COMMISSION by counsel. 4,884,087 is invalid; [Investigations Nos. 701–TA–437 and 731– The Commission transmitted its b. Whether any of the respondents’ TA–1060 and 1061 (Final)] determinations in these investigations to accused disposable cameras imported the Secretary of Commerce on December into or sold in the United States infringe Carbazole Violet Pigment 23 From 22, 2004. The views of the Commission claim 1 of U.S. Patent No. 4,972,649 China and India are contained in USITC Publication under the Federal Circuit’s claim 3744 (December 2004), entitled construction; and Determination Carbazole Violet Pigment 23 from China c. Whether there are, in light of the On the basis of the record 1 developed and India: Investigations Nos. 701–TA– determinations made in accordance in the subject investigations, the United 437 and 731–TA–1060 and 1061 (Final). with paragraph b. above, any further States International Trade Commission violations of section 337 of the Tariff By order of the Commission. (Commission) determines, pursuant to Act of 1930. sections 705(b) and 735(b) of the Tariff Issued: December 21, 2004. 3. The presiding administrative law Act of 1930 (19 U.S.C. 1671d(b) and Marilyn R. Abbott, judge may, in his discretion, reopen the 1673d(b)) (the Act), that an industry in Secretary to the Commission. evidentiary record to the extent the United States is materially injured [FR Doc. 04–28340 Filed 12–27–04; 8:45 am] necessary to resolve any new factual by reason of imports from China and BILLING CODE 7020–02–P questions presented by the Court’s India of carbazole violet pigment 23, opinion. His ID will be processed by the provided for in subheading 3204.17.90 Commission in accordance with of the Harmonized Tariff Schedule of INTERNATIONAL TRADE Commission Rules 210.42(h)(2) and the United States, that have been found COMMISSION 210.43–210.45, 19 CFR 210.42(h)(2) and by the Department of Commerce 210.43–210.45. (Commerce) to be subsidized by the [Investigation No. 337–TA–406 4. In the event that the presiding Government of India and to be sold in (Consolidated Advisory Opinion and administrative law judge determines the United States at less than fair value Enforcement Proceedings)] that there have been additional (LTFV).2 violations of section 337 of the Tariff In the Matter of Certain Lens-Fitted Act of 1930, he shall issue a Background Film Packages; Order recommended determination on The Commission instituted these On October 7, 2004, the United States whether any further enforcement investigations effective November 21, Court of Appeals for the Federal Circuit measures are necessary. 2003, following receipt of a petition issued two decisions in appeals By order of the Commission. filed with the Commission and stemming from the above-captioned Issued: December 21, 2004. Commerce by Nation Ford Chemical proceedings, VastFame Camera, Ltd., et Marilyn R. Abbott, Co., Fort Mill, SC, and Sun Chemical al. v. U.S. Int’l Trade Com’n, 386 F.3d Corp., Cincinnati, OH. The final phase Secretary to the Commission. 1108 (Fed. Cir. 2004) (‘‘VastFame’’) and [FR Doc. 04–28339 Filed 12–27–04; 8:45 am] of these investigations was scheduled by Fuji Photo Film Co., Ltd., et al. v. U.S. BILLING CODE 7020–02–P the Commission following notification Int’l Trade Com’n, 386 F.3d 1095 (Fed. of preliminary determinations by Cir. 2004) (‘‘Fuji’’). The mandates issued Commerce that imports of carbazole in these cases on November 29, 2004. In violet pigment 23 from India were being INTERNATIONAL TRADE VastFame, the Court reversed the COMMISSION subsidized within the meaning of Commission’s decision to refuse to section 703(b) of the Act (19 U.S.C. allow an importer who had not been a [Inv. No. 337–TA–500] 1671b(b)) and that imports of carbazole respondent in the original investigation In the Matter of Certain Purple violet pigment 23 from China and India to raise the defense of patent invalidity Protective Gloves; Notice of Issuance were being sold at LTFV within the in the Commission’s enforcement of General Exclusion Order and meaning of section 733(b) of the Act (19 proceedings, vacated the enforcement Termination of the Investigation U.S.C. 1673b(b)). Notice of the decision, and remanded the case for scheduling of the final phase of the proceedings consistent with its Opinion. AGENCY: Commission’s investigations and of a U.S. International Trade In Fuji, the Court affirmed the majority Commission. of the Commission’s determinations at 1 The record is defined in sec. 207.2(f) of the ACTION: Notice. Commission’s Rules of Practice and Procedure (19 issue, but vacated and remanded the CFR 207.2(f)). Commission’s infringement decision as SUMMARY: Notice is hereby given that 2 The Commission further determines that critical to one asserted claim for the U.S. International Trade circumstances do not exist with respect to those redetermination of the infringement Commission has determined to issue a imports of the subject merchandise from China that issue using a claim construction were subject to the affirmative critical general exclusion order in the above- circumstances determination by the Department of supplied by the Court. captioned investigation and has Commerce. It is hereby ordered that: terminated the investigation.
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FOR FURTHER INFORMATION CONTACT: withdrew its request for termination by INTERNATIONAL TRADE Michael Diehl, Esq., Office of the entry of consent and indicated that it COMMISSION General Counsel, U.S. International ‘‘will not oppose entry of a Default in [Inv. No. 337–TA–517] Trade Commission, 500 E Street, SW., this matter.’’ On May 24, 2004, the ALJ Washington, DC 20436, telephone 202– issued an ID (Order No. 14) finding In the Matter of Certain Shirts With 205–3095. Copies of nonconfidential Dash in default pursuant to Commission Pucker-Free Seams and Methods of documents filed in connection with this rule 210.16(a)(1). The Commission Producing Same—Notice of Decision investigation are or will be available for determined not to review the ID on June Not To Review an Initial Determination inspection during official business 22, 2004. Partially Terminating the Investigation hours (8:45 a.m. to 5:15 p.m.) in the On September 23, 2004, the ALJ on the Basis of Withdrawal of Certain Office of the Secretary, U.S. issued an ID (Order No. 17) finding Allegations in the Complaint International Trade Commission, 500 E ‘‘substantial, reliable, and probative Street, SW., Washington, DC 20436, evidence’’ of a violation of section 337 AGENCY: International Trade telephone 202–205–2000. General by reason of Dash’s importation and sale Commission. information concerning the Commission of the accused gloves and the existence ACTION: Notice. may be obtained by accessing its of a domestic industry. No party Internet server (http://www.usitc.gov). petitioned for review of the ID. The ALJ SUMMARY: Notice is hereby given that The public record for this investigation recommended the issuance of a general the U.S. International Trade may be viewed on the Commission’s exclusion order, and that the bond Commission has determined not to electronic docket (EDIS) at http:// permitting temporary importation review an initial determination (ID) edis.usitc.gov. Hearing-impaired during the Presidential review period be issued by the presiding administrative persons are advised that information on set at 100 percent of the value of the law judge (ALJ) in the above-captioned the matter can be obtained by contacting infringing imported product. On investigation partially terminating the the Commission’s TDD terminal on 202– October 19, 2004, the Commission investigation on the basis of withdrawal 205–1810. determined not to review this ID, and of certain allegations in the complaint. SUPPLEMENTARY INFORMATION: This issued a notice seeking comments on FOR FURTHER INFORMATION CONTACT: trademark-based section 337 remedy, the public interest, and Andrea Casson, Esq., Office of the investigation was instituted by the bonding. K-C/Safeskin and the General Counsel, U.S. International Commission based on a complaint filed Commission investigative attorney Trade Commission, 500 E Street, SW., by Kimberly-Clark Corporation of Irving, (‘‘IA’’) supported the recommendations Washington, DC 20436, telephone 202– Texas and Safeskin Corporation of of the ALJ in briefs filed on November 205–3104. Copies of all nonconfidential Roswell, Georgia (collectively ‘‘K-C/ 12, 2004. The IA filed a reply on documents filed in connection with this Safeskin’’). 68 FR 66491 (Nov. 26, 2003). November 19, 2004. investigation are or will be available for K-C/Safeskin alleged violations of Having examined the relevant inspection during official business section 337 of the Tariff Act of 1930 in portions of the record in this hours (8:45 a.m. to 5:15 p.m.) in the the importation and sale of certain investigation, including the ALJ’s Office of the Secretary, U.S. purple protective gloves by reason of recommended determination, and the International Trade Commission, 500 E infringement of U.S. Registered written submissions on remedy, the Street SW., Washington, DC 20436, Trademark Nos. 2,596,539, 2,533,260, public interest, and bonding, the telephone 202–205–2000. General and 2,593,382. Commission determined to issue a information concerning the Commission Six of the seven respondents named general exclusion order prohibiting may also be obtained by accessing its in the complaint entered into settlement unlicensed entry for consumption of Internet server (http://www.usitc.gov). agreements with K-C/Safeskin. On May purple protective gloves that infringe The public record for this investigation 24, 2004, the administrative law judge U.S. Registered Trademarks Nos. may be viewed on the Commission’s (‘‘ALJ’’) issued an initial determination 2,596,539, 2,533,260, or 2,593,382. The electronic docket (EDIS) at http:// (‘‘ID’’) (Order No. 15) terminating the Commission also determined that the edis.usitc.gov. Hearing-impaired investigation as to Latexx Partners public interest factors enumerated in persons are advised that information on Berhad and Medtexx Partners on the section 337(d) do not preclude the the matter can be obtained by contacting basis of a confidential settlement issuance of the aforementioned remedial the Commission’s TDD terminal on 202– agreement. On June 1, 2004, the ALJ order and that the bond during the 205–1810. issued another ID (Order No. 16), Presidential review period shall be 100 SUPPLEMENTARY INFORMATION: The terminating the investigation as to The percent of the entered value of the Commission instituted this investigation Delta Group; Delta Hospital Supply, articles in question. (The Commission’s on August 3, 2004, based on a complaint Inc.; Delta Medical Systems, Inc.; and order was delivered to the President on filed by TAL Apparel Limited, Delta Medical Supply Group, Inc. on the the day of its issuance.) TALTECH Limited, and The Apparel basis of a settlement agreement and a This action is taken under the Group Limited (collectively ‘‘TAL.’’) 69 consent order. The Commission authority of section 337 of the Tariff Act FR 47857 (August 6, 2004.) The determined not to review the IDs on of 1930 (19 U.S.C. 1337(d)(2)), and complaint alleges violations of section June 22, 2004. sections 210.41 and 210.50 of the 337 of the Tariff Act of 1930, 337 U.S.C. The seventh respondent—Dash Commission’s Rules of Practice and 1337, in the importation into the United Medical Gloves, Inc. (‘‘Dash’’)—failed to Procedure, (19 CFR 210.41 and 210.50). States, sale for importation, and/or sale file a timely response to the complaint within the United States after By order of the Commission. and notice of investigation. Dash filed a importation of certain shirts with motion for termination of the Issued: December 22, 2004. pucker-free seams that infringe claims 1, investigation as to it by entry of a Marilyn R. Abbott, 4, 20 and 22 of U.S. Patent No. consent order. Subsequently, in Secretary to the Commission. 5,568,779 (the ‘779 patent); claims 1, 11, response to an order to show cause why [FR Doc. 04–28337 Filed 12–27–04; 8:45 am] 19 and 26 of U.S. Patent No. 5,590,615 it should not be held in default, Dash BILLING CODE 7020–02–P (the ‘615 patent); claims 1, 3, 13 and 16
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of U.S. Patent No. 5,713,292 (the ‘292 Background as a whole and on specific industry patent); and claims 16, 19, 35 and 38 of As requested by the USTR, the sectors, including the impact the U.S. Patent No. 6,0079,343 (the ‘343 Commission will prepare a report as agreement will have on the gross patent). The complaint names as specified in section 2104(f)(2)–(3) of the domestic product, exports and imports, respondents Esquel Apparel, Inc. and Trade Act of 2002 (the Trade Act) aggregate employment and employment Esquel Enterprises Limited (collectively assessing the likely impact of the U.S. opportunities, the production, ‘‘Esquel’’). On October 4, 2004, the free trade agreement (FTA) with Costa employment, and competitive position Commission issued a notice of Rica, El Salvador, Guatemala, Honduras, of industries likely to be significantly determination not to review an ID and Nicaragua (Central America) on the affected by the FTA, and the interests of (Order No. 4) granting TAL’s motion to United States economy as a whole and U.S. consumers. In preparing its amend the complaint and notice of on specific industry sectors and the assessment, the Commission will review institution to amend the complaint to interests of U.S. consumers. available economic assessments add an additional related patent, U.S. Section 2104(f)(2) requires that the regarding the FTA, including literature Patent No. 5,775,394 (the ‘394 patent) to Commission submit its report to the regarding any substantially equivalent the investigation. 69 FR 60422 (Oct. 8, President and the Congress not later proposed agreement, and provide in its 2004). than 90 days after the President enters assessment a description of the analyses On October 4, 2004 TAL moved to into the agreement, which he can do 90 used and conclusions drawn in such withdraw the allegations of days after he notifies the Congress of his literature, and a discussion of areas of infringement with respect to the ‘292, intent to do so. The President notified consensus and divergence between the ‘343, and ‘394 patents. Neither Esquel Congress of his intent to enter into an various analyses and conclusions, nor the Commission investigative FTA with Central America on February including those of the Commission attorney opposed the motion. On 20, 2004. At that time, the President also regarding the agreement. Section November 29, 2004, the presiding stated that negotiations were under way 2104(f)(2) requires that the Commission administrative law judge issued an ID to integrate the Dominican Republic submit its report to the President and (Order No. 5) granting TAL’s motion to into the FTA with Central America. Congress not later than 90 days after the partially terminate the investigation on That FTA was signed on August 5, 2004, President enters into an agreement with the basis of withdrawal of all allegations and the Commission provided its report the five Central American countries. of infringement relating to the claims of (U.S.-Central America-Dominican EFFECTIVE DATE: December 28, 2004. the ‘292 patent, the ‘343 patent, and the Republic Free Trade Agreement: FOR FURTHER INFORMATION CONTACT: ‘394 patent. No petitions for review of Potential Economywide and Selected James Stamps, Project Leader, Office of the ID were filed. Sectoral Effects, Inv. No. TA-2104–13, Economics (202–205–3227 or This action is taken under the publication 3717) on August 27, 2004. A [email protected]). For authority of section 337 of the Tariff Act public hearing for that investigation was information on the legal aspects of this of 1930, 19 U.S.C. 1337, and sections held on April 27, 2004. investigation, contact William Gearhart 210.21(a)(1) and 210.42(h) of the In his letter the USTR stated that the of the Office of the General Counsel Commission Rules of Practice and Dominican Republic subsequently (on (202–205–3091 or Procedure, 19 CFR 210.21(a)(1) and October 1, 2004) enacted a tax on [email protected]). For media 210.42(h). beverages sweetened with high fructose information, contact Peg O’Laughlin By order of the Commission. corn syrup that the United States (202–205–1819). Hearing impaired Issued: December 21, 2004. regards as incompatible with the individuals are advised that information Marilyn R. Abbott, Dominican Republic’s obligations under on this matter can be obtained by Secretary to the Commission. the signed FTA. He said that as a result contacting the TDD terminal on (202– [FR Doc. 04–28338 Filed 12–27–04; 8:45 am] of that action he informed Congress on 205–1810). October 1, 2004, that he would not Public Hearing: A public hearing in BILLING CODE 7020–02–P recommend including the Dominican connection with this investigation is Republic in the legislation to implement scheduled to begin at 9:30 a.m. on INTERNATIONAL TRADE the FTA signed on August 5, 2004 if the January 18, 2005, at the U.S. COMMISSION Dominican tax remained in place, and International Trade Commission that the Administration would take Building, 500 E Street SW., Washington, [Investigation No. TA–2104–18] steps to move forward with an FTA with DC. All persons have the right to appear the Central American countries. He said by counsel or in person, to present U.S.-Central America Free Trade that the FTA with the Central American information, and to be heard. Persons Agreement: Potential Economywide countries ‘‘otherwise is the same as the wishing to appear at the public hearing and Selected Sectoral Effects one that the Commission has already should file a letter with the Secretary, AGENCY: International Trade assessed’’ that included the Dominican United States International Trade Commission. Republic. In his letter requesting a new Commission, 500 E Street, SW., ACTION: Institution of investigation. Commission report, the USTR asked the Washington, DC 20436, no later than the Commission to supplement its August close of business (5:15 p.m.) on January SUMMARY: Following receipt on 27 report by assessing the likely impact 4, 2005. In addition, persons appearing November 17, 2004, of a request from of a free trade agreement with Central should file prehearing briefs (original the United States Trade Representative America on the United States economy and 14 copies) with the Secretary by the (USTR), the Commission instituted as a whole and on specific industry close of business on January 4, 2005. investigation No. TA–2104–18, U.S.- sectors and the interests of U.S. Posthearing briefs should be filed with Central America Free Trade Agreement: consumers. the Secretary by the close of business on Potential Economywide and Selected As specified in section 2104(f)(2)–(3) January 26, 2005. In the event that no Sectoral Effects, under section 2104(f) of of the Trade Act, the Commission’s requests to appear at the hearing are the Trade Act of 2002 (19 U.S.C. report will assess the likely impact of received by the close of business on 3804(f)). the FTA on the United States economy January 4, 2005, the hearing will be
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canceled. Moreover, in the event that use CBI it receives in the course of this Local 2305; the United Steelworkers of there is no hearing, the Commission investigation in preparing its report, the America, Local 193U; the Carpenters shall reference in this report relevant Commission will not publish CBI in the Industrial Union, Local 2093; the testimony from the April 27, 2004 report in a manner that would reveal the Teamsters, Chauffeurs, Warehousemen hearing. Any person interested in operations of the firm supplying the and Helpers, Local 991; and the IUE, attending the hearing as an observer or information. The report will be made Industrial Division of the CWA, Local nonparticipant may call the Secretary to available to the public on the 82472. the Commission (202–205–1816) after Commission’s Web site. The final phase of the investigation January 10, 2005 to determine whether The public record for this report may was scheduled by the Commission the hearing will be held. ve viewed on the Commission’s following notification of a preliminary Written Submissions: In lieu of or in electronic docket (EDIS) at http:// determination by Commerce that addition to appearing at the public edis.uistc.gov. Hearing impaired imports of wooden bedroom furniture hearing, interested persons are invited individuals are advised that information from China were being sold at LTFV to submit written statements concerning on this matter can be obtained by within the meaning of section 733(b) of the investigation. Submissions should contacting our TDD terminal on 202– the Act (19 U.S.C. 1673b(b)). Notice of be addressed to the Secretary, United 205–1810. Persons with mobility the scheduling of the final phase of the States International Trade Commission, impairments who will need special Commission’s investigation and of a 500 E Street SW., Washington, DC assistance in gaining access to the public hearing to be held in connection 20436. To be assured of consideration Commission should contact the Office therewith was given by posting copies by the Commission, written statements of the Secretary at 202–205–2000. of the notice in the Office of the related to the Commission’s report Secretary, U.S. International Trade should be submitted to the Commission By order of the Commission. Issued: December 21, 2004. Commission, Washington, DC, and by at the earliest practical date, and should publishing the notice in the Federal Marilyn R. Abbott, be received by the close of business on Register of July 15, 2004 (69 FR 42452). January 26, 2005. All written Secretary to the Commission. The hearing was held in Washington, submissions, including briefs, must [FR Doc. 04–28327 Filed 12–27–04; 8:45 am] DC, on November 9, 2004, and all conform with the provisions of section BILLING CODE 7020–02–P persons who requested the opportunity 201.8 of the Commission’s Rules of were permitted to appear in person or Practice and Procedure (19 CFR 201.8). by counsel. INTERNATIONAL TRADE Section 201.8 of the rules require that a The Commission transmitted its COMMISSION signed original (or copy designated as determination in this investigation to an original) and fourteen (14) copies of [Investigation No. 731–TA–1058 (Final)] the Secretary of Commerce on December each document be filed. In the event 22, 2004. The views of the Commission that confidential treatment of the Wooden Bedroom Furniture From are contained in USITC Publication document is requested, at least four (4) China 3743 (December 2004), entitled Wooden additional copies must be filed, in Determination Bedroom Furniture from China: which the confidential business Investigation No. 731–TA–1058 (Final). information (CBI) must be deleted (see On the basis of the record 1 developed By order of the Commission. the following paragraph for further in the subject investigation, the United information regarding CBI). The States International Trade Commission Issued: December 22, 2004. Commission’s rules do not authorize (Commission) determines, pursuant to Marilyn R. Abbott, filing submissions with the Secretary by section 735(b) of the Tariff Act of 1930 Secretary to the Commission. facsimile or electronic means, except to (19 U.S.C. 1673d(b)) (the Act), that an [FR Doc. 04–28341 Filed 12–27–04; 8:45 am] the extent permitted by section 201.8 of industry in the United States is BILLING CODE 7020–02–P the rules (see Handbook for Electronic materially injured by reason of imports Filing Procedures, ftp://ftp.usitc.gov/ from China of wooden bedroom pub/reports/ furniture, provided for in subheadings NUCLEAR REGULATORY electronic_filing_handbook.pdf). 9403.50.90 and 7009.92.50 of the COMMISSION Persons with questions regarding Harmonized Tariff Schedule of the electronic filing should contact the United States, that have been found by [Docket No. 30–36574] Secretary (202–205–2000 or the Department of Commerce [email protected]). Notice of Consideration of Amendment (Commerce) to be sold in the United Request for Decommissioning for U.S. Any submissions, including briefs, States at less than fair value (LTFV). that contain CBI also must conform with Army Research Development and the requirements of section 201.6 of the Background Engineering Command, Aberdeen Commission’s rules (19 CFR 201.6). The Commission instituted this Proving Ground, MD, and Opportunity Section 201.6 of the rules requires that investigation effective October 31, 2003, To Request a Hearing the cover of the document and the following receipt of a petition filed with AGENCY: individual pages clearly be marked as to Nuclear Regulatory the Commission and Commerce by the Commission. whether they are the ‘‘confidential’’ or American Furniture Manufacturers ACTION: Notice of license amendment, ‘‘non-confidential’’ version, and that the Committee for Legal Trade and its CBI be clearly identified by means of opportunity to request a hearing, and individual members; the Cabinet solicitation of public comments. brackets. All written submissions, Makers, Millmen, and Industrial except CBI, will be made available for Carpenters, Local 721; the UBC DATES: A request for a hearing must be inspection by interested parties. Southern Council of Industrial Workers, The report that the Commission sends filed by February 28, 2005. FOR FURTHER INFORMATION CONTACT: to the President and the Congress will 1 The record is defined in sec. 207.2(f) of the Tom not contain CBI. Although the Commission’s Rules of Practice and Procedure (19 McLaughlin, Project Manager, Commission may aggregate or otherwise CFR 207.2(f)). Decommissioning Directorate, Division
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of Waste Management and and a specification of the contentions 0001, Attention: Rulemakings and Environmental Protection, Office of which the person seeks to have litigated Adjudications Staff. Nuclear Material Safety and Safeguards, in the hearing. In accordance with 10 CFR 2.309(b), U.S. Nuclear Regulatory Commission, In accordance with 10 CFR 2.302(a), a request for a hearing must be filed by Washington, DC 20555–0001; a request for a hearing must be filed February 28, 2005. Telephone: (301) 415–5869; fax number: with the Commission either by: In addition to meeting other (301) 415–5398; e-mail: [email protected]. 1. First class mail addressed to: Office applicable requirements of 10 CFR SUPPLEMENTARY INFORMATION: of the Secretary, U.S. Nuclear 2.309, the general requirements Regulatory Commission, Washington, involving a request for a hearing filed by I. Introduction DC 20555–0001, Attention: Rulemakings a person other than an applicant must The Nuclear Regulatory Commission and Adjudications; state: (NRC) is considering issuance of a 2. Courier, express mail, and 1. The name, address, and telephone license amendment to U.S. Army expedited delivery services: Office of number of the requester; Research Development and Engineering the Secretary, Sixteenth Floor, One 2. The nature of the requester’s right Command (Army as the licensee) to White Flint North, 11555 Rockville under the Act to be made a party to the amend its License No. 19–10306–02 to Pike, Rockville, MD 20852, Attention: proceeding; authorize decommissioning of Building Rulemakings and Adjudications Staff, 3. The nature and extent of the 7304 located in Fort Belvoir, Virginia, to between 7:45 a.m. and 4:15 p.m., requester’s property, financial or other allow the termination of this license. Federal work days; interest in the proceeding; License No. 19–10306–02 authorizes 3. E-mail addressed to the Office of 4. The possible effect of any decision the licensee to conduct research and the Secretary, U.S. Nuclear Regulatory or order that may be issued in the development as defined in 10 CFR 30.4; Commission, proceeding on the requester’s interest; provide teaching and training of [email protected]; or and students; conduct calibration and 4. By facsimile transmission 5. The circumstances establishing that checking of licensee’s instruments; addressed to the Office of the Secretary, the request for a hearing is timely in prepare low level counting standards; U.S. Nuclear Regulatory Commission, accordance with 10 CFR 2.309(b). and demonstrate items being developed Washington, DC, Attention: In accordance with 10 CFR 2.309(f)(1), and/or tested. The Decommissioning Rulemakings and Adjudications Staff, at a request for hearing or petitions for Plan (DP) was submitted by the licensee (301) 415–1101; verification number is leave to intervene must set forth with on May 17, 2004. An NRC (301) 415–1966. particularity the contentions sought to administrative review, documented in a In accordance with 10 CFR 2.302(b), be raised. For each contention, the letter to the U.S. Army Research all documents offered for filing must be request or petition must: Development and Engineering accompanied by proof of service on all 1. Provide a specific statement of the Command on August 24, 2004, found parties to the proceeding or their issue of law or fact to be raised or the DP acceptable to begin a technical attorneys of record as required by law or controverted; review. by rule or order of the Commission, 2. Provide a brief explanation of the If the NRC approves the DP, the including: basis for the contention; authorization to dismantle and 1. The applicant, U.S. Army Research 3. Demonstrate that the issue raised in demolish Building 7304 will be Development and Engineering the contention is within the scope of the documented in an amendment to NRC Command, 5183 Blackhawk Road, proceeding; License No. 19–10306–02. However, Aberdeen Proving Ground, Maryland 4. Demonstrate that the issue raised in before approving the proposed 21010, Attention: Major General John C. the contention is material to the amendment, the NRC will need to make Doesburg, Commander; and findings that the NRC must make to the findings required by the Atomic 2. The NRC staff, by delivery to the support the action that is involved in Energy Act of 1954, as amended, and Office of the General Counsel, One the proceeding; NRC’s regulations. These findings will White Flint North, 11555 Rockville 5. Provide a concise statement of the be documented in a Safety Evaluation Pike, Rockville, MD 20852, or by mail alleged facts or expert opinions which Report and an Environmental addressed to the Office of the General support the requester’s/petitioner’s Assessment. The license will be Counsel, U.S. Nuclear Regulatory position on the issue and on which the terminated following issuance of this Commission, Washington, DC 20555– requester/petitioner intends to rely to amendment and following completion 0001. Hearing requests should also be support its position on the issue; and of decommissioning activities and transmitted to the Office of the General 6. Provide sufficient information to verification by the NRC in accordance Counsel, either by means of facsimile show that a genuine dispute exists with with 10 CFR 20.1401. transmission to (301) 415–3725, or by e- the applicant on a material issue of law mail to [email protected]. or fact. This information must include II. Opportunity To Request a Hearing The formal requirements for references to specific portions of the The NRC hereby provides notice that documents contained in 10 CFR application (including the applicant’s this is a proceeding on an application 2.304(b), (c), (d), and (e), must be met. environmental report and safety report) for a license amendment to License No. In accordance with 10 CFR 2.304(f), a that the requester/petitioner disputes 19–10306–02 to allow dismantlement document filed by electronic mail or and the supporting reasons for each and demolition of Building 7304 at the facsimile transmission need not comply dispute, or, if the requester/petitioner Army facility located in Fort Belvoir, with the formal requirements of 10 CFR believes the application fails to contain Virginia. In accordance with the general 2.304(b), (c), and (d), as long as an information on a relevant matter as requirements in Subpart C of 10 CFR original and two (2) copies otherwise required by law, the identification of Part 2, as amended on January 14, 2004 complying with all of the requirements each failure and the supporting reasons (69 FR 2182), any person whose interest of 10 CFR 2.304(b), (c), and (d) are for the requester’s/petitioner’s belief. may be affected by this proceeding and mailed within two (2) days thereafter to In addition, in accordance with 10 who desires to participate as a party the Secretary, U.S. Nuclear Regulatory CFR 2.309(f)(2), contentions must be must file a written request for a hearing Commission, Washington, DC 20555– based on documents or other
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information available at the time the the contention is filed, and designate a copying by contacting the Public petition is to be filed, such as the representative who shall have the Document Room pending resumption of application, supporting safety analysis authority to act for the requester/ public access to ADAMS. report, environmental report or other petitioner. Dated at Rockville, Maryland, this 20th day supporting document filed by an In accordance with 10 CFR 2.309(g), of December, 2004. applicant or licensee, or otherwise a request for hearing and/or petition for For the Nuclear Regulatory Commission. leave to intervene may also address the available to the petitioner. On issues Daniel M. Gillen, arising under the National selection of the hearing procedures, Acting Director, Division of Waste Environmental Policy Act, the taking into account the provisions of 10 Management and Environmental Protection, requester/petitioner shall file CFR 2.310. Office of Nuclear Material Safety and contentions based on the applicant’s III. Opportunity To Provide Comments Safeguards. environmental report. The requester/ [FR Doc. 04–28298 Filed 12–27–04; 8:45 am] In accordance with 10 CFR 20.1405, petitioner may amend those contentions BILLING CODE 7590–01–P or file new contentions if there are data the NRC is providing notice to or conclusions in the NRC draft, or final individuals in the vicinity of the site environmental impact statement, that the NRC has received a license NUCLEAR REGULATORY environmental assessment, or any amendment request and COMMISSION supplements relating thereto, that differ decommissioning plan from the Army. significantly from the data or The NRC will accept comments Sunshine Act Meeting; Notice conclusions in the applicant’s concerning this amendment request and documents. Otherwise, contentions may DP. Comments with respect to this AGENCY HOLDING THE MEETINGS: Nuclear be amended or new contentions filed action should be provided in writing Regulatory Commission. after the initial filing only with leave of within 30 days of this notice and DATE: Weeks of December 27, 2004, the presiding officer. addressed to Mr. Tom McLaughlin, U.S. January 3, 10, 17, 24, 31, 2005. Each contention shall be given a NRC, Washington, DC 20555–0001. PLACE: Commissioners’ Conference separate numeric or alpha designation Comments received after 30 days will be Room, 11555 Rockville Pike, Rockville, within one of the following groups: considered if practicable to do so, but Maryland. 1. Technical—primarily concerns only those comments received on or STATUS: Public and Closed. before the due date can be assured issues relating to matters discussed or MATTERS TO BE CONSIDERED: referenced in the Safety Evaluation consideration. Week of December 27, 2004 Report for the proposed action. IV. Further Information 2. Environmental—primarily concerns There are no meetings scheduled for issues relating to matters discussed or Documents related to this action, the week of December 27, 2004. referenced in the Environmental Report including the application for for the proposed action. amendment and supporting Week of January 3, 2005—Tentative 3. Emergency Planning—primarily documentation, are available Wednesday, January 5, 2005 concerns issues relating to matters electronically at the NRC’s Electronic 2 p.m.—Affirmation Session (Public discussed or referenced in the Reading Room at http://www.nrc.gov/ Meeting) (Tentative). Emergency Plan as it relates to the reading-rm/adams.html. From this site, a. Private Fuel Storage (Independent proposed action. you can access the NRC’s Agency wide Spent Fuel Storage Installation); 4. Physical Security—primarily Document Access and Management Docket No. 72–22–ISFSI concerns issues relating to matters System (ADAMS), which provides text (Tentative). discussed or referenced in the Physical and image files of NRC’s public Week of January 10, 2005—Tentative Security Plan as it relates to the documents. The ADAMS accession proposed action. numbers for the documents related to Tuesday, January 11, 2005 5. Miscellaneous—does not fall into this notice is ML041490071. If you do 9:30 a.m.—Discussion of Security one of the categories outlined above. not have access to ADAMS or if there Issues (Closed—Ex. 1 & 9). If the requester/petitioner believes a are problems in accessing the Wednesday, January 12, 2005 contention raises issues that cannot be documents located in ADAMS, contact 9:30 a.m.—Discussion of Security classified as primarily falling into one of the NRC Public Document Room PDR Issues (Closed—Ex. 1). these categories, the requester/petitioner Reference staff at 1–800–397–4209, 301– Week of January 17, 2005—Tentative must set forth the contention and 415–4737, or by e-mail to [email protected]. There are no meetings scheduled for the supporting bases, in full, separately for These documents may also be viewed week of January 17, 2005. each category into which the requester/ electronically on the public computers petitioner asserts the contention belongs located at the NRC’s PDR, located in O– Week of January 24, 2005—Tentative with a separate designation for that 1 F21, One White Flint North, 11555 Monday, January 24, 2005 category. Rockville Pike, Rockville, MD 20852. 9:30 a.m.—Discussion of Security Requesters/petitioners should, when The PDR reproduction contractor will Issues (Closed—Ex. 1). possible, consult with each other in copy documents for a fee. 1:30 p.m.—Discussion of Security preparing contentions and combine Please note that on October 25, 2004, Issues (Closed—Ex. 1). similar subject matter concerns into a the NRC suspended public access to Tuesday, January 25, 2005 joint contention, for which one of the ADAMS, and initiated an additional 9:30 a.m.—Discussion of Security co-sponsoring requesters/petitioners is security review of publicly available Issues (Closed—Ex. 1). designated the lead representative. documents to ensure that potentially Further, in accordance with 10 CFR sensitive information is removed from Week of January 31, 2005—Tentative 2.309(f)(3), any requester/petitioner that the ADAMS database accessible through There are no meetings scheduled for the wishes to adopt a contention proposed the NRC’s web site. Interested members week of January 31, 2005. by another requester/petitioner must do of the public may obtain copies of the * The schedule for Commission so in writing within ten days of the date referenced documents for review and/or meetings is subject to change on short
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notice. To verify the status of meetings Account A (‘‘Account A’’), Merrill Hearing or Notification of Hearing: An call (recording)—(301) 415–1292. Lynch Variable Annuity Separate order granting the Application will be Contact person for more information: Account C (‘‘Account C’’), Merrill Lynch issued unless the Commission orders a Dave Gamberoni (301) 415–1651. Variable Annuity Separate Account D hearing. Interested person may request a * * * * * (‘‘Account D’’), ML Life Insurance hearing by writing to the Secretary of The NRC Commission Meeting Company of New York (‘‘MLNY’’), ML the Commission and serving Applicants Schedule can be found on the Internet of New York Variable Annuity Separate with a copy of the request, personally or at: http://www.nrc.gov/what-we-do/ Account A (‘‘NY Account A’’), ML of by mail. Hearing requests should be policy-making/schedule.html New York Variable Annuity Separate received by the Commission by 5:30 Account C (‘‘NY Account C’’), ML of p.m. on January 18, 2005, and should be * * * * * New York Variable Annuity Separate accompanied by proof of service on The NRC provides reasonable Account D (‘‘NY Account D’’), and Applicants, in the form of an affidavit accommodation to individuals with Merrill Lynch, Pierce, Fenner & Smith or, for lawyers, a certificate of service. disabilities where appropriate. If you Incorporated (‘‘MLPF&S’’) (except for Hearing requests should state the nature need a reasonable accommodation to MLLIC, MLNY, and MLPF&S, each a of the writer’s interest, the reason for the participate in these public meetings, or ‘‘separate account’’ as defined in request, and the issues contested. need this meeting notice or the Section 2(a)(37) of the Investment Persons may request notification of a transcript or other information from the Company Act of 1940, as amended (the hearing by writing to the Secretary of public meetings in another format (e.g. ‘‘Act’’); each separate account the Commission. braille, large print), please notify the collectively referred to herein as the ADDRESSES: Secretary, Securities and NRC’s Disability Program Coordinator, ‘‘Separate Accounts’’) (all foregoing August Spector, at 301–415–7080, TDD: Exchange Commission, 450 Fifth Street, parties collectively referred to herein as NW., Washington, DC 20549. 301–415–2100, or by e-mail at the ‘‘Applicants’’). [email protected]. Determinations on Applicants, c/o Edward W. Diffin, Jr., Summary of Application: The Esq., Merrill Lynch Insurance Group, requests for reasonable accommodation Applicants request an order exempting will be made on a case-by-case basis. Inc., 1300 Merrill Lynch Drive, 2nd them with respect to the variable Floor, Pennington, New Jersey 08534. * * * * * annuity contracts described herein (the Copies to Mary E. Thornton, Esq., This notice is distributed by mail to ‘‘Contracts’’) and other variable annuity Sutherland Asbill & Brennan LLP, 1275 several hundred subscribers; if you no contracts that are substantially similar Pennsylvania Ave., NW., Washington, longer wish to receive it, or would like in all material respects to the contracts DC 20004. to be added to the distribution, please described herein, that MLLIC and/or FOR FURTHER INFORMATION CONTACT: contact the Office of the Secretary, MLNY (together, the ‘‘Companies’’) may Robert Lamont, Attorney, at (202) 942– Washington, DC 20555 (301–415–1969). issue in the future (‘‘Future Contracts’’), In addition, distribution of this meeting and any other separate accounts of the 0676, or Lorna MacLeod, Branch Chief, notice over the Internet system is Companies and their successors in at (202) 942–0670, Office of Insurance available. If you are interested in interest (‘‘Future Accounts’’) that Products, Division of Investment receiving this Commission meeting support Future Contracts, and certain Management. schedule electronically, please send an NASD member broker-dealers which in SUPPLEMENTARY INFORMATION: The electronic message to [email protected]. the future, may act as principal following is a summary of the Dated: December 22, 2004. underwriter of such contracts (‘‘Future Application; the complete Application Underwriters’’), from the provisions of may be obtained for a fee from the R. Michelle Schroll, Sections 2(a)(32) and 27(i)(2)(A) of the Public Reference Branch of the Office of the Secretary. Act and Rule 22c–1 thereunder, Commission, 450 5th Street, NW., [FR Doc. 04–28451 Filed 12–23–04; 9:29 am] pursuant to Section 6(c) of the Act, to Washington, DC 20549 (tel. (202) 942– BILLING CODE 7590–01–M the extent necessary to permit the 8090). recapture of all or a portion of the bonus Applicants’ Representations amounts (previously attributable to SECURITIES AND EXCHANGE premium payments under the bonus 1. MLLIC is a stock life insurance COMMISSION class of the Contract (the ‘‘XC Class’’)) company that is domiciled in Arkansas. MLLIC was incorporated under the laws [Release No. IC–26712; File No. 812–13122] where the bonus amounts were applied and a contract owner (‘‘Owner’’) (1) of the State of Washington on January Merrill Lynch Life Insurance Group, et returns the Contract during the ‘‘Ten 27, 1986, and redomesticated to the al. Notice of Application Day Right to Review’’ period (the ‘‘Free State of Arkansas on August 31, 1991. Look Period’’); (2) dies within six MLLIC is authorized to operate as a life December 21, 2004. months of receipt and acceptance by insurance company in forty-nine states, AGENCY: The Securities and Exchange MLLIC or MLNY of a premium payment the District of Columbia, the U.S. Virgin Commission (‘‘Commission’’). (unless the Contract is continued under Islands, Guam, and Puerto Rico. Its ACTION: Notice of application (the the spousal benefit continuation principal offices are located at 1300 ‘‘Application’’) for an order of option); or (3) surrenders the Contract Merrill Lynch Drive, 2nd Floor, exemption pursuant to Section 6(c) of (in full or in part) or the surrender value Pennington, New Jersey 08534. MLLIC the Investment Company Act of 1940 is paid to the Owner (because the is a wholly owned subsidiary of Merrill (the ‘‘1940 Act’’) from Sections 2(a)(32) Contract has been terminated for Lynch Insurance Group, Inc. (‘‘MLIG’’). and 27(i)(2)(a) of the Act and Rule 22c– inactivity) within three years of receipt MLLIC is an indirect wholly owned 1 thereunder to allow recapture of a and acceptance by MLLIC or MLNY of subsidiary of Merrill Lynch & Co., Inc., bonus amount. a premium payment (pursuant to a a publicly held company whose shares bonus recapture schedule). are traded on the New York Stock Applicants: Merrill Lynch Life Filing Date: The Application was filed Exchange. Insurance Company (‘‘MLLIC’’), Merrill on September 3, 2004 and amended on 2. MLNY is a stock life insurance Lynch Life Variable Annuity Separate December 20, 2004. company that was organized under the
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laws of the State of New York on 5. Account D was established by of the Act. MLNY is the legal owner of November 28, 1973. MLNY is MLLIC under the insurance laws of the the assets in NY Account C. Any authorized to sell life insurance and State of Arkansas on June 21, 2002. income, gain, or loss (whether or not annuities in nine states. Its principal Account D is registered with the realized) from the assets of NY Account offices are located at 222 Broadway, Commission under the Act as a unit C are credited to or charged against NY 14th Floor, New York, New York 10038. investment trust. The assets of Account Account C without regard to MLNY’s MLNY is a wholly owned subsidiary of D support certain individual flexible other income, gain, or loss. Assets of NY MLIG. MLNY also is an indirect wholly premium variable annuity contracts. A Account C equal to its reserves and owned subsidiary of Merrill Lynch & registration statement to register other liabilities under the Contracts may Co., Inc. interests in Account D offered through not be charged with liabilities arising 3. Account A was established by the Contracts has been filed with the from any other MLNY business. NY MLLIC under the insurance laws of the Commission under the 1933 Act on Account C is comprised of various State of Arkansas on August 6, 1991. Form N–4 (333–119364). Account D is Subaccounts. Account A is registered with the a ‘‘separate account’’ as defined in 8. NY Account D was established by Commission under the Act as a unit Section 2(a)(37) of the Act. MLLIC is the MLNY under the insurance laws of the investment trust. The assets of Account legal owner of the assets in Account D. State of New York on July 23, 2002. NY A support certain individual flexible Any income, gain, or loss (whether or Account D is registered with the premium variable annuity contracts. A not realized) from the assets of Account Commission under the Act as a unit registration statement to register D are credited to or charged against investment trust. The assets of NY interests in Account A offered through Account D without regard to MLLIC’s Account D support certain individual the Contracts has been filed with the other income, gain, or loss. Assets of flexible premium variable annuity Commission under the Securities Act of Account D equal to its reserves and contracts. A registration statement to 1933, as amended (the ‘‘1933 Act’’) on other liabilities under the Contracts may register interests in NY Account D Form N–4 (333–118362). Account A is not be charged with liabilities arising offered through the Contracts has been a ‘‘separate account’’ as defined in from any other MLLIC business. filed with the Commission under the Section 2(a)(37) of the Act. MLLIC is the Account D is comprised of various 1933 Act on Form N–4 (333–119797). legal owner of the assets in Account A. Subaccounts. NY Account D is a ‘‘separate account’’ Any income, gain, or loss (whether or 6. NY Account A was established by as defined in Section 2(a)(37) of the Act. not realized) from the assets of Account MLNY under the insurance laws of the MLNY is the legal owner of the assets A are credited to or charged against State of New York on August 14, 1991. in NY Account D. Any income, gain, or Account A without regard to MLLIC’s NY Account A is registered with the loss (whether or not realized) from the other income, gain, or loss. Assets of Commission under the Act as a unit assets of NY Account D are credited to Account A equal to its reserves and investment trust. The assets of NY or charged against NY Account D other liabilities under the Contracts may Account A support certain individual without regard to MLNY’s other income, not be charged with liabilities arising flexible premium variable annuity gain, or loss. Assets of NY Account D from any other MLLIC business. contracts. A registration statement to equal to its reserves and other liabilities Account A is comprised of various register interests in NY Account A under the Contracts may not be charged subdivisions called subaccounts (the offered through the Contracts has been with liabilities arising from any other ‘‘Subaccounts’’), which were established filed with the Commission under the MLNY business. NY Account D is to receive and invest premium 1933 Act on Form N–4 (333–119611). comprised of various Subaccounts. payments under the Contracts and other NY Account A is a ‘‘separate account’’ 9. MLPF&S, an indirect wholly owned annuity contracts. as defined in Section 2(a)(37) of the Act. subsidiary of Merrill Lynch & Co., Inc. 4. Account C was established by MLNY is the legal owner of the assets and an affiliate of the Companies, is the MLLIC under the insurance laws of the in NY Account A. Any income, gain, or principal underwriter and distributor of State of Arkansas on November 16, loss (whether or not realized) from the the Contracts. MLPF&S was organized 2001. Account C is registered with the assets of NY Account A are credited to in 1958 under the laws of the state of Commission under the Act as a unit or charged against NY Account A Delaware and is registered with the investment trust. The assets of Account without regard to MLNY’s other income, Commission as a broker-dealer under C support certain individual flexible gain, or loss. Assets of NY Account A the Securities Exchange Act of 1934, as premium variable annuity contracts. A equal to its reserves and other liabilities amended, and is a member of the NASD. registration statement to register under the Contracts may not be charged 10. Each Subaccount invests only in interests in Account C offered through with liabilities arising from any other shares of a designated portfolio of the Contracts will be filed with the MLNY business. NY Account A is certain management investment Commission under the 1933 Act on comprised of various Subaccounts. companies (the ‘‘Funds’’). The Form N–4 in the near future. Account C 7. NY Account C was established by Companies may also make fixed account is a ‘‘separate account’’ as defined in MLNY under the insurance laws of the options available under the Contracts in Section 2(a)(37) of the Act. MLLIC is the State of New York on May 16, 2002. NY the future. legal owner of the assets in Account C. Account C is registered with the 11. The Contracts are individual Any income, gain, or loss (whether or Commission under the Act as a unit flexible premium deferred variable not realized) from the assets of Account investment trust. The assets of NY annuity contracts issued by the C are credited to or charged against Account C support certain individual Companies through the Separate Account C without regard to MLLIC’s flexible premium variable annuity Accounts. The Contracts provide for the other income, gain, or loss. Assets of contracts. A registration statement to accumulation of values on a variable Account C equal to its reserves and register interests in NY Account C basis during the accumulation period, other liabilities under the Contracts may offered through the Contracts will be and provide for a variety of annuity not be charged with liabilities arising filed with the Commission under the settlement options. Certain Contracts from any other MLLIC business. 1933 Act on Form N–4 in the near may be purchased on a non-qualified Account C is comprised of various future. NY Account C is a ‘‘separate tax basis. Certain Contracts also may be Subaccounts. account’’ as defined in Section 2(a)(37) purchased and used in connection with
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plans qualifying for favorable federal Contract after a partial withdrawal (and As described in more detail below, income tax treatment. The Contracts any associated surrender charge) is the Companies may recapture all or a currently offer four different charge made. If an Owner surrenders a Contract portion of the bonus amounts added to structures, each referred to as a ‘‘Class.’’ or takes a partial withdrawal, the the Contract Value if the Owner Each Class, including an XC Class Companies may deduct a surrender surrenders the Contract or makes a described in more detail below, imposes charge to compensate them for expenses partial withdrawal within three years of different surrender charges and asset- relating to the sale of the Contracts, such MLLIC’s or MLNY’s receipt and based insurance charges. as commissions, preparation of sales acceptance of a premium payment. 12. The Owner determines at the time literature, and other promotional 15. Under certain circumstances, the of application for a Contract how activity. Upon partial withdrawal, the Contract may be terminated due to premium payments will be allocated Companies also may deduct any inactivity. If no premiums have been among the Subaccounts of the applicable premium taxes. Upon received during the prior 24 months, the applicable Separate Account. The surrender, the Companies also will total of all premiums paid (less any Owner generally may allocate premium deduct any applicable contract fee, partial withdrawals) is less than $2,000, payments to up to 20 of any of the accrued but uncollected rider charges, and the Contract Value is less than available Subaccounts. The Contract and premium taxes. The surrender $2,000, then the Contract may be Value, which is the total value of an charge will be reduced using the ‘‘free terminated. No Contract will be Owner’s interest in the Contract, will withdrawal amount’’ provided for in the terminated solely due to negative vary with the investment performance Contract. The free withdrawal amount is investment performance. Termination of the Subaccounts selected, and the the portion of any partial withdrawal or for inactivity is treated as a surrender Owner bears the entire risk for amounts surrender that is not subject to a for purposes of bonus recapture. allocated to the Subaccounts. surrender charge. The free withdrawal 16. During the accumulation period, 13. During the Free Look Period, an amount is the greater of: (a) 10% of the the Companies will pay a death benefit Owner has the right to return his or her amount of each premium subject to a upon the Owner’s death (upon the death Contract within ten days (or longer if surrender charge (not to exceed the of the first Owner to die if there are Co- required by state law). If the Contract is amount of each premium that had not Owners, or upon the death of the first returned during the Free Look Period, been previously withdrawn as of the Annuitant if any Owner is not a natural the amount refunded will equal the beginning of the Contract year), less any person). Unless the Owner selects an Contract Value as of the date MLLIC or prior withdrawals during that Contract optional guaranteed minimum death MLNY receives the returned Contract. year; and (b) the ‘‘gain’’ in the Contract benefit (‘‘GMDB’’), the death benefit will However, in those states that require a plus premiums remaining in the equal the Contract Value. 17. The Contracts provide four GMDB return of premium payments in the Contract that are no longer subject to a event of Contract cancellation, the options that an Owner may select to surrender charge. Any amount Companies will instead return the purchase for an additional charge if the previously withdrawn from the Contract greater of all premium payments paid Owner (or the older Owner, if the during that Contract year will be taken into the Contract (less any withdrawals) Contract has Co-Owners, or the into account in determining the ‘‘free or the Contract Value as of the date Annuitant, if the Owner is a non-natural withdrawal amount’’ available as of the MLLIC or MLNY receives the returned person) is age 75 or under. If the Owner date of the withdrawal request. For the Contract. dies within 90 days of the Contract Date In states that require a return of purpose of calculating the surrender or within one year of the date of a premium payments, the Companies will charge, the Companies make change of Owner, any GMDB will equal allocate all premium payments to a withdrawals as if gain is withdrawn the Contract Value. Some GMDB money market Subaccount during the first, followed by premiums. Premium options may not be available in every first fourteen days following the payments are assumed to be withdrawn state. If the Owner purchases a GMDB, Contract Date. In those states, the on a first-in, first-out (‘‘FIFO’’) basis. the death benefit equals the greater of Companies bear any investment risk The surrender charge equals a the Contract Value or the GMDB Base. associated with the premium payments percentage of each premium withdrawn. The current calculation for each GMDB during the Free Look Period; otherwise, With regard to the XC Class offered Base is described below. the Owner will bear any investment risk under the Contracts, each premium is 18. In addition to the above death associated with the premium payments subject to the charge for the applicable benefits and for an additional charge, an during the Free Look Period. period specified below from the date it Owner may elect the Additional Death The Companies will not assess is received and accepted by MLLIC or Benefit Rider if the Owner (or the older surrender charges against a Contract MLNY, as follows: Owner, if the Contract has Co-Owners, returned during the Free Look Period. or the older Annuitant, if the Owner is Surrender The Companies will generally pay the charge per- a non-natural person) is age 75 or under. refund within seven days after they Complete years elapsed centage (as a This rider is designed to help offset receive the returned Contract. The since payment of premium percentage of expenses, including income taxes, Contract will then be considered void. the premium attributable to payment of death benefit payment) As described in more detail below, the proceeds. The Additional Death Benefit Companies intend to recapture bonus 0 ...... 8.0 Rider may not be available in all states. amounts added to the Contract Value if 1 ...... 8.0 Upon payment of the death benefit, the the Owner returns the Contract during 2 ...... 7.0 Companies may deduct any applicable the Free Look Period. 3 ...... 7.0 premium taxes. 14. The Owner may surrender the 4 ...... 6.0 19. As described in more detail below, Contract or make a partial withdrawal 5 ...... 6.0 the Companies will recapture any bonus from Contract Value during the 6 ...... 5.0 amounts added to the Contract Value if accumulation period. The minimum 7 ...... 4.0 the Owner (the first Owner to die, if 8 ...... 3.0 amount that may be withdrawn is $100, 9 ...... 0 there are Co-Owners, or the first and at least $5,000 must remain in the Annuitant, if any Owner is not a natural
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person) dies within six months of Companies will add a bonus amount to premium payment is received and MLLIC’s or MLNY’s receipt and the Contract Value each time the Owner accepted at MLLIC’s or MLNY’s Service acceptance of the corresponding makes a premium payment. With regard Center. premium payment. However, if an to an initial premium payment, the 21. To calculate each bonus amount, Owner dies and the Contract is Companies will apply the the Companies will allocate the continued under the spousal benefit corresponding bonus amount to an corresponding premium payment to one continuation option, any bonus amounts Owner’s Contract Value on the Contract or more bonus tiers based on the not previously recaptured will no longer Date. With regard to each additional be subject to recapture as of the spousal premium payment, the Companies will amount of cumulative premium continuation date. apply a corresponding bonus amount to payments made under the Contract, as 20. If an Owner elects the XC Class an Owner’s Contract Value at the end of follows: under the Contracts, then the the valuation period during which that
Then Then Then cur- minimum maximum rent guaran- If cumulative premium payments are: bonus bonus teed amount percent- bonus percent- age is: percent- age is: age is:
Less than or equal to $25,000 ...... 5.0 4.5 3.0 Greater than $25,000 but less than or equal to $125,000 ...... 5.5 4.5 3.0 Greater than $125,000 but less than or equal to $500,000 ...... 5.5 4.5 3.5 Greater than $500,000 but less than or equal to $1,000,000 ...... 6.0 5.5 4.0 Greater than $1,000,000 ...... 7.0 5.5 4.5
Thus, the Companies may apply bonus amount percentage, but it will death benefit equals the greater of the different bonus percentages to each never be less than the minimum Contract Value less any bonus amounts premium payment (unless cumulative guaranteed bonus amount percentage credited in the prior six months or the premium payments are less than or listed in the table. GMDB Base (as defined above). equal to $25,000) by breaking out the From time to time, the Companies However, in the event the Contract is payment according to the ranges in the may offer promotional programs with continued under the spousal benefit above table and multiplying the portion promotional rates for XC Class Contracts continuation option, any bonus amounts of the payment allocated to each tier by issued within specified periods of time not previously recaptured will no longer that tier’s current bonus amount (each, a ‘‘Promotional Period’’). Such be subject to recapture as of the spousal percentage. However, a premium promotional programs may apply to continuation date. In the event of partial payment will only be allocated to the initial and/or subsequent premium withdrawal or surrender within three first tier if cumulative premium payments received during the years of MLLIC’s or MLNY’s receipt and payments are less than or equal to Promotional Period. Initial and/or acceptance of a premium payment, the $25,000. If the initial premium payment subsequent premium payments received Companies may recapture all or a exceeds $25,000, the first tier will not after the Promotional Period will receive portion of the corresponding bonus apply and the second tier will apply to the current bonus amount percentage in amount based on the bonus recapture all cumulative premiums less than or effect at that time. The Promotional percentages presented in the following equal to $125,000. For example, an Period will never exceed the maximum schedule. initial premium payment of $20,000 bonus amount. The Companies may would receive a maximum bonus terminate any promotional programs or Bonus re- × capture per- amount of $1,000 ($20,000 0.05 (tier offer other promotional programs at any Completed years since receipt centage for 1)). If the initial premium payment is time in their sole discretion. and acceptance of premium payment surrenders $100,000, the maximum bonus amount 22. If the Owner returns the Contract and partial would be $5,500 ($100,000 × 0.055 (tier during the Free Look Period, then the withdrawals 2)). However, an initial premium Owner will not receive any portion of 0 ...... 100 payment of $700,000 would receive a the bonus amounts (i.e., the Companies 1 ...... 65 maximum bonus amount of $39,500 will ‘‘recapture’’ the full amount of each 2 ...... 30 ($125,000 × 0.055 (tier 2) + $375,000 × bonus). In the event of the death of the 3+ ...... 0 0.055 (tier 3) + $200,000 × 0.06 (tier 4)). Owner (or upon the death of the first No bonus amount (or subsequent Owner to die if there are Co-Owners, or 23. The Companies will recapture any recapture thereof, as discussed below) upon the death of the first Annuitant if bonus amounts subject to recapture will be based on a percentage that any Owner is not a natural person), the from the Owner’s Contract Value at the exceeds the maximum bonus amount Companies will recapture any bonus end of the valuation period during percentages shown in the above table. amounts corresponding to premium which the transaction request is When calculating each bonus amount, payments received and accepted within received and accepted at MLLIC’s or ‘‘cumulative premium payments’’ do the previous six months of death. Thus, MLNY’s Service Center. For each not include bonus amounts previously under the XC Class, if an optional premium payment, the bonus amount added to Contract Value. The bonus guaranteed minimum death benefit subject to recapture is equal to the amount is allocated among the (‘‘GMDB’’) is not chosen the death applicable bonus recapture percentage Subaccounts in the same manner as the benefit equals the Contract Value less multiplied by (a) minus (b) where: (a) is corresponding premium payment. The any bonus amounts credited in the prior the bonus amount attributable to that Companies may change the current six months. If a GMDB is chosen, the premium; and (b) is the sum of each
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previously recaptured bonus amount exceed $30) for each transfer above 12 recapture of bonus amounts MLLIC or attributable to that premium payment per Contract year; premium taxes or MLNY previously attributed to an divided by the bonus recapture other taxes by any governmental entity; Owner’s premium payments. The percentage on the date such amount was and fees for optional benefits or riders. Companies provide the bonus amounts recaptured. from their general accounts on a Applicants’ Legal Analysis 24. The Companies will deduct bonus guaranteed basis. The Contracts are amounts subject to recapture based on 1. The Applicants respectfully request designed to be long-term investment the associated premiums withdrawn that the Commission, pursuant to vehicles. In undertaking this financial from the Contract, which are Section 6(c) of the Act, grant the obligation, the Companies contemplate determined on a ‘‘first-in, first out’’ (or exemptions set forth below to permit the that an Owner will retain a Contract ‘‘FIFO’’) basis. Currently, the Companies Applicants to recapture all or a portion over an extended period, consistent do not recapture any bonus amounts on of bonus amounts attributable to with the long-term nature of the withdrawals that are within the ‘‘free premium payments under the Contract’s Contracts. The Companies designed the withdrawal amount.’’ The Companies XC Class when an Owner (1) returns the product so that they would recover their reserve the right to recapture bonus Contract during the Free Look Period; costs (including the bonus amounts) amounts on withdrawals that are within (2) dies within six months of receipt and over an anticipated duration while a the ‘‘free withdrawal amount’’ in the acceptance by MLLIC or MLNY of a Contract is in force. If an Owner future. The amount actually recaptured premium payment (unless the Contract withdraws his money during the Free is based on the bonus amount subject to is continued under the spousal benefit Look Period, or a death benefit is paid, recapture multiplied by the ratio of: (i) continuation option); or (3) surrenders or a withdrawal or surrender is made, the associated premium payment the Contract (in full or in part) or the before this anticipated period, the withdrawn that was subject to a surrender value is paid to the Owner Companies must recapture the bonus surrender charge to (ii) the total amount (because the Contract has been amounts subject to recapture in order to of that premium payment remaining in terminated for inactivity) within three avoid a loss. the Contract immediately prior to the years of receipt and acceptance by 4. The recapture of bonus amounts withdrawal that was subject to a MLLIC or MLNY of a premium payment does not violate Section 2(a)(32) of the surrender charge. The Companies will (pursuant to a bonus recapture Act. The bonus amount recapture deduct any recaptured bonus amounts schedule). provision pursuant to the Contract’s XC on a pro rata basis from among the 2. Because the provisions described Subaccounts the Owner is invested in, below may be inconsistent with a Class does not deprive the Owner of his based on the ratio of the Owner’s recapture of bonus amounts, the or her proportionate share of the issuer’s Subaccount value to his or her total Applicants request exemptions for the current net assets. In the case of death Subaccount value before the partial Contracts described herein, and for of the Owner, an Owner will have the withdrawal. Future Contracts, from Sections 2(a)(32) full right to any bonus amounts not 25. If the Companies recapture a and 27(i)(2)(a) of the Act, and Rule 22c– previously recaptured six months bonus amount, they will take back the 1 thereunder, pursuant to Section 6(c), following MLLIC’s or MLNY’s receipt bonus amount as if it had never been to the extent necessary to recapture the and acceptance of the corresponding applied. However, the accumulated gain bonus amounts, as described above. The premium payment. In the case of partial or loss on bonus amounts is never Applicants seek exemptions therefrom or full surrender, an Owner’s right to a subject to recapture. Thus, an Owner in order to avoid any questions portion of a bonus amount not bears any investment loss and retains concerning the Contracts’ compliance previously recaptured will begin one any investment gain attributable to with the Act and rules thereunder. For year following MLLIC’s or MLNY’s bonus amounts. The Companies will not the reasons discussed below, the receipt and acceptance of the re-credit any charges, including asset- exemptions requested herein are corresponding premium payment, and based insurance charges, imposed on necessary or appropriate in the public an Owner will have the full right to any bonus amounts subsequently interest and consistent with the such remaining bonus amount three recaptured. protection of investors and purposes years following MLLIC’s or MLNY’s 26. Although not currently permitted, fairly intended by the policy and receipt and acceptance of the in the future the Companies may permit provisions of the Act. corresponding premium payment. Until an Owner to partially annuitize the 3. To the extent that the bonus that time, the Companies retain the right Contract. Partial annuitizations would amount recapture might be seen as a and interest in the dollar amount of any be considered to be partial withdrawals discount from the net asset value, or bonus amounts subject to recapture. for purposes of calculations under the might be viewed as resulting in the Thus, when the Companies recapture all Contract, including bonus recaptures. payment to an Owner of less than the or a portion of a bonus amount, they are 27. In addition to the fees and charges proportionate share of the issuer’s net only retrieving their own assets, and discussed above, the Companies deduct assets, the bonus amount recapture because an Owner does not have an various other fees and charges. These would trigger the need for relief absent interest in the bonus amount, such currently include an asset-based some exemption from the Act. Rule 6c– Owner would not be deprived of a insurance charge that varies by 8 provides, in relevant part, that a proportionate share of the applicable Subaccount (under the XC Class registered separate account, and any Separate Account’s assets (the issuer’s Contract this charge currently ranges depositor of such account, shall be current net assets) in violation of from 1.55% to 1.80% of Subaccount exempt from Sections 2(a)(32), 22(c), Section 2(a)(32). Therefore, such assets (guaranteed not to exceed 27(c)(1), 27(c)(2), and 27(d) of the Act recapture does not reduce the amount of 2.00%)); a current annual contract fee of and Rule 22c–1 thereunder to the extent the applicable Separate Account’s $50 (guaranteed not to exceed $75), necessary to permit them to impose a current net assets an Owner would which will apply if the greater of deferred sales load on any variable otherwise be entitled to receive. Contract Value or premiums less annuity contract participating in such However, to avoid uncertainty as to full withdrawals is less than $50,000; account. However, the bonus amount compliance with the Act, the Applicants transfer fee of $25 (guaranteed not to recapture is not a sales load, but a request an exemption from the
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provisions of Sections (2)(a)(32) and increased by any credits applied upon Application, even if the bonus amounts 27(i)(2)(A) to the extent deemed surrender) under a Contract in described herein arguably conflicts with necessary to permit them to recapture accordance with Rule 22c–1 on a basis Sections 2(a)(32) or 27(i)(2)(A) of the all or a portion of the bonus amounts next computed after receipt of an Act or Rule 22c–1 thereunder. The under the Contracts and Future Owner’s request for surrender (likewise, bonus amount provisions are generally Contracts. the calculation of death benefits and beneficial to Owners. The recapture 5. As a result of the bonus amounts annuity payment amounts will be in full provisions temper this benefit available under the Contract’s XC Class, compliance with the forward pricing somewhat, but only if an Owner an Owner who made an initial premium requirement of Rule 22c–1). The amount redeems his or her money under the payment of $10,000 in the first Contract recaptured will equal all or a portion of circumstances described herein. While year could be viewed as having a bonus amounts that MLLIC or MLNY there would be a small downside in a Contract Value of $10,400 before any paid out of its general account assets. declining market where an Owner earnings accrued. The Companies’ It is not administratively feasible to would bear any losses attributable to the addition of bonus amounts might track the bonus amount in the Separate bonus amounts, it is the converse of the arguably be viewed as resulting in an Accounts after the Companies apply the benefits an Owner would receive on the Owner purchasing a redeemable bonus. As a result, the asset-based bonus amounts in a rising market. As security for a price below the current charges applicable to the Separate any earnings on bonus amounts applied net asset value. Further, by recapturing Accounts will be assessed against the would not be subject to recapture and the bonus amounts, the Companies entire amount held in the Separate thus would be immediately available to might arguably be redeeming a Accounts, including the bonus amount, an Owner, likewise any losses on bonus redeemable security for a price other during the time the bonus amount is amounts would also not be subject to than one based on the current net asset subject to recapture. During this time, recapture and thus would be value of the applicable Separate the aggregate asset-based charges immediately available to an Owner. The Account. assessed against an Owner’s Contract bonus amount recapture provision does 6. An Owner’s interest in his or her Value will be higher than those that not diminish the overall value of the Contract Value would always be offered would be charged if the Owner’s bonus amounts. at a price based on the net asset value Contract Value did not include the 12. MLLIC’s or MLNY’s recapture of next calculated after receipt of the order. bonus amount, but the increment will bonus amounts is designed to prevent The granting of bonus amounts does not obviously be only a small percentage of anti-selection against it. The risk of anti- reflect a reduction of that price. Instead, the bonus amount. On the other hand, selection would be that an Owner could the Companies will purchase with their an Owner will retain any investment make significant premium payments own general account assets an interest benefit from the bonus amount. into the Contract solely in order to in the applicable Separate Account Although an Owner will retain any receive a quick profit from the bonus equal to the bonus amounts. Because the investment gain attributable to the amounts. By recapturing the bonus bonus amounts will be paid out of bonus amounts, the Companies will amounts, the Companies protect MLLIC’s or MLNY’s assets, not the determine the amount of such gain on themselves against the risk that an applicable Separate Account’s assets, no the basis of the current net asset value Owner will make such large premium dilution will occur as a result of the of the Subaccount. Thus, no dilution payments, receive the bonus amounts, bonus amounts. will occur upon the recapture of bonus 7. The recapture of bonus amounts amounts. and then withdraw his or her money does not involve either of the two harms 9. Further, the other harm that Rule from the Contract. The Companies that the Commission intended to 22c–1 was designed to address generally protect themselves from this eliminate or reduce with Rule 22c–1. (speculative trading practices calculated kind of anti-selection, and recover their The Commission’s stated purposes in to take advantage of backward pricing) costs in situations where an Owner adopting Rule 22c–1 were to avoid or will not occur as a result of MLLIC’s or withdraws his or her money early in the minimize: (1) Dilution of the interests of MLNY’s recapture of a bonus amount. life of a Contract, by imposing a other security holders; and (2) Variable annuities are designed for long- surrender charge. However, where an speculative trading practices that are term investment, and by their nature, do Owner withdraws his money during the unfair to such holders. These two not lend themselves to the kind of Free Look Period or a death benefit is concerns were the result of backward speculative short-term trading that Rule paid, the Companies do not apply this pricing, the practice of basing the price 22c–1 was designed to prevent. More to charge. of a mutual fund share on the net asset the point, the bonus recapture simply 13. The Applicants seek relief herein value per share determined as of the does not create the opportunity for not only for themselves with respect to close of the market on the previous day. speculative trading. the support of the Contracts, but also Backward pricing allowed investors to 10. Rule 22c–1 should have no with respect to Future Accounts or take advantage of increases or decreases application to a bonus amount, as Future Contracts described herein. The in net asset value that were not yet neither of the harms that Rule 22c–1 Applicants represent that the terms of reflected in the price, and thereby the was designed to address are present in the relief requested with respect to any values of outstanding mutual fund the recapture of bonus amounts. Contracts or Future Contracts funded by shares were diluted. However, to avoid uncertainty as to full the Separate Accounts or Future 8. The proposed recapture of bonus compliance with the Act, the Applicants Accounts are consistent with the amounts under the Contracts does not request an exemption from the standards set forth in Section 6(c) of the pose such threat of dilution. The bonus provisions of Rule 22c–1 to the extent Act and Commission precedent. The amount recapture will not alter an deemed necessary to permit them to Commission has previously granted Owner’s net asset value. The Companies recapture bonus amounts available class relief (from certain specified will determine an Owner’s surrender through the XC Class under the provisions of the Act for separate value (an amount equal to the Contract Contracts and Future Contracts. accounts that support variable annuity Value reduced by any charges 11. The Commission should grant the contracts) that is materially similar to (including the surrender charge) and exemptions requested in this the relief described in this Application.
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14. In addition, the Applicants seek SECURITIES AND EXCHANGE have been prepared by the Exchange. relief herein with respect to Future COMMISSION On December 7, 2004, Amex filed Underwriters (i.e., a class consisting of Amendment No. 1 to the proposed rule [File No. 500–1] NASD member broker-dealers that may change.3 The Commission is publishing also act as principal underwriter of the In the Matter of Artec, Inc.; Order of this notice to solicit comments on the Contracts and Future Contracts). The Suspension of Trading proposed rule change, as amended, from Commission has regularly granted relief interested persons. In addition, the to ‘‘future underwriters’’ that are not December 23, 2004. Commission is granting accelerated named, and are not affiliates of the It appears to the Securities and approval of the proposed rule change. applicants. The Applicants represent Exchange Commission that there is a I. Self-Regulatory Organization’s that the terms of the relief requested lack of current and accurate information Statement of the Terms of Substance of with respect to any Future Underwriters concerning the securities of Artec, Inc. the Proposed Rule Change are consistent with the standards set (‘‘ATKJ’’) because of questions regarding forth in Section 6(c) of the Act and the accuracy of assertions by ATKJ and The Amex proposes to amend the Commission precedent. others, on ATKJ’s Web site, in ATKJ’s Amex Equity and Exchange Traded Funds and Trust Issued Receipts Fee 15. Without the requested class relief, press releases, and in public statements to investors concerning, among other Schedules to provide for customer exemptive relief for any Future transactions charges for the trading of Account, Future Contract, or Future things, the testing of ATKJ’s Tubercin substance for use in treating cancer Nasdaq-100 Index Tracking Stock( ) Underwriter would have to be requested (Symbol: QQQQ) pursuant to the and obtained separately. These patients. The Commission is of the opinion that Nasdaq Unlisted Trading Privileges additional requests for exemptive relief Plan. The text of the proposed rule would present no issues under the Act the public interest and the protection of investors require a suspension of trading change, as amended, is available at the not already addressed herein. If the Office of the Secretary, Amex, and at the in the securities of the above listed Applicants were to repeatedly seek Commission. exemptive relief with respect to the company. same issues addressed herein, investors Therefore, it is ordered, pursuant to II. Self-Regulatory Organization’s would not receive additional protection Section 12(k) of the Securities Exchange Statement of the Purpose of, and or benefit, and investors and the Act of 1934, that trading in the above Statutory Basis for, the Proposed Rule Applicants could be disadvantaged by listed company is suspended for the Change increased costs from preparing such period from 9:30 a.m. e.s.t. December In its filing with the Commission, the additional requests for relief. The 23, 2004 through 11:59 p.m. e.s.t., on Exchange included statements requested class relief is appropriate in January 7, 2005. concerning the purpose of, and basis for, the public interest because the relief By the Commission. the proposed rule change and discussed will promote competitiveness in the Jill M. Peterson, any comments it had received on the variable annuity market by eliminating Assistant Secretary. proposed rule change. The text of these the need for the Companies to file [FR Doc. 04–28473 Filed 12–23–04; 11:55 statements may be examined at the redundant exemptive applications, am] places specified in Item III below. The thereby reducing administrative BILLING CODE 8010–01–P Amex has prepared summaries, set forth expenses and maximizing efficient use in Sections A, B, and C below, of the of resources. Elimination of the delay most significant aspects of such and the expense of repeatedly seeking SECURITIES AND EXCHANGE statements. exemptive relief would enhance the COMMISSION A. Self-Regulatory Organization’s Applicants’ ability to effectively take Statement of the Purpose of, and advantage of business opportunities as [Release No. 34–50894; File No. SR–Amex– 2004–93] Statutory Basis for, the Proposed Rule such opportunities arise. The Change Applicants’ request for class exemptions Self-Regulatory Organizations; is necessary or appropriate in the public American Stock Exchange LLC; Notice 1. Purpose interest and consistent with the of Filing and Order Granting Effective December 1, 2004, the protection of investors and the purposes Accelerated Approval to a Proposed Nasdaq-100 Index Tracking Stock() fairly intended by the policy and Rule Change and Amendment No. 1 listed on the Nasdaq Stock Market, Inc. provisions of the Act, and that an order Thereto Relating to Customer It trades on Nasdaq under the symbol of the Commission including such class Transaction Charges for the Trading of QQQQ. The Amex trades the QQQQ on relief, should, therefore, be granted. Any Nasdaq-100 Index Tracking Stock() an unlisted trading privileges basis. The entity that currently intends to rely on Amex proposes to amend the Amex the requested exemptive order is named December 20, 2004. Equity and Exchange Traded Funds and as an Applicant. Any entity that relies Pursuant to Section 19(b)(1) of the Trust Issued Receipts Fee Schedules upon the requested order in the future Securities Exchange Act of 1934 (‘‘Amex Fee Schedules’’) to provide that will comply with the terms and (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 the customer transaction charges in conditions contained in this notice is hereby given that on November QQQQ would be $.0015 per share ($.15 Application. 22, 2004, the American Stock Exchange per 100 shares), capped at $100 per For the Commission, by the Division of LLC (‘‘Amex’’ or ‘‘Exchange’’) filed with trade. This would be one-fourth of the Investment Management, under delegated the Securities and Exchange regular customer transaction charge for authority. Commission (‘‘Commission’’) the the Nassaq–100 Index Tracking Stock( ) proposed rule change as described in Margaret H. McFarland, when it was listed on the Amex Items I, II, and III below, which Items (although the Amex has suspended Deputy Secretary.
[FR Doc. 04–28273 Filed 12–27–04; 8:45 am] 1 15 U.S.C. 78s(b)(1). 3 In Amendment No. 1, the Amex restated the BILLING CODE 8010–01–P 2 17 CFR 240.19b–4. proposed rule change in its entirety.
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these charges since August 2001) and C. Self-Regulatory Organization’s IV. Commission’s Findings and Order for other Exchange Traded Fund Shares. Statement on Comments on the Granting Accelerated Approval of The Exchange believes that this fee level Proposed Rule Change Received From Proposed Rule Change would encourage competition among Members, Participants, or Others After careful consideration, the markets trading QQQQ and enhance the No written comments were solicited Amex’s competitiveness in trading this or received with respect to the proposed Commission finds that the proposed security. In order to reflect the lower rule change. rule change, as amended, is consistent transaction charges in QQQQ for with the requirements of the Act and the III. Solicitation of Comments customers on the Exchange Traded rules and regulations thereunder, Funds and Trust Issued Receipts Fee Interested persons are invited to applicable to a national securities 7 Schedule (‘‘ETF Fee Schedule’’), a new submit written data, views, and exchange. In particular, the Section IV would be added specifically arguments concerning the foregoing, Commission finds that the proposed to set forth transaction charges in QQQQ including whether the proposed rule rule change is consistent with Section change is consistent with the Act. 8 for customers as well as the specialist 6(b)(4) of the Act, in that it provides for Comments may be submitted by any of and registered traders. The transaction the equitable allocation of reasonable the following methods: charges for all three market participants dues, fees, and other charges among its previously were included in Section II Electronic Comments members and other persons using its facilities. The Commission believes that of the ETF Fee Schedule since they were • Use the Commission’s Internet the same in each case as the transaction comment form (http://www.sec.gov/ the proposed change in customer charges for other Exchange Traded rules/sro.shtml); or transaction charges is not unreasonable Funds for which the Exchange pays • Send an e-mail to rule- and should not discriminate unfairly unreimbursed fees to a third party. [email protected]. Please include File among market participants. Although the text of Section IV is Number SR–Amex–2004–93 on the The Amex has requested that the entirely new, it would reflect the subject line. Commission find good cause for current transaction charges in place for Paper Comments approving the proposed rule change and specialists and registered traders, this Amendment No. 1 thereto prior to the • Send paper comments in triplicate thirtieth day after publication of notice proposal is not seeking to establish new to Jonathan G. Katz, Secretary, thereof in the Federal Register. The transaction charges for the specialist Securities and Exchange Commission, and registered traders. 450 Fifth Street, NW., Washington, DC Commission notes that granting In addition, the Amex has determined 20549–0609. accelerated approval of the proposal that during the first month of trading All submissions should refer to File would allow the Amex to implement the QQQQ pursuant to unlisted trading Number SR–Amex–2004–93. This file proposed changes to its fee schedule for privileges, it would suspend these number should be included on the QQQQ in a manner which coincides customer charges. The Amex Fee subject line if e-mail is used. To help the with the start of trading QQQQ pursuant Schedules also would be amended to Commission process and review your to unlisted trading privileges. reflect this temporary suspension. comments more efficiently, please use Accordingly, the Commission finds only one method. The Commission will good cause, pursuant to Section 19(b)(2) 2. Statutory Basis post all comments on the Commission’s of the Act,9 for approving the proposed Internet Web site (http://www.sec.gov/ rule change, as amended, prior to the The Amex believes the proposed rule rules/sro.shtml). Copies of the thirtieth day after the date of change is consistent with Section 6(b) of submission, all subsequent publication of notice thereof in the the Act,4 in general, and furthers the amendments, all written statements Federal Register objectives of Section 6(b)(4) of the Act,5 with respect to the proposed rule in particular, in that it is intended to change that are filed with the V. Conclusion provide for the equitable allocation of Commission, and all written reasonable dues, fees and other charges communications relating to the It is therefore ordered, pursuant to 10 among its members and issuers and proposed rule change between the Section 19(b)(2) of the Act, that the other persons using its facilities.6 Commission and any person, other than proposed rule change (SR–Amex–2004– those that may be withheld from the 93), and Amendment No. 1 thereto, are B. Self-Regulatory Organization’s public in accordance with the hereby approved on an accelerated Statement on Burden on Competition provisions of 5 U.S.C. 552, will be basis. The Exchange does not believe that available for inspection and copying in For the Commission, by the Division of the Commission’s Public Reference the proposed rule change, as amended, Market Regulation, pursuant to delegated Section, 450 Fifth Street, NW., 11 would impose any burden on authority. Washington, DC 20549. Copies of such Margaret H. McFarland, competition. filing also will be available for inspection and copying at the principal Deputy Secretary. 4 15 U.S.C. 78f(b). office of the Amex. All comments [FR Doc. E4–3831 Filed 12–27–04; 8:45 am] 5 15 U.S.C. 78f(b)(4). received will be posted without change; BILLING CODE 8010–01–P 6 The Commission changed this sentence to the Commission does not edit personal reflect statutory basis for the proposed rule change identifying information from 7 In approving this proposal, the Commission has pursuant to Section 6(b)(4) of the Act, rather than submissions. You should submit only considered its impact on efficiency, competition, Section 6(b)(5). Telephone conversation among information that you wish to make and capital formation. 15 U.S.C. 78c(f). Claire P. McGrath, Senior Vice President and 8 Deputy General Counsel, Amex, Ann E. Leddy, publicly available. All submissions 15 U.S.C. 78f(b)(4). Special Counsel, and Ted Venuti, Attorney, should refer to File Number SR–Amex– 9 15 U.S.C. 78s(b)(2). Division of Market Regulation, Commission 2004–93 and should be submitted on or 10 15 U.S.C. 78s(b)(2). (December 9, 2004). before January 18, 2005. 11 17 CFR 200.30–3(a)(12).
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SECURITIES AND EXCHANGE adjustment of transactions involving Theoretical price Minimum COMMISSION index options and options on ETFs and amount HOLDRs. Paragraphs (a)(1), and (2)[, (6), [Release No. 34–50880; File No. SR–CBOE– Above $5 to $10 ...... 0.50 2004–83] and (7)] of this Rule have no applicability to trades executed in open Above $10 to $20 ...... 0.80 Above $20 ...... 1.00 Self-Regulatory Organizations; Notice outcry. of Filing and Immediate Effectiveness (a) Trades Subject to Review Definition of Theoretical Price. For of Proposed Rule Change and purposes of this Rule only, the Amendment Nos. 1 and 2 Thereto by A member or person associated with a member may have a trade adjusted or Theoretical Price of an option series is, the Chicago Board Options Exchange, for series traded on at least one other Inc. To Amend Its Obvious Error Rule nullified if, in addition to satisfying the procedural requirements of paragraph options exchange, the last bid price with respect to an erroneous sell transaction December 17, 2004. (b) below, one of the following and the last offer price with respect to Pursuant to Section 19(b)(1) of the conditions is satisfied: an erroneous buy transaction, just prior Securities Exchange Act of 1934 (1) Obvious Price Error: [An obvious to the trade, disseminated by the (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 pricing error will be deemed to have competing options exchange that has notice is hereby given that on December occurred when the execution price of a the most liquidity in that option class in 9, 2004, the Chicago Board Options transaction is above or below the fair market value of the option by at least a the previous two calendar months. Exchange, Inc. (‘‘CBOE’’ or ‘‘Exchange’’) If there are no quotes for comparison, prescribed amount. For series trading filed with the Securities and Exchange designated Trading Officials will with normal bid-ask differentials as Commission (‘‘Commission’’) the determine the Theoretical Price. For established in Rule 8.7(b)(iv), the proposed rule change as described in transactions occurring as part of the prescribed amount shall be: (a) The Items I and II below, which Items have Rapid Opening System (‘‘ROS trades’’) greater of $0.10 or 10% for options been prepared by the Exchange. The or Hybrid Opening System (‘‘HOSS’’), trading under $2.50; (b) 10% for options proposed rule change has been filed by Theoretical Price shall be the first quote trading at or above $2.50 and under $5; CBOE as a ‘‘non-controversial’’ rule after the transaction(s) in question that or (c) $0.50 for options trading at $5 or change pursuant to Section 19(b)(3)(A) does not reflect the erroneous 3 higher. For series trading with bid-ask of the Act and Rule 19b–4(f)(6) transaction(s). 4 differentials that are greater than the thereunder. On December 13, 2004, Price Adjustment or Nullification: widths established in Rule 8.7(b)(iv), the CBOE submitted Amendment No. 1 to Obvious Pricing Errors will be adjusted 5 prescribed error amount shall be: (a) the proposed rule change. On or nullified in accordance with the The greater of $0.20 or 20% for options December 16, 2004, CBOE submitted following: trading under $2.50; (b) 20% for options Amendment No. 2 to the proposed rule Transactions Between CBOE Market 6 trading at or above $2.50 and under $5; change. The Commission is publishing Makers: Where both parties to the or (c) $1.00 for options trading at $5 or this notice to solicit comments on the transaction are CBOE Market-Makers, higher. proposed rule change, as amended, from the execution price of the transaction (i) Definition of Fair Market Value: interested persons. will be adjusted by Trading Officials to For purposes of this Rule only, the fair the prices provided in Paragraphs (A) I. Self-Regulatory Organization’s market value of an option is the and (B) below, minus (plus) an Statement of the Terms of Substance of midpoint of the national best bid and adjustment penalty (‘‘adjustment the Proposed Rule Change national best offer for the series (across penalty’’), unless both parties agree to CBOE proposes to amend its obvious all exchanges trading the option). In adjust the transaction to a different price error rule. Additions are italicized. multiply listed issues, if there are no or agree to bust the trade within fifteen Deletions are bracketed. quotes for comparison purposes, fair (15) minutes of being notified by market value shall be determined by * * * * * Trading Officials of the Obvious Error. Trading Officials. For singly-listed Rule 6.25 Nullification and A. Erroneous buy transactions will be issues, fair market value shall be the adjusted to their Theoretical Price plus Adjustment of [Electronic] Equity first quote after the transaction(s) in Options Transactions an adjustment penalty of either $.15 if question that does not reflect the the Theoretical Price is under $3 or $.30 This Rule governs the nullification erroneous transaction(s). For if the Theoretical Price is at or above $3. and adjustment of [options trades] transactions occurring as part of the B. Erroneous sell transactions will be transactions involving equity options. Rapid Opening System (‘‘ROS trades’’) adjusted to their Theoretical Price Rule 24.16 governs the nullification and or Hybrid Opening System (‘‘HOSS’’), minus an adjustment penalty of either fair market value shall be the first quote $.15 if the Theoretical Price is under $3 1 15 U.S.C. 78s(b)(1). after the transaction(s) in question that or $.30 if the Theoretical Price is at or 2 17 CFR 240.19b–4. does not reflect the erroneous above $3. 3 15 U.S.C. 78s(b)(3)(A). transaction(s).] Transactions Involving at least one 4 17 CFR 240.19b–4(f)(6). An obvious pricing error occurs when 5 non-CBOE Market Maker: Where one of In Amendment No. 1, CBOE proposes to adopt the execution price of an electronic new Interpretations and Policies .03 to Rule 6.25. the parties to the transaction is not a The purpose of adopting this provision is to provide transaction is above or below the CBOE market maker, the transactions a definition of ‘‘erroneous buy’’ and ‘‘erroneous Theoretical Price for the series by an will be nullified by Trading Officials sell’’ transaction. Additionally, the Exchange amount equal to at least the amount unless both parties agree to an proposes to capitalize the term ‘‘Theoretical Price’’ shown below: in the last sentence of proposed paragraph (a)(1) of adjustment price for the transaction CBOE Rule 6.25. within thirty (30) minutes of being Minimum 6 In Amendment No. 2, CBOE proposes to replace Theoretical price notified by Trading Officials of the paragraph (c) of proposed CBOE Rule 24.16 and to amount make a technical correction to proposed paragraph Obvious Error. (a)(1) of CBOE Rule 6.25 by replacing the word Below $2 ...... $0.25 (2) [Obvious Quantity Error: An ‘‘with’’ with the word ‘‘within.’’ $2 to $5 ...... 0.40 obvious error in the quantity term will
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be deemed to occur when the and has a width at least five times action pursuant to paragraph (a)(3) transaction size exceeds the responsible greater than the average quote width for above within sixty (60) minutes of the broker or dealer’s average disseminated such underlying security on the primary occurrence of the verifiable disruption size over the previous four hours by a market during the time period or malfunction. When Trading Officials factor of five (5) times. The quantity to encompassing two minutes before and take action pursuant to paragraph (a)(3), which a transaction shall be adjusted after the dissemination of such quote. the members involved in the from an obvious quantity error shall be (6) Trades Below Intrinsic Value: An transaction(s) shall receive verbal the responsible broker or dealer’s obvious pricing error will be deemed to notification as soon as is practicable. average disseminated size over the occur when the transaction price of an (2) Review and Determination: Once a previous four trading hours (which may equity option is more than $0.10 below party to a transaction has applied to a include the previous trading day).] the intrinsic value of the same option Trading Official for review, the No Bid Series: Electronic transactions (an option that trades at its intrinsic transaction shall be reviewed and a in series quoted no bid at a nickel (i.e., value is sometimes said to trade at determination rendered, unless both $0.05 offer) will be nullified provided at ‘‘parity’’). Paragraph (6) shall not apply parties to the transaction agree to least one strike price below (for calls) or to transactions occurring during the last withdraw the application for review above (for puts) in the same options two minutes of the trading day (which prior to the time a decision is rendered. class was quoted no bid at a nickel at is typically 3:00:01 p.m. (CT) to 3:02 Absent unusual circumstances (e.g., a the time of execution. p.m. (CT)) on days with regular trading large number of disputed transactions (3) Verifiable Disruptions or hours). arising out of the same incident), Malfunctions of Exchange Systems: (i) Definition of Intrinsic Value: For Trading Officials must render a Electronic or open outcry transactions purposes of this Rule, the intrinsic value determination within sixty (60) minutes [Trades] arising out of a ‘‘verifiable of an equity call option equals the value of receiving notification pursuant to disruption or malfunction’’ in the use or of the underlying stock (measured from paragraph (b)(1) above. [If the operation of any Exchange automated the bid or offer as described below) transaction(s) in question occurred after quotation, dissemination, execution, or minus the strike price, and the intrinsic 2:30 p.m., Trading Officials shall have communication system [may] will either value of an equity put option equals the until 9:30 a.m. the following morning to be nullified or adjusted by Trading strike price minus the value of the render a determination.] Trading Officials. Transactions that qualify for underlying stock (measured from the Officials shall promptly provide verbal price adjustment will be adjusted to bid or offer as described below), notification of a determination to the Theoretical Price, as defined in provided that in no case is the intrinsic members involved in the disputed paragraph (a)(1) above. value of an option less than zero. In the transaction and to the control room. (4) Erroneous Print in Underlying: A case of purchasing call options and [(c) Adjustments trade resulting from an erroneous print selling put options, intrinsic value is Unless otherwise specified in Rule disseminated by the underlying market measured by reference to the bid in the 6.25(a)(1)-(6), transactions will be which is later cancelled or corrected by underlying security, and in the case of adjusted provided the adjusted price that underlying market may be [adjusted purchasing put options and selling call does not violate the customer’s limit or] nullified. In order to be [adjusted or] options, intrinsic value is measured by price. Otherwise, the transaction will be nullified, however, the trade must be reference to the offer in the underlying nullified. With respect to 6.25(a)(1)-(5), the result of an erroneous print that is security. the price to which a transaction shall be higher or lower than the average trade (7) No Bid Series: Electronic adjusted shall be the National Best Bid in the underlying security during a two- transactions in series quoted no bid at (Offer) immediately following the minute period before and after the a nickel (i.e., $0.05 offer) will be erroneous transaction with respect to a erroneous print by an amount at least nullified provided at least one strike sell (buy) order entered on the five times greater than the average quote price below (for calls) or above (for puts) Exchange. For ROS or HOSS width for such underlying security in the same options class was quoted no transactions, the price to which a during the same period. bid at a nickel at the time of execution.] transaction shall be adjusted shall be For purposes of this Rule, the average based on the first non-erroneous quote (b) Procedures for Reviewing trade in the underlying security shall be after the erroneous transaction on Transactions determined by adding the prices of each CBOE. With respect to 6.25(a)(6), the trade during the four minute time (1) Notification: Any member or transaction shall be adjusted to a price period referenced above (excluding the person associated with a member that that is $0.10 under parity.] trade in question) and dividing by the believes it participated in a transaction number of trades during such time that may be adjusted or nullified in (c) Obvious Error Panel period (excluding the trade in question). accordance with paragraph (a) must (i) Composition. An Obvious Error For purposes of this Rule, the average notify any Trading Official promptly but Panel will be comprised of at least one quote width shall be determined by not later than fifteen (15) minutes after (1) Trading Floor Liaison (TFL) and four adding the quote widths of each the execution in question. [For (4) Exchange members. Fifty percent of separate quote during the four minute transactions occurring after 2:45 p.m. the number of Exchange members on time period referenced above (excluding (CST), notification must be provided the Obvious Error Panel must be directly the quote in question) and dividing by promptly but not later than fifteen (15) engaged in market making activity and the number of quotes during such time minutes after the close of trading of that fifty percent of the number of Exchange period (excluding the quote in security on CBOE.] Absent unusual members on the Obvious Error Panel question). circumstances, Trading Officials shall must act in the capacity of a non-DPM [(5) Erroneous Quote in Underlying: A not grant relief under this Rule unless floor broker. The Exchange members trade resulting from an erroneous quote notification is made within the shall be representatives from any of the in the underlying security may be prescribed time periods. In the absence following Committees: Equity Options adjusted or nullified. An erroneous of unusual circumstances, Trading Procedure Committee, Equity Market quote occurs when the underlying Officials (either on their own motion or Performance Committee, and Floor security has a width of at least $1.00 upon request of a member) must initiate Officials Committee.
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(ii) Scope of Review. If a party .01 Applicability: Trading Officials or (c) $0.50 for options trading at $5 or affected by a determination made under may also allow for the execution of ROS higher. For series trading with bid-ask this Rule so requests within the time trades (and assign those trades to differentials that are greater than the permitted in paragraph (b), an Obvious participating ROS market-makers) that widths established in Rule 8.7(b)(iv), the Error Panel will review decisions made were not executed on the opening but prescribed error amount shall be: (a) the by the Trading Officials under this Rule, that should have been executed had greater of $0.20 or 20% for options including whether an obvious error ROS opened the series at the non- trading under $2.50; (b) 20% for options occurred, whether the correct erroneous quote. The Exchange will trading at or above $2.50 and under $5; Theoretical Price was used, and whether endeavor to notify its members as soon or (c) $1.00 for options trading at $5 or the correct adjustment was made at the as practicable after the correction of an higher. correct price. A party may also request erroneous print and will indicate that (i) Definition of Fair Market Value: that the Obvious Error Panel provide this may result in the adjustment of For purposes of this Rule only, the fair relief as required in this Rule in cases trades executed pursuant to ROS. The market value of an option is the where the party failed to provide the only trades that will be adjusted are midpoint of the national best bid and notification required in paragraph (b) those that were executed on the opening national best offer for the series (across and the Trading Officials declined to or those that should have executed on all exchanges trading the option). In grant an extension, but unusual the opening. All adjustments will be multiply listed issues, if there are no circumstances must merit special made during the day when the quotes for comparison purposes, fair consideration. correction of the erroneous print market value shall be determined by (iii) Procedure for Requesting Review. occurred. Trading Officials. For singly-listed A request for review must be made in .02 Trading Officials: The term issues, fair market value shall be the writing within (30) minutes after a party ‘‘Trading Officials’’ means two first quote after the transaction(s) in receives verbal notification of a final Exchange members designated as Floor question that does not reflect the determination by the Trading Officials Officials and one member of the erroneous transaction(s). For under this Rule, except that if Exchange’s trading floor liaison (TFL) transactions occurring as part of the notification is made after 2:30 p.m. staff. Rapid Opening System (‘‘ROS trades’’) .03 Definitions: For purposes of this Central Time (‘‘CT’’), either party has or Hybrid Opening System (‘‘HOSS’’), Rule, an ‘‘erroneous sell transaction’’ is until 8:30 a.m. CT the next trading day fair market value shall be the first quote one in which the price received by the to request review. The Obvious Error after the transaction(s) in question that person selling the option is erroneously Panel shall review the facts and render does not reflect the erroneous low, and an ‘‘erroneous buy a decision on the day of the transaction, transaction(s). transaction’’ is one in which the price or the next trade day in the case where paid by the person purchasing the (2) Obvious Quantity Error: An a request is properly made the next option is erroneously high. obvious error in the quantity term will trade day. be deemed to occur when the * * * * * (iv) Panel Decision. The Obvious Error transaction size exceeds the responsible Panel may overturn or modify an action Rule 24.16 Nullification and broker or dealer’s average disseminated taken by the Trading Officials under Adjustment of Index Option size over the previous four hours by a this Rule upon agreement by a majority Transactions factor of five (5) times. The quantity to of the Panel representatives. All This Rule only governs the which a transaction shall be adjusted determinations by the Obvious Error nullification and adjustment of from an obvious quantity error shall be Panel may be appealed in accordance transactions involving index options the responsible broker or dealer’s with paragraph (d) of this rule. and options on ETFs or HLDRs. Rule average disseminated size over the previous four trading hours (which may (d) Review by the Appeals Committee 6.25 governs the nullification and adjustment of transactions involving include the previous trading day). A member affected by a determination equity options. Paragraphs (a)(1), (2), (6) (3) Verifiable Disruptions or made under this rule may appeal such and (7) of this Rule have no Malfunctions of Exchange Systems: determination to the Appeals applicability to trades executed in open Trades arising out of a ‘‘verifiable Committee, in accordance with Chapter outcry. disruption or malfunction’’ in the use or XIX of the Exchange’s rules. For operation of any Exchange automated purposes of this Rule, a member must be (a) Trades Subject to Review quotation, dissemination, execution, or aggrieved as described in Rule 19.1. A member or person associated with communication system may either be Notwithstanding any provision in Rule a member may have a trade adjusted or nullified or adjusted by Trading 19.2 to the contrary, a request for review nullified if, in addition to satisfying the Officials. must be made in writing (in a form and procedural requirements of paragraph (4) Erroneous Print in Underlying: A manner prescribed by the Exchange) no (b) below, one of the following trade resulting from an erroneous print later than the close of trading on the conditions is satisfied: disseminated by the underlying market next trade date after the member (1) Obvious Price Error: An obvious which is later cancelled or corrected by receives verbal notification of such pricing error will be deemed to have that underlying market may be adjusted determination by Trading Officials. occurred when the execution price of a or nullified. In order to be adjusted or (e) Negotiated Trade Nullification transaction is above or below the fair nullified, however, the trade must be the market value of the option by at least a result of an erroneous print that is A trade may be nullified if the parties prescribed amount. For series trading higher or lower than the average trade to the trade agree to the nullification. with normal bid-ask differentials as in the underlying security during a two- When all parties to a trade have agreed established in Rule 8.7(b)(iv), the minute period before and after the to a trade nullification one party must prescribed amount shall be: (a) the erroneous print by an amount at least promptly disseminate cancellation greater of $0.10 or 10% for options five times greater than the average quote information in OPRA format. trading under $2.50; (b) 10% for options width for such underlying security Interpretations and Policies* * * trading at or above $2.50 and under $5; during the same period.
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For purposes of this Rule, the average (b) Procedures for Reviewing transaction shall be adjusted shall be trade in the underlying security shall be Transactions based on the first non-erroneous quote determined by adding the prices of each (1) Notification: Any member or after the erroneous transaction on trade during the four minute time person associated with a member that CBOE. With respect to 24.16(a)(6), the period referenced above (excluding the believes it participated in a transaction transaction shall be adjusted to a price trade in question) and dividing by the that may be adjusted or nullified in that is $0.10 under parity. number of trades during such time accordance with paragraph (a) must (d) Review by the Appeals Committee period (excluding the trade in question). notify any Trading Official promptly but A member affected by a determination For purposes of this Rule, the average not later than fifteen (15) minutes after quote width shall be determined by made under this rule may appeal such the execution in question. For determination to the Appeals adding the quote widths of each transactions occurring after 2:45 p.m. separate quote during the four minute Committee, in accordance with Chapter (CST), notification must be provided XIX of the Exchange’s rules. For time period referenced above (excluding promptly but not later than fifteen (15) the quote in question) and dividing by purposes of this Rule, a member must be minutes after the close of trading of that aggrieved as described in Rule 19.1. the number of quotes during such time security on CBOE. Absent unusual period (excluding the quote in question). Notwithstanding any provision in Rule circumstances, Trading Officials shall 19.2 to the contrary, a request for review (5) Erroneous Quote in Underlying: A not grant relief under this Rule unless must be made in writing (in a form and trade resulting from an erroneous quote notification is made within the manner prescribed by the Exchange) no in the underlying security may be prescribed time periods. In the absence later than the close of trading on the adjusted or nullified. An erroneous of unusual circumstances, Trading next trade date after the member quote occurs when the underlying Officials (either on their own motion or receives verbal notification of such security has a width of at least $1.00 upon request of a member) must initiate determination by Trading Officials. and has a width at least five times action pursuant to paragraph (a)(3) greater than the average quote width for above within sixty (60) minutes of the (e) Negotiated Trade Nullification such underlying security on the primary occurrence of the verifiable disruption A trade may be nullified if the parties market during the time period or malfunction. When Trading Officials to the trade agree to the nullification. encompassing two minutes before and take action pursuant to paragraph When all parties to a trade have agreed after the dissemination of such quote. (a)(3), the members involved in the to a trade nullification one party must (6) Trades Below Intrinsic Value: An transaction(s) shall receive verbal promptly disseminate cancellation obvious pricing error will be deemed to notification as soon as is practicable. information in OPRA format. occur when the transaction price of an (2) Review and Determination: Once a Interpretations and Policies* * * equity option is more than $0.10 below party to a transaction has applied to a .01 Applicability: Trading Officials the intrinsic value of the same option Trading Official for review, the may also allow for the execution of ROS (an option that trades at its intrinsic transaction shall be reviewed and a trades (and assign those trades to value is sometimes said to trade at determination rendered, unless both participating ROS market-makers) that ‘‘parity’’). Paragraph (6) shall not apply parties to the transaction agree to were not executed on the opening but to transactions occurring during the last withdraw the application for review that should have been executed had two minutes of the trading day (which prior to the time a decision is rendered. ROS opened the series at the non- is typically 3:00:01 p.m. (CT) to 3:02 Absent unusual circumstances (e.g., a erroneous quote. The Exchange will p.m. (CT)) on days with regular trading large number of disputed transactions endeavor to notify its members as soon hours). arising out of the same incident), as practicable after the correction of an Trading Officials must render a erroneous print and will indicate that (i) Definition of Intrinsic Value: For determination within sixty (60) minutes this may result in the adjustment of purposes of this Rule, the intrinsic value of receiving notification pursuant to trades executed pursuant to ROS. The of an equity call option equals the value paragraph (b)(1) above. If the only trades that will be adjusted are of the underlying stock (measured from transaction(s) in question occurred after those that were executed on the opening the bid or offer as described below) 2:30 p.m., Trading Officials shall have or those that should have executed on minus the strike price, and the intrinsic until 9:30 a.m. the following morning to the opening. All adjustments will be value of an equity put option equals the render a determination. Trading made during the day when the strike price minus the value of the Officials shall promptly provide verbal correction of the erroneous print underlying stock (measured from the bid notification of a determination to the occurred. or offer as described below), provided members involved in the disputed .02 Trading Officials: The term that in no case is the intrinsic value of transaction and to the control room. ‘‘Trading Officials’’ means two an option less than zero. In the case of Exchange members designated as Floor purchasing call options and selling put (c) Adjustments Officials and one member of the options, intrinsic value is measured by Unless otherwise specified in Rule Exchange’s trading floor liaison (TFL) reference to the bid in the underlying 24.16(a)(1)–(6), transactions will be staff. security, and in the case of purchasing adjusted provided the adjusted price * * * * * put options and selling call options, does not violate the customer’s limit intrinsic value is measured by reference price. Otherwise, the transaction will be II. Self-Regulatory Organization’s to the offer in the underlying security. nullified. With respect to 24.16(a)(1)–(5), Statement of the Purpose of, and (7) No Bid Series: Electronic the price to which a transaction shall be Statutory Basis for, the Proposed Rule transactions in series quoted no bid at adjusted shall be the National Best Bid Change a nickel (i.e., $0.05 offer) will be (Offer) immediately following the In its filing with the Commission, the nullified provided at least one strike erroneous transaction with respect to a Exchange included statements price below (for calls) or above (for puts) sell (buy) order entered on the concerning the purpose of and basis for in the same options class was quoted no Exchange. For ROS or HOSS the proposed rule change and discussed bid at a nickel at the time of execution. transactions, the price to which a any comments it received on the
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proposed rule change. The text of these varies from the Theoretical Price 8 by a be adjusted to the Theoretical Price. statements may be examined at the requisite amount.9 When an obvious Transactions involving at least one places specified in Item IV below. The price error occurs, CBOE either will CBOE non-member will be nullified Exchange has prepared summaries, set adjust or nullify the transaction in unless the parties otherwise agree. forth in Sections A, B, and C below, of accordance with the following iv. Erroneous Print in Underlying the most significant parts of such principles: statements. Transactions Between CBOE Market The Exchange proposes to amend Makers (‘‘MMs’’): Transactions between paragraph (a)(4) of CBOE Rule 6.25 to A. Self-Regulatory Organization’s clarify that a trade resulting from an Statement of the Purpose of, and CBOE MMs will be adjusted to the Theoretical Price plus/minus an erroneous print disseminated by the Statutory Basis for, the Proposed Rule underlying market that is later cancelled Change ‘‘adjustment penalty’’ of either $0.15 or $0.30. Erroneous buy transactions will or corrected by that underlying market 1. Purpose be adjusted to Theoretical Price plus an may only be nullified. The current Rule allows these transactions to be adjusted The Exchange’s obvious error rule adjustment penalty of either $0.15 if or nullified. (CBOE Rule 6.25) establishes guidelines Theoretical Price is below $3 or $0.30 if for the adjustment and nullification of the Theoretical Price is $3 or higher. b. Current Provisions Proposed for transactions in both equity and index Conversely, erroneous sell transactions Elimination will be adjusted to Theoretical Price options. The Rule defines what The Exchange proposes to eliminate minus an adjustment penalty of either constitutes an obvious error, provides current paragraphs (a)(2) (Obvious $0.15 if Theoretical Price is below $3 or an objective process members must Quantity Error), (a)(5) (Erroneous Quote $0.30 if Theoretical Price is $3 or follow to seek relief under the rule, and in Underlying), and (a)(6) (Trades Below higher. Both parties to the transaction provides an appeals process for Intrinsic Value) of CBOE Rule 6.25. may agree to adjust to a different price members seeking to challenge an initial Changes to the pricing error section, determination. The Exchange’s Rule or nullify the transaction altogether paragraph (a)(1) (Obvious Price Error), operates completely independent of the provided they do so within fifteen render these provisions unnecessary. other options exchanges’ obvious error minutes of being notified by trading rules and is structured differently. In officials that an obvious error occurred. c. Procedures for Reviewing other words, transactions that might Transactions where One Party is not Transactions qualify as an obvious error on one a CBOE MM: Where at least one party The Exchange retains its current options exchange might not qualify as is not a CBOE MM, the transaction will procedures for reviewing transactions, such on CBOE, or vice versa. Because of be nullified by trading officials unless with two minor modifications. First, the this disparity and the potential for both parties agree to an adjustment price Exchange proposes to require confusion, customers that routinely for the transaction within thirty minutes notification within 15 minutes of the send orders to multiple exchanges have of being notified by trading officials of transaction in question, regardless of the indicated that a more uniform obvious the obvious error. This is identical to time it occurred. Currently, for error pricing rule with respect to equity the ISE Rule. transactions occurring after 2:45 p.m. options would be beneficial to them. ii. No Bid Series (CST), notification must be provided no Accordingly, in response to the requests later than fifteen (15) minutes after the of its customers, CBOE proposes to This provision, which is identical to close of trading of that security on adopt an obvious error pricing rule for current paragraph (a)(7) of CBOE Rule CBOE. Second, the current Rule gives equity options that is structured more 6.25, is renumbered as paragraph (a)(2) trading officials until 9:30 a.m. the like that of other options exchanges. The of CBOE Rule 6.25. following day to render determinations Exchange intends to keep its current iii. Verifiable Disruptions or for transactions occurring after 2:30 p.m. obvious error for index options as well Malfunctions of Exchange Systems Because this creates significant This provision, which is identical to as options on ETFs and HOLDRS.7 overnight exposure risk for both parties, a. Revised Rule CBOE 6.25, current paragraph (a)(3) of CBOE Rule the Exchange proposes to require Nullification and Adjustment of Equity 6.25, will apply to transactions trading officials to render a Options Transactions occurring electronically or in open determination within 60 minutes of Under CBOE’s current obvious error outcry. For those transactions qualifying notification, regardless of the time the rule, there are seven types of for adjustment, there will be no transaction occurred.10 transactions that qualify as obvious adjustment penalty. Accordingly, Currently, the process for appealing errors. The Exchange proposes to reduce transactions between CBOE MMs will determinations regarding obvious errors this number to four, as described below. is governed by paragraph (d) of CBOE 8 The Exchange proposes to use a similar Rule 6.25, which provides for an i. Obvious Price Errors definition for Theoretical Price as does the ISE. For multiply traded options, Theoretical Price will be appeals process under Chapter XIX of The Exchange proposes to adopt an the last bid (offer) price with respect to an the Exchange’s rules. The Exchange obvious price error rule that operates erroneous sell (buy) transaction just prior to the proposes to amend this process and almost identically to that of the trade that is disseminated by the competing options create an Obvious Error Panel that will International Securities Exchange exchange with the most liquidity in that class over the preceding two calendar months. If there are no review decisions rendered by trading (‘‘ISE’’) Rule 720, with minor quotes for comparison purposes, trading officials officials. The rules creating and differences. As such, an obvious pricing shall determine Theoretical Price. For transactions governing the Obvious Error Panel are error will be deemed to have occurred occurring as part of the Rapid Opening System or substantially similar to ISE Rule 720. when the execution price of an Hybrid Opening System, Theoretical Price shall be the first quote after the transaction(s) in question Regarding the composition of the panel, electronic transaction (not open outcry) that does not reflect the erroneous transaction(s). 9 The requisite amount is: $0.25 for options below 10 ISE also requires same-day determinations 7 See proposed CBOE Rule 24.16, which is a $2, $0.40 for options priced from $2 to $5, $0.50 regardless of the time the transaction occurred. identical in substance to current CBOE Rule 6.25, for options priced above $5 to $10, $0.80 for options CBOE represents that trading officials will remain except that it is limited in application to index priced above $10 to $20, and $1.00 for options on Exchange premises until a determination is options and options on ETFs and HOLDRs. priced above $20. rendered.
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CBOE, in addition to including one consistent with the protection of Electronic Comments Exchange trading floor liaison, will investors and the public interest. • require that the panel be comprised of Furthermore, the Exchange provided the Use the Commission’s Internet an equal number of CBOE MMs and Commission with written notice of its comment form (http://www.sec.gov/ floor broker members. However, while intent to file the proposed rule change, rules/sro.shtml); or determinations rendered by ISE’s along with a brief description and text • Send an e-mail to rule- Obvious Error Panel constitute final of the proposed rule change, at least five [email protected]. Please include File exchange action, CBOE proposes to business days prior to the date of filing Number SR–CBOE–2004–83 on the allow parties to appeal decisions of its of the proposed rule change. subject line. Obvious Error Panel in accordance with Consequently, the proposed rule change the procedures set forth in Chapter XIX has become effective pursuant to Paper Comments of CBOE’s rules. 13 Section 19(b)(3)(A) of the Act and • Send paper comments in triplicate 14 2. Statutory Basis Rule 19b–4(f)(6) thereunder. to Jonathan G. Katz, Secretary, CBOE represents that the filing The Exchange has requested that the Securities and Exchange Commission, provides objective guidelines for the Commission waive the 30-day operative 450 Fifth Street, NW., Washington, DC nullification or adjustment of delay. The Commission believes that 20549–0609. transactions executed at clearly waiving the 30-day operative delay is consistent with the protection of All submissions should refer to File erroneous prices. Moreover, the Number SR–CBOE–2004–83. This file proposed rule provides more uniformity investors and the public interest. The number should be included on the regarding obvious pricing errors, which Commission notes that the proposal to subject line if e-mail is used. To help the will serve to benefit customers. For amend CBOE’s obvious error rule Commission process and review your these reasons, the Exchange believes the provisions is substantially similar to proposed rule change is consistent with provisions contained in ISE Rule 720,15 comments more efficiently, please use the Act and the rules and regulations and incorporates certain aspects of only one method. The Commission will under the Act applicable to a national current CBOE Rule 6.25, which the post all comments on the Commission’s securities exchange and, in particular, Commission previously approved. Thus, Internet Web site (http://www.sec.gov/ the requirements of section 6(b) of the the Commission does not believe that rules/sro.shtml). Copies of the Act.11 Specifically, the Exchange the proposed rule change raises any new submission, all subsequent believes the proposed rule change is regulatory issues. In addition, the amendments, all written statements consistent with the requirements of Commission believes that waiver of the with respect to the proposed rule Section 6(b)(5) of the Act 12 that the 30-day operative delay would enable the change that are filed with the rules of an exchange be designed to Exchange to implement the proposal as Commission, and all written promote just and equitable principles of quickly as possible, and thereby provide communications relating to the trade, to prevent fraudulent and for greater uniformity with respect to proposed rule change between the manipulative acts and practices, and, in obvious error determinations for options Commission and any person, other than general, to protect investors and the transactions. For these reasons, the those that may be withheld from the public interest. Commission designates the proposal to public in accordance with the be effective and operative upon filing B. Self-Regulatory Organization’s provisions of 5 U.S.C. 552, will be with the Commission.16 Statement on Burden on Competition available for inspection and copying in At any time within 60 days of the the Commission’s Public Reference CBOE does not believe that the filing of this proposed rule change, the Section, 450 Fifth Street, NW., proposed rule change will impose any Commission may summarily abrogate Washington, DC 20549. Copies of such burden on competition not necessary or such rule change if it appears to the appropriate in furtherance of the filing also will be available for Commission that such action is purposes of the Exchange Act. inspection and copying at the principal necessary or appropriate in the public office of CBOE. All comments received C. Self-Regulatory Organization’s interest, for the protection of investors, will be posted without change; the Statement on Comments on the or otherwise in furtherance of the Commission does not edit personal Proposed Rule Change Received from purposes of the Act. identifying information from Members, Participants, or Others IV. Solicitation of Comments submissions. You should submit only No written comments were solicited information that you wish to make or received. Interested persons are invited to available publicly. All submissions submit written data, views, and III. Date of Effectiveness of the should refer to File Number SR–CBOE– arguments concerning the foregoing, Proposed Rule Change and Timing for 2004–83 and should be submitted on or Commission Action including whether the proposed rule before January 18, 2005. change, as amended, is consistent with For the Commission, by the Division of The foregoing proposed rule change the Act. Comments may be submitted by (1) does not significantly affect the Market Regulation, pursuant to delegated any of the following methods: 17 protection of investors or the public authority. Margaret H. McFarland, interest; (2) does not impose any 13 15 U.S.C. 78s(b)(3)(A). significant burden on competition; and 14 17 CFR 240.19b–4(f)(6). Deputy Secretary. (3) by its terms, does not become 15 See Securities Exchange Act Release No. 48097 [FR Doc. 04–28276 Filed 12–27–04; 8:45 am] operative until 30 days from the date on (June 26, 2003), 68 FR 39604 (July 2, 2003) BILLING CODE 8010–01–P which it was filed, or such shorter time (approving ISE’s obvious error rule). as the Commission may designate if 16 For purposes only of accelerating the operative date of this proposal, the Commission has considered the proposed rule’s impact on 11 15 U.S.C. 78(f)(b). efficiency, competition, and capital formation. 15 12 15 U.S.C. 78(f)(b)(5). U.S.C. 78c(f). 17 17 CFR 200.30–3(a)(12).
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SECURITIES AND EXCHANGE II. Self-Regulatory Organization’s result, have access to the Exchange’s COMMISSION Statement of the Purpose of, and trading floor and other facilities Statutory Basis for, the Proposed Rule (‘‘qualified trading members’’) will [Release No. 34–50892; File No. SR–CHX– 2004–26] Change separately receive CHX trading permits In its filing with the Commission, the entitling them to maintain the same Self-Regulatory Organizations; Notice CHX included statements concerning trading access to the CHX that they of Filing of Proposed Rule Change and the purpose of, and basis for, the currently enjoy. Amendment No. 1 by the Chicago proposed rule change and discussed any Shares of CHX Holdings common Stock Exchange, Inc. Relating to the comments it received regarding the stock and CHX trading permits will not Demutualization of the Chicago Stock proposal. The text of these statements be tied together. As a result, following Exchange, Inc. may be examined at the places specified the demutualization, former CHX in Item IV below. The CHX has prepared members will be able to sell the shares December 20, 2004. summaries, set forth in sections A, B, of CHX Holdings common stock they Pursuant to Section 19(b)(1) of the and C below, of the most significant receive in the demutualization, subject Securities Exchange Act of 1934 aspects of such statements. to the applicable restrictions described (‘‘Act’’),1 and Rule 19b–4 thereunder,2 below, while still retaining any CHX notice is hereby given that on November A. Self-Regulatory Organization’s trading permits that they were issued. 24, 2004, the Chicago Stock Exchange, Statement of the Purpose of, and Other persons who satisfy regulatory Inc. (‘‘CHX’’ or ‘‘Exchange’’) filed with Statutory Basis for, the Proposed Rule requirements will also be able to obtain the Securities and Exchange Change CHX trading permits without regard to Commission (‘‘Commission’’) the 1. Purpose whether they are stockholders of CHX proposed rule change as described in Holdings. Persons who hold CHX Items I, II, and III below, which Items Through this submission, the trading permits in the demutualized have been prepared by the CHX. On Exchange proposes a series of changes Exchange will be called ‘‘participants’’ December 15, 2004, the CHX filed to the Exchange’s corporate structure or ‘‘participant firms.’’ Amendment No. 1 to the proposal.3 The that will allow for the demutualization Commission is publishing this notice to of the Exchange. b. Reasons for the Proposed Demutualization solicit comments on the proposed rule a. Description of the Demutualization change, as amended, from interested Transaction There are several benefits that the persons. Exchange believes may result from the The CHX proposes to demutualize by demutualization of the Exchange. I. Self-Regulatory Organization’s creating a new Delaware for-profit stock Perhaps the most important of these Statement of the Terms of Substance of holding company, CHX Holdings, which benefits is that the creation of CHX the Proposed Rule Change will become the parent company of the Holdings as a for-profit stock The CHX proposes a series of changes CHX.5 The CHX itself will become a corporation may present opportunities to the CHX’s corporate structure to Delaware for-profit stock corporation to enter into strategic alliances allow for the demutualization of the and will continue to engage in the involving the issuance of stock to its CHX. To effect the demutualization, the business of operating a national partners in such transactions. The CHX proposes to create a new Delaware securities exchange registered under Exchange believes that demutualization for-profit stock holding company, CHX Section 6 of the Act.6 may increase the likelihood that these Holdings, Inc. (‘‘CHX Holdings’’) that On the effective date of the kinds of opportunities may be presented will become the parent company and demutualization (‘‘Effective Date’’), each to the CHX, which could be beneficial sole shareholder of the CHX. The CHX person or entity that owns a to the stockholders of CHX Holdings. will become a Delaware for-profit stock membership in the CHX will receive The Exchange believes that another corporation that will continue to engage 1,000 shares of common stock of CHX potential benefit to demutualizing is in the business of operating a national Holdings for each membership that the that converting the CHX from a not-for- securities exchange registered under person or entity owns, representing all profit corporation to a for-profit Section 6 of the Act.4 of the issued and outstanding shares of subsidiary of a for-profit holding The proposed rule change for CHX Holdings. Following the company is likely to focus the business implementing the demutualization, demutualization, persons and firms who of the CHX more sharply on its including: (1) The CHX’s revised rules; have been qualified for membership profitability, which in turn should (2) the CHX’s revised Certificate of under Articles 1, 2, or 3 of the enhance the value of the Exchange to its Incorporation; (3) the CHX’s revised Exchange’s current rules and, as a owners. Additionally, by reorganizing Bylaws; (4) the Certificate of the CHX into a holding company Incorporation for CHX Holdings; and (5) 5 In order to accomplish the demutualization, the CHX, which currently is a Delaware non-stock structure, there should be greater the Bylaws of CHX Holdings, are corporation, will establish two new Delaware stock flexibility for the new holding company collectively referred to herein as the for-profit corporations: CHX Holdings, a direct and to acquire or expand into other ‘‘proposed rule change’’ and are wholly-owned subsidiary of the CHX; and CHX businesses, as well as to dispose of available for viewing on the Merger Sub, Inc. (‘‘CHX Merger Sub’’), a direct and wholly-owned subsidiary of CHX Holdings. certain business units if that should Commission’s Web site, http:// Pursuant to an agreement and plan of merger, CHX appear to be in the best interest of the www.sec.gov, and at the CHX and the Merger Sub will merge with and into the CHX, with enterprise and the stockholders of CHX Commission. the CHX surviving the merger as a Delaware for- Holdings. profit stock corporation that is a direct and wholly- owned subsidiary of CHX Holdings. The Exchange remains committed to 1 15 U.S.C. 78s(b)(1). 6 15 U.S.C. 78f. Following the demutualization, its role as a national securities exchange 2 17 CFR 240.19b–4. earnings of the CHX not retained in its business will and does not believe that a change to a 3 In Amendment No. 1, the CHX revised several be distributed to its parent, CHX Holdings, and for-profit institution will undermine its references in the proposal to reflect its members’ CHX Holdings will be authorized to pay dividends November 2004 vote to approve the proposed to the stockholders of CHX Holdings as and when responsibilities for regulating its demutualization. they are declared by the Board of Directors of CHX marketplace. Indeed, as further 4 15 U.S.C. 78f. Holdings. described below, the Exchange has
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proposed specific provisions in the Officer of the CHX from among the vote, however, that vacancy may be Bylaws of both CHX Holdings and the persons currently serving on the filled by a vote of the stockholders of CHX that reinforce the ability of the Exchange’s Board of Governors.11 The CHX Holdings at the same meeting at Exchange to perform its self-regulatory directors of CHX Holdings will be which that director is removed. Any functions. divided into three classes, which will be director chosen to fill a vacancy or as nearly equal in number as the total newly-created seat may serve only until c. Summary of Proposed Rule Change number of directors then constituting the next annual meeting of CHX The proposed rule change is outlined the entire CHX Holdings Board. The Holdings stockholders, at which time a below.7 In general, the proposed rule directors of CHX Holdings will serve director will be elected by the change consists of: organizational staggered three-year terms, with the stockholders to serve out the remaining changes to the CHX Certificate of term of office of one class expiring each portion of the term of the class to which Incorporation and Bylaws, reflecting the year.12 the director belongs. change in corporate form; governance The Chairman of the CHX Holdings (ii) Officers of CHX Holdings. The changes that will reduce the size of the Board will be elected by the CHX day-to-day business affairs of CHX CHX Board and modify certain Holdings Board from among the Holdings will be managed by the Chief provisions governing CHX committees; directors on the CHX Holdings Board.13 Executive Officer of CHX Holdings, who and membership rule changes that are He may serve as the Chief Executive will be appointed by the CHX Holdings necessary to implement the new CHX Officer of CHX Holdings but may have Board.18 The Chief Executive Officer of trading permit structure, which will no other office in CHX Holdings. The CHX Holdings may appoint such other replace the existing structure of owning Vice Chairman of the CHX Holdings officers as he believes are necessary. and leasing Exchange memberships as a Board will be nominated by the These officers will have the basis for trading rights. The proposed Chairman of the CHX Holdings Board responsibilities and authority set out in rule change also includes the CHX and elected by the CHX Holdings the CHX Holdings Bylaws or given to Holdings Certificate of Incorporation Board.14 He may hold no other office them by the Chief Executive Officer of and Bylaws. CHX Holdings will, on the with CHX Holdings. Neither the CHX Holdings. As an initial matter, the Effective Date of the demutualization Chairman nor the Vice Chairman of Chief Executive Officer of the CHX will transaction, become the Exchange’s CHX Holdings will be subject to any act as the Chief Executive Officer of parent company. The Exchange is not limit on the number of terms that he CHX Holdings and will appoint, as proposing any significant change to its may serve. Each year, the Nominating officers of CHX Holdings, such officers existing operational and trading and Governance Committee of CHX of the CHX as he believes are necessary structure in connection with the Holdings will nominate directors for the to carry out the business of CHX demutualization.8 class of directors standing for election at Holdings. (1) Governance Structure of the the CHX Holdings annual meeting of (iii) CHX Holdings Committees. The Demutualized CHX. stockholders that year.15 Each CHX CHX Holdings Board will have several (a) CHX Holdings. As noted above, Holdings stockholder will be entitled to standing committees.19 The CHX following the demutualization, CHX one vote for each share of stock owned Holdings Nominating and Governance Holdings will be a for-profit stock by that stockholder.16 At each annual Committee, which will consist of six corporation. All of the issued and meeting of the stockholders of CHX directors, will be appointed by the CHX outstanding stock of CHX Holdings Holdings at which a quorum is present, Holdings Board.20 The Executive, Audit, (450,000 shares of common stock) the individuals receiving a plurality of and Compensation Committees of CHX initially will be owned by the persons the votes cast will be elected directors Holdings will be appointed by the or entities that owned memberships in of CHX Holdings. Chairman and Vice Chairman of the the Exchange.9 In most cases, vacancies on the CHX CHX Holdings Board, subject to the (i) Board of Directors. The Board of Holdings Board will be filled by persons approval of the CHX Holdings Board.21 Directors of CHX Holdings (‘‘CHX nominated by the Chairman and Vice Other committees will be appointed by Holdings Board’’) will consist of Chairman of CHX Holdings and elected 17 the Vice Chairman of CHX Holdings, between 10 and 16 persons, as by the CHX Holdings Board. If the subject to the CHX Holdings Board’s determined by the CHX Holdings Board vacancy has resulted from removal from approval. Each committee will have the from time to time.10 Initially, the CHX office for cause pursuant to stockholder authority and responsibilities as may be Holdings Board will have 14 directors, 11 determined, from time to time, by the who will be selected by the Chairman, See proposed Article Sixth, Section (g) of the CHX Holdings Board. Vice Chairman, and Chief Executive CHX Holdings Certificate of Incorporation. 12 A CHX Holdings director may serve for any (b) The CHX. As noted above, number of terms, consecutive or otherwise, but no following demutualization, the CHX 7 Also outlined below are those provisions of the person will be eligible for election or re-election as will be a for-profit stock corporation. All proposed CHX Holdings Certificate of Incorporation a director if such person has reached the age of 71. of its stock will be held by CHX and Bylaws that are directly related to the 13 See proposed Article II, Section 4 of the CHX 22 Exchange’s self-regulatory function. Holdings Bylaws. Holdings. 8 The Exchange, however, is proposing certain 14 See proposed Article II, Section 5 of the CHX (i) Board of Directors. The CHX Board revisions to the CHX rules which will delete Holdings Bylaws. of Directors (‘‘CHX Board’’) will consist obsolete rule provisions. These changes are 15 See proposed Article II, Section 3 of the CHX of between 10 and 16 persons, as summarized below under ‘‘Summary of Rule Holdings Bylaws. Change Not Related to Demutualization.’’ 16 See proposed Article IV, Section 11 of the CHX 18 See proposed Article VI, Section 4 of the CHX 9 See proposed Article Fourth of the CHX Holdings Bylaws. Holdings Bylaws. Holdings Certificate of Incorporation. CHX 17 See proposed Article Sixth, Section (h) of the 19 See proposed Article V, Section 1 of the CHX Holdings will have an additional 300,000 shares of CHX Holdings Certificate of Incorporation and Holdings Bylaws. authorized, but not issued, common stock and proposed Article II, Section 6 of the CHX Holdings 20 25,000 shares of authorized, but not issued, Bylaws. The Chairman and Vice Chairman of CHX See proposed Article II, Section 3 of the CHX preferred stock. Holdings will be required to provide the names of Holdings Bylaws. 10 See proposed Article Sixth, Section (b) of the nominees to fill vacancies to the CHX Holdings 21 See proposed Article V of the CHX Holdings CHX Holdings Certificate of Incorporation and Board, in writing, no later than five business days Bylaws. proposed Article II, Section 2 of the CHX Holdings before the date on which the CHX Holdings Board 22 See proposed Article Fourth of the CHX Bylaws. will be asked to vote to fill the vacancies. Certificate of Incorporation.
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determined by the CHX Board from time seven public directors and six signed by at least ten participants.32 If to time.23 Initially, the CHX Board will participant directors of the CHX. no petitions are submitted within the have 14 directors, who will be selected The Chairman of the CHX Board will time frame prescribed by the CHX by the Chairman, Vice Chairman, and be elected by the CHX Board and will Bylaws, the CHX Nominating and Chief Executive Officer of the CHX from be either the Chief Executive Officer of Governance Committee will nominate among the persons currently serving on the CHX or one of the public directors the candidates it initially identified. If the Exchange’s Board of Governors. The on the CHX Board.27 The Vice Chairman one or more valid petitions are directors will be divided into three of the CHX Board will be elected by the submitted, the participants will be classes, which will be as nearly equal in participant directors from among the allowed to vote on the entire group of number as the total number of directors participant directors on the CHX potential candidates. Each participant then constituting the entire CHX Board Board.28 Neither the Chairman nor the will have one vote, per trading permit, permits. The CHX’s directors will serve Vice Chairman of the CHX may hold with respect to each participant director staggered three-year terms, with the another office in the Exchange, nor will position that is to be filled, and the term of office of one class expiring each he be subject to any limit on the number persons with the highest number of year.24 of terms that he may serve. votes will be nominated by the CHX The CHX Board will be composed of Each year, the Nominating and Nominating and Governance the Exchange’s Chief Executive Officer, Governance Committee of the CHX will Committee.33 As noted above, CHX nominate directors for the class of persons who qualify as ‘‘participant Holdings, as sole stockholder of the directors standing for election at the directors’’ and persons who qualify as CHX, will have the sole right and the annual meeting of the CHX stockholders ‘‘public directors.’’25 One-half of the obligation to vote for the directors that year.29 CHX Holdings, as sole members of the CHX Board must be nominated by the CHX Nominating and stockholder of the CHX, will have the public directors. The remaining Governance Committee. The Exchange sole right and the obligation to vote for directors (other than the Chief Executive believes that this process provides a fair the directors of the CHX nominated by Officer) must be participant directors.26 opportunity for the participants in the the CHX Nominating and Governance The CHX Board’s initial directors will Exchange—its ‘‘members’’ under the Act Committee.30 include the Chief Executive Officer, —to participate in the selection of the Because, in the demutualized CHX, Exchange’s directors. the Exchange’s participants are not 23 See proposed Article Fifth of the CHX stockholders of the CHX, they cannot In most cases, vacancies on the CHX Certificate of Incorporation and proposed Article II, Board will be filled by persons Section 2 of the CHX Bylaws. The CHX’s current directly elect members of the CHX Board of Governors consists of 24 governors. Board. As described below, the nominated by the Chairman and Vice 24 Under the proposed CHX Bylaws, a CHX Exchange has set up a procedure that Chairman of the CHX and elected by the 34 director may serve for any number of terms, allows participants to be involved in the CHX Board. As with CHX Holdings, if consecutive or otherwise, but no person will be the vacancy has resulted from removal eligible for election or re-election as a director if selection of candidates to fill participant such person has reached the age of 71. These director slots on the CHX Board. This from office for cause pursuant to provisions are somewhat different from the procedure is designed to resemble the stockholder vote, however, that vacancy Exchange’s current Bylaws, which contain process currently used to nominate may be filled by a vote of the CHX restrictions on the number of terms that CHX stockholders at the same meeting at governors may serve and do not place any age persons to the CHX’s Board of restriction on member governors. The Exchange Governors.31 Under the new procedures, which that director is removed. Any believes that it is appropriate to remove term the CHX Nominating and Governance director chosen to fill a vacancy or restrictions to ensure that persons who would be Committee will hold two open meetings newly-created seat may serve only until interested in serving on the CHX Board are not the next annual meeting of the CHX required to leave at the end of a particular number with CHX participants for the purpose of years, particularly as the number of member of receiving recommendations of stockholders, at which time a director firms on the Exchange (and the number of persons candidates for election to the positions identified by the CHX Nominating and who would be eligible to serve on the CHX Board) of participant directors. The CHX Governance Committee will be elected have decreased over the past several years. by the CHX stockholders to serve out 25 See proposed Article Fifth, Section (c) of the Nominating and Governance CHX Certificate of Incorporation and proposed Committee’s initial candidates for Article II, Section 2(b) of the CHX Bylaws. A nomination will be announced to CHX 32 Under the Exchange’s current Bylaws, its ‘‘public director’’ is a director who (i) is not a participants, who will then have the members have a similar ability to add candidates participant or an officer, managing member, partner to a ballot through the submission of petitions or employee of an entity that is a participant, (ii) opportunity to identify additional signed by ten CHX members. is not an employee of the CHX, CHX Holdings or candidates for nomination to those 33 As noted below, no participant or participant any of their affiliates, (iii) is not a broker or dealer positions by submitting a petition firm is allowed to hold more trading permits than or an officer or employee of a broker or dealer, or are necessary to the conduct of business on the (iv) does not have any other material business Exchange. All trading permits must be held by an 27 relationship with the CHX, CHX Holdings, or any See proposed Article II, Section 4 of the CHX active participant or must be held by an active of their affiliates or any broker or dealer. A Bylaws. Under the Exchange’s current Bylaws, the participant firm, where the participant firm has ‘‘participant director’’ is a director who is a CHX CHX Chairman could also be an off-floor member assigned an active participant as its nominee. See participant or an officer, managing member or governor. The Exchange believes that it is proposed CHX Rules, Article II, Rule 2(e). consistent with principles of good governance to partner of an entity that is a CHX participant. The 34 See proposed Article Fifth, Section (g) of the ensure that the Chairman of the Exchange is not one proposed definition of public director will replace CHX Certificate of Incorporation and proposed of the members regulated by the Exchange. the somewhat confusing definitions of non-industry Article II, Section 6 of the CHX Bylaws. The 28 governor and public governor that are set out in the See proposed Article II, Section 5 of the CHX Chairman and Vice Chairman of the CHX will be Exchange’s current governing documents. Bylaws. Currently, the Exchange’s Vice Chairman is required to provide the names of nominees to fill 26 This composition is consistent with the directly elected by the Exchange’s members. vacancies to the CHX Board, in writing, no later composition of the Exchange’s current Board of 29 See proposed Article II, Section 3 of the CHX than five business days before the date on which Governors, which consists of 12 non-industry Bylaws. the CHX Board will be asked to vote to fill the governors (all of whom currently qualify as public 30 CHX Holdings will sign an agreement with the vacancies. The Exchange believes that having both governors), ten member governors (of which four CHX confirming its obligation to vote for the its Chairman (a public director or the Chief must be on-floor governors and four must be off- candidates nominated through the process set out Executive Officer) and its Vice Chairman (a floor governors) the Vice Chairman (an on-floor in the proposed CHX Bylaws. participant director) nominate persons to fill member firm representative) and the Chief 31 See proposed Article II, Section 3 of the CHX vacancies on the CHX Board provides a well- Executive Officer. Bylaws. balanced approach to this important responsibility.
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the remaining portion of the term of the (B) The CHX’s Executive, Audit, may be determined, from time to time, class to which the director belongs. Finance, and Compensation Committees by the CHX Board. (ii) Officers of the CHX. The day-to- will be appointed by the Chairman and (2) Provisions Relating to, or Arising day business affairs of the CHX will Vice Chairman of the CHX Board, from, the Self-Regulatory Functions of continue to be managed by its Chief subject to the approval of the CHX the CHX. The proposed Bylaws of both Executive Officer, who is appointed by Board.40 CHX Holdings and the CHX contain the CHX Board.35 The Chief Executive (C) The CHX’s Regulatory Oversight specific provisions relating to the self- Officer of the CHX will continue to have Committee will be appointed by the regulatory function of the CHX. the authority to appoint such other Vice Chairman of the CHX Board, (a) CHX. For the CHX, these officers as he believes are necessary. subject to the approval of the public provisions address the following issues: These officers will have the directors on the CHX Board.41 (i) Management of the CHX. The CHX responsibilities and authority set out in (D) The CHX’s Judiciary Committee Board must consider applicable the CHX Bylaws or given to them by the will continue to be appointed by the requirements under Section 6(b) of the Chief Executive Officer of the CHX.36 Chief Executive Officer of the CHX; and Act 43 in connection with the (iii) CHX Committees. The CHX Board (E) Other committees, including the management of the Exchange.44 will have several standing committees, newly-formed Participant Advisory (ii) Confidentiality. Meetings of the which are, for the most part, the same Committee of the CHX, will be CHX Board and of its committees that as the committees currently in place for appointed by the Vice Chairman of the pertain to the self-regulatory function of 37 CHX, subject to the CHX Board’s the Exchange or to the structure of the the CHX. 42 (A) The CHX Nominating and approval. Each committee will have market which the Exchange regulates Governance Committee, which will the authority and responsibilities as must be closed to persons who are not consist of three participant directors and members of the CHX Board or CHX 40 three public directors, will be appointed The role and composition of these committees officers, staff, counsel, or other are similar, but not identical, to the structure under 45 by the CHX Board.38 This committee the current CHX rules. For example, under the specifically identified persons. The will be responsible for nominating revised CHX rules, a majority (not just 50%) of the CHX books and records that relate to the candidates for the position of director members of the CHX’s Audit and Compensation Exchange’s self-regulatory function Committees would be public directors. In addition, must be kept confidential and must not and periodically reviewing the the description of the CHX Audit Committee’s role 46 organization and governance structure would be updated to confirm that the committee be used for non-regulatory purposes. of the Exchange.39 (not the CHX Board) has the direct responsibility to (iii) Maintenance of books and retain and oversee the work of the independent records. All of the books and records of public accountant that audits the Exchange’s 35 See proposed Article V of the CHX Bylaws. financial statements. Other changes include a the CHX must be maintained at a 47 36 Although these provisions are not measurably decision to streamline the requirements for CHX location within the United States. different from the Exchange’s current Bylaws, the Executive Committee members by removing the (iv) Regulatory fees and penalties. proposed changes to Article V of the CHX Bylaws requirement in the Exchange’s current Bylaws that Any revenues received by the CHX from do contain two new provisions relating to officer committee members be chosen (a) with a view to compensation and term of office. Consistent with providing representation to the various regulatory fees or penalties must be the existing CHX Rules, proposed Article V, Section geographical areas in which there are member applied to fund the legal and regulatory 2 of the CHX Bylaws confirms that the CHX Chief organizations that support the Exchange; and (b) operations of the Exchange and must Executive Officer’s compensation is determined by with a view to having persons on the committee not be used to pay dividends.48 the CHX Compensation Committee and that salaries who are interested in and knowledgeable about the of other officers are fixed by the Chief Executive Exchange’s business operations and the securities 43 Officer of the CHX, in consultation with the industry as a whole. These requirements appear to 15 U.S.C. 78f(b). Section 6(b) of the Act Compensation Committee of the CHX. Proposed have been included in the Exchange’s Bylaws at a requires, among other things, that the Exchange’s Article V, Section 3 of the CHX Bylaws confirms time when securities industry participants had rules must be designed to protect investors and the that officers hold office until a successor is businesses that were more local in scope and when public interest. It also requires that the Exchange be appointed or until the officer’s death, resignation, persons might not have had a particular interest in organized so that it can carry out the purposes of or removal. Other changes in proposed Article V of serving as public directors on the CHX’s Board of the Act and to enforce compliance by its the CHX Bylaws move references to the Exchange’s Governors. Today, the businesses of many of the participants with the Act, the rules and regulations Chairman and Vice Chairman to proposed Article Exchange’s members are national in scope and the under that Act, and the rules of the Exchange. II (Directors) to confirm that these persons are not Exchange anticipates that all of its public directors 44 See proposed Article X, Section 1 of the CHX officers of the Exchange and set out the general will be interested in learning more about the Bylaws. authority of Exchange officers. Exchange’s operations and the workings of the 45 See proposed Article X, Section 2 of the CHX 37 Information about the composition and securities industry as a whole. Bylaws. These requirements are designed to ensure responsibilities of the Exchange’s committees is 41 The CHX represents that the composition, that representatives of CHX Holdings or of other contained in proposed Article IV of the Exchange’s responsibilities, and appointment mechanism corporations affiliated with the Exchange do not rules. associated with this committee are consistent with improperly involve themselves in specific 38 Under the Exchange’s current rules, the the requirements relating to this committee that are disciplinary or other regulatory matters being Exchange’s Nominating Committee consists of three set out in the CHX’s September 30, 2003, settlement handled by the Exchange. These requirements and member representatives (including one on-floor order with the Commission. See In the Matter of the the requirements relating to the confidentiality of representative and one off-floor representative) and Chicago Stock Exchange, Securities Exchange Act records are not, however, designed to prevent the three non-industry persons. The member Release No. 48566 (September 30, 2003) (Admin. Exchange from sharing with CHX Holdings the type representatives currently are elected by the Proc. File No. 3–11282) (Order Instituting Public of information about the Exchange’s business that Exchange’s members; the non-industry Administrative Proceedings Pursuant to Sections would ordinarily be shared with a parent representatives are appointed by the Exchange’s 19(h) and 21C of the Securities Exchange Act of corporation, including information relating to the Board of Governors. The Exchange believes that it 1934, Making Findings, and Imposing a Censure, a Exchange’s compliance with the CHX Settlement is appropriate to adopt a more streamlined Cease-and-Desist Order and Other Relief) (‘‘CHX Order and all applicable laws; any reports from the approach to the selection of its Nominating and Settlement Order’’). Commission or from others evaluating the Governance Committee when it demutualizes and 42 The CHX Participant Advisory Committee will Exchange’s self-regulatory programs; and thus has chosen the process set out in the amended be composed entirely of participants of the information about the trading activities and CHX Bylaws. Exchange. It will, among other things, recommend business strategies of the Exchange’s participants. 39 In making this proposal, the Exchange seeks to rules for adoption by the CHX Board and advise the 46 See proposed Article X, Section 3 of the CHX combine the work of its current Nominating CHX management regarding enhancements to the Bylaws. Committee with the work performed by its current Exchange’s trading facilities and other matters that 47 See proposed Article X, Section 4 of the CHX (and separate) Organization and Governance affect participants. This committee is designed to Bylaws. Committee. The Exchange believes that it will be provide participants with a formal opportunity to 48 See proposed Article X, Section 5 of the CHX more efficient to have a single committee address share their concerns and ideas with the CHX Bylaws. Regulatory penalties that are intended to these issues. management. Continued
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(v) Restrictions on ownership. amendment to the Bylaws of CHX affirmatively ‘‘opt out’’ of the Although there are no percentage-based Holdings, which must be approved by opportunity to obtain a trading permit.55 restrictions on the ownership of the the Commission.50 Each trading permit will constitute a CHX, the proposed CHX Certificate of (iii) Management of CHX Holdings. So revocable license that will allow the holder of the permit to access the CHX Incorporation confirms that CHX long as CHX Holdings controls the trading facilities in the same manner as Holdings is the sole stockholder of the Exchange, the CHX Holdings Board and 49 previously authorized for the CHX’s CHX. Changes to the CHX Certificate its officers, employees and agents must qualified trading members.56 As of Incorporation cannot take effect until give due regard to the preservation of they are approved by the Commission. summarized below, and with the the independence of the Exchange’s (b) CHX Holdings. Provisions in the exceptions noted below, although there CHX Holdings Certificate of self-regulatory function and to its will be some changes in terminology Incorporation and Bylaws address obligations to investors and the public and certain administrative procedures similar, but slightly different, issues and interest and must not take actions that following demutualization, the right of contain specific limitations on would interfere with the self-regulatory a qualified trading member to access the 51 shareholder voting and ownership activities of the Exchange. CHX, and execute transactions through rights, including: (iv) Confidentiality. The CHX the CHX, will not be substantially (i) Restrictions on voting rights. As Holdings books and records that relate changed as a result of the described in proposed Article Fifth of to the Exchange’s self-regulatory demutualization transaction. Persons the CHX Holdings Certificate of function must be kept confidential and holding trading permits of the CHX will Incorporation, holders of the common must not be used for non-regulatory be ‘‘members’’ of the CHX for purposes stock or preferred stock of CHX purposes.52 of the Act and will be characterized as Holdings, either alone or together with (v) Cooperation with the Commission/ ‘‘participants’’ in the CHX subject to the any of their affiliates or associates or consent to jurisdiction. To the extent CHX’s regulatory jurisdiction, but they any other person, directly or indirectly, that they are related to the activities of will not have any ownership interest in may not (a) vote or give a proxy or the CHX, the books, records, officers, the Exchange or in CHX Holdings by 57 consent with respect to shares directors, and employees of CHX virtue of their trading permits. representing more than 20% of the Following demutualization, persons Holdings will be deemed to be the voting power of the then-issued and other than qualified trading members books, records, officers, directors, and outstanding capital stock of CHX who seek issuance of a trading permit employees of the Exchange for purposes Holdings or (b) enter into any will be required to complete appropriate of the Commission oversight.53 agreement, plan, or arrangement that application materials and registration Additionally, CHX Holdings officers, would result in the shares of capital forms, satisfy regulatory requirements directors, employees, and agents are stock of CHX Holdings, subject to that and pay processing charges and deemed to agree to cooperate with the agreement, plan, or arrangement, not application fees. This process will be Commission in its oversight activities being voted on a matter or any proxy substantially similar to the current relating to the Exchange and are deemed being withheld, where the effect of that membership application process.58 An agreement, plan, or arrangement would to submit to the jurisdiction of the individual participant may obtain only be to enable any person or group to Commission with respect to proceedings one trading permit. A participant that is that might arise out of, or relate to, the obtain more than 20% of the 54 not an individual (i.e., a participant outstanding voting power. activities of the Exchange. firm) may obtain multiple trading (ii) Restrictions on ownership rights. (3) Trading Permits. permits and may assign a nominee to In addition to the restrictions on voting Following the Exchange’s each trading permit. A trading permit discussed above, shares of common demutualization, persons and firms who will be required for each person stock of CHX Holdings will be subject have been qualified for membership transacting business. As an example, a to the following restrictions: (a) no under Articles 1, 2, or 3 of the CHX specialist firm with 50 co- person, alone or together with its Exchange’s current rules and, as a specialists will be required to obtain 50 affiliates and associates or any person(s) result, have access to the Exchange’s trading permits and to register each co- acting in concert with it, may own of trading floor and other facilities will specialist as a nominee. Importantly, record or beneficially, directly or separately receive trading permits however, no participant or participant indirectly, more than 40% of the entitling them to maintain the same firm will be allowed to hold more outstanding shares of any class of trading access to the CHX that they capital stock of CHX Holdings; and (b) 55 The Exchange will circulate written materials currently enjoy. These persons will to all qualified trading members, in advance of the no person, alone or together with its separately and automatically be issued affiliates and associates or any person(s) Effective Date, notifying these persons that they can one or more trading permits, unless they decide not to receive a trading permit and setting acting in concert with it, who holds a out the procedures by which that opt-out decision trading permit of the CHX, may own of can be made. See Amendment No. 1, supra note 3. 50 CHX Holdings stockholders also are prohibited record or beneficially, directly or 56 See proposed CHX Rules, Article II, Rule 2, from selling, transferring, or otherwise disposing of ‘‘Rights and Privileges of Participants.’’ indirectly, more than 20% of any class their shares except in 1000-share increments, and 57 See proposed CHX Rules, Article I, Rule 1(l) no stockholder will be permitted to transfer shares of capital stock of CHX Holdings. These (definition of ‘‘participant’’). in CHX Holdings until all amounts due and owing restrictions may be waived by the CHX 58 from that stockholder to the CHX have been paid. See proposed CHX Rules, Articles II and III. Holdings Board in accordance with the See proposed Article IX, Sections 2 and 3(b) of the Other than the new rules relating to trading permits, terms of the Certificate of Incorporation CHX Holdings Bylaws. the changes to the rules in these articles replace references to a ‘‘member,’’ ‘‘member organization’’ of CHX Holdings and an appropriate 51 See proposed Article III, Section 1 of the CHX and ‘‘member firm’’ with the words ‘‘participant’’ Holdings Bylaws. and ‘‘participant firm,’’ delete references to sales of 52 benefit customers, by, for example, providing See proposed Article III, Section 2 of the CHX memberships, and consolidate the current separate restitution, must be provided to those customers Holdings Bylaws. articles that relate to member firms and member and will not be used by the Exchange for any 53 See proposed Article III, Section 3 of the CHX corporations into a single article regarding purpose. Holdings Bylaws. participant firms. These changes are not designed 49 See proposed Article Fourth of the CHX 54 See proposed Article III, Sections 4 and 5 of the to alter the substantive rights and obligations of the Certificate of Incorporation. CHX Holdings Bylaws. CHX members.
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trading permits than are necessary to the (4) Other Provisions in the Certificate seat market on the 11th business day conduct of business on the Exchange. of Incorporation and Bylaws prior to the expected Effective Date of All trading permits must be held by an (a) Stockholder Ownership. The the demutualization transaction.68 All active participant or must be held by an proposed Bylaws for CHX Holdings and existing bids and offers in the seat active participant firm, where the the CHX contain a variety of provisions market will be immediately cancelled at participant firm has assigned an active relating to issues associated with the close of the seat market on that day participant as its nominee.59 stockholder ownership, including because the required posting procedures Once issued, a trading permit of the provisions relating to the timing and associated with any transactions CHX will be effective for one year conduct of meetings, record dates, consummated after that date could not following its issuance date and will quorum requirements, proxies, and be completed before the Effective Date automatically renew for an additional other matters.66 These provisions are of the transaction. This hiatus in the one-year term on each anniversary of designed to reflect current corporate membership market will permit the the issuance date, unless the holder practices and are identical for CHX Exchange to identify with certainty the notifies the Exchange (by giving not less Holdings and the CHX. persons and firms who hold than 60 days’ notice) that the holder (b) Updated provisions of the CHX membership interests and are entitled to wishes to waive its right to this Charter and Bylaws. The Exchange is receive shares on the Effective Date of automatic renewal. If the participant proposing a few changes to its Bylaws the transaction. waives the right to renew the permit, it and Certificate of Incorporation to will expire at the end of the then- modernize the Exchange’s governing (b) Approval of demutualization current term.60 A trading permit may documents. Among other things, the transaction. Under the Exchange’s rules, not be sold, leased or otherwise Exchange is proposing: to include a an approved lessor who is not a transferred.61 As an exception to the streamlined description of its corporate qualified trading member of the non-transferability of trading permits, a purpose; to confirm that the CHX Board Exchange is not entitled to vote his trading permit may be transferred to the has the authority to set the CHX Board’s membership interest. If such a name of a nominee within the same compensation; to set out specific membership interest is leased to an participant firm with the approval of the provisions relating to the authority of Exchange member, the lessee may vote CHX. In addition to the holder’s right to Exchange officers to enter into contracts, the membership interest, but, if the relinquish a trading permit, the CHX sign checks, and handle the funds of the membership interest has not been may suspend or revoke a trading permit Exchange; and to specifically provide leased, there is no vote associated with for the same reasons that currently that the Exchange will advance that membership interest. entitle the CHX to suspend or revoke a expenses, in appropriate circumstances, The CHX’s Board of Governors 62 membership and/or sell a seat. to directors, officers, and committee determined that it is appropriate to Currently, the Exchange’s rules permit members of the CHX who are named as provide these approved lessors holding a person (referred to as an ‘‘approved defendants in certain actions relating to unleased membership interests with an lessor’’) to purchase a membership Exchange business.67 Identical opportunity to vote on the solely for the purpose of providing a provisions are proposed for the demutualization transaction. As a result, financing mechanism for another person Certificate of Incorporation and Bylaws the CHX’s Board of Governors that seeks access to the Exchange.63 of CHX Holdings. The Exchange conditioned the demutualization Following demutualization, the believes that these provisions are transaction on approval by the Exchange’s rules will be amended to consistent with current corporate affirmative vote of both (1) a majority of delete Article IA of the CHX rules. practices relating to these issues. the membership interests entitled to Accordingly, following (5) Summary of Rule Change Not demutualization, no person may operate vote on the election of governors of the Related to Demutualization. In Exchange, and (2) a majority of all of the as an approved lessor or otherwise lease connection with its comprehensive trading access to the Exchange. outstanding memberships of the review of its rules as part of this Exchange. The first vote count was There will be nominal processing demutualization, the Exchange is charges and application fees relating to conducted in a manner consistent with proposing to delete the following rule prior votes of Exchange members and the issuance of trading permits. In provisions that relate to events that have addition, all participants and included votes cast with respect to already occurred or to programs that the memberships owned by (a) qualified participant firms will be subject to an Exchange no longer offers: Article IB, initial annual trading permit fee of trading members of the Exchange ‘‘E-Session Trading Privileges’’; Article (whether or not those memberships are $6,000 per year, payable monthly, for XI, Rules 11, ‘‘Mandatory Year 2000 each trading permit.64 These new fees leased to other CHX members) and (b) Testing,’’ and 12, ‘‘Mandatory Decimal approved lessors who were not qualified are set out in the proposed amendments Pricing Testing;’’ and Article XIII, Rule to the Schedule of Member Dues and trading members of the Exchange where 4, ‘‘Advertisements, Market Sales Fees.65 the memberships are leased to CHX Literature Relating to Options and members. The second vote count Communications to Customers.’’ 59 See proposed CHX Rules, Article II, Rule 2(e). included all of the votes cast in the first 60 (6) Administrative Issues See proposed CHX Rules, Article II, Rules 3(d), (a) Membership market. CHX count, as well as votes cast by approved ‘‘Term of Trading Permit,’’ and 7, ‘‘Termination of lessors who were not qualified trading Trading Permit by Participant.’’ members will be able to buy and sell 61 See proposed CHX Rules, Article II, Rule 6, CHX memberships until the close of the members of the Exchange where the ‘‘Transfers of Trading Permits.’’ memberships were not leased to CHX 62 See generally, CHX Rules, Articles VII, 66 See proposed Article IV of the CHX Holdings members. On November 11, 2004, the ‘‘Suspension—Reinstatement,’’ and XII, ‘‘Discipline Bylaws and proposed Article III of the CHX Bylaws. persons voting in these two vote counts and Trial Proceedings.’’ 67 See proposed CHX Certificate of Incorporation, approved the proposal to demutualize 63 See CHX Rules, Article IA. Article Third (corporate purpose) and proposed the CHX.69 64 This fee is identical to the fee currently charged CHX Bylaws Article II, Section 15 (board by the Exchange for membership dues. compensation), Article IX (contracts, loans, checks 65 See proposed Schedule of Membership Dues and deposits), and Article VI (indemnification and 68 See Amendment No. 1, supra note 3. and Fees. advancing of expenses). 69 See Amendment No. 1, supra note 3.
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2. Statutory Basis in the Commission’s recent governance rules/sro.shtml). Copies of the release. submission, all subsequent The CHX believes the proposal is amendments, all written statements B. Self-Regulatory Organization’s consistent with the requirements of the with respect to the proposed rule Statement of Burden on Competition Act and the rules and regulations change that are filed with the thereunder that are applicable to a The Exchange does not believe that Commission, and all written national securities exchange, and, in the proposed rule change will impose communications relating to the particular, with the requirements of any inappropriate burden on 70 proposed rule changes between the Section 6(b) of the Act. The CHX competition. Commission and any person, other than believes the proposal is consistent with those that may be withheld from the Section 6(b)(5) of the Act 71 in that it C. Self-Regulatory Organization’s Statement on Comments Regarding the public in accordance with the would create a governance and provisions of 5 U.S.C. 552, will be regulatory structure of the Exchange that Proposed Rule Change Received From Members, Participants or Others available for inspection and copying in is designed to promote just and the Commission’s Public Reference equitable principles of trade, to remove No written comments were either Room, 450 Fifth Street, NW., impediments, and to perfect the solicited or received. Washington, DC 20549. Copies of such mechanism of, a free and open market III. Date of Effectiveness of the filing will also be available for and a national market system, and, in inspection and copying at the principal general, to protect investors and the Proposed Rule Change and Timing for Commission Action office of the CHX. All comments public interest. The Exchange represents received will be posted without change; that it remains committed to its role as Within 35 days of the date of the Commission does not edit personal a national securities exchange and does publication of this notice in the Federal identifying information from not believe that the proposed change to Register or within such other period (i) submissions. You should submit only a for-profit institution will undermine as the Commission may designate up to information that you wish to make its responsibilities for regulating its 90 days of such date if it finds such available publicly. All submissions marketplace. Indeed, as described longer period to be appropriate and should refer to File No. SR–CHX–2004– above, the Exchange believes that it has publishes its reasons for so finding or 26 and should be submitted on or before proposed specific provisions in the (ii) as to which the self-regulatory January 18, 2005. Bylaws of both CHX Holdings and the organization consents, the Commission demutualized CHX that reinforce the will: For the Commission, by the Division of ability of the Exchange to perform its (A) By order approve the proposed Market Regulation, pursuant to delegated 73 self-regulatory functions. rule change, or authority. Moreover, according to the CHX, the (B) Institute proceedings to determine Margaret H. McFarland, Exchange is not proposing any whether the proposed rule change Deputy Secretary. should be disapproved. significant changes to its existing [FR Doc. 04–28275 Filed 12–27–04; 8:45 am] operational and trading structure in IV. Solicitation of Comments connection with the demutualization. BILLING CODE 8010–01–P Instead, the CHX represents that the Interested persons are invited to proposed rule change primarily consists submit written data, views and arguments concerning the foregoing, SECURITIES AND EXCHANGE of: organizational changes to the CHX COMMISSION Certificate of Incorporation and Bylaws including whether the proposal is reflecting the change in corporate form; consistent with the Act. Comments may governance changes that will reduce the be submitted by any of the following [Release No. 34–50887; File No. SR–DTC– size of the CHX Board and modify methods: 2004–11] certain provisions governing the CHX Electronic Comments Self-Regulatory Organizations; Notice committees; and membership rule • of Filing and Immediate Effectiveness changes that are necessary to implement Use the Commission’s Internet comment form (http://www.sec.gov/ of Proposed Rule Change To Expand the new CHX trading permit structure, the Depository Trust Company’s which will replace the existing structure rules/sro.shtml); or • Send an e-mail to rule- SMART/Track Service To Include of owning and leasing Exchange Corporate Action Liability Notification memberships as a basis for trading [email protected]. Please include File Number SR–CHX 2004–26 on the rights. The proposed rule change also December 20, 2004. includes the CHX Holdings Certificate subject line. Pursuant to section 19(b)(1) of the of Incorporation and Bylaws. Although Paper Comments Securities Exchange Act of 1934 the proposed governance structure does • Send paper comments in triplicate (‘‘Act’’),1 notice is hereby given that on not reflect all of the proposals put to Jonathan G. Katz, Secretary, November 15, 2004, the Depository forward by the Commission in its latest Securities and Exchange Commission, Trust Company (‘‘DTC’’) filed with the release on self-regulatory governance,72 450 Fifth Street, NW., Washington, DC Securities and Exchange Commission the Exchange believes that it is 20549–0609. (‘‘Commission’’) the proposed rule consistent with governance changes All submissions should refer to File change described in items I, II, and III approved by the Commission for other No. SR–CHX–2004–26. This file number below, which items have been prepared demutualized exchanges and does not should be included on the subject line primarily by DTC. The Commission is serve to erode the principles articulated if e-mail is used. To help the publishing this notice to solicit Commission process and review your comments on the proposed rule change 70 15 U.S.C. 78f(b). comments more efficiently, please use from interested parties. 71 15 U.S.C. 78f(b)(5). 72 See Securities Exchange Act Release No. 50699 only one method. The Commission will (November 18, 2004), 69 FR 71126 (December 8, post all comments on the Commission’s 73 17 CFR 200.30–3(a)(12). 2004) (File No. S7–39–04). Internet Web site (http://www.sec.gov/ 1 15 U.S.C. 78s(b)(1).
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I. Self-Regulatory Organization’s corporate actions proceeds. Currently, DTC will be acting as a notification Statement of the Terms of Substance of industry participants use faxes and service. the Proposed Rule Change phone calls to communicate Liability (B) Self-Regulatory Organization’s Notices. Lack of a formal mechanism to The proposed rule change relates to a Statement on Burden on Competition proposal by DTC to enhance its send and receive Liability Notices has DTC does not believe that the SMART/Track service (formerly called proved to be inefficient as the process proposed rule change will have any the Universal Hub service) by adding a is paper intensive and subject to impact or impose any burden on new phase consisting of a Corporate transmission error and delays in competition. Action Liability Notification Service response time. that will provide industry participants To remedy these issues and to support (C) Self-Regulatory Organization’s an efficient means to facilitate the the industry groups with which DTC Statement on Comments on the notification, acknowledgement, and has worked on this project,4 DTC Proposed Rule Change Received From maintenance of corporate action liability developed the Corporate Action Members, Participants, or Others information. Liability Notification Service to DTC has discussed this rule change automate this labor-intensive process. II. Self-Regulatory Organization’s proposal with various DTC participants Statement of the Purpose of, and The goal of the Corporate Action and industry groups, a number of whom Statutory Basis for, the Proposed Rule Liability Notification Service is to have worked closely in developing the Change provide a central point of access for proposed Corporate Action Liability industry participants to send and to Notification Service. Written comments In its filing with the Commission, receive Liability Notices, to respond to relating to the proposed rule change DTC included statements concerning Liability Notices, and to review status have not yet been solicited or received. the purpose of and basis for the information relating to Liability Notices. DTC will notify the Commission of any proposed rule change and discussed any In addition, a link to DTC’s written comments received by DTC. comments it received on the proposed Reorganization Inquiry for Participants rule change. The text of these statements III. Date of Effectiveness of the System (‘‘RIPS’’) allows some fields to may be examined at the places specified Proposed Rule Change and Timing for be populated automatically when the in item IV below. DTC has prepared Commission Action corporate action event is in RIPS. The summaries, set forth in sections (A), (B), sender of the message, however, The foregoing rule change has become and (C) below, of the most significant remains responsible for the content of effective upon filing pursuant to section aspects of these statements.2 6 the message. By providing a central 19(b)(3)(A)(iii) of the Act and Rule 7 (A) Self-Regulatory Organization’s point of access to all parties, the 19b–4(f)(4) thereunder because the Statement of the Purpose of, and Corporate Action Liability Notification proposed rule effects a change in an Statutory Basis for, the Proposed Rule Service provides interoperability existing service of DTC that does not Change between participants and permits adversely affect the safeguarding of securities or funds in the custody or In July 2004, the Commission participants to avoid the costs and inefficiencies of each participant control of DTC or for which DTC is approved DTC rule filing SR–DTC– responsible and does not significantly 2003–10 that allowed DTC to implement building multiple automated bilateral links to its counterparties. affect the respective rights or obligations the SMART/Track service, which was of DTC or persons using the service. At then called the Universal Hub.3 SR– The Corporate Action Liability any time within sixty days of the filing DTC–2003–10 focused on the first phase Notification Service is subject to DTC’s of such rule change, the Commission of the service, a stock loan recall general standard of liability for may summarily abrogate such rule notification service. This filing relates to information services (i.e., responsibility change if it appears to the Commission the Corporate Action Liability for gross negligence and willful that such action is necessary or Notification Service, which is the misconduct). The service will be appropriate in the public interest, for second of the planned phases of available only to DTC participants. If, in the protection of investors, or otherwise SMART/Track. the future, DTC decides to make the in furtherance of the purposes of the When one party is owed securities by Corporate Action Liability Notification Act. its counterparty, and those securities are Service available to non-participants, the subject of a voluntary corporate DTC will file another proposed rule IV. Solicitation of Comments action, it is industry practice for the change. Interested persons are invited to owed party to send to the counterparty DTC believes that the proposed rule submit written data, views, and a liability notice that holds the change is consistent with the arguments concerning the foregoing, counterparty liable for delivery of the requirements of Section 17A of the Act 5 including whether the proposed rule securities in time for the owed party to and the rules and regulations change is consistent with the Act. participate in the voluntary corporate thereunder applicable to DTC because Comments may be submitted by any of action (‘‘Liability Notice’’). It is also the proposed will promote efficiencies the following methods: customary in the industry for the relating to Liability Notices. The Electronic Comments counterparty receiving the Liability proposed rule change will be • Notice to reject the notice, deliver the implemented consistently with the Use the Commission’s Internet comment form (http://www.sec.gov/ securities that are the subject of the safeguarding of securities and funds in Liability Notice to the sender of the rules/sro.shtml) or the custody or control of DTC because • notice, or convert or exchange the Send an e-mail to rule- securities to the corresponding [email protected]. Please include File 4 These groups include the Corporate Actions Number SR–DTC–2004–11 on the Division of the Securities Industry Association 2 The Commission has modified the text of the (‘‘SIA’’) and the Corporate Actions Liability subject line. summaries prepared by DTC. Working Group, a subcommittee of the SIA’s STP 3 Securities Exchange Act Release No. 34–50029 Steering Committee. 6 15 U.S.C. 78s(b)(3)(A)(iii). (July 15, 2004), 69 FR 43870 (July 22, 2004). 5 15 U.S.C. 78q–1. 7 17 CFR 240.19b–4(f)(4).
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Paper Comments SECURITIES AND EXCHANGE Prohibition on Abusive IPO Allocation Practices • COMMISSION Send paper comments in triplicate (A) Quid Pro Quo Allocations to Jonathan G. Katz, Secretary, [Release No. 34–50896; File Nos. SR–NYSE– No member, member organization, or Securities and Exchange Commission, 2004–12; SR–NASD–2003–140] person associated with a member or 450 Fifth Street, NW., Washington, DC member organization may offer or 20549–0609. Self-Regulatory Organizations; Notice threaten to withhold shares it allocates of Filing of Proposed Rule Changes by All submissions should refer to File in an initial public offering (‘‘IPO’’) as the New York Stock Exchange, Inc. and consideration or inducement for the Number SR–DTC–2004–11. This file the National Association of Securities number should be included on the receipt of compensation that is Dealers, Inc. Relating to the Prohibition excessive in relation to the services subject line if e-mail is used. To help the of Certain Abuses in the Allocation and Commission process and review your provided by the member or member Distribution of Shares in Initial Public organization. comments more efficiently, please use Offerings (‘‘IPOs’’) only one method. The Commission will (B) Spinning post all comments on the Commission’s December 20, 2004. No member, member organization, or Internet Web site (http://www.sec.gov/ Pursuant to Section 19(b)(1) of the person associated with a member or member organization may allocate IPO rules/sro.shtml). Copies of the Securities Exchange Act of 1934 shares to an executive officer or director submission, all subsequent (‘‘Exchange Act’’)1 and Rule 19b-4 thereunder,2 notice is hereby given that of a company, including to a person amendments, all written statements materially supported by such executive with respect to the proposed rule on September 10, 2004, the New York Stock Exchange, Inc. (‘‘NYSE’’ or officer or director: change that are filed with the (1) if the member or member Commission, and all written ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘SEC’’ or organization has received compensation communications relating to the from the company for investment proposed rule change between the ‘‘Commission’’) Amendment No. 1 to its proposed rule change (‘‘NYSE banking services in the past 12 months; Commission and any person, other than Amendment No. 1’’), which it originally (2) if the member or member those that may be withheld from the filed on February 25, 2004. organization expects to receive or public in accordance with the On August 4, 2004, the National intends to seek investment banking provisions of 5 U.S.C. 552, will be Association of Securities Dealers, Inc. business from the company in the next available for inspection and copying in (‘‘NASD’’) filed with the Commission 6 months; or the Commission’s Public Reference Amendment No. 2 to its proposed rule (3) on the express or implied Section, 450 Fifth Street, NW., change (‘‘NASD Amendment No. 2’’), condition that such executive officer or Washington, DC 20549. Copies of such which it originally filed on September director, on behalf of the company, filing also will be available for 15, 2003, and subsequently amended on direct future investment banking inspection and copying at the principal December 9, 2003. business to the member or member office of DTC and on DTC’s Web site at NYSE Amendment No. 1 and NASD organization. http://www.dtc.org. All comments Amendment No. 2 are described in For purposes of Rule 470(B)(2), a received will be posted without change; Items I, II, and III below, which Items member or member organization that the Commission does not edit personal have been prepared by the respective allocates IPO shares to an executive identifying information from self-regulatory organizations (‘‘SROs’’). officer or director of a company, or a submissions. You should submit only The Commission is publishing this person materially supported by such information that you wish to make notice to solicit comments on the officer or director, from which it available publicly. All submissions proposed rule changes as amended from subsequently receives investment should refer to File Number SR–DTC– interested persons. banking business within the next 6 months, will be presumed to have made 2004–11 and should be submitted on or I. Self-Regulatory Organizations’ the allocation with the expectation or before January 18, 2005. Statements of the Terms of Substance of intent to receive such business. A For the Commission by the Division of the Proposed Rule Changes member or member organization, Market Regulation, pursuant to delegated The NYSE is filing with the however, may rebut this presumption by authority.8 Commission proposed new NYSE Rule demonstrating that the allocation of IPO Margaret H. McFarland, 470 (IPO Allocations and Distributions), shares was not made with the Deputy Secretary. governing the allocation and expectation or intent to receive [FR Doc. E4–3827 Filed 12–27–04; 8:45 am] distribution of initial public offerings investment banking business. (C) Policies Concerning Flipping BILLING CODE 8010–01–P (‘‘IPOs’’). NASD is proposing new NASD Rule (1) No member, member organization 2712 to further and more specifically or person associated with a member or prohibit certain abuses in the allocation member organization may directly or and distribution of shares in IPOs. indirectly recoup, or attempt to recoup, Below is the text of the proposed rule any portion of a commission or credit changes. Proposed new language is paid or awarded to an associated person underlined. for selling shares in an IPO that are subsequently flipped by a customer A. NYSE’s Proposed Rule Text unless the managing underwriter has Rule 470 IPO Allocations and assessed a penalty bid, as defined in Distributions Rule 100 of Regulation M under the Securities Exchange Act of 1934 (the 1 15 U.S.C. 78s(b)(1). ‘‘Exchange Act’’), on the entire 8 17 CFR 200.30–3(a)(12). 2 17 CFR 240.19b-4. syndicate.
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(2) In addition to its obligation to offering price to customers’ unfilled business from the company in the next maintain records relating to penalty orders pursuant to a random allocation 6 months; or bids under Rule 17a–2(c)(1) of the methodology. (3) on the express or implied Exchange Act, a member or member (E) Market Orders condition that such executive officer or organization shall promptly record and No member or member organization director, on behalf of the company, maintain information regarding any may accept a market order for the direct future investment banking penalties or disincentives assessed on purchase of IPO shares during the first business to the member. its associated persons in connection day that IPO shares commence trading For purposes of paragraph (b)(2), a with a penalty bid. on the secondary market. member that allocates IPO shares to an IPO Pricing and Trading Practices (F) Definitions executive officer or director of a (D) IPO Pricing For purposes of this Rule, the company, or a person materially No member or member organization following terms shall have the meanings supported by such officer or director, may serve as a book-running lead stated below. from which it receives investment manager of an IPO, unless the IPO (1) The terms ‘‘person associated with banking business in the next 6 months meets all of the following conditions: a member or member organization’’ and will be presumed to have made the (1) The book-running lead manager ‘‘associated person of a member or allocation with the expectation or intent will provide the issuer’s pricing member organization’’ shall have the to receive such business. A member, committee (or, if the issuer has no same meaning as defined under Section however, may rebut this presumption by pricing committee, its board of 3(a)(21) of the Exchange Act. demonstrating that the allocation of IPO directors) or a similar managing group (2) The term ‘‘initial public offering’’ shares was not made with the authorized to oversee and address the is defined in Rule 472.100. expectation or intent to receive pricing and allocation of such IPO (3) ‘‘Material support’’ means directly investment banking business. shares: or indirectly providing more than 25% (c) Policies Concerning Flipping (a) a regular report of indications of of a person’s income in the prior (1) No member or person associated interest, including the names of calendar year. Persons living in the with a member may directly or interested institutional investors and the same household are deemed to be indirectly recoup, or attempt to recoup, number of shares indicated by each, as providing each other with material any portion of a commission or credit reflected in the book-running lead support. paid or awarded to an associated person manager’s book of potential (4) The term ‘‘investment banking for selling shares in an IPO that are institutional orders, and a report of services’’ is defined in Rule 472.20. subsequently flipped by a customer, aggregate demand from retail investors; (5) ‘‘Flipped’’ means the initial sale of unless the managing underwriter has (b) after the settlement date of the IPO shares purchased in an offering assessed a penalty bid on the entire IPO, a report of the final allocation of within 30 days following the offering syndicate. shares to institutional investors as date, as defined in Rule 472.120. (2) In addition to any obligation to reflected in the books and records of the (6) ‘‘Penalty bid,’’ as defined in Rule maintain records relating to penalty book-running lead manager, including 100 of Regulation M, ‘‘means an bids under SEC Rule 17a–2(c)(1), a the names of purchasers and the arrangement that permits the managing member shall promptly record and number of shares purchased by each, underwriter to reclaim a selling maintain information regarding any and aggregate sales to retail investors. concession from a syndicate member in penalties or disincentives assessed on (2) Lock-Up Agreements. Any lock-up connection with an offering when the its associated persons in connection agreement or other restriction on the securities originally sold by the with a penalty bid. transfer of the issuer’s shares by officers syndicate member are purchased in (d) Definitions and directors of the issuer shall provide syndicate covering transactions.’’ For purposes of this Rule, the that: following terms shall have the meanings B. NASD’s Proposed Rule Text (a) such agreements will apply to their stated below. issuer-directed shares; 2712. IPO Allocations and (1) ‘‘Flipped’’ means the initial sale of (b) at least two business days before Distributions IPO shares purchased in an offering the release or waiver of any lock-up or (a) Quid Pro Quo Allocations within 30 days following the offering other restriction on the transfer of the No member or person associated with date of such offering. issuer’s shares, the book-running lead a member may offer or threaten to (2) ‘‘Penalty bid’’ means an manager will notify the issuer of the withhold shares it allocates in an initial arrangement that permits the managing impending release or waiver and public offering (‘‘IPO’’) as consideration underwriter to reclaim a selling announce the impending release or or inducement for the receipt of concession from a syndicate member in waiver through a major news service. compensation that is excessive in connection with an offering when the (3) Agreement Among Underwriters. relation to the services provided by the securities originally sold by the The agreement between the book- member. syndicate member are purchased in running lead manager and other (b) Spinning syndicate covering transactions. syndicate members provides that with No member or person associated with (3) ‘‘Material support’’ means directly respect to any shares returned by a a member may allocate IPO shares to an or indirectly providing more than 25% purchaser to a syndicate member after executive officer or director of a of a person’s income in the prior secondary market trading commences: company, or to a person materially calendar year. Persons living in the (a) the returned shares will be used to supported by such executive officer or same household are deemed to be offset any existing syndicate short director: providing each other with material position; or (1) if the member has received support. (b) if no syndicate short position compensation from the company for (e) IPO Pricing and Trading Practices exists, or if all existing syndicate short investment banking services in the past In an equity IPO: positions have been covered, the 12 months; (1) Reports of Indications of Interest member or member organization must (2) if the member expects to receive or and Final Allocations. The book- offer returned shares at the public intends to seek investment banking running lead manager must provide to
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the issuer’s pricing committee (or, if the rule changes.3 The text of these a whole, and make recommendations to issuer has no pricing committee, its statements may be examined at the address these issues and improve the board of directors): places specified in Item IV below. The process in general. The work of the IPO (A) a regular report of indications of NYSE and NASD have prepared Advisory Committee resulted in the 4 interest, including the names of summaries, set forth in Sections (A), (B), issuance of a report in May 2003. interested institutional investors and the and (C) below, of the most significant Recognizing the importance of IPOs to number of shares indicated by each, as aspects of such statements. the vitality of our capital markets, the Committee solicited and/or received reflected in the book-running lead (A) Self-Regulatory Organizations’ manager’s book of potential input from all constituencies involved Statements of the Purpose of, and in this process, including investment institutional orders, and a report of Statutory Basis for, the Proposed Rule aggregate demand from retail investors; bankers, venture capitalists, individual Changes and institutional investors, and listed (B) after the settlement date of the 1. NYSE’s Purpose companies. The Committee also IPO, a report of the final allocation of received input from various trade Proposed NYSE Rule 470 (IPO shares to institutional investors as organizations (i.e., Association of Allocations and Distributions) would reflected in the books and records of the Publicly Traded Companies), and from govern the allocation and distribution of book-running lead manager including representatives from academia as well. the names of purchasers and the IPOs by members and member The Committee proposed 20 number of shares purchased by each, organizations. The Rule prohibits recommendations that address four and aggregate sales to retail investors; certain inappropriate conduct by major subject areas: (1) The IPO process members and member organizations in (2) Lock-Up Agreements. Any lock-up must promote transparency in pricing allocating and distributing IPOs and agreement or other restriction on the and avoid aftermarket distortions; (2) will provide the investing public with a transfer of the issuer’s shares by officers Abusive allocation practices must be greater degree of confidence in the IPO and directors of the issuer shall provide eliminated; (3) Regulators must improve process and the capital markets as a that: the flow of, and access to, information whole. (A) Any lock-up agreement or other regarding IPOs; and (4) Regulators must encourage underwriters to maintain the restriction on the transfer of the issuer’s Background highest possible standards, establish shares by officers and directors of the According to the NYSE, a series of issuer education programs regarding the issuer shall provide that such regulatory investigations identified IPO process, and promote investor restrictions will apply to their issuer- certain types of questionable conduct by education about the advantages and directed shares; and securities underwriters and others risks of IPO investing.5 (B) At least two business days before involved in the IPO process. Examples In terms of rulemaking, the the release or waiver of any lock-up or of such conduct noted by the NYSE recommendations cover three areas: (1) other restriction on the transfer of the included, among others: (1) ‘‘spinning,’’ Recommendations requiring SEC issuer’s shares, the book-running lead whereby underwriters allocated hot IPO Rulemaking; (2) Recommendations manager will notify the issuer of the shares to executives of prospective requiring SRO rulemaking; and (3) impending release or waiver and investment banking clients in return for Recommendations that may require announce the impending release or future investment banking business; (2) changes to marketplace listing waiver through a major news service; unlawful ‘‘quid pro quo’’ arrangements, standards. (3) Agreement Among Underwriters. whereby underwriters allocated IPO The Exchange is proposing NYSE The agreement between the book- shares as consideration or inducement Rule 470 to address the following running lead manager and other for the receipt of compensation that is recommendations in the IPO Report: syndicate members must require that excessive in relation to the services (a) Recommendations 2 and 14/ any shares returned by a purchaser to a provided by the member or member Proposed NYSE Rule 470(D)(1)— syndicate member after secondary organization; (3) the inequitable Require the managing underwriter to market trading commences be used to imposition of penalty bids (reclaiming disclose indications of interest and final (a) offset the existing syndicate short of selling concessions) upon retail allocations to an issuer’s pricing position or (b) if no syndicate short brokers, but not brokers servicing committee or, if the issuer has no position exists, the member must offer institutional clients, whose clients pricing committee, to its board of returned shares at the public offering immediately sold (flipped) IPO shares in directors. (b) Recommendation 4/Proposed price to unfilled customers’ orders the aftermarket; and (4) allocating IPO NYSE Rule 470(E)—Prohibit the pursuant to a random allocation shares based on agreements to pay acceptance of market orders to purchase methodology. excessive commissions for unrelated securities transactions. IPO shares in the aftermarket for one (4) Market Orders. No member may In August 2002, the NYSE and NASD, trading day following an IPO. accept a market order for the purchase at the request of the SEC, established an (c) Recommendation 5/Proposed of IPO shares during the first day that IPO Advisory Committee (the NYSE Rule 470(C)—Prohibit the IPO shares commence trading on the ‘‘Committee’’) to address the practices inequitable imposition of ‘‘flipping’’ secondary market. noted above, review the IPO process as penalties (penalty bids) on associated II. Self-Regulatory Organizations’ persons whose customers flip IPO Statements of the Purpose of, and 3 The Commission notes that the Exchange shares. intends for the text contained in Amendment No. Statutory Basis for, the Proposed Rule (d) Recommendation 6/Proposed 1 to be included in its statement of the purpose for NYSE Rule 470(D)(3)—Establish Changes the proposed rule change. Telephone conversation between William Jannace, attorney, NYSE, Douglas In their filings with the Commission, Preston, attorney, NYSE, Joan Collopy, special 4 NYSE/NASD IPO Advisory Committee, Report the NYSE and NASD included counsel, Division of Market Regulation, and Recommendations, (May 2003), which is Commission, and Bradley Owens, attorney, available at http://www.nyse.com/pdfs/ statements concerning the purpose of, Division of Market Regulation, Commission iporeport.pdf (‘‘IPO Report’’). and statutory basis for, the proposed (December 10, 2004). 5 See IPO Report, page 3.
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procedures designed to prevent reneged Proposed NYSE Rule 470(A)—Quid Pro proposed rule change applied to IPO allocations from being used to Quo Allocations household members of such persons benefit favored clients of the According to the NYSE, proposed and only looked forward three months. underwriter. NYSE Rule 470(A) would prohibit In addition, Amendment No. 1 adds (e) Recommendation 9/Proposed members and member organizations the presumption that if a firm allocates NYSE Rule 470(B)—Prohibit the from allocating IPO shares as IPO shares to an executive officer or allocation of IPO shares (1) to executive consideration or inducement for the director of a company and it officers and directors (and their receipt of compensation that is subsequently receives investment household members) of companies that excessive in relation to the services banking business from that company, have an investment banking provided by the member or member then the IPO allocations were made relationship with the underwriter, or (2) organizations. The NYSE believes that with the expectation or intent to receive as a ‘‘quid pro quo’’ for investment while the federal securities laws and such business. The proposed rule states banking business. Exchange rules generally prohibit that a member or member organization (f) Recommendation 11/Proposed abusive IPO allocation and distribution may rebut this presumption. According NYSE Rule 470(A)—Prohibit the arrangements, such as where to the Exchange, such evidence could allocation of IPO shares as consideration underwriters allocate IPO shares based include procedures that ensure or inducement for the payment of on a potential investor’s agreement to investment banking personnel involved excessive compensation for other pay excessive commissions on trades of in allocations do not have any services provided by the underwriter. unrelated securities or based on the information about the beneficial owners (g) Recommendation 17/Proposed recipient’s agreement to ‘‘kick back’’ to of retail accounts that received NYSE Rule 470(D)(2)(a)—Require that the underwriter, either through excess allocations. lock-up agreements apply to shares commissions or otherwise, a portion of In Amendment No. 1, the Exchange is owned by the issuer’s officers and flipping profits, the proposed rule proposing to define ‘‘material support’’ directors as well as to ‘‘issuer-directed’’ would specifically prohibit such to mean ‘‘* * * directly or indirectly, shares. conduct. According to the NYSE, the providing more than 25% of a person’s (h) Recommendation 17/Proposed proposed prohibition, however, is not income in the prior calendar year. NYSE Rule 470(D)(2)(b)—Impose new intended to interfere with a member’s or Persons living in the same household notification requirements when member organization’s business are deemed to be providing each other underwriters waive lock-ups. relationships with its customers nor with material support.’’ According to the NYSE, some of the would it prohibit legitimate allocations Proposed NYSE Rule 470(C)—Policies Committee’s other recommendations of such IPO shares to customers of the Concerning Flipping will not require rulemaking. In this member or member organization, even regard, the Committee recommended when a customer has retained the According to the NYSE, proposed additional requirements for enhanced member or member organization for NYSE Rule 470(C) would prohibit the periodic internal review by services. inequitable imposition of a flipping underwriters of their IPO supervisory penalty (penalty bids) on associated procedures and a heightened focus on Proposed NYSE Rule 470(B)—Spinning persons whose customers flipped IPO the IPO process by the SROs. The According to the NYSE, as originally shares unless such penalty is imposed Exchange will address these proposed, NYSE Rule 470(B) would on the entire underwriting syndicate. In recommendations through its regulatory prohibit the awarding of IPO shares to Amendment No. 1, the Exchange examinations of members and member executive officers and directors and deleted the term ‘‘underwriting’’ from organizations. their household members of issuers that the term ‘‘underwriting syndicate’’ to Although the Exchange is proposing have, or will have, an investment ensure that penalty bids for flipping be new NYSE Rule 470 regarding IPO banking relationship with the member assessed on the entire syndicate, not just allocations and distributions, the federal or member organization on the the underwriting syndicate (e.g., the securities laws and the Exchange rules condition that such officers and selling group). already prohibit certain IPO allocation directors, on behalf of the issuer, direct Rule 104 of Regulation M under the and distribution abuses. According to future investment banking business to Exchange Act,6 permits underwriters to the Exchange, NYSE Rule 470 is the member or member organization impose penalty bids (as defined in Rule proposed to address certain of the issues (commonly referred to as ‘‘spinning’’). 100 of Regulation M) 7 on syndicate raised in the IPO Report and is intended In Amendment No. 1, the Exchange members. ‘‘Penalty bid,’’ as defined in to complement existing federal substituted the term ‘‘company’’ for Rule 100 of Regulation M, means ‘‘an securities laws and Exchange Rules, ‘‘issuer,’’ as many of the practices arrangement that permits the managing which will continue to apply after the addressed in the proposed rule may underwriter to reclaim a selling proposed rule change is effective. occur prior to a company becoming an concession from a syndicate member in issuer. Further, the prohibitions against connection with an offering when the Discussion of Proposed Rule Provisions such allocations would also extend to securities sold by the syndicate member According to the NYSE, the IPO affiliates of the company. are purchased in syndicate Report noted that certain allocation In Amendment No. 1, the Exchange transactions.’’ The purpose of imposing practices raise an appearance of amended its original prohibition penalty bids is to promote a stable impropriety, and that rules should be precluding allocations to executive aftermarket, whereby purchasers of the adopted to address this issue. officers or directors of a company to offering remain long-term shareholders Accordingly, the Exchange is proposing include persons ‘‘materially supported’’ of the securities and not merely a rule to make unlawful the practice of by such officers or directors if the speculators seeking to lock-in instant ‘‘spinning’’ and other ‘‘quid pro quos’’ member or member organization expects profits, as was prevalent during the by members and member organizations to receive or intends to seek investment as inducement for the receipt of banking business from the company in 6 17 CFR 242.104. investment banking business. the next six months. Previously, the 7 17 CFR 242.100.
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recent stock market bubble of the late market practice whereby the book- Limitations on ‘‘Friends and Family’’ 1990s. running lead manager maintains this Programs According to the NYSE, regulatory information. The IPO Report recommends investigation revealed instances where, The Exchange believes that disclosure promoting greater transparency with while penalty bids where not imposed of each retail customer’s indications of regard to ‘‘issuer-directed’’ allocations upon syndicate members, such members interest (and subsequent allocations) such as ‘‘friends and family’’ programs. themselves selectively imposed such would be of limited benefit to issuers ‘‘Friends and family’’ programs are penalties upon certain of their brokers and their pricing committees. According ‘‘issuer-directed allocations of a portion whose customers (generally retail) to the NYSE, the underlying purpose of of an offering used to permit company flipped IPO shares in the immediate this proposal is to ensure that the issuer employees to invest in their employer at aftermarket. Similar penalties were not or its pricing committee has a clear the IPO price, or to permit strategic imposed upon brokers whose picture of the demand for its securities. business partners to have a small institutional type investors engaged in Thus, the NYSE believes that investment in the issuer.’’9 According to the same trading patterns. Selective information about each retail investor imposition of penalty bids upon retail would generally not be helpful. the NYSE, lock-ups are essential, in the brokers resulted in these brokers Accordingly, the Exchange is amending early stages of the life of a company discouraging their retail customers from its proposed rule to require that the going public, for maintaining a stable selling immediately in the aftermarket, book-running lead manager provide a aftermarket following an IPO. Subjecting while implicitly permitting ‘‘regular report’’ of indications of a greater number of shares to such institutional-type investors to sell interest for its institutional book, agreements will help foster this stable during this same time period. including names of interested aftermarket by preventing shares, not According to the NYSE, proposed institutional investors and the number ordinarily subject to lock-ups, from NYSE Rule 470(C)(1) addresses this of shares indicated by each, and to being sold in the immediate aftermarket. inequity by prohibiting the imposition reflect retail demand in aggregate terms Requirements Concerning Lock-up of penalty bids upon an associated only. Exemptions person of a member or member The Exchange believes that a regular organization, unless the penalty has report of institutional investors’ As proposed, NYSE Rule 470(D)(2)(a) been imposed on the entire syndicate. indications of interest should be made would require that lock-up agreements As proposed, NYSE Rule 470(C)(1) as often as appropriate, including when also apply to officers’ and directors’ would not affect the applicability of a material change occurs, or in ‘‘issuer-directed’’ shares, in addition to Rule 104 of Regulation M as it pertains connection with certain meetings with their other shares that are subject to to penalty bids. the issuer or its pricing committee, and such agreements. Proposed NYSE Rule In addition, as proposed, members as frequently as requested by the issuer 470(D)(2)(b) would require prior and member organizations would be or its pricing committee. The Exchange notification when lock-ups expire or are required to maintain records of penalty is aware that book-running lead waived. Further, proposed NYSE Rule bids in accordance with Rule 17a– managers, and to a certain extent 470(D)(2)(b) would require 2-day prior 2(C)(1) 8 under the Exchange Act. Rule syndicate managers, have regular notification to the issuer by a book- 17a-2(C)(1) imposes recordkeeping meetings to discuss the book-building running lead manager through a major requirements on managers or syndicates process, including indications of news service. 10 The NYSE believes this in connection with syndicate covering interest from institutional investors. notification requirement will benefit an transactions and the imposition of Also, the book-running lead manager issuer’s shareholders and the penalty bids. In Amendment No. 1, the usually has frequent and daily marketplace in that it will ensure that Exchange is proposing that all members discussions with issuers about the level they are aware of this prior information and member organizations, not solely of indications of interest. The proposed to and not after the sale by directors and managers as 17(a)–2(c)(1) prescribes, be rule change would conform to these officers of the issuer. subject to recordkeeping requirements practices. In Amendment No. 1, the Exchange for any penalties or disincentives According to the NYSE, the pricing of amended proposed NYSE Rule 470 assessed on their associated persons in an IPO is determined, in part, by (D)(2) to clarify that the required public connection with a penalty bid. investor demand. Investor demand is announcement by the book-running lead measured by preliminary indications of manager must be made at least two days Proposed NYSE Rule 470(D)—IPO interest underwriters receive up to the before the release or waiver of any lock- Pricing and Trading Practices time an offering is declared effective by up requirement through a major news Disclosure of Indications of Interest and the Commission. In requiring disclosure service. According to the NYSE, the IPO Final Allocations of such information, the Exchange will Advisory Committee concluded that As originally proposed, NYSE Rule promote greater transparency in IPO investors reasonably expect that the 470(D)(1) requires book-running lead pricing, a stated goal of the IPO Report. issuer’s directors, officers and large pre- managers to disclose in a regular report In Amendment No. 1, the Exchange IPO shareholders who agree to ‘‘lock- indications of interest and final amended proposed Rule 470 (D)(1)(b) to up’’ their shares will be bound by those allocations of an IPO to an issuer’s require the book-running lead manager agreements for the stated period. As a pricing committee or, if the issuer has to provide the report on final allocations result, the proposed rule provides that no pricing committee, to its board of within a reasonable time after the book-running lead manager should directors or a managing group ‘‘settlement date’’ rather than after announce any release or waiver of a authorized to oversee this process. In ‘‘closing date.’’ The settlement date and lock-up agreement at least two business Amendment No. 1, the Exchange closing date may, at times, be the same amended the proposed rule to substitute date; but the term ‘‘settlement date’’ is 9 See IPO Report, page 13. ‘‘book-running lead manager’’ for more precisely understood as the date 10 Recommendation 17 of the IPO Report also requires that issuers file a Form 8–K, prior to the ‘‘managing underwriter,’’ to reflect on which the issuer transfers its shares time on insider makes sales pursuant to the in return for offering proceeds from the expiration or waiver of the lock-up. According to 8 17 CFR 240.17a–2(c)(1). syndicate. the NYSE, this would require SEC rulemaking.
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days before through a major news of reports, and/or the making of public immediate aftermarket may not ‘‘reflect service. The Exchange believes it is appearances through ignorance of the their true investment decisions nor their important to make clear that this expiration, or waiver of such reasonable expectations.’’ 14 Therefore, notification requirement applies to a agreements. the Committee reasoned that prohibiting release or waiver of lock-ups by the Returned Shares the acceptance of market orders issuer and any selling shareholder. immediately following an IPO would The Exchange does not believe that The IPO Report recommended the allow the market to develop more placing such notice on the managing establishment of clear parameters for trading information and thus make the underwriter(s) Web site will provide for underwriters’ sales of returned shares placement of such orders more sufficient public dissemination of such after secondary market trading has appropriate for investors. In addition, information. Often, a member or commenced. It noted that IPO shares are institutional investors generally rely on member organization Websites contain sometimes returned to the underwriter limit orders for IPOs in the aftermarket. large amounts of information and may after secondary trading commences as a In this regard, the Exchange does not provide challenges to locating specific result of either: (1) mistaken allocations; believe that the prohibitions on the information. As such, the Exchange or (2) incomplete information or other placement of market orders for IPOs on believes that notice of the release or problems relating to the delivery of the first trading day will have an waiver of any lock-up or other shares and settlement of trades. In appreciable effect on liquidity and restriction should be disseminated instances where the IPO shares trade at market efficiency. through a broad non-exclusionary an immediate aftermarket premium, the The NASD has filed proposed distribution medium to the public, such underwriter has the ability to allocate amendments with the SEC to address as through major news services. any returned shares to favored some of the recommendations noted Accordingly, the Exchange amended its customers at the IPO price, guaranteeing above and has sought membership Filing to limit dissemination to this such customers an immediate locked-in comment on additional proposed 13 prescribed manner and not permit profit. amendments. The staffs of both the dissemination through a Web site, as In response to this practice, proposed Exchange and NASD are coordinating originally proposed in their Filing. NYSE Rule 470(D)(3) would require all their efforts in an attempt to promulgate According to the NYSE, such a notice syndicate members to prioritize the consistent rules. must be released by the fastest available treatment of returned shares in the The Exchange believes that enactment means. The fastest available means may following order: (1) use the returned of the proposed Rule will complement vary in individual cases and according shares to offset any existing syndicate and enhance recent Exchange initiatives to the time of day. To ensure adequate short position; or (2) if no syndicate including the Research Analysts’ coverage, releases should be marked short position exists, or if all existing Conflicts Rules,15 the Research Analysts ‘‘For Immediate Release’’ and should be syndicate short positions have been Global Settlement,16 and new Corporate given to, for example, Dow Jones & covered, offer those shares to customers’ Governance Listing Standards.17 Company, Inc., Reuters Economic unfilled orders at the public offering 2. NYSE’s Statutory Basis Services and Bloomberg Business News. price pursuant to a random allocation The book-running lead manager is also methodology. The Exchange believes that the basis encouraged to promptly distribute such While the proposed rule change does for the proposed rule change is the notices to, for example, the Associated not specify a particular methodology, requirement under Section 6(b)(5) 18 of Press and United Press International, as the Exchange expects that members and the Exchange Act that the rules of the well as to newspapers in New York City member organizations will develop Exchange be designed to prevent and in cities where the issuer is systems to randomly allocate in an fraudulent and manipulative acts and headquartered or has other major objective non-discriminatory manner. practices, to promote just and equitable facilities. According to the NYSE, every According to the Exchange, member and principles of trade, and, in general to notice should include the name and member organizations may use the protect investors and the public interest. allocation of option exercise notices as telephone number of an official at the 3. NASD’s Purpose book-running lead manager who will be an example when designing such a available if a newspaper or news wire system. According to the Exchange, in NASD is proposing new NASD Rule service desires to confirm or clarify the requiring the use of a random allocation 2712, which will better ensure that notice.11 methodology, members and member members avoid unacceptable conduct The NYSE believes proposed NYSE organizations will be limited in their when they engage in the allocation and Rule 470 (D)(2)(b) will help facilitate ability to benefit certain preferred distribution of IPOs. The proposed rule members’ and member organizations’ customers by selecting a particular change also is intended to sustain compliance with recently enacted customer or group of customers to public confidence in the IPO process, amendments to NYSE Rule 472,12 which receive a guaranteed profit. which is critical to the continued prohibits managers and co-managers of Limitation on Market Orders for One success of the capital markets. In August 2002, the SEC requested a securities offering from publishing Day Following an IPO research or offering opinions during a that NASD and the NYSE convene a Proposed NYSE Rule 470(E) would public appearance on an issuers’ high-level group of business and prohibit the acceptance of market orders securities within 15 days prior to or academic leaders to review the IPO to purchase IPO shares in the after the expiration or waiver of a lock- aftermarket for one trading day 14 up agreement. According to the NYSE, See IPO Report, page 6. following an IPO. The IPO Report noted 15 See Securities Exchange Act Release No. 48252 requiring prior public notification that IPOs are ‘‘inherently more volatile (July 29, 2003), 68 FR 45875 (August 4, 2003), (SR– should prevent the inadvertent issuance than stocks with a public trading NYSE 2002–49). 16 history,’’ and that the placement of See Litigation Release No. 18438 (October 31, 11 See also, NYSE Listed Company Manual, 2003). Section 202.06 (Procedure for Public Release of market orders by individuals in the 17 See Securities Exchange Act Release No. 48745 Information). (November 4, 2003) (SR–NYSE–2002–33). 12 See NYSE Rule 472(f)(4). 13 See IPO Report, pages 6 and 7. 18 15 U.S.C. 78f(b)(5).
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process, to recommend ways to address has brought several disciplinary actions expressly prohibited IPO allocations to the problems evidenced during the hot with respect to violations of these an executive officer or director as market of the late 1990s and 2000, and provisions. These laws and rules would consideration for directing investment to improve the underwriting process. In continue to apply, and will continue to banking services previously rendered by May 2003, the NYSE and NASD IPO be the subject of possible NASD the member to the company. Advisory Committee (‘‘Committee’’) enforcement, after the proposed rule The NYSE/NASD IPO Advisory issued its final report, which contains change becomes effective. Moreover, Committee supported the spinning 20 recommendations.19 In November each provision in proposed NASD Rule proposal in Notice to Members 02–55 2003, NASD published Notice to 2712 would apply independently. with several modifications. First, the Members 03–72 requesting comment on Compliance with one provision would Advisory Committee recommended that the Committee’s recommendations not provide a safe harbor with respect NASD prohibit an allocation of IPO applicable to NASD. The proposals in to the other provisions of the Rule or shares to immediate family members of Notice to Members 03–72 supplemented with respect to other federal securities an executive officer or director proposals initially presented for law and existing NASD rules. whenever an allocation to the officer or comment in Notice to Members 02–55, director would be prohibited. The A. Prohibition of Abusive Allocation which were filed with the SEC on NASD amended the rule to eliminate Arrangements September 15, 2003 and amended on the definition of immediate family and December 9, 2003. NASD received 39 NASD Rule 2712(a) would expressly instead apply the prohibition on comment letters 20 in response to Notice prohibit a member and its associated spinning just to persons ‘‘materially to Members 03–72, which are discussed persons from offering or threatening to supported’’ by an executive officer or below. withhold an IPO allocation as director of a company. This concept of Although NASD is proposing new consideration or inducement for the material support is the same as used in rules addressing IPO allocations, the receipt of compensation that is NASD Rule 2790 (Restrictions on the federal securities laws and existing excessive in relation to the services Purchase and Sale of Initial Equity NASD rules already prohibit IPO provided by the member. This provision Public Offerings).21 This change allocation abuses. In recent years NASD would prohibit this activity not only narrows the scope of the spinning with respect to trading services, but to prohibition to include only those 19 See IPO Report, supra note 4. any service offered by the member. In members of the immediate family that 20 Letter from Alan R. Gordon dated November addition, trading activity that serves no live in the same household as the 25, 2003; Letter from Alan Tobey dated November economic purpose other than to executive officer or director and is 28, 2003; Letter from Allen Skaggs dated November 30, 2003; Letter from Peter W. LaVigne, American generate compensation for the member similar in scope to the provisions in Bar Association, dated February 4, 2004; Letter from (e.g., wash sales) would be viewed as NASD Rule 2711 (Research Analysts Banner Capital Markets LLC dated January 9, 2004; ‘‘excessive’’ in relation to the services and Research Reports). The definition, Letter from Bruce E. Holmes, PE, dated November provided by the member, which are however, captures persons outside of an 29, 2003; Letter from Harold Jones, Coughlin & Company Inc., dated January 9, 2004; Letter from meaningless. executive officer’s or director’s Daniel M. Chernoff dated November 28, 2003; Letter NASD does not intend that this immediate family if such executive from Don Brewer dated November 28, 2003; Letter prohibition interfere with legitimate officer or director, directly or indirectly, from Edward J. Fedeli dated November 28, 2003; customer relationships. For example, provides more than 25% of the person’s Letter from Edward M. Alterman, Fried, Frank, Harris, Shriver & Jacobson LLP, dated January 23, this provision is not intended to income in prior calendar year. 2004; Letter from HGM dated November 28, 2003; prohibit a member from allocating IPO Second, the Advisory Committee Letter from J D Harris dated November 28, 2003; shares to a customer because the recommended that NASD bar IPO Letter from [email protected] dated November customer has separately retained the allocations to all executive officers and 30, 2003; Letter from Jeffrey E. Teich, Ph.D, dated November 25, 2003; Letter from member for other services, when the directors of a company with whom a [email protected] dated November 29, 2003; customer has not paid excessive member has an investment banking Letter from Malcolm R. Powell, M.D, dated compensation in relation to those relationship. The Advisory Committee November 28, 2003; Letter from Mandar Mirashi services. believed that the very existence of an dated November 29, 2003; Letter from Mark H. investment banking relationship Rapier dated November 30, 2003; Letter from B. Prohibition of Spinning Lawrence M. Ausubel, Market Design Inc., dated created, at the very least, an appearance January 23, 2004; Letter from [email protected] According to the NASD, ‘‘spinning,’’ of impropriety. NASD has amended the dated November 29, 2003; Letter from Lester Morse, or awarding IPO shares to the executive proposed rule change to incorporate this Esq., Morse & Morse, PLLC dated January 15, 2004; Letter from Jed Bandes, Mutual Trust Co. of officers and directors of an investment suggestion. America Securities, dated November 28, 2003; banking client, divides the loyalty of the Consequently, proposed NASD Rule Letter from Ralph A. Lambiase, NASAA, dated agents of the company (i.e., the 2712(b) would prohibit the allocation of January 26, 2004; Letter from Mark G. Heesen, executive officers and directors) from IPO shares to an executive officer or NVCA, dated January 16, 2004; Letter from Henry P. Williams, Oppenheimer & Co., Inc., dated the principal (i.e., the company) on director of a company, or to persons January 9, 2004; Letter from Patricia Evans dated whose behalf they must act. The NASD materially supported by such an November 29, 2003; Letter from Paul N. Mullen believes this practice is inconsistent executive officer or director, if the dated November 28, 2003; Letter from Peggy with just and equitable principles of member had received compensation Hutchinson dated November 29, 2003; Letter from Peter Locke dated November 28, 2003; Letter from trade. from the company for investment [email protected] dated November 28, 2003; As proposed in Notice to Members banking services in the past 12 months. Letter from Richard O. Gregory dated November 29, 02–55, NASD Rule 2712(b) would have In addition, NASD has expanded the 2003; Letter from Rick Street dated November 29, expressly prohibited a member and its prohibition in proposed NASD Rule 2003; Letter from Scott Cook dated January 23, 2004; Letter from John Faulkner, Securities Industry associated persons from allocating IPO 2712 (b)(2) to preclude allocations to Association, dated January 23, 2004; Letter from shares to an executive officer or director executive officers or directors of a Steve Antenozzi dated November 27, 2003; Letter of a company on the condition that the company if the member expects to from Thomas Weitzner dated November 30, 2003; executive officer or director, on behalf receive or intends to seek investment Letter from Dr. Ann E. Sherman, University of Notre Dame, January 23, 2004; and Letter from William of the company, direct future banking business from the company in R. Hambrecht, WR Hambrecht & Co., dated January investment banking business to the 9, 2004. member. The rule also would have 21 See 68 FR 62126 (October 21, 2003).
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the next 6 months. Previously, the SEC Regulation M has been imposed. the issuer the final allocations after the proposed rule change only looked Rule 100 defines a penalty bid as ‘‘an offering is priced. The Committee forward 3 months. The language of these arrangement that permits the managing concluded that greater participation by provisions is based on similar language underwriter to reclaim a selling issuers in pricing and allocation in NASD Rule 2711, concerning concession from a syndicate member in decisions would better ensure that those disclosure of investment banking connection with an offering when the decisions are consistent with the compensation in research reports.22 securities originally sold by the fiduciary duty of directors and In addition, the proposed rule change syndicate member are purchased in management, and would provide adds a presumption in paragraph (b)(2), syndicate covering transactions.’’ management with more information to stating that if a firm allocates IPO shares Rule 104 of Regulation M and Nasdaq evaluate the underwriter’s performance. to an executive officer or director of a Stock Market Rule 4624 provide notice A requirement that issuers establish a company and it subsequently receives and record keeping requirements for pricing committee would necessitate a investment banking business from that penalty bids. Penalty bids may be listing standard by The Nasdaq Stock company, that the IPO allocations were assessed in the aftermarket of an Market and the NYSE. made with the expectation or intent to offering that is under downward price In Notice to Members 03–72, NASD receive such business. A member may pressure from an imbalance of sell solicited comment on a proposed rule rebut this presumption. According to orders relative to purchase orders. change that would require that the the NASD, evidence to rebut this NASD does not oppose this use of underwriting agreement between the presumption could include procedures penalty bids. However, according to the book-running lead manager and the and information barriers that ensure that NASD, some members have penalized issuer require that the book-running investment banking personnel involved their registered representatives in lead manager provide the issuer’s in allocations do not have any connection with flipping by retail pricing committee (or its board of information about the beneficial owners customers, even when the managing directors if the issuer does not have a of retail accounts that received underwriter has not assessed a penalty pricing committee) with: (1) a regular allocations. bid on the syndicate members. For report of indications of interest, Under the proposed rule change, the example, members have penalized their including the names of interested accounts of executive officers and registered representatives by recouping investors and the number of shares directors and their immediate family the commission or credits previously indicated by each, and (2) after the would, in effect, be restricted accounts granted for the sale of IPO shares. closing date of the IPO, a report of the similar to the accounts subject to the According to the NASD, the practical final allocation of shares available to the Free-Riding and Withholding consequence of this practice is that manager, including the names of Interpretation (IM–2110–1). registered representatives are penalized, purchasers and the number of shares Accordingly, NASD requests comment and their retail customers may be purchased by each. on whether the prohibition should be pressured to retain their long position in According to the NASD, commenters codified in NASD Rule 2790, which was the IPO shares, while representatives for generally supported these requirements 23 recently approved by the SEC and is institutional customers generally are not but suggested the following changes. slated to replace the Free-Riding and penalized at all for flipping activity by 1. Institutional vs. Retail Disclosure Withholding Interpretation. their customers. According to the In Notice to Members 02–55, NASD Some commenters suggested that the NASD, the inequity of this selective report of indications of interest and final proposed to amend NASD Rule 2710, penalization is most difficult to justify the Corporate Financing Rule, to require allocations should relate only to the in light of the fact that most IPO shares ‘‘institutional pot.’’ Several commenters that members file information regarding are typically allocated to institutional the allocation of IPO shares to executive suggested that it is not practical for the customers. The NASD believes that the book-running lead manager to provide officers and directors of a company that proposed rule would effectively prohibit hires a member to be the book-running the names of all individual investors this selective practice by permitting who have expressed an indication of managing underwriter of the company’s members to assess internal penalties on IPO. This requirement was designed to interest because the book-running lead their registered representatives only manager does not collect the names of assist the NASD in monitoring the when the managing underwriter has possibility that allocations were made in individual retail investors. Commenters imposed a penalty bid on the syndicate also stated that brokerage firms consider return for investment banking business. members. The provision would not Under the amended proposal, all the names of their individual investor place any limit on syndicate penalty clients to be proprietary information allocations to executive officers or bids, however. This proposal was directors of investment banking clients and confidentiality concerns may limit supported by the IPO Advisory the ability of brokerage firms to disclose or potential clients would be prohibited. Committee. According to the NASD, the proposed the names of individual investors to the reporting requirement under NASD Rule D. IPO Pricing and Trading Practices book-running lead manager. Commenters also stated that retail 2710 appears to be unnecessary and has a. Disclosure of Indications of Interest been deleted from the proposal. indications of interest are usually and Final Allocations submitted to a firm’s syndicate desk as C. Restrictions on Penalty Bids The IPO Advisory Committee branch aggregates, not on an individual- NASD Rule 2712(c) would prohibit recommended that issuers establish a by-individual basis. Finally, members from penalizing associated pricing committee to evaluate the commenters suggested that information persons whose customers have proposed offering price, and that regarding the names of individual ‘‘flipped’’ IPO shares that they have underwriters be required to disclose to investors is likely to be of limited use purchased through the member, unless the issuer’s pricing committee all to an issuer because, in an IPO, there a penalty bid, as defined in Rule 100 of indications of interest received before could be thousands of individual the issuer finalizes the IPO price. The investors. 22 NASD rule 2711(h)(2)(A). Committee also recommended that NASD agrees that disclosure of each 23 See 68 FR 62126 (October 21, 2003). underwriters be required to disclose to retail customer’s indications of interest
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(and subsequent allocations) would be issuers generally favor allocations to Some commenters suggested that of limited benefit to issuers and their long-term holders over ‘‘flippers.’’ educating retail investors about the pricing committees. The underlying According to the NASD, this appropriate use of limit orders was the purpose of this proposal is to ensure information generally may be useful or appropriate remedy. Commenters also that the issuer or its pricing committees relevant to issuers. As the specificity of stated that restricting investors only to has a clear picture of the demand for its information about past account activity limit orders on the first day of trading securities. Thus, the NASD believes that increases, however, financial privacy will artificially constrain trading information about each individual retail concerns also increase. Brokerage activity and could impair the process by investor would generally not be helpful. customers may reasonably expect that which a market price is determined. Accordingly, the NASD has revised the their broker will keep particular NASD is not persuaded by the proposed rule change to require that the information about trades they have commenters that banning market orders book-running lead manager disclose its made in their accounts confidential. In for IPOs on the first trading day will institutional book of interest and to addition, SEC Regulation M prohibits have significant effects on liquidity or reflect retail demand in aggregate terms underwriters during the bookbuilding price discovery. Institutional investors only. process from attempting to induce rely almost exclusively on limit orders purchases in the aftermarket. This limits in the IPO aftermarket. NASD requests 2. Timing of Disclosure some of the information the further comment on why the use of limit One commenter suggested that rather underwriters are permitted to obtain orders by retail investors will not allow than a ‘‘regular report’’ of indications of and provide to the issuer regarding markets to develop sufficient liquidity interest, the rule should require that the whether any particular account will be or become an effective tool for price book-running lead manager provide buying or selling the securities in the discovery. information in a timely manner prior to aftermarket. Accordingly, NASD has not c. Returned Shares pricing, or as frequently as requested by included this requirement as part of the the issuer’s pricing committee. Another proposed rule change. The IPO Advisory Committee offered commenter suggested that the book- One commenter suggested that a recommendation concerning IPO running lead manager should be disclosure of different levels of interest shares that are returned to the required to provide a single report of the at different prices should be required underwriter after completion of major institutional indications of and that NASD should require a distribution. The Committee noted that interest shortly before or at the time of graphical display of this information. currently if an IPO’s shares trade at an pricing the offering. NASD believes that members should be immediate aftermarket premium, The proposed rule would require a able to design their forms of underwriters can allocate returned regular report of indications of interest, communication on indications of shares to favored customers at the IPO which report should be made as often as interest and final allocations as price, providing what might be a appropriate, including such as when a appropriate to particular offerings and guaranteed profit to those customers. To material change occurs, or in connection issuers. Members, of course, may address this concern, NASD solicited with certain meetings with the issuer or compete for investment banking comment on a proposed rule change its pricing committee, and always as business by offering certain disclosures that would require underwriters first to frequently as requested by an issuer or and forms of disclosure, and likewise, allot returned shares to the existing its pricing committee. Indeed, the issuers may condition an engagement syndicate short position. If there is no NASD’s understanding of the with an investment bank on certain short position, or if the short position bookbuilding process is that most disclosures and forms of disclosure. already has been covered by the time underwriters have frequent and even the shares are returned, the proposal daily discussions with issuers about the 4. Underwriting Agreements would have permitted members to sell level of indications of interest. The Several commenters stated that the the remaining returned shares on the proposed rule change thus would codify obligation to provide indications of open market and return net profits to this practice. interest to the issuer should not be the issuer. The proposed rule change In response to one commenter, included in the underwriting agreement provided that if the market price does however, NASD has amended the because the underwriting agreement is not rise above the offering price, then proposed rule change to require the not signed until after pricing of the the underwriter would be permitted to book-running lead manager to provide offering. These commenters suggested sell the shares at a loss for its account the report on final allocations within a that NASD impose the obligation on the or retain the shares by placing them in reasonable time after ‘‘settlement date’’ book-running lead manager directly. its investment account. rather than after ‘‘closing date.’’ The NASD agrees and has amended the Commenters and SEC staff raised settlement date and closing date can be proposed rule change accordingly. concerns that, among other things, the the same date, but the term ‘‘settlement proposal’s disposition of returned b. Limitation on Market Orders for One date’’ may be more precisely understood shares in the event that there is no Day Following an IPO as the date on which the issuer transfers existing short position may conflict with its shares in return for offering proceeds The IPO Advisory Committee Regulation M. In response to these from the syndicate. recommended a prohibition on market concerns, NASD has amended the orders for one trading day following an proposed rule change to require that if 3. Additional Disclosure IPO. The Committee concluded that in no existing short position exists at the One commenter suggested that issuers light of the volatility of IPO issues, time that returned shares are received would benefit from receiving investors who place market orders by a member firm, then the members information regarding relationships that immediately following an IPO may must offer those shares to unfilled underwriters have with purchasers. This inadvertently purchase at prices that customers’ orders at the public offering commenter suggested that issuers would neither reflect their true investment price pursuant to a random allocation benefit from receiving additional decisions nor their reasonable methodology. While the proposed rule information regarding the intended expectations. Commenters, such as the change does not specify a particular holding periods of purchasers, since SIA, generally opposed this proposal. methodology, NASD expects that
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members will develop systems similar impending release or waiver of a lock- believes that the timing of the to those used to allocate options up restriction on officers and directors announcement should be triggered by exercise notices.24 In general, these would result in a large amount of the release date, not the eventual sale systems will require sequencing of all meaningless information regarding sales date, and that two days seems to be an relevant accounts, assigning a sequence of immaterial amounts of securities. acceptable period.25 In addition, if the number to each account, and then NASD disagrees. According to the waiver does not permit the immediate generating a random number to identify NASD, lock-up restrictions generally sale of securities into the market, then where in the sequence to begin offering align the investment interest of the additional disclosure should be returned shares. According to the insiders subject to the lock-up with provided indicating when such sales NASD, in requiring the use of a random investors in the offering during the may be permitted. allocation methodology, NASD prevents period of the lock-up. Thus, investors Finally, one commenter believed that members from being in a position to should find notifications of a lock-up disclosure by the issuer in Form 8–K benefit by selecting a particular release or waiver to be important and would be sufficient. NASD disagrees. customer or group of customers to relevant information. Form 8–K notification occurs after a sale receive a guaranteed profit. Another commenter questioned has been made. NASD agrees with the whether this notification requirement IPO Advisory Committee that investors d. Limitations on ‘‘Friends and Family’’ was intended to apply to the release of Programs expect that lock-ups will be adhered to, the issuer, selling shareholder, or both. and that they should be provided The IPO Advisory Committee According to the NASD, the proposed advance notice of any release or waiver. recommended requiring that any lock- rule change will apply to a release or up that applies to shares owned by waiver of lock-ups by the issuer and any f. Rulemaking Concerning the Pricing of officers and directors include the shares selling shareholder. While in many Unseasoned Issuers purchased by those individuals in the cases the release of an issuer will be As discussed in Notice to Members ‘‘friends and family’’ program. In Notice followed by the filing of a registration 03–72, many IPO issuers in the late to Members 03–72, NASD solicited statement before securities may be sold, 1990s and 2000 had little or no revenues comment on a proposed rule change to that is not always the case (e.g., Rule and subsequently experienced a require that any lock-up or restriction 144A offerings). Accordingly, NASD has dramatic run-up and decline in their on the transfer of the issuer’s shares also not proposed to exempt waiver of issuer stock price. Some critics have taken the apply to issuer-directed shares held by lock-ups from the proposed rule change. position that the run-up demonstrates officers and directors of the issuer. One commenter also suggested that that these IPOs were underpriced; According to the NASD, commenters the notice requirement should be others have countered that the generally supported this proposal. One subject to some materiality or de subsequent significant drop in the price commenter believed that this proposal minimis exception and should apply of these securities, at times well below should be effected by a listing only if the release relates to a sale into the IPO price, demonstrates that the requirement rather than an NASD rule. the market. This commenter suggested offerings were actually overpriced. NASD disagrees. Insofar as the lock-up that the notification requirement should NASD solicited comment on three agreement is a contractual arrangement not apply to a release that allows only possible approaches to the regulation of between the underwriter and the issuer, for minor sales or transfers of stock in IPO pricing of unseasoned issuers. the NASD believes that imposing the which the transferee agrees to lock-up Unlike the other items in Notice to requirement on the underwriter is restrictions identical to those applicable Members 03–72, these were presented as appropriate. to the transferor, such as transfers by a concepts only and NASD did not shareholder to a family trust or to a propose specific rule text. e. Requirements Concerning Lock-Up charity. NASD does not support this The first proposal was a requirement Exemptions modification. NASD believes that for an underwriter to retain an The IPO Advisory Committee investors expect that lock-ups will be independent broker-dealer to opine that concluded that investors reasonably applied for their stated term, and that the initial IPO range at which the expect that the issuer’s directors, even small sales may be material offering is marketed and the final officers, and large pre-IPO shareholders information. NASD also does not offering price are reasonable and require who agree to ‘‘lock up’’ their shares will believe that there should be an that the independent broker-dealer’s be bound by those agreements for the exemption where the transferee agrees opinion is disclosed in the prospectus. stated period. The Committee to identical lock-up restrictions. recommended that the lead underwriter According to the NASD, the fact that the Commenters generally did not support announce any lock-up exemption shareholder or issuer no longer has this proposal. The most common through a major news service. NASD’s accepted investment risk with regard to criticism was that the proposal would proposed rule change would require those securities is information that impose considerable cost on issuers. that the underwriting agreement provide should be available to the market. In Commenters added that the cost of the that at least two business days before addition, if a transferee agrees to independent opinion would be the release or waiver of any lock-up or identical lock-up restrictions, any especially burdensome on smaller other restriction on the transfer of the waiver or release of such restrictions as issuers. One commenter believed that issuer’s shares, the book-running lead applied to such persons also must be the cost for the opinion would be manager will notify the issuer of the preceded by a public announcement affected by the assumption of liability impending release or waiver and through a major news service. that would result from the requirement announce the impending release or A commenter suggested that the to disclose the independent opinion in waiver through a national news service. timing of the announcement should be the prospectus. Another commenter Several commenters expressed based upon when a sale into the market argued that the responsibility for concern that requiring the book-running may first take place, not when the 25 Tying the period of prior notice to a particular lead manager to announce an release is to take place. Another market or the average trading volume, as suggested commenter stated that two days’ prior by one commenter, would, in NASD’s view, be 24 See Rule 2860(b)(23)(C). notice might not be sufficient. NASD unnecessarily complex.
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recommending a public offering price such commenter suggested that the attendant liability concerns affecting should not be forced on another broker- valuation disclosure should be issuers and underwriters. dealer that is less involved in the accompanied by an explicit fiduciary Based on the comments received, offering process and likely to be less duty making underwriters accountable NASD believes that the SEC is the more informed about the issuer and its for their IPO pricing decisions. This appropriate regulator to address the securities. Several commenters noted commenter expressed concern that inclusion of projections. The SEC that the independent broker-dealer valuation rationales and earnings regulates the contents of a prospectus rendering a pricing opinion would need estimates generally are made available and also is in a position to address to rely on information from the lead only to the institutional market through issues of liability. underwriter, or due diligence costs the book-running underwriter’s research 4. Statutory Basis would be prohibitive. Finally, one analyst, creating an ‘‘information commenter noted that issuers already monopoly’’ that is inaccessible to NASD believes that the proposed rule have the ability to obtain independent smaller institutions and retail investors. change is consistent with the provisions pricing opinions from a second broker- This commenter stated that the of Section 15A(b)(6) of the Exchange dealer when they perceive a need for inclusion of earnings estimates in the Act, which require, among other things, one. prospectus is a very important step in that NASD’s rules be designed to In light of these concerns, NASD does allowing all investors to receive equal prevent fraudulent and manipulative not intend to propose a rule requiring an access to IPO pricing information in acts and practices, to promote just and independent pricing opinion at this order for the lead underwriter to equitable principles of trade, and, in time. develop a complete and accurate general, to protect investors and the The second proposal was to require demand curve. public interest. NASD believes that the the managing underwriter to use an Several commenters noted that the new, specifically targeted provisions in auction or other system to collect initial price range and final price reflect the proposed rule changes will aid indications of interest to help establish a large number of factors, including member compliance efforts and help to the final IPO price. Commenters current market conditions. One maintain investor confidence in the expressed varying degrees of support for commenter noted that pricing capital markets. this proposal. Many commenters that determinations are based not only on appear to be individual investors (B) Self-Regulatory Organizations’ information about the issuer, its past supported implementation of the Statements on Burden on Competition results, current financials, and projected ‘‘Dutch Auction’’ though they offered earnings, but also on information about The NYSE and NASD do not believe little explanation. Other commenters market interest, performance of the that the proposed rule changes will opposed the adoption of any regulation stock market in the days preceding result in any burden on competition that that would require underwriters to use pricing, and the willingness of the is not necessary or appropriate in an auction approach to price setting. issuer to accept a lower share price to furtherance of the purposes of the Several commenters stated that the Exchange Act. market, and not regulators, should sell into a down market. Some decide what pricing and allocation commenters noted that much pricing (C) Self-Regulatory Organizations’ models are appropriate for particular information, such as the selection of Statements on Comments on the IPOs. One commenter supported the comparable companies is subjective. Proposed Rule Changes Received from development of alternatives to the One commenter noted that projections Members, Participants, or Others of future earnings are one of many data bookbuilding process, but would not The NYSE has neither solicited nor support the use of an auction as the only points used by investors to determine the price and quantity of shares they are received written comments on the alternative. Finally, one commenter proposed rule change. NASD requested stated that the auction method is interested in purchasing. This commenter noted that the market written comments in Notice to Members impractical for small broker-dealers 03–72 as discussed in Section II(A)(1) because they are not familiar with this ultimately determines price, and price may be driven by ‘‘market psychology’’ above. Additionally, NASD requested pricing mechanism. written comments in Notice to Members Recent developments have focused and other factors that are difficult to quantify. 02–55 and received four comment increased attention on the use of letters.26 According to the NASD, all of auctions, and it appears that more Several commenters also expressed reservations about the valuation the comment letters generally supported issuers and investment banks are using the proposal. The National Venture or considering the use of auctions to disclosure proposal because it would open the issuer and underwriter to Capital Association, the Association for assist in pricing IPOs. Given these Investment Management and Research developments, NASD finds it premature future litigation if the projections were not met. Some commenters suggested (‘‘AIMR’’) and the North American to mandate use of auction systems. Securities Administrators Association, The third proposal was to require the that any proposal related to disclosure Inc. (‘‘NASAA’’) supported the managing underwriter to include a of issuer projections would need to be amendments. NASAA noted that many valuation disclosure section in the accompanied by a safe harbor to protect of the prohibitions go to conduct that prospectus with information about how issuers and underwriters from liability already is unlawful. the managing underwriter and issuer in future litigation. These commenters The Securities Industry Association arrived at the initial price range and generally favored expansion of the safe (‘‘SIA’’) stated that ‘‘the new and final IPO price, such as reviewing the harbor under Section 27A of the Securities Act of 1933 to IPOs. issuer’s one-year projected earnings or 26 National Venture Capital Association letter to P/E ratios and share price information of Some commenters suggested that the Barbara Z. Sweeney (Sept. 9, 2002); the Association comparable companies. Commenters SEC, rather than NASD, should address for Investment Management and Research letter to expressed varied levels of support for the matter of valuation disclosure since Barbara Z. Sweeney (Sept. 23, 2002); North American Securities Administrators Association, this proposal. Some commenters it involves a disclosure requirement for Inc. letter to Barbara Z. Sweeney (Sept. 23, 2002); strongly supported the proposed issuers. One commenter added that the and Securities Industry Association letter to Barbara valuation disclosure requirement. One SEC also would be able to address the Z. Sweeney (Sept. 24, 2002).
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specifically targeted provisions in certainty who participated in their with the Exchange Act and whether NASD Rule 2712 would aid member selection or the significance of their there are any differences between the compliance efforts and help to maintain roles. In addition, the SIA believes that NYSE and NASD proposals that present investor confidence in the capital the proposed requirement to file compliance or interpretive issues. markets.’’ The SIA supports proposed information under NASD Rule On October 13, 2004, the Commission NASD Rule 2712(a) but has concerns 2710(b)(6)(A)(viii) with respect to the approved the issuance of proposed about how ‘‘excessive’’ compensation 180-day calendar period immediately amendments to Regulation M (the anti- might be interpreted and suggests that following the effective date of an manipulation rule governing securities the term be changed to ‘‘clearly offering would be burdensome. As offerings).27 Among other things, the excessive.’’ NASAA also noted that discussed above, NASD has modified proposed amendments would amend ‘‘excessive’’ compensation is not the proposal to eliminate the proposed Rule 104 of Regulation M to prohibit the defined in the Rule and believes the amendment to NASD Rule 2710. use of penalty bids and would add a term creates an exception that The SIA recommends that the time new Rule 106 to expressly prohibit undermines the clarity of the provision. period specified in proposed NASD distribution participants, issuers, and NASD believes that use of an Rule 2712(c)(2)(A) commence on the their affiliated purchasers, directly or ‘‘excessive’’ compensation standard offering date instead of the effective date indirectly, from demanding, soliciting, takes into account all of the facts and of an offering. The SIA notes that the attempting to induce, or accepting from circumstances surrounding the services offering date tracks the language used in their customers any consideration in provided. This flexibility would allow the standard agreement among addition to the stated offering price of members and NASD to take into account underwriters, which is used by member the security.28 The Commission requests the risk and effort involved in the firms to track the period in which a additional comment on any differences transaction, usual and customary rates penalty bid may be used. NASD has between the proposed amendments to charged for similar services at broker/ amended the proposal to make the Regulation M and the SRO proposed dealers in the same kind of business, change suggested by the SIA. rule changes, particularly with respect and regional norms in setting prices for Accordingly, the ‘‘offering date’’ for to the proposals regarding penalty bids financial services. purposes of the rule is the date after and quid pro quo allocations,29 which As published in Notice to Members pricing on which members first sell may present compliance or interpretive 02–55, proposed NASD Rule 2712 shares to the public. issues. would have prohibited certain forms of As proposed in Notice to Members In addition, the Commission aftermarket tie-in agreements. The SIA 02–55, proposed NASD Rule 2712 specifically solicits comment on recommended that the language in the would have included a requirement that proposed NASD Rule 2712(b)(2) and discussion section on aftermarket tie-ins each member subject to the rule must NYSE Rule 470(B)(2), the so-called ‘‘clarify that inquiries and discussions adopt and implement written spinning restrictions. In particular, the regarding a potential customer’s interest procedures reasonably designed to Commission requests comment on the in purchasing and holding a security not ensure that the member and its SROs’ proposal to employ a rebuttable be deemed solicitations for purposes of employees comply with the provisions presumption with respect to members [the aftermarket tie-in provision].’’ of the rule. NASAA notes that members allocating IPO shares to an executive AIMR believes the provision may be already are required to implement officer or director of a company (or difficult to supervise or monitor and procedures to ensure compliance with person materially supported by such suggests that NASD ‘‘simply require NASD rules and the provision is officer or director) if the member heightened supervisory scrutiny of all unnecessary. NASD agrees that such expects to receive or intends to seek IPO allocations and distributions.’’ procedures already are required by investment banking business from the NASD has determined not to pursue a members and the provision has been company in the next six months. We proposed rule change addressing deleted. note that both the NYSE/NASD IPO aftermarket tie-in arrangements at the Advisory Committee, Report and III. Date of Effectiveness of the present time. Recommendations (May 2003) (‘‘IPO Proposed Rule Changes and Timing for According to the NASD, the SIA Report’’) and the Voluntary Initiative Commission Action supported the proposal to prohibit Regarding Allocations of Securities in allocations to an executive officer or Within 35 days of the date of ‘‘Hot’’ Initial Public Offerings to director as a condition or as publication of this notice in the Federal Corporate Executives and Directors consideration for investment banking Register or within such longer period (i) (April 28, 2003) (‘‘Voluntary Initiative’’) business, but noted that it may be as the Commission may designate up to included absolute prohibitions on difficult to determine whether an 90 days of such date if it finds such allocations of IPO shares to such allocation has been done as a condition longer period to be appropriate and persons. or as consideration for investment publishes its reasons for so finding, or The SRO proposed spinning banking business. The proposal as (ii) as to which the SROs consent, the restrictions would apply to persons amended would bar IPO allocations to Commission will: all executive officers and directors of a A. By order approve such proposed 27 See Securities Exchange Act Release No. 50831 company with whom a member has an rule changes, or (December 9, 2004), 69 FR 75774 (December 17, investment banking relationship. B. Institute proceedings to determine 2004), which is available at http://www.sec.gov/ As proposed in the Notice to Members whether the proposed rule changes rules/proposed/33-8511.htm. 02–55, the amendments to NASD Rule 28 Id. should be disapproved. 29 2710 would have required that a The proposed amendments to Rule 104 of IV. Solicitation of Comments Regulation M include a proposal to prohibit penalty member file a statement with NASD bids altogether, whereas proposed NASD Rule regarding whether an executive officer Interested persons are invited to 2712(c) and NYSE Rule 470(c) are based on the or director participated in the selection submit written data, views, and continued use of penalty bids. Another potential ‘‘inconsistency’’ may be a proposed new Rule 106 of the book-running managing arguments concerning the foregoing of Regulation M and proposed NYSE Rule 470(A) underwriter. The SIA noted that proposals, including whether the and NASD Rule 2712(a) regarding quid pro quo underwriters cannot know with proposed rule changes are consistent allocations. See id.
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‘‘materially supported’’ by an executive public in accordance with the 3711(e). We invite public comment on officer or director.30 The Commission provisions of 5 U.S.C. 552, will be this proposal. requests comment on whether the available for inspection and copying in DATES: We filed a report of the proposed proposed spinning restrictions should the Commission’s Public Reference Medicare Part D and Part D Subsidy File also apply to ‘‘immediate family Room. Copies of such filings will also be and the applicable routine uses with the members’’ who do not live in the same available for inspection and copying at Chairman of the Senate Committee on household and do not receive more than the principal offices of the NYSE and Governmental Affairs, the Chairman of 25% of their ‘‘income’’ from the officer NASD. All submissions should refer to the House Committee on Government or director, as is the case with the File Nos. SR–NYSE–2004–12 and SR– Reform, and the Director, Office of Voluntary Initiative and the IPO NASD–2003–140 and should be Information and Regulatory Affairs, 31 Report. Should the proposed spinning submitted by January 18, 2005. Office of Management and Budget restrictions also prohibit investment For the Commission, by the Division of (OMB) on December 16, 2004. The banking personnel from participating in Market Regulation, pursuant to delegated proposed Medicare Part D and Part D the member firm’s allocation of IPO authority.33 Subsidy File system of records and the shares to specific individual customers, Margaret H. McFarland, proposed routine uses will become as in the Voluntary Initiative? effective on January 25, 2005, unless we In addition, the Commission Deputy Secretary. [FR Doc. 04–28274 Filed 12–27–04; 8:45 am] receive comments warranting that they specifically solicits comment on not be effective. whether the proposals concerning BILLING CODE 8010–01–P ‘‘returned shares’’ in NYSE Rule ADDRESSES: Interested individuals may 470(D)(3) and NASD Rule 2712(e)(3) comment on this publication by writing should clarify any possible implications SMALL BUSINESS ADMINISTRATION to the Executive Director, Office of Public Disclosure, Office of the General under Regulation M, particularly with Interest Rates respect to continuation of the Counsel, Social Security distribution.32 The Small Business Administration Administration, Room 3–A–6 Persons making written submissions publishes an interest rate called the Operations Building, 6401 Security should file six copies thereof with the optional ‘‘peg’’ rate (13 CFR 120.214) on Boulevard, Baltimore, Maryland 21235– Secretary, Securities and Exchange a quarterly basis. This rate is a weighted 6401. All comments received will be Commission, 450 Fifth Street, NW., average cost of money to the available for public inspection at the Washington, DC 20549–0609. government for maturities similar to the above address. Comments also may be submitted average SBA direct loan. This rate may FOR FURTHER INFORMATION CONTACT: Ms. electronically at the following e-mail be used as a base rate for guaranteed Christine W. Johnson, Strategic Issues address: [email protected]. All fluctuating interest rate SBA loans. This Team, Office of Public Disclosure, comment letters should refer to File rate will be 4.5 (41⁄2) percent for the Office of the General Counsel, Social Nos. SR–NYSE–2004–12 and SR– January-March quarter of FY 2005. Security Administration, Room 3–C–1 NASD–2003–140. These file numbers Operations Building, 6401 Security should be included on the subject line James E. Rivera, Boulevard, Baltimore, Maryland 21235– if e-mail is used. To help us process and Associate Administrator for Financial 6401, e-mail address at review comments more efficiently, Assistance. [email protected], or by comments should be sent in hardcopy [FR Doc. 04–28397 Filed 12–27–04; 8:45 am] telephone at (410) 965–8563. or by e-mail but not by both methods. BILLING CODE 8025–01–P SUPPLEMENTARY INFORMATION: Copies of the submission, all subsequent amendments, all written statements I. Background and Purpose of the with respect to the proposed rule SOCIAL SECURITY ADMINISTRATION Proposed New Medicare Part D and changes that are filed with the Part D Subsidy File System of Records Commission, and all written Privacy Act of 1974, as Amended; New A. General Background communications relating to the System of Records and New Routine proposed rule changes between the Use Disclosures On December 8, 2003, the Medicare Commission and any person, other than Prescription Drug, Improvement, and those that may be withheld from the AGENCY: Social Security Administration Modernization Act (MMA) of 2003, was (SSA). signed into law (Public Law 108–173). 30 The SROs proposed to define ‘‘material ACTION: Proposed new system of records The MMA creates a voluntary support’’ to mean ‘‘directly or indirectly providing and proposed routine uses. prescription drug benefit program under more than 25% of a person’s income in the prior new Part D of Medicare for all calendar year. Persons living in the same household are deemed to be providing each other with SUMMARY: In accordance with the individuals eligible for Medicare Part A material support.’’ See NYSE Rule 470(F)(3) and Privacy Act (5 U.S.C. 552a(e)(4) and or Part B under which a monthly NASD Rule 2712(d)(3). (e)(11)), we are issuing public notice of premium is required to assist in the 31 ‘‘Material support’’ is defined to include our intent to establish a new system of purchase of prescription drugs. The new persons living in the same household or who receive more than 25% of their ‘‘income’’ from the records entitled Medicare Part D and coverage, which is effective January 1, officer or director. However, it may exclude close Part D Subsidy File, 60–0321, and 2006, will assist Medicare-eligible relations—such as a son or daughter—who do not routine uses applicable to the system of seniors, people with disabilities and live in the same household and to do not receive records. We also are issuing notice that persons with end-stage renal disease more than 25% of their ‘‘income’’ from the officer or director. we may disclose personally identifiable with their prescription drug costs. In 32 See Rule 100 of Regulation M for definition of information from the Medicare Part D 2006, almost all of the 43 million ‘‘completion of participation in a distribution.’’ 17 and Part D Subsidy File to consumer Medicare beneficiaries will have a CFR 242.100. In order to comply with Regulation reporting agencies in accordance with 5 chance to enroll in the subsidized drug M, an underwriter or other distribution participant U.S.C. 552a(b)(12) and 31 U.S.C. generally cannot commence trading in IPO cost program. securities in the secondary market unless they have The MMA also created a premium completed their participation in the offering. 33 17 CFR 200.30–3(a)(12). subsidy program for Medicare
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beneficiaries with limited means. This using Social Security numbers (SSN) where it is authorized to do so) has program limits beneficiaries’ premiums, and/or names, the proposed Medicare agreed to represent the employee; or co-payments and deductibles if they Part D and Part D Subsidy File will (d) The United States or any agency have low incomes and limited assets. constitute a ‘‘system of records’’ under thereof where SSA determines that the Low-income status under Part D is the Privacy Act. litigation is likely to affect the income of less than 150% of the Federal operations of SSA or any of its B. Collection and Maintenance of Data poverty guidelines for a family of the components in the Medicare Part D and Part D applicable size. Low assets are resources Subsidy File System of Records is party to litigation or has an interest of no more than $10,000 for an in such litigation, and SSA determines individual or $20,000 for a couple, The Medicare Part D and Part D that the use of such records by DOJ, a which will change after 2006 according Subsidy File will include identifying court or other tribunal, or another party to the Consumer Price Index. We expect information about beneficiaries and before such tribunal is relevant and approximately 5 million beneficiaries to potential applicants for subsidy benefits necessary to the litigation, provided, apply for the low-income assistance administered by SSA. See the however, that in each case, SSA program in 2006 and about 3.3 million ‘‘Categories of Records’’ section of the determines that such disclosure is are expected to be approved. notice below for a full description of the compatible with the purpose for which The MMA introduces considerable data that will be maintained in the the records were collected. changes to existing Medicare processes system of records. However, any information defined as and supporting automation systems II. Proposed Routine Use Disclosures of ‘‘return or return information’’ under 26 within SSA. For example, in response to Data Maintained in the Proposed U.S.C. 6103 of the Internal Revenue the new legislation, SSA will implement Medicare Part D and Part D Subsidy Code (IRC) will not be disclosed unless significant enhancements to key File System of Records authorized by the IRC, the Internal programmatic and management Revenue Service (IRS), or IRS information systems, create new A. Proposed Routine Use Disclosures Regulations. Medicare-specific systems and We are proposing to establish the We will disclose information under databases, and enhance or create new following routine use disclosures of this routine use only as necessary to data exchange agreements with multiple information that will be maintained in enable DOJ to effectively defend SSA, government agencies to support this the proposed new Medicare Part D and its components or employees in initiative. The new enhancements will Part D Subsidy File system of records: litigation involving the proposed system support— • 1. To the Office of the President for of records or when the United States is Selection of initial and the purpose of responding to an a party to litigation and SSA has an subsequently entitled Medicare individual pursuant to an inquiry interest in the litigation. beneficiaries (e.g., those who attain age received from that individual or from a 4. Information may be disclosed to 65 after the initial selection); third party on his or her behalf. DOJ for: • Screening for individuals with low- We will disclose information under (a) Investigating and prosecuting income and limited assets, including this routine use only in situations in violations of the Social Security Act to ‘‘deemed eligible’’ individuals that do which an individual may contact the which criminal penalties attach, not need to apply for the premium Office of the President, seeking that (b) Representing the Commissioner, or subsidy; (c) Investigating issues of fraud by • Prospective eligibility and effective Office’s assistance in a matter relating to agency officers or employees, or month determinations (and subsequent the Medicare Part D and Part D Subsidy violation of civil rights. redeterminations) for the Part D subsidy; File. Information will be disclosed when • Data exchanges with other the Office of the President makes an We will disclose information under government agencies for income and inquiry and indicates that it is acting on this routine use only as necessary to resource data; behalf of the individual whose record is enable DOJ to represent SSA in matters • Generating and mailing outreach requested. concerning violations of the Social notices and applications to individuals 2. To a congressional office in Security Act; to represent the potentially eligible for the premium response to an inquiry from that office Commissioner of Social Security or to subsidy; made at the request of the subject of a investigate issues of fraud by SSA • Subsidy calculations; record. officers or employees or violation of • Collection of subsidy application We will disclose information under civil rights. data via machine-readable application this routine use only in situations in 5. To applicants, claimants, forms, the Internet and the Intranet; and which an individual may ask his or her prospective applicants or claimants, • Medicare Part D subsidy appeals. congressional representative to other than the data subject, and their To this end, the Medicare Part D and intercede in a matter relating to the authorized representatives to the extent Part D Subsidy File will encompass all Medicare Part D and Part D Subsidy necessary for the purpose of pursuing related information from the initial File. Information will be disclosed when Medicare Part D and Part D subsidy intake process through the the congressional representative makes entitlement or appeals rights. administrative appeals process. an inquiry and indicates that he or she We will disclose information under Information from the application will be is acting on behalf of the individual this routine use only as necessary to created, maintained and stored whose record is requested. enable authorized representatives to electronically and source systems 3. To the Department of Justice (DOJ), pursue entitlement to or appeal rights within SSA will interface with the a court or other tribunal, or another for the Medicare Part D or Part D Medicare Part D and Part D Subsidy File party before such tribunal when: subsidy on behalf of the claimant. to support the subsidy application (a) SSA, or any component thereof, or 6. To Federal, State, or local agencies process. (b) Any SSA employee in his/her (or agents on their behalf) for Because SSA will maintain and official capacity; or administering cash or non-cash income retrieve information from the proposed (c) Any SSA employee in his/her maintenance or health maintenance Medicare Part D and Part D Subsidy File individual capacity where DOJ (or SSA programs (including programs under the
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Social Security Act). Such disclosures We will disclose information under (iv) Is of importance to the Social include, but are not limited to, release this routine use only for the purpose of Security program or the Social Security of information to: assisting in the administration of beneficiaries or is for an (a) The Railroad Retirement Board for Medicare Part D enrollment and epidemiological research project that administering provisions of the Railroad premium collection. relates to the Social Security program or Retirement and Social Security Acts 9. To Federal and State agencies for beneficiaries; relating to railroad employment and for administering the Medicare Part D and (c) Requires the recipient of administering the Railroad Part D subsidy under the MMA of 2003. information to: Unemployment Insurance Act; Such disclosures include, but are not (i) Establish appropriate (b) The Department of Veterans limited to, release of information to: administrative, technical, and physical Affairs (VA) for administering 38 U.S.C. (a) The Bureau of Public Debt, safeguards to prevent unauthorized use 412, and upon request, information Department of Treasury; or disclosure of the record and agree to needed to determine eligibility for or (b) The Internal Revenue Service; and on-site inspection by SSA’s personnel, amount of VA benefits or verifying other (c) The Office of Child Support and its agents, or by independent agents of information with respect thereto; Enforcement for the purpose of assisting the recipient agency of those safeguards; (c) The Department of Labor for in the verification of eligibility for the (ii) Remove or destroy the information administering provisions of Title IV of prescription drug subsidy. that enables the individual to be the Federal Coal Mine Health and Safety We will disclose information under identified at the earliest time at which Act, as amended by the Black Lung this routine use only for the purpose of removal or destruction can be Benefits Act; supporting the administration of the accomplished consistent with the (d) State agencies for making prescription drug subsidy program purpose of the project, unless the determinations of Medicaid eligibility; under the MMA of 2003. recipient receives written authorization (e) State agencies for making 10. To a Federal, State, or from SSA that it is justified, based on determinations of food stamp eligibility congressional support agency (e.g., the research objectives, in retaining such under the food stamp program; Congressional Budget Office and the information; (f) State audit agencies for auditing (iii) Make no further use of the Medicaid eligibility considerations; and Congressional Research Staff in the Library of Congress) for research, records except (g) State welfare departments (a) Under emergency circumstances evaluation, or statistical studies. Such pursuant to agreements with SSA for affecting the health or safety of any disclosures include, but are not limited administration of State supplementation individual following written to, release of information in assessing payments; for enrollment of welfare authorization from SSA; the extent to which one can predict recipients for medical insurance under (b) For disclosure to an identified eligibility for Supplemental Security section 1843 of the Act; and for person approved by SSA for the purpose Income (SSI) payments or Social conducting independent quality of auditing the research project; assurance reviews of Supplemental Security disability insurance (SSDI) (iv) Keep the data as a system of Security Income recipient records, benefits; examining the distribution of statistical records. A statistical record is provided that the agreement for Federal Social Security benefits by economic one which is maintained only for administration of the supplementation and demographic groups and how these statistical and research purposes and provides for such an independent differences might be affected by possible which is not used to make any review. changes in policy; analyzing the determination about an individual; We will disclose information under interaction of economic and non- (d) Secures a written statement by the this routine use only for the purpose of economic variables affecting entry and recipient of the information attesting to supporting other government agencies exit events and duration in the Title II the recipient’s understanding of, and that administer programs which have Old Age, Survivors, and Disability willingness to abide by, these the same compatible purposes as SSA Insurance and the Title XVI SSI provisions. programs, e.g., eligibility, benefit disability programs; and analyzing We will disclose information under amounts, or other matters of benefit retirement decisions focusing on the this routine use only for the purpose of status in a Social Security program and role of Social Security benefit amounts, allowing new studies to occur regarding the information is relevant to automatic benefit recomputation, the the administration of the Social Security determining the same matters in the delayed retirement credit, and the program and other related programs. other program. retirement test, if SSA: 11. To the Department of Homeland 7. To Internal Revenue Service, (a) Determines that the routine use Security, Bureau of Citizenship and Department of the Treasury, for the does not violate legal limitations under Immigration Services (BCIS), upon purpose of auditing SSA’s compliance which the record was provided, request, to identify and locate aliens in with the safeguard provisions of the collected or obtained; the United States pursuant to section Internal Revenue Code of 1986, as (b) Determines that the purpose for 290(b) of the Immigration and amended. which the proposed use is to be made: Nationality Act (8 U.S.C. 1360(b)). This proposed routine use would (i) Cannot reasonably be We will disclose information under allow the IRS to audit SSA’s accomplished unless the record is this routine use only for the purpose of maintenance of earnings and wage provided in a form that identifies identifying and locating illegal aliens information in the Medicare Part D and individuals; pursuant to section 290(b) of the Part D Subsidy File to ensure that SSA (ii) Is of sufficient importance to Immigration and Nationality Act (8 complies with the safeguard warrant the effect on, or risk to, the U.S.C. 1360(b)). requirements of the IRC. privacy of the individual which such 12. To contractors and other Federal 8. To the Centers for Medicare & limited additional exposure of the agencies, as necessary, for the purpose Medicaid Services (CMS), for the record might bring; of assisting SSA in the efficient purpose of administering Medicare Part (iii) Has reasonable probability that administration of its programs. We D enrollment and premium collection the objective of the use would be contemplate disclosing information processes. accomplished; under this routine use only in situations
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in which SSA may enter a contractual contractors when information is needed agencies to disclose certain information or similar agreement with a third party to respond to, investigate, or prevent to consumer reporting agencies in to assist in accomplishing an agency activities that jeopardize the security accordance with 31 U.S.C. 3711(e) function relating to this system of and safety of SSA customers, employees without the consent of the individuals records. or workplaces or that otherwise disrupt to whom the information pertains. The SSA occasionally contracts out certain the operation of SSA facilities. purpose of this disclosure is to provide of its functions when this would Information would also be disclosed to an incentive for individuals to pay any contribute to effective and efficient assist in the prosecution of persons outstanding debts they owe to the operations. SSA must be able to give a charged with violating Federal or local Federal government by including contractor whatever information the law in connection with such activities. information about these debts in the Agency can legally provide in order for 16. To the General Services records relating to those persons the contractor to fulfill its duties. In Administration (GSA) and the National maintained by consumer reporting these situations, safeguards are provided Archives Records Administration agencies. This is a practice commonly in the contract prohibiting the (NARA) under 44 U.S.C. 2904 and 2906, used by the private sector. The contractor from using or disclosing the as amended by NARA Act of 1984, non- information disclosed will be limited to information for any purpose other than tax return information which is not that which is needed to establish the that described in the contract. restricted from disclosure by Federal identity of the individual debtor, the 13. To addresses of beneficiaries who law for the use of those agencies in amount, status, and history of the debt, are obligated on loans held by the conducting records management and the agency or program under which Secretary of Education or a loan made studies. the debt arose. in accordance with 20 U.S.C. 1071, et The Administrator of GSA and the We have added the following seq. (the Robert T. Stafford Student Archivist of NARA are charged by 44 statement at the end of the routine uses Loan Program) may be disclosed to the U.S.C. 2904, as amended, with section of the proposed system of Department of Education as authorized promulgating standards, procedures and records: by section 489A of the Higher Education guidelines regarding record Disclosure pursuant to 5 U.S.C. Act of 1965. management and conducting records 552a(b)(12) may be made to consumer Under this routine use we will management studies. 44 U.S.C. 2906, as reporting agencies as defined in the Fair disclose only address information to the amended, provides that GSA and NARA Credit Reporting Act (15 U.S.C. Secretary of Education for the purpose are to have access to federal agencies’ 1681a(f)) or the Federal Claims of locating beneficiaries that are records and that agencies are to Collection Act of 1966 (31 U.S.C. 3701, obligated on loans held by the Secretary. cooperate with GSA and NARA. In et seq.), as amended. The disclosure will 14. To student volunteers and other carrying out these responsibilities, it be made in accordance with 31 U.S.C. workers, who technically do not have may be necessary for GSA and NARA to 3711(e) when authorized by sections the status of Federal employees, when have access to this proposed system of 204(f), 808(e), or 1631(b)(4) of the Social they are performing work for SSA as records. In such instances, the routine Security Act (42 U.S.C. 404(f), 1008(e), authorized by law, and who need access use will facilitate disclosure. or 1383(b)(4)). The purpose of this to personally identifiable information in disclosure is to aid in the collection of B. Compatibility of Proposed Routine SSA records in order to perform their outstanding debts owed to the Federal Uses assigned Agency functions. government, typically, to provide an Under certain Federal statutes, SSA is The Privacy Act (5 U.S.C. 552a(b)(3)) incentive for debtors to repay authorized to use the service of and SSA’s disclosure regulation (20 CFR delinquent Federal government debts by volunteers and participants in certain part 401) permit us to disclose making these debts part of their credit educational, training, employment and information under a published routine records. The information to be disclosed community service programs. An use for a purpose that is compatible is limited to the individual’s name, example of such statutes and programs with the purpose for which we collected address, SSN, and other information includes: 5 U.S.C. 2753 regarding the the information. SSA’s Regulations at 20 necessary to establish the individual’s College Work-Study Program. We CFR 401.150(c) permit us to disclose identity, the amount, status, and history contemplate disclosing information information under a routine use where of the debt and the agency or program under this routine use only when SSA necessary to carry out SSA programs. under which the debt arose. SSA’s Regulations at 20 CFR 401.120 uses the services of these individuals, IV. Records Storage Medium and provide that we will disclose and they need access to information in Safeguards for the Proposed Medicare information when a law specifically this system to perform their assigned Part D and Part D Subsidy File System requires the disclosure. The proposed agency duties. of Records 15. To Federal, State and local law routine uses numbered 1 through 10, 12, enforcement agencies and private 14, and 15 above will ensure efficient The Medicare Part D and Part D security contractors as appropriate, administration of SSA programs Subsidy File is a repository. Only information necessary: administered through the proposed authorized SSA personnel who have a • To enable them to protect the safety Medicare Part D and Part D Subsidy need for the information in the of SSA employees and customers, the File; the disclosures that would be made performance of their official duties will security of SSA workplace and the under routine uses number 11, 13, and be permitted access to the information. operation of SSA facilities, or 16 are required by law. The proposed We will safeguard the security of the • To assist investigations or routine uses are appropriate and meet information by requiring the use of prosecutions with respect to activities the relevant statutory and regulatory access codes to enter the computer that affect such safety and security or criteria. systems that will maintain the data and activities that disrupt the operation of will store computerized records in SSA facilities. III. Disclosure to Consumer Reporting secured areas that are accessible only to We will disclose information under Agencies employees who require the information this routine use to law enforcement The Privacy Act of 1974, as amended to perform their official duties. Any agencies and private security (5 U.S.C. 552a(b)(12)) permits Federal manually maintained records will be
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kept in locked cabinets or in otherwise Administration, Office of Systems, 6401 collecting, documenting, organizing and secure areas. Furthermore, SSA Security Boulevard, Baltimore, maintaining information and documents employees having access to SSA Maryland 21235. for making determinations of eligibility databases maintaining personal Other authorized Federal and State for subsidized benefits, the amount of information must sign a sanction agencies that generally have access to the subsidy, processing appeals; document annually, acknowledging information in SSA systems will also ensuring that proper adjustments are their accountability for making have access as needed to the Medicare made based on events affecting unauthorized access to or disclosure of Part D and Part D Subsidy File. Contact entitlement; and answering inquiries. such information. the system manager for address Medicare Part D and Part D subsidy Contractor personnel having access to information. claim file information may be used for data in the Medicare Part D and Part D CATEGORIES OF INDIVIDUALS COVERED BY THE quality review, evaluation, and Subsidy File will be required to adhere SYSTEM: measurement studies, and other to SSA rules concerning safeguards, Claimants, applicants, beneficiaries, statistical and research purposes. access and use of the data. ineligible spouses and potential Extracts may be maintained as SSA personnel having access to the claimants for Medicare Advantage Part interviewing tools, activity logs, records data on this system will be informed of C and Medicare Part D and drug of claims clearance, and records of type the criminal penalties of the Privacy Act prescription premium and co-payment or nature of actions taken. for unauthorized access to or disclosure subsidies. of information maintained in this ROUTINE USES OF RECORDS MAINTAINED IN THE system. See 5 U.S.C. 552a(i)(1). CATEGORIES OF RECORDS IN THE SYSTEM: SYSTEM, INCLUDING CATEGORIES OF USERS AND THE PURPOSES OF SUCH USES: V. Effect of the Proposed Medicare Part The Medicare Part D and Part D Subsidy File contains the name and Disclosure may be made for routine D and Part D Subsidy File System of uses as indicated below. However, any Records on the Rights of Individuals Social Security number (SSN) of the claimant or potential claimant and may information defined as ‘‘return or return The proposed new Medicare Part D contain the subsidy application; information’’ under 26 U.S.C. 6103 of and Part D Subsidy File system of supporting evidence and documentation the Internal Revenue Code (IRC) will not records will maintain only that for eligibility; documentation for be disclosed unless authorized by the information that is necessary for the income and resource verification; IRC, the Internal Revenue Service (IRS), efficient and effective control and supporting evidence and documentation or IRS regulations. processing of subsidy applications from for appeal requests; premium payment 1. To the Office of the President for the initial phase through the appeals documentation; correspondence to and the purpose of responding to an process. Security measures will be from claimants and/or personal individual pursuant to an inquiry employed that protect access to and representatives; and leads information received from that individual or from a preclude unauthorized disclosure of from third parties such as social service third party on his or her behalf. records in the proposed system of agencies and hospitals. 2. To a congressional office in records. Therefore, we do not anticipate The Medicare Part D and Part D response to an inquiry from that office that the proposed system of records will Subsidy File also may contain data made at the request of the subject of a have an unwarranted adverse effect on collected as a result of inquiries or record. the rights of individuals. complaints, and evaluation and 3. To the Department of Justice (DOJ), Dated: December 16, 2004. measurement studies of the a court or other tribunal, or another party before such tribunal when: Jo Anne B. Barnhart, effectiveness of Medicare Prescription (a) SSA, or any component thereof, or Commissioner. Drug Improvement and Modernization Act (MMA) policies. Separate files may (b) Any SSA employee in his/her Social Security Administration (SSA) be maintained of certain actions, which official capacity; or Notice of System of Records Required by are entered directly into the Medicare (c) Any SSA employee in his/her the Privacy Act of 1974 Part D and Part D Subsidy File. These individual capacity where DOJ (or SSA where it is authorized to do so) has SYSTEM NUMBER: relate to reports of changes of income agreed to represent the employee; or 60–0321. and resources, and other post- adjudicative reports. Separate data are (d) The United States or any agency SYSTEM NAME: also maintained for statistical purposes thereof where SSA determines that the Medicare Part D and Part D Subsidy (i.e., subsidy denial, and demographic litigation is likely to affect the File, Social Security Administration, and statistical information relating to operations of SSA or any of its Deputy Commissioner for Disability and subsidy decisions). components Income Security Programs. AUTHORITY FOR MAINTENANCE OF THE SYSTEM: is party to litigation or has an interest SECURITY CLASSIFICATION: Sections 202–205, 223, 226, 228, in such litigation, and SSA determines None. 1611, 1631, 1818, 1836, 1840 and that the use of such records by DOJ, a 1860D–1–1860D–15 of the Social court or other tribunal, or another party SYSTEM LOCATION: Security Act (42 U.S.C. §§ 402–405, 423, before such tribunal is relevant and The Medicare Part D and Part D 426, 428, 1382, 1383, 1395i–2, 1395o, necessary to the litigation, provided, Subsidy File is virtually established 1395s and 1395w–101–1395w–115). however, that in each case, SSA before applications are mailed to determines that such disclosure is potentially eligible beneficiaries, when PURPOSE(S): compatible with the purpose for which applications are filed through the The Medicare Part D and Part D the records were collected. Internet, in Social Security field offices, Subsidy File contains material related to However, any information defined as or a lead is expected to result in a claim, the request for subsidized prescription ‘‘return or return information’’ under 26 and maintained in the National drug coverage under the MMA of 2003. U.S.C. 6103 of the Internal Revenue Computer Center at SSA Headquarters. Medicare Part D and Part D subsidy Code will not be disclosed unless The computerized records and database claim file information is used authorized by the IRC, the Internal are maintained at the Social Security throughout SSA for the purposes of Revenue Service, or IRS Regulations.
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4. Information may be disclosed to 8. To the Centers for Medicare & (c) Requires the recipient of DOJ for: Medicaid Services (CMS), for the information to: (a) Investigating and prosecuting purpose of administering Medicare Part (i) Establish appropriate violations of the Social Security Act to D enrollment and premium collection. administrative, technical, and physical which criminal penalties attach, 9. To Federal and State agencies safeguards to prevent unauthorized use (b) Representing the Commissioner, or administering Medicare Part D and Part or disclosure of the record and agree to (c) Investigating issues of fraud by D subsidy under the MMA of 2003. on-site inspection, by SSA’s personnel, agency officers or employees, or Such disclosure include release of its agents, or by independent agents of violation of civil rights. information to: the recipient agency, of those 5. To applicants, claimants, (a) The Bureau of Public Debt, safeguards; prospective applicants or claimants, Department of the Treasury; (ii) Remove or destroy the information other than the data subject, and their (b) The Internal Revenue Service; and that enables the individual to be authorized representatives to the extent (c) The Office of Child Support and identified at the earliest time at which necessary for the purpose of pursuing Enforcement for the purpose of assisting removal or destruction can be Medicare Part D and Part D subsidy in the verification of eligibility for the accomplished consistent with the entitlement or appeal rights. prescription drug subsidy. purpose of the project, unless the 6. To Federal, State, or local agencies 10. To a Federal, State, or recipient receives written authorization (or agents on their behalf) for congressional support agency (e.g., the from SSA that it is justified, based on administering cash or non-cash income Congressional Budget Office and the research objectives, for retaining such maintenance or health maintenance Congressional Research Service in the information; programs (including programs under the Library of Congress) for research, (iii) Make no further use of the Social Security Act). Such disclosures evaluation, or statistical studies. Such records except include, but are not limited to, release disclosures include, but are not limited (a) Under emergency circumstances of information to: to, release of information in assessing affecting the health or safety of any (a) The Railroad Retirement Board for the extent to which one can predict individual following written administering provisions of the Railroad eligibility for Supplemental Security authorization from SSA; (b) For disclosure to an identified Retirement and Social Security Acts Income (SSI) payments or Social person approved by SSA for the purpose relating to railroad employment and for Security disability insurance benefits; of auditing the research project; administering the Railroad examining the distribution of Social (iv) Keep the data as a system of Unemployment Insurance Act; Security benefits by economic and statistical records. A statistical record is (b) The Department of Veterans demographic groups and how these one which is maintained only for Affairs (VA) for administering 38 U.S.C. differences might be affected by possible statistical and research purposes and 412, and upon request, information changes in policy; analyzing the which is not used to make any needed to determine eligibility for, or interaction of economic and non- determination about an individual; amount of, VA benefits or verifying economic variables affecting entry and (d) Secures a written statement by the other information with respect thereto; exit events and duration in the Title II recipient of the information attesting to (c) The Department of Labor for Old Age, Survivors, and Disability the recipient’s understanding of, and administering provisions of Title IV of Insurance and the Title XVI SSI willingness to abide by, the provisions. the Federal Coal Mine Health and Safety disability programs; and analyzing 11. The Department of Homeland Act, as amended by the Black Lung retirement decisions focusing on the Security, Bureau of Citizenship and Benefits Act; role of Social Security benefit amounts, Immigration Services, upon request, to (d) State agencies for making automatic benefit recomputation, the identify and locate aliens in the United determinations of Medicaid eligibility; delayed retirement credit, and the States pursuant to section 290(b) of the and retirement test, if SSA: Immigration and Nationality Act (8 (e) State agencies for making (a) Determines that the routine use U.S.C. 1360(b)). determinations of food stamp eligibility does not violate legal limitations under 12. To contractors and other Federal under the food stamp program; which the record was provided, agencies, as necessary, for the purpose (f) State audit agencies for auditing collected, or obtained; of assisting SSA in the efficient Medicaid eligibility considerations; and (b) Determines that the purpose for administration of its programs. We (g) State welfare departments which the proposed use is to be made: contemplate disclosing information pursuant to agreements with SSA for (i) Cannot reasonably be under this routine use only in situations administration of State supplementation accomplished unless the record is in which SSA may enter a contractual payments; for enrollment of welfare provided in a form that identifies or similar agreement with a third party recipients for medical insurance under individuals; to assist in accomplishing an agency section 1843 of the Act; and for (ii) Is of sufficient importance to function relating to this system of conducting independent quality warrant the effect on, or risk to, the records. assurance reviews of Supplemental privacy of the individual which such 13. Addresses of beneficiaries who are Security Income recipient records, limited additional exposure of the obligated on loans held by the Secretary provided that the agreement for Federal record might bring; of Education or a loan made in administration of the supplementation (iii) Has reasonable probability that accordance with 20 U.S.C. 1071, et seq. provides for such an independent the objective of the use would be (the Robert T. Stafford Student Loan review. accomplished; Program) may be disclosed to the 7. To the Internal Revenue Service, (iv) Is of importance to the Social Department of Education as authorized Department of the Treasury, for the Security program or the Social Security by section 489A of the Higher Education purpose of auditing SSA’s compliance beneficiaries or is for an Act of 1965. with the safeguard provisions of the epidemiological research project that 14. To student volunteers and other Internal Revenue Code of 1986, as relates to the Social Security program or workers, who technically do not have amended. beneficiaries; the status of Federal employees, when
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they are performing work for SSA as SAFEGUARDS: information provided by telephone is authorized by law, and who need access Medicare Part D and Part D subsidy insufficient, the individual will be to personally identifiable information in claim files are protected through limited required to submit a request in writing SSA records in order to perform their access to SSA records. Access to the or in person. If an individual is assigned Agency functions. records is limited to those employees requesting information by telephone on 15. To Federal, State and local law who require such access in the behalf of another individual, the subject enforcement agencies and private performance of their official duties. All individual must be connected with SSA security contractors, as appropriate, employees are instructed about SSA and the requesting individual in the information necessary: confidentiality rules as a part of their same phone call. SSA will establish the • To enable them to protect the safety initial orientation training. subject individual’s identity (his/her of SSA employees and customers, the Safeguards for automated records name, SSN, address, date of birth and security of the SSA workplace and the have been established in accordance place of birth along with one other piece operation of SSA facilities, or with the Systems Security Handbook. of information such as mother’s maiden For computerized records, electronically name) and ask for his/her consent to • To assist investigations or transmitted between SSA’s central office providing information to the requesting prosecutions with respect to activities and field office locations (including individual. that affect such safety and security or organizations administering SSA activities that disrupt the operation of If a request for notification is programs under contractual SSA facilities. submitted by mail, an individual must agreements), safeguards include a lock/ include a notarized statement to SSA to 16. To the General Services unlock password system, exclusive use verify his/her identity or must certify in Administration (GSA) and the National of leased telephone lines, a terminal the request that he/she is the person Archives Records Administration oriented transaction matrix, and an claimed to be and that he/she (NARA) under 44 U.S.C. 2904 and 2906, audit trail. understands that the knowing and as amended by NARA Act of 1984, non- willful request for, or acquisition of, a RETENTION AND DISPOSAL: tax return information which is not record pertaining to another individual restricted from disclosure by Federal Pursuant to 36 CFR 1228.26, SSA will under false pretenses is a criminal law for the use of those agencies in submit to NARA for approval a schedule offense. These procedures are in conducting records management for the Medicare Part D and Part D accordance with SSA Regulations (20 studies. Subsidy File no later than one year from CFR 401.40). implementation of this new program. DISCLOSURE TO CONSUMER REPORTING Until a schedule is developed and RECORD ACCESS PROCEDURES: AGENCIES: approved, records may not be destroyed. Same as Notification procedures. Disclosure pursuant to 5 U.S.C. SYSTEM MANAGER(S) AND ADDRESS: Requesters should also reasonably 552a(b)(12) may be made to consumer specify the information they are seeking. Deputy Commissioner, Disability and reporting agencies as defined in the Fair These procedures are in accordance Income Security Programs, Social Credit Reporting Act (15 U.S.C. with SSA Regulations (20 CFR 401.40(c) Security Administration, 6401 Security 1681a(f)) or the Federal Claims and 401.55). Collection Act of 1966 (31 U.S.C. 3701, Boulevard, Baltimore, MD 21235. et seq.), as amended. The disclosure will CONTESTING RECORD PROCEDURES: NOTIFICATION PROCEDURE: be made in accordance with 31 U.S.C. Same as Notification procedures. 3711(e) when authorized by sections An individual can determine if this system contains a record about him/her Requesters should also reasonably 204(f), 808(e), or 1631(b)(4) of the Social identify the record, specify the Security Act (42 U.S.C. 404(f), 1008(e), by writing to the system manager(s) at the above address and providing his/her information they are contesting and or 1383(b)(4)). The purpose of this state the corrective action sought and disclosure is to aid in the collection of name, SSN or other information that may be in the system of records that will the reasons for the correction with outstanding debts owed to the Federal supporting justification showing how government, typically, to provide an identify him/her. An individual requesting notification of records in the record is incomplete, untimely, incentive for debtors to repay inaccurate or irrelevant. These delinquent Federal government debts by person should provide the same information, as well as provide an procedures are in accordance with SSA making these debts part of their credit Regulations (20 CFR 401.65). records. The information to be disclosed identity document, preferably with a photograph, such as a driver’s license or is limited to the individual’s name, RECORD SOURCE CATEGORIES: address, SSN, and other information some other means of identification. If an individual does not have any Information in this system is obtained necessary to establish the individual’s from claimants, beneficiaries, applicants identity, the amount, status, and history identification documents sufficient to establish his/her identity, the individual and recipients; accumulated by SSA of the debt and the agency or program from reports of employers or self- under which the debt arose. must certify in writing that he/she is the person claimed to be and that he/she employed individuals; various local, State, and Federal agencies; claimant POLICIES AND PRACTICES FOR STORING, understands that the knowing and representatives and other sources, to RETRIEVING, ACCESSING, RETAINING, AND willful request for, or acquisition of, a DISPOSING OF RECORDS IN THE SYSTEM: record pertaining to another individual support factors of entitlement and under false pretenses is a criminal continuing eligibility or to provide leads STORAGE: offense. information. Records are maintained electronically. If notification is requested by SYSTEMS EXEMPTED FROM CERTAIN PROVISIONS telephone, an individual must verify OF THE PRIVACY ACT: RETRIEVABILITY: his/her identity by providing identifying None. Medicare Part D and Part D subsidy information that parallels the record for claim files are retrieved electronically which notification is being requested. If [FR Doc. 04–28302 Filed 12–27–04; 8:45 am] by SSN and alphabetically by name. it is determined that the identifying BILLING CODE 4191–02–P
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SOCIAL SECURITY ADMINISTRATION I. Background and Purpose of the audit and evaluation information. We Proposed New System of Records will retrieve information from the Privacy Act of 1974; as Amended; New Entitled the NARPPF System proposed system of records by using the System of Records and New Routine individual’s name and/or SSN. Thus the A. General Background Use Disclosures NARPPF system will constitute a system The Social Security Protection Act of of records under the Privacy Act. AGENCY: Social Security Administration 2004 (SSPA) requires the Commissioner (SSA). of Social Security to develop and II. Proposed Routine Use Disclosures of Data Maintained in the Proposed ACTION: Proposed new system of records implement a 5-year nationwide and proposed routine uses. demonstration project that will extend NARPPF System to certain non-attorney representatives A. Proposed Routine Use Disclosures SUMMARY: In accordance with the of claimants under titles II and XVI of Privacy Act (5 U.S.C. 552a(e)(4) and the Social Security Act the option to We are proposing to establish routine (e)(11)), we are issuing public notice of have approved fees for their uses of information that will be our intent to establish a new system of representation withheld and paid maintained in the proposed NARPPF records entitled the Non-Attorney directly from a beneficiary’s past-due system as discussed below. Representative Prerequisites Process benefits. Currently, by statute this 1. To the Office of the President for File, 60–0355, and routine uses option is available only to the purpose of responding to an applicable to this system of records. representatives who are attorneys. individual pursuant to an inquiry Hereinafter, we will refer to the Non-attorney representatives who received from that individual or from a proposed system of records as the wish to participate in the demonstration third party on his or her behalf. NARPPF system. The proposed system project must meet the prerequisites We will disclose information under of records will consist of information specified in section 303 of the SSPA, this routine use only in situations in used to determine the eligibility of a and any additional prerequisites that the which an individual may contact the non-attorney who represents claimants Commissioner may prescribe. Office of the President, seeking that Office’s assistance in a matter relating to before SSA to participate in the B. Collection and Maintenance of the demonstration project for direct information contained in this system of Data for the Proposed New System of records. Information will be disclosed payment of fees. We invite public Records Entitled the NARPPF System comments on this proposal. when the Office of the President makes SSA and/or its agents will collect and an inquiry and indicates that it is acting DATES: We filed a report of the proposed maintain the information that will be on behalf of the individual whose new system of records and proposed housed in the NARPPF system from record is requested. routine use disclosures with the applicants who have requested 2. To a congressional office in Chairman of the Senate Committee on participation in the Non-Attorney response to an inquiry from that office Governmental Affairs, the Chairman of Representative Demonstration Project. made at the request of the subject of a the House Committee on Government The information maintained in this record. Reform, and the Director, Office of system of records will be maintained in We will disclose information under Information and Regulatory Affairs, manual and electronic formats and will this routine use only in situations in Office of Management and Budget include information on all applications which an individual may ask his or her (OMB) on December 14, 2004. The for participation. Specifically, it will congressional representative to proposed system of records and routine contain some or all of the following: (1) intercede in a matter relating to uses will become effective on January Application information, including information contained in this system of 23, 2005, unless we receive comments filing date and fee information; (2) the records. Information will be disclosed warranting them not to become applicant’s identifying information, when the congressional representative effective. including name, Social Security number makes an inquiry and indicates that he ADDRESSES: Interested individuals may (SSN), date and place of birth, business or she is acting on behalf of the comment on this publication by writing address, telephone numbers, e-mail individual whose record is requested. to the Executive Director, Office of addresses, fax numbers and fingerprints; 3. To the Department of Justice (DOJ), Public Disclosure, Office of the General (3) a work history, including employer a court or other tribunal, or another Counsel, Social Security names and addresses, dates of party before such tribunal when: Administration, Room 3–A–6 employment, self-employment (a) SSA, or any component thereof; or Operations Building, 6401 Security information, and verification of (b) Any SSA employee in his/her Boulevard, Baltimore, Maryland 21235– employment; (4) the applicant’s official capacity; or 6401. All comments received will be educational background and continuing (c) Any SSA employee in his/her available for public inspection at the education; (5) certain integrity individual capacity where DOJ (or SSA above address. information including previous Federal where it is authorized to do so) has employment, suspensions and/or agreed to represent the employee; or FOR FURTHER INFORMATION CONTACT: Mr. terminations of representative (d) the United States or any agency Vincent A. Dormarunno, Supervisory authorization, criminal background, and thereof where SSA determines that the Social Insurance Specialist, Office of circumstances for previous employment litigation is likely to affect the operation Public Disclosure, Office of the General termination, if applicable; (6) of SSA or any of its components, is Counsel, Social Security examination and examination results; party to litigation or has an interest in Administration, Room 3–A–6 (7) professional liability insurance such litigation, and SSA determines that Operations Building, 6401 Security information; (8) background check and the use of such records by DOJ, a court Boulevard, Baltimore, Maryland 21235, report information; (9) direct payment or other tribunal, or another party before e-mail address at eligibility status; (10) post-application such tribunal, is relevant and necessary [email protected], or by discovery information including to the litigation, provided, however, that telephone at (410) 965–3669. previously undisclosed eligibility in each case, SSA determines that such SUPPLEMENTARY INFORMATION: information; and (11) post-eligibility disclosure is compatible with the
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purpose for which the records were are to have access to Federal agencies’ another agency with funds provided by collected. records and that agencies are to SSA, for the purpose of researching, We will disclose information under cooperate with GSA and NARA. In evaluating and/or providing statistical this routine use only as necessary to carrying out these responsibilities, it information directly relating to the enable DOJ to effectively defend SSA, may be necessary for GSA and NARA to activities covered by this system of its components or employees in have access to this proposed system of records. litigation involving the proposed new records. In such instances, the routine system of records and ensure that courts B. Compatibility of Proposed Routine use will facilitate disclosure. Uses and other tribunals have appropriate 7. To Federal, State, and local law information. enforcement agencies and private The Privacy Act (5 U.S.C. 552a(b)(3)) 4. To contractors and other Federal security contractors, as appropriate, and our disclosure regulations (20 CFR agencies, as necessary, for the purpose information necessary: part 401) permit us to disclose of assisting SSA in the efficient • To enable them to protect the safety information under a published routine administration of its programs. We of SSA employees and customers, the use for a purpose that is compatible contemplate disclosing information security of the SSA workplace, and the with the purpose for which we collected under this routine use only in situations operation of SSA facilities, or the information. Section 401.150(c) of in which SSA may enter into a • To assist investigations or SSA Regulations permits us to disclose contractual or similar agreement with a prosecutions with respect to activities information under a routine use where third party to assist in accomplishing an that affect such safety and security or necessary to carry out SSA programs. Agency function relating to this system activities that disrupt the operation of SSA Regulations at § 401.120 provide of records. SSA facilities. that we will disclose information when We will disclose information under We will disclose information under a law specifically requires the this routine use only in situations in this routine use to law enforcement disclosure. The proposed routine uses which SSA may enter into a contractual agencies and private security numbered 1 through 5 and numbered 7 agreement or similar agreement with a contractors when information is needed through 10 above will ensure efficient third party to assist in accomplishing an to respond to, investigate, or prevent administration of the NARPPF system; agency function relating to this system activities that jeopardize the security the disclosure that would be made of records. and safety of SSA customers, employees under routine use number 6 is required 5. To student volunteers, individuals or workplaces or that otherwise disrupt by Federal law. Thus, all routine uses working under a personal service the operation of SSA facilities. are appropriate and meet the relevant contract, participant contractors and Information would also be disclosed to statutory and regulatory criteria. other individuals performing functions assist in the prosecution of persons for SSA, but technically not having the charged with violating Federal or local III. Records Storage Medium and status of Agency employees, if they law in connection with such activities. Safeguards for the Proposed New need access to the records in order to 8. To inform a claimant/beneficiary System Entitled the NARPPF System perform their assigned agency functions. that his/her representative is eligible to SSA will maintain information in the Under certain Federal statutes, SSA is participate in the demonstration project NARPPF system in electronic and paper authorized to use the service of or has been disqualified or suspended form. Only authorized SSA and volunteers and participants in certain from participating in the demonstration contractor personnel who have a need educational, training, employment and project and/or from further for the information in the performance community service programs. Examples representations before SSA. of their official duties will be permitted of such statutes and programs include: We will inform individuals if their access to the information. We will 5 U.S.C. 3111 regarding student participating representative has been safeguard the security of the information volunteers and 42 U.S.C. 2753 regarding determined to be eligible to participate by requiring the use of access codes to the College Work-Study Program. We in the demonstration project or has been enter the computer system that will contemplate disclosing information disqualified or suspended from further maintain the data and will store under this routine use only when SSA participation in this demonstration computerized records in secured areas uses the services of these individuals, project and/or has been disqualified or that are accessible only to employees and they need access to information in suspended from further representation who require the information to perform this system to perform their assigned before SSA. their official duties. Any manually Agency duties. 9. SSA may disclose information to a maintained records will be kept in 6. Non-tax return information which State agency or other certifying entity locked cabinets or in otherwise secure is not restricted from disclosure by that uses such eligibility information in areas. Federal law may be disclosed to the their certifying procedures. Contractor personnel having access to General Services Administration (GSA) We may disclose certain eligibility data in the proposed system of records and the National Archives and Records information to certifying entities for will be required to adhere to SSA rules Administration (NARA) under 44 U.S.C. social workers, health care workers or concerning safeguards, access to and use 2904 and 2906, as amended by NARA others requiring such certifications, who of the data. Act of 1984, for the use of those have chosen to apply for participation SSA and contractor personnel having agencies in conducting records in this demonstration project. access to the data on this system will be management studies. 10. SSA may disclose information to informed of the criminal penalties of the The Administrator of GSA and the contractors under contract to SSA and/ Privacy Act for unauthorized access to Archivist of NARA are charged by 44 or under contract to another agency or disclosure of information maintained U.S.C. 2904, as amended, with with funds provided by SSA, for the in this system. See 5 U.S.C. 552a(i)(1). promulgating standards, procedures and performance of research, evaluation and guidelines regarding record statistical activities directly relating to IV. Effect of the Proposed New System management and conducting records this system of records. of Records Entitled NARPPF management studies. 44 U.S.C. 2906, as We may disclose certain information The proposed new system of records amended, provides that GSA and NARA to contractors under contract to SSA or will maintain only that information
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relevant to determining the eligibility of addresses, dates of employment, self- components, is party to litigation or has applicants that request participation in employment information, and an interest in such litigation, and SSA the section 303 Demonstration Project verification of employment; (4) the determines that the use of such records Extending Direct Payments to Non- applicant’s educational background and by DOJ, a court or other tribunal, or Attorney Representatives. Additionally, continuing education; (5) certain another party before such tribunal, is SSA will adhere to all applicable integrity information including previous relevant and necessary to the litigation, provisions of the Privacy Act, Social Federal employment, suspensions and/ provided, however, that in each case, Security Act and other Federal statutes or terminations of representative SSA determines that such disclosure is that govern our use and disclosure of authorization, criminal background, and compatible with the purpose for which the information. Thus, we do not circumstances for previous employment the records were collected. Wage and anticipate that the proposed system of termination, if applicable; (6) other information which is subject to records will have an unwarranted effect examination and examination results; the provisions of the IRC (26 U.S.C. on the privacy of the individuals that (7) professional liability insurance 6103) will not be disclosed under this will be covered by the NARPPF system. information; (8) background check and routine use unless disclosure is Dated: December 14, 2004. report information; (9) direct payment expressly permitted by the IRC. Jo Anne B. Barnhart, eligibility status; (10) post-application 4. To contractors and other Federal discovery information including agencies, as necessary, for the purpose Commissioner. previously undisclosed eligibility of assisting SSA in the efficient Social Security Administration (SSA), information; and (11) post-eligibility administration of its programs. We Notice of System of Records, Required audit and evaluation information. contemplate disclosing information by the Privacy Act of 1974; as under this routine use only in situations Authority for maintenance of the Amended. in which SSA may enter into a system: System number: contractual or similar agreement with a Section 303 of the SSPA. third party to assist in accomplishing an 60–0355. Purpose(s): Agency function relating to this system System name: of records. The prerequisites process application 5. To student volunteers, individuals Non-Attorney Representative files will be used to determine the working under a personal services Prerequisites Process File (NARPPF), eligibility of a non-attorney contract, and other individuals Social Security Administration, Deputy representative who represents claimants performing functions for SSA, but Commissioner for Disability and Income before SSA to participate in the technically not having the status of Security Programs, Office of Hearings demonstration project for the direct Agency employees, if they need access and Appeals. payment of fees. to the records in order to perform their Security classification: Routine uses of records maintained in assigned agency functions. 6. Non-tax return information which None. the system, including categories of users and the purpose of such uses: is not restricted from disclosure by System location: Federal law may be disclosed to the Disclosures may be made for routine General Services Administration (GSA) Social Security Administration, uses as indicated below. However, and the National Archives and Records Deputy Commissioner for Disability and disclosure of any information defined as Administration (NARA) under 44 U.S.C. Income Security Programs, Office of ‘‘return or return information’’ under 26 2904 and 2906, as amended by the Hearings and Appeals, 5107 Leesburg U.S.C. 6103 of the Internal Revenue NARA Act of 1984, for the use of those Pike, Falls Church, Virginia, 22041. Code (IRC) will not be disclosed unless agencies in conducting records authorized by a statute, the Internal Categories of individuals covered by the management studies. system: Revenue Service (IRS), or IRS regulations. 7.To Federal, State, and local law Any non-attorney individual who 1. To the Office of the President for enforcement agencies and private applies to participate in the the purpose of responding to an security contractors, as appropriate, demonstration project for direct information necessary: individual pursuant to an inquiry • payment of fees under section 303 of the received from that individual or from a To enable them to protect the safety Social Security Protection Act of 2004 third party on his or her behalf. of SSA employees and customers, the (SSPA) (Public Law No. 108–203). 2. To a congressional office in security of the SSA workplace, the Applications for participation will be response to an inquiry from that office operation of SSA facilities, or • filed directly with a contract vendor. made at the request of the subject of a To assist investigations or prosecutions with respect to activities Categories of records in the system: record. 3. To the Department of Justice (DOJ), that affect such safety and security or Demonstration project application a court or other tribunal, or another activities that disrupt the operation of and supporting documentation, and party before such tribunal when: SSA facilities. corresponding eligibility determination. (a) SSA, or any component thereof; or 8. To inform a claimant/beneficiary This may include some or all of the (b) Any SSA employee in his/her that his/her representative is eligible to following: (1) Application information, official capacity; or participate in the demonstration project including filing date and fee (c) Any SSA employee in his/her or has been disqualified or suspended information; (2) the applicant’s individual capacity where DOJ (or SSA from participating in the demonstration identifying information, including where it is authorized to do so) has project and/or from further name, Social Security number, date and agreed to represent the employee; or representation before SSA. place of birth, business address, (d) The United States or any agency 9. To a State agency or other certifying telephone numbers, e-mail addresses, thereof where SSA determines that the entity that uses such eligibility fax numbers and fingerprints; (3) a work litigation is likely to affect the information in their certifying history, including employer names and operations of SSA or any of its procedures.
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10. To contractors under contract to some other means of identification. If an eligibility criteria, SSA may compare SSA and/or under contract to another individual does not have any records from the Representative agency with funds provided by SSA, for identification documents sufficient to Disqualification/Suspension the performance of research, evaluation establish his/her identity, the individual Information System (#60–0219) with and statistical activities directly relating must certify in writing that he/she is the those contained in the NARPPF system. to this system of records. person claimed to be and that he/she Systems exempt from certain understands that the knowing and Policies and Practices for Storing, willful request for, or acquisition of, a provisions of the Privacy Act: Retrieving, Accessing, Retaining and record pertaining to another individual None. Disposing of Records in the System: under false pretenses is a criminal [FR Doc. 04–28303 Filed 12–27–04; 8:45 am] Storage: offense. (20 CFR 401.45.) BILLING CODE 4191–02–P Records in this system are stored If notification is requested by electronically and in paper form. telephone, an individual must verify his/her identity by providing identifying Retrievability: information that parallels the record to DEPARTMENT OF STATE Records in this system are indexed which notification is being requested. If it is determined that the identifying and retrieved by the name and SSN of [Public Notice 4943] the demonstration project applicant. information provided by telephone is insufficient, the individual will be Culturally Significant Objects Imported Safeguards: required to submit a request in writing for Exhibition Determinations: or in person. If an individual is Security measures include the use of ‘‘Jacques-Louis David: Empire to access codes to enter the computer requesting information by telephone on Exile’’ system which will maintain the data, behalf of another individual, the subject and the storage of computerized records individual must be connected with SSA SUMMARY: Notice is hereby given of the in secured areas which are accessible and the requesting individual in the following determinations: Pursuant to only to employees who require the same phone call. SSA will establish the the authority vested in me by the Act of information in performing their official subject individual’s identity (his/her duties. Any manually maintained name, SSN, address, date of birth and October 19, 1965 (79 Stat. 985; 22 U.S.C. records will be kept in locked cabinets place of birth along with one other piece 2459), Executive Order 12047 of March or in otherwise secure areas. SSA of information such as mother’s maiden 27, 1978, the Foreign Affairs Reform and employees who have access to the data name) and ask for his/her consent in Restructuring Act of 1998 (112 Stat. will be informed of the criminal providing information to the requesting 2681, et seq.; 22 U.S.C. 6501 note, et penalties of the Privacy Act for individual. (20 CFR 401.45.) If a request seq.), Delegation of Authority No. 234 of unauthorized access to or disclosure of for notification is submitted by mail, an October 1, 1999, Delegation of Authority information maintained in the system. individual must include a notarized No. 236 of October 19, 1999, as See 5 U.S.C. 552a(i)(1). statement to SSA to verify his/her amended, and Delegation of Authority Contractor personnel having access to identity or must certify in the request No. 257 of April 15, 2003 [68 FR 19875], data in the system of records will be that he/she is the person claimed to be I hereby determine that the objects to be required to adhere to SSA rules and that he/she understands that the included in the exhibition ‘‘Jacques- concerning safeguards, access and use of knowing and willful request for, or Louis David: Empire to Exile’’ imported the data. acquisition of, a record pertaining to from abroad for temporary exhibition another individual under false pretenses Retention and disposal: within the United States, are of cultural is a criminal offense. These procedures significance. The objects are imported Applications and supporting are in accordance with SSA Regulations pursuant to loan agreements with the documentation are held for a minimum (20 CFR 401.45). foreign owners. I also determine that the of 7 years. Paper files are destroyed by Record access procedure(s): exhibition or display of the exhibit shredding when deemed appropriate. Same as Notification procedures. Computer files are archived after 12 Requesters also should reasonably objects at the J. Paul Getty Museum, Los, months. specify the record contents they are Angeles, California, from on or about seeking. These access procedures are in February 24, 2005 to on or about April System manager(s) and address: accordance with SSA Regulations (20 24, 2005, and at the Sterling and Director, Office of Policy, Planning CFR 401.50). Francine Clark Art Institute, and Evaluation, Office of Hearings and Contesting record procedure(s): Williamstown, Massachusetts, from on Appeals, 5107 Leesburg Pike, Falls Same as Notification procedures. or about June 5, 2005 to on or about Church, VA 22041. Requesters also should reasonably September 5, 2005, and at possible identify the record, specify the additional venues yet to be determined, Notification procedure(s): information they are contesting, and is in the national interest. Public Notice An individual can determine if this state the corrective action sought and of these Determinations is ordered to be system contains a record about him/her the reasons for the correction with published in the Federal Register. by writing to the systems manager(s) at supporting justification showing how the above address and providing his/her the record is untimely, incomplete, FOR FURTHER INFORMATION CONTACT: For name, SSN or other information that inaccurate or irrelevant. These further information, including a list of may be in the system of records that will procedures are in accordance with SSA the exhibit objects, contact Wolodymyr identify him/her. An individual Regulations (20 CFR 401.65). R. Sulzynsky, the Office of the Legal requesting notification of records in Record source categories: Adviser, Department of State, person should provide the same Applications, supporting (telephone: 202/453–8050). The address information, as well as provide an documentation, eligibility criteria, and is: Department of State, SA–44, and 301 identity document, preferably with a corresponding eligibility 4th Street, SW., Room 700, Washington, photograph, such as a driver’s license or determinations. As a part of the DC, 20547–0001.
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Dated: December 20, 2004. DEPARTMENT OF STATE During its meeting the Committee will C. Miller Crouch, review a request from the Government [Public Notice 4928] Principal Deputy Assistant Secretary for of the People’s Republic of China to the Educational and Cultural Affairs, Department Meeting of the Advisory Committee on Government of the United States of of State. Cultural Diplomacy America. Concerned that its cultural [FR Doc. 04–28394 Filed 12–27–04; 8:45 am] heritage is in jeopardy from pillage, the BILLING CODE 4710–08–P SUMMARY: The Department of State government of the People’s Republic of Advisory Committee on Cultural China made this request under Article 9 Diplomacy will meet January 10, 2005 at of the 1970 UNESCO Convention. The DEPARTMENT OF STATE 11 a.m. in Room 840, Department of request seeks U.S. import restrictions on State, Bureau of Educational and Chinese archaeological material from [Public Notice 4942] Cultural Affairs, 301 4th Street, SW., the Paleolithic to the Qing Dynasty. A Washington, DC. public summary of this request can be Culturally Significant Objects Imported Members of the press and general found at http://exchanges.state.gov. A for Exhibition Determinations: public may attend, although attendance Federal Register notice of receipt of this ‘‘Renaissance and Baroque Bronzes will be limited by seating availability. request, published on September 3, From the Collection of the Fitzwilliam Access to Department of State buildings 2004, can also be found at this Web site. Museum, University of Cambridge’’ is strictly controlled, and individual The Committee’s responsibilities are building passes are required for all carried out in accordance with SUMMARY: Notice is hereby given of the attendees. To confirm attendance at the provisions of the Convention on following determinations: Pursuant to meeting, please call (202) 203–7488. Cultural Property Implementation Act the authority vested in me by the Act of Members of the public who have (19 U.S.C. 2601 et seq.). The text of the October 19, 1965 (79 Stat. 985; 22 U.S.C. confirmed their attendance must present Act, a public summary of this request, 2459), Executive Order 12047 of March a photo ID at the time they enter the and related information may be found at 27, 1978, the Foreign Affairs Reform and Department of State and will be escorted http://exchanges.state.gov/culprop. Restructuring Act of 1998 (112 Stat. to the meeting room. Portions of the meeting on February 17 2681, et seq.; 22 U.S.C. 6501 note, et The Advisory Committee on Cultural and 18 will be closed pursuant to 5 seq.), Delegation of Authority No. 234 of Diplomacy is responsible for advising U.S.C. 552b(c)(9)(B) and 19 U.S.C. October 1, 1999, Delegation of Authority the Secretary of State on programs and 2605(h). However, on February 17, the No. 236 of October 19, 1999, as policies to advance the use of cultural Committee will hold an open session, amended, and Delegation of Authority diplomacy in United States foreign approximately 1 p.m. to 3:30 p.m., to No. 257 of April 15, 2003 [68 FR 19875], policy. This charge includes providing receive oral public comment on the I hereby determine that the objects to be to the Secretary guidance on increasing China request. Persons wishing to included in the exhibition ‘‘Renaissance the presentation abroad of the finest of attend this open session should notify and Baroque Bronzes From the U.S. creative, visual, and performing the Cultural Heritage Center of the Collection of the Fitzwilliam Museum, arts, as well as strategies for increasing Department of State at (202) 619–6612 University of Cambridge’’ imported public-private partnerships to sponsor by Friday, February 4, 2005, 5 p.m. from abroad for temporary exhibition cultural exchange programs that (e.s.t.) to arrange for admission, as within the United States, are of cultural promote the national interests of the seating is limited. significance. The objects are imported United States. An agenda for the Those who wish to make oral pursuant to a loan agreement with the Committee session will be distributed at presentations should request to be foreign owner. I also determine that the the meeting. scheduled and submit a written text of exhibition or display of the exhibit Dated: December 20, 2004. the oral comments by Friday, February objects at the The Frick Collection, New Daniel Schuman, 4, to allow time for distribution of these York, New York, from on or about Chief, Cultural Programs Division, Office of comments to Committee members for February 15, 2005 to on or about April Citizen Exchanges, Bureau of Educational their review prior to the meeting. Oral 24, 2005, and at possible additional and Cultural Affairs, Department of State. comments will be limited to five venues yet to be determined, is in the [FR Doc. 04–28392 Filed 12–27–04; 8:45 am] minutes each to allow time for questions national interest. Public Notice of these BILLING CODE 4710–05–P from members of the Committee and Determinations is ordered to be must specifically address the published in the Federal Register. determinations under Section 303(a)(1) of the Convention on Cultural Property FOR FURTHER INFORMATION CONTACT: For DEPARTMENT OF STATE Implementation Act, 19 U.S.C. 2602, further information, including a list of [Public Notice 4926] the exhibit objects, contact Wolodymyr pursuant to which the Committee must R. Sulzynsky, the Office of the Legal Notice of Meeting of the Cultural make findings. This citation for the Adviser, Department of State, Property Advisory Committee determinations can be found at the Web (telephone: 202/453–8050). The address site noted above. is: Department of State, SA–44, and 301 In accordance with the provisions of The Committee also invites written 4th Street, SW., Room 700, Washington, the Convention on Cultural Property comments and asks that they be DC 20547–0001. Implementation Act (19 U.S.C. 2601 et submitted no later than February 4, seq.) there will be a meeting of the 2005. All written materials, including Dated: December 20, 2004. Cultural Property Advisory Committee the written texts of oral statements, C. Miller Crouch, on Thursday, February 17, 2005, from should be faxed to (202) 260–4893, if 5 Principal Deputy Assistant Secretary for approximately 9 a.m. to 5 p.m., and on pages or less. Written comments greater Educational and Cultural Affairs, Department Friday, February 18, 2005, from than five pages must be mailed (20 of State. approximately 9 a.m. to 2 p.m., at the copies) to Cultural Heritage Center, [FR Doc. 04–28393 Filed 12–27–04; 8:45 am] Department of State, Annex 44, Room Department of State Annex 44, 301 4th BILLING CODE 4710–08–P 840, 301 4th St., SW., Washington, DC. St., SW., Rm. 334, Washington, DC
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20547. Express mail is recommended for Guam, Northern Mariana Islands service via intermediate stops, and to timely delivery. Expedited Resolution 002cc r41–r44 conduct Fifth Freedom combination Dated: December 16, 2004. PTC3 0797 dated 7 December 2004 charter operations in foreign air TC3 Japan, Korea-South West Pacific Patricia S. Harrison, transportation. except between Korea (Rep. of) and Docket Number: OST–2004–19850. Assistant Secretary for Educational and American Samoa Expedited Cultural Affairs, Department of State. Date Filed: December 6, 2004. Resolution 002q r45–r51 Due Date for Answers, Conforming [FR Doc. 04–28391 Filed 12–27–04; 8:45 am] Intended effective date: 15 January 2005. Applications, or Motion to Modify BILLING CODE 4710–05–P Renee V. Wright, Scope: December 27, 2004. Supervisory Dockets Officer, Alternate Description: Application of Air Comet Federal Register Liaison. S.A. d/b/a Air Plus Comet, requesting a DEPARTMENT OF TRANSPORTATION [FR Doc. 04–28406 Filed 12–27–04; 8:45 am] five year permit to engage in charter foreign air transportation of persons, Office of the Secretary BILLING CODE 4910–62–P property, and mail between points in Aviation Proceedings, Agreements the Kingdom of Spain and the United Filed the Week Ending December 10, DEPARTMENT OF TRANSPORTATION States. 2004 Docket Number: OST–2004–19877. Office of the Secretary Date Filed: December 8, 2004. The following Agreements were filed Due Date for Answers, Conforming with the Department of Transportation Notice of Applications for Certificates Applications, or Motion to Modify under the provisions of 49 U.S.C. 412 of Public Convenience and Necessity Scope: December 29, 2004. and 414. Answers may be filed within and Foreign Air Carrier Permits Filed Description: Application of GoJet 21 days after the filing of the Under Subpart B (Formerly Subpart Q) Airlines LLC requesting a certificate of application. During the Week Ending December 10, public convenience and necessity to Docket Number: OST–2004–19872. 2004 engage in interstate and foreign Date Filed: December 8, 2004. The following Applications for scheduled air transportation of persons, Parties: Members of the International Certificates of Public Convenience and property and mail. Air Transport Association. Necessity and Foreign Air Carrier Renee V. Wright, Subject: PTC23 EUR–SEA 0193 dated Permits were filed under Subpart B 10 December 2004, TC23/TC123 Supervisory Dockets Officer, Alternate (formerly Subpart Q) of the Department Federal Register Liaison. Europe-South East Asia Expedited of Transportation’s Procedural Resolutions 002ae, 015v r1–r5. Intended [FR Doc. 04–28402 Filed 12–27–04; 8:45 am] Regulations (See 14 CFR 301.201 et. BILLING CODE 4910–62–P effective date: 1 February 2005. seq.). The due date for Answers, Docket Number: OST–2004–19888. Conforming Applications, or Motions to Date Filed: December 10, 2004. Modify Scope are set forth below for DEPARTMENT OF TRANSPORTATION Parties: Members of the International each application. Following the Answer Air Transport Association. period DOT may process the application Federal Motor Carrier Safety Subject: by expedited procedures. Such Administration PTC3 0789 dated 7 December 2004 procedures may consist of the adoption [Docket No. FMCSA–2004–19882] TC3 Areawide Expedited Resolution of a show-cause order, a tentative order, 015v r1–r6 or in appropriate cases a final order Section 222 of the Motor Carrier Safety PTC3 0790 dated 7 December 2004 without further proceedings. Improvement Act of 1999; Clarification TC3 Within South Asian Docket Number: OST–2004–19848. of Agency Policy Statement Subcontinent Expedited Resolution Date Filed: December 6, 2004. 002L r7–r13 Due Date for Answers, Conforming AGENCY: Federal Motor Carrier Safety PTC3 0791 dated 7 December 2004 Applications, or Motion to Modify Administration (FMCSA), DOT. TC3 Within South East Asia except Scope: December 27, 2004. ACTION: Notice of clarification; agency between Malaysia and Guam Description: Application of Starair policy statement. Expedited Resolutions 002k, 070uu (Ireland) Limited requesting a Foreign r14–r15 Air Carrier Permit to engage in foreign SUMMARY: The Federal Motor Carrier PTC3 0792 dated 7 December 2004 charter air transportation of persons, Safety Administration (FMCSA) clarifies TC3 South East Asia-South Asian property and mail between a point or its September 8, 2000 policy statement Subcontinent Expedited Resolution points in Ireland and a point or points implementing section 222 of the Motor 002ww r16–r22 in the United States, including service Carrier Safety Improvement Act of 1999. PTC3 0793 dated 7 December 2004 via intermediate stops, and to engage in Section 222 requires the agency to TC3 South Asian Subcontinent-South other Fifth Freedom charter operations assess maximum statutory penalties if a West Pacific Expedited Resolution in foreign air transportation. person is found to have committed a 002pp r23–r28 Docket Number: OST–2004–19849. pattern of violations of critical or acute PTC3 0794 dated 7 December 2004 Date Filed: December 6, 2004. regulations, or previously committed TC3 Japan-Korea Expedited Due Date for Answers, Conforming the same or a related violation of critical Resolution 002u r29–r31 Applications, or Motion to Modify or acute regulations. This notice PTC3–0795 dated 7 December 2004 Scope: December 27, 2004. clarifies the agency use of previous TC3 Japan, Korea-South Asian Description: Application of Starair violations to assess maximum penalties Subcontinent Expedited Resolution (Ireland) Ltd., requesting an exemption under section 222. It also discusses the 002g r32–r40 to permit it to operate foreign charter notification procedures and PTC3 0796 dated 7 December 2004 combination air transportation between extraordinary circumstances that may TC3 Japan, Korea-South East Asia a point or points in Ireland and a point warrant assessment of less than the except between Korea (Rep. of) and or points in the United States, including maximum penalty.
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DATES: December 28, 2004. discovery of new violations, all of which interpret section 222 as requiring that a involve the same Part (e.g. Part 395). The six FOR FURTHER INFORMATION CONTACT: previous enforcement case include year period is measured from the end of the Mary Pat Woodman, Chief of the either: (1) An explicit adjudicatory first to the end of the third compliance finding of a violation by the agency Enforcement and Compliance Division review (CR). If a case is appealed, the time (MC–ECE), (202) 366–9699, FMCSA, needed to process the appeal should not be (Assistant Administrator or a DOT 400 Seventh Street, SW., Washington, included as part of the six year period. If the Administrative Law Judge); (2) an DC 20590. You may also e-mail third CR (and subsequent CRs) reveals express admission of liability by the [email protected]. violations of the same Part cited in two respondent in its reply to the Notice of previous CRs within the last six years, a Claim (NOC) and in a settlement SUPPLEMENTARY INFORMATION: ‘‘pattern of violations’’ or ‘‘previously agreement; or (3) a Final Agency Order Background committed violations’’ is established and the issued under 49 CFR 386.14(e), based on claim letter should assess the maximum respondent’s failure to reply to the penalty for that count(s). Statutory Authority NOC.1 Section 222 of the Motor Carrier An electronic copy of the policy A settlement agreement lacking in Safety Improvement Act of 1999 memorandum is available through language admitting liability will not be (MCSIA), (Public Law 106–159, 113 DOT’s Docket Management System considered a prior violation for Stat. 1748, 1769, Dec. 9, 1999; codified (DMS) Web site at http://dms.dot.gov, purposes of section 222. Therefore, in in 49 U.S.C. 521 note) directed the by using the docket number of this response to a NOC advising respondent Secretary of Transportation to: notice, FMCSA–2004–19882. The DMS that payment will constitute an (a) Ensure that motor carriers operate facility is located on the Plaza Level of admission of the violations set forth in safely by imposing civil penalties at a the Nassif Building, 400 Seventh Street, the NOC, payment of a civil penalty will level calculated to ensure prompt and SW., Washington, DC. constitute an express admission of sustained compliance with Federal General Discussion of Questions liability. In response to a NOC that lacks motor carrier safety and commercial such an advisory, payment of a civil We received several questions on the driver’s license laws. penalty will not be construed as a prior interpretation and implementation of (b) Establish and assess minimum violation for purposes of section 222, FMCSA’s policy memorandum. The civil penalties for each violation of laws unless accompanied by a written agency addresses these questions and referred to under (a) above; and, assess admission of violations alleged in the clarifies its implementation policy. the maximum civil penalty for each NOC. violation by any person who is found to 1. Will the Agency use Enforcement 3. How is the 6 Year Period Calculated have committed a pattern of violations Cases Closed Before Issuance of the for Determining When the Maximum of critical or acute regulations or to have Policy Memorandum To Support Penalty Will Be Assessed? previously committed the same or a Assessment of the Maximum Penalty? related violation of critical or acute MCSIA was signed into law on The 6 year period is determined by regulations. December 9, 1999, and FMCSA was starting with the closing date of the CR (c) If the Secretary determines and created effective January 1, 2000. or roadside inspection in the third documents that extraordinary However, FMCSA did not provide enforcement case and determining circumstances exist which merit the guidance regarding implementation of whether there are two prior closed assessment of any civil penalty lower section 222 until its September 8, 2000, enforcement cases against the than any level established above, the policy memorandum was issued. We respondent involving violations of the Secretary may assess such lower believe fairness to the motor carrier same CFR Part during the immediately penalty. Further, in cases where a industry will be best served by using preceding 6 years. Because we are person has been found to have enforcement cases closed after requiring an adjudication or admission previously committed the same or a September 8, 2000, as prior violations to of liability before using a previous related violation of critical or acute support assessing maximum penalties enforcement case as a finding of a regulations, extraordinary under section 222 of MCSIA. Therefore, committed violation, a case will be circumstances may be found to exist the agency will not use enforcement considered closed as of the date of the when the Secretary determines that 2 cases closed before September 8, 2000. Final Agency Order. In the event the repetition of such violation does not case is resolved without a Final Agency demonstrate a failure to take appropriate 2. What Type of Agency Action Order, the relevant date will be the date remedial action. Constitutes a Finding That a Violation of the response to the NOC enclosing was Committed for Purposes of September 8, 2000, Policy Statement payment of the civil penalty or the date Assessing the Maximum Penalty Under the settlement is executed by both On September 8, 2000, FMCSA sent a Section 222? parties, whichever is later.3 policy memorandum changing its fine The policy memorandum provided assessment policy to meet the that section 222 of MCSIA applies when 1 A Notice of Claim (NOC) becomes a Final requirements of section 222 to its Field Agency Order if the respondent fails to reply to the there are two closed cases followed by NOC within the time prescribed by 49 CFR 386.14. Administrators, Enforcement Team discovery of new violations of the same leaders, and State Directors. The Under these circumstances, the NOC becomes the Code of Federal Regulations (CFR) Part Final Agency Order 25 days after it is served. memorandum defined a pattern of within a 6-year period, measured from 2 The case is considered closed following violations or previously committed the end of the first Compliance Review issuance of the Final Agency Order and the exhaustion of any post order notions such as a violations as three cases within the last (CR) to the end of the third CR. It stated six years. The policy memorandum, in Petition for Reconsideration. However, if a Petition that the previous cases had to be closed for Reconsideration of the Final Agency Order in a pertinent part, states: but did not indicate whether an agency previous case is pending before the agency, the case (Page 1, third paragraph, beginning with adjudication of the violations is should not be considered closed. the second sentence) 3 If a settlement agreement concludes a case required before a closed enforcement pending before an Administrative Law Judge or the The three cases will consist of two cases case is used as the basis for assessing Assistant Administrator, the closing date would be which have been closed followed by the maximum civil penalty. We Continued
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4. What Extraordinary Circumstances whether Service Centers may settle WA, and milepost 34.375, at the United Warrant Assessment of Less Than the cases subject to section 222 for less than States-Canadian border; and (2) Maximum Penalty? the maximum penalty, provided the milepost 48.79, at the United States- Requests to reduce the penalty based maximum penalty is assessed in the Canadian border, and milepost 77.14, at 1 on extraordinary circumstances will be NOC. San Poil, WA. The rail lines being considered on a case-by-case basis. Civil Penalties are ‘‘assessed’’ in the leased are between: (1) milepost 0.0, Section 222 of MCSIA does not define NOC and are ‘‘imposed’’ in an agency near Kettle Falls, WA, and milepost 4.7, the term ‘‘extraordinary circumstances,’’ Order or settlement agreement. Since near West Kettle Falls; and (2) milepost but expressly provides that the literal language of the statute 61.0 near Chewelah, WA, and milepost extraordinary circumstances meriting a requires that maximum penalties be 139.71, at the United States-Canadian 2 reduction in the maximum penalty may assessed (but not necessarily imposed) border. In addition, KFR will acquire be found to exist if we determine and in section 222 cases, this would incidental overhead trackage rights over document that repetition of the arguably permit settlement of cases the rail line between milepost 0.0 near violation does not demonstrate a failure below the maximum penalty, provided Kettle Falls, and milepost 4.7, near West to take appropriate remedial action. the negotiated penalty (the penalty Kettle Falls. While KFR is leasing that Although the statute does not limit actually imposed) is calculated to 4.7-mile line, KFR is acquiring the application of the extraordinary ensure prompt and sustained incidental trackage rights to ensure circumstances factor, we do not believe compliance with the Federal Motor continued access to BNSF for it is appropriate to attempt to define all Carrier Safety Regulations. To ensure interchange at Kettle Falls from the rail possible potential extraordinary uniformity in implementing section 222, line KFR is purchasing, in the event the circumstances, except as indicated in FMCSA Service Centers will not, at this lease of the line between Kettle Falls the next section. The respondent carries time, be permitted to settle section 222 and West Kettle Falls expires or is the burden to demonstrate that cases for less than the maximum penalty terminated. extraordinary circumstances merit a assessed. However, settlement Mr. Broe is a noncarrier individual reduction in the maximum penalty in agreements establishing terms of who directly controls OmniTRAX, a response to the NOC and during the payment will be permitted. As the noncarrier company. OmniTRAX adjudication of the case. agency gains more experience in currently controls ten Class III rail applying section 222, this settlement carriers: Chicago Rail Link, LLC (CRL); 5. What Type of Notice Will Be Required limitation will be evaluated. Georgia Woodlands Railroad, LLC Before Assessing the Maximum Penalty? (GWRC); Great Western Railway of Issued on: December 16, 2004. Although section 222 of MCSIA does Colorado, LLC (GWR); Great Western not specifically require prior notice to Annette M. Sandberg, Railway of Iowa LLC (CBGR); offenders that future violations may Administrator. Manufacturers’ Junction Railway, LLC result in the imposition of maximum [FR Doc. 04–28343 Filed 12–27–04; 8:45 am] (MJ); Newburgh & South Shore Railroad penalties, the September 8, 2000, policy BILLING CODE 4910–EX–P Limited (NSR); Northern Ohio & statement provided that offenders Western Railway, LLC (NOW); should be given such notice as part of Panhandle Northern Railroad, LLC the close-out of the second CR. This DEPARTMENT OF TRANSPORTATION (PNR); Alliance Terminal Railroad, LLC guidance is now modified and the (ATR); and Fulton County Railway, LLC Surface Transportation Board 3 agency may assess maximum penalties (FCR). in all appropriate cases. To address this [STB Finance Docket No. 34617] Mr. Broe and OmniTRAX also issue, we (1) modified our standard recently filed a notice of exemption to NOC to advise respondents of the Patrick D. Broe and OmniTRAX, Inc.— continue in control of Alabama & requirements of section 222 of MCSIA, Continuance in Control Exemption— Tennessee River Railway, LLC (ATN), a and (2) published this amended policy Kettle Falls International Railway, LLC noncarrier, upon ATN’s becoming a statement in the Federal Register and Patrick D. Broe (Mr. Broe) and 1 posted it on FMCSA’s Web site at The rail line that KFR is purchasing is located OmniTRAX, Inc. (OmniTRAX) between milepost 4.7, near West Kettle Falls, and http://www.fmcsa.dot.gov. No (collectively, applicants) have filed a milepost 77.14, at San Poil. While the termini of additional notice requirements are verified notice of exemption to continue this line are located in the State of Washington, the necessary. segment of the line between milepost 34.375 and in control of Kettle Falls International milepost 48.79 is located in British Columbia, 6. Do FMCSA Service Centers Have Railway, LLC (KFR), upon KFR’s Canada. Consequently, the Board has jurisdiction Authority To Settle Cases Subject to becoming a Class III rail carrier. only over the acquisition of the two segments in the Section 222 for Less Than the Maximum The transaction was scheduled to be United States described above. 2 The rail segment that KFR is leasing is located Penalty? consummated on or shortly after between milepost 61.0, near Chewelah, and Section 222(a) of MCSIA provides that December 10, 2004. milepost 144.0, near Columbia Gardens, British the Secretary ‘‘should ensure that motor This transaction is related to a Columbia, Canada. The segment of the Chewelah- concurrently filed verified notice of Columbia Gardens line between mileposts 139.71 carriers operate safely by imposing civil and 144.0 is located in British Columbia. penalties at a level calculated to ensure exemption in STB Finance Docket No. Consequently, the Board has jurisdiction only over prompt and sustained compliance with 34616, Kettle Falls International the lease of the line segment in the United States Federal motor carrier safety and Railway, LLC—Acquisition Exemption— described here. BNSF is retaining restricted The Burlington Northern and Santa Fe trackage rights over the segment of the line KFR is commercial driver’s license laws’’ leasing between milepost 61.0, near Chewelah, and (emphasis added). Section 222(b)(2) Railway Company, wherein KFR seeks milepost 96.0, near Kettle Falls. requires the Secretary to assess the to acquire by purchase and lease from 3 CRL’s lines are located in Illinois; GWRC’s line maximum penalty in appropriate The Burlington Northern and Santa Fe is located in Georgia; GWR’s lines are located in Railway Company (BNSF) rail lines in Colorado; CBGR’s lines are located in Iowa; MJ’s circumstances. A question was raised on lines are located in Illinois; NSR’s lines are located the State of Washington. The rail lines in Ohio; NOW’s line is located in Ohio; PNR’s line the date the settlement agreement is accepted by the being purchased are between: (1) is located in Texas; ATR’s lines are located in decisionmaker. milepost 4.7, near West Kettle Falls, Texas; and FCR’s lines are located in Georgia.
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Class III railroad. See Patrick D. Broe By the Board, David M. Konschnik, The transaction is related to STB and OmniTRAX, Inc.—Continuance in Director, Office of Proceedings. Finance Docket No. 34617, Patrick D. Control Exemption—Alabama & Vernon A. Williams, Broe and OmniTRAX, Inc.— Tennessee River Railway, LLC, STB Secretary. Continuance in Control Exemption— Finance Docket No. 34615 (STB served [FR Doc. 04–28333 Filed 12–27–04; 8:45 am] Kettle Falls International Railway, LLC, Dec. 17, 2004). In a transaction BILLING CODE 4915–01–P wherein Patrick D. Broe and scheduled to occur on or after December OmniTRAX, Inc., have concurrently 31, 2004, ATN will lease and operate filed a verified notice of exemption to certain rail lines in Alabama.4 DEPARTMENT OF TRANSPORTATION continue in control of KFR upon KFR’s Applicants state that: (1) the rail lines becoming a Class III rail carrier. operated by CRL, GWRC, GWR, CBGR, Surface Transportation Board KFR certifies that its projected MJ, NSR, NOW, PNR, ATR, and FCR do revenues as a result of this transaction not connect with the rail lines being [STB Finance Docket No. 34616] will not result in KFR’s becoming a purchased or leased by KFR; (2) the Kettle Falls International Railway, Class II or Class I rail carrier, and further continuance in control is not part of a LLC—Acquisition Exemption—The certifies that its projected annual series of anticipated transactions that Burlington Northern and Santa Fe revenues will not exceed $5 million. The transaction was expected to be would connect the rail lines being Railway Company acquired by KFR with any railroad in consummated on or shortly after the OmniTRAX corporate family; and Kettle Falls International Railway, December 10, 2004. (3) neither KFR nor any of the carriers LLC (KFR), a noncarrier, has filed a If the notice contains false or controlled by OmniTRAX are Class I rail verified notice of exemption under 49 misleading information, the exemption carriers. Therefore, the transaction is CFR 1150.31 to acquire by purchase and is void ab initio. Petitions to revoke the exempt from the prior approval lease from The Burlington Northern and exemption under 49 U.S.C. 10502(d) requirements of 49 U.S.C. 11323. See 49 Santa Fe Railway Company (BNSF) rail may be filed at any time. The filing of CFR 1180.2(d)(2). The purpose of the lines in the State of Washington. The a petition to revoke will not transaction is to reduce overhead rail lines being purchased are between: automatically stay the transaction. expenses, coordinate billing, (1) milepost 4.7, near West Kettle Falls, An original and 10 copies of all maintenance, mechanical and personnel WA, and milepost 34.375, at the United pleadings, referring to STB Finance policies and practices of its rail carrier States-Canadian border; and (2) Docket No. 34616, must be filed with subsidiaries and thereby improve the milepost 48.79, at the United States- the Surface Transportation Board, 1925 overall efficiency of rail service Canadian border, and milepost 77.14, at K Street, NW., Washington, DC 20423– provided by the 11 railroads. San Poil, WA.1 The rail lines being 0001. In addition, a copy of each Under 49 U.S.C. 10502(g), the Board leased are between: (1) milepost 0.0, pleading must be served on Karl Morell, may not use its exemption authority to near Kettle Falls, and milepost 4.7, near Of Counsel, Ball Janik LLP, 1455 F relieve a rail carrier of its statutory West Kettle Falls; and (2) milepost 61.0 Street, NW., Suite 225, Washington, DC obligation to protect the interests of its near Chewelah, WA, and milepost 20005. employees. Section 11326(c), however, 139.71, at the United States-Canadian Board decisions and notices are does not provide for labor protection for border.2 In addition, KFR will acquire available on our Web site at http://www.stb.dot.gov. transactions under sections 11324 and incidental overhead trackage rights over 11325 that involve only Class III rail the rail line between milepost 0.0 near Decided: December 20, 2004. carriers. Accordingly, the Board may not Kettle Falls, and milepost 4.7, near West By the Board, David M. Konschnik, impose labor protective conditions here, Kettle Falls. While KFR is leasing that Director, Office of Proceedings. because all of the carriers involved are 4.7-mile line, KFR is acquiring the Vernon A. Williams, Class III carriers. incidental trackage rights to ensure Secretary. If the verified notice contains false or continued access to BNSF for [FR Doc. 04–28334 Filed 12–27–04; 8:45 am] misleading information, the exemption interchange at Kettle Falls from the rail BILLING CODE 4915–01–P is void ab initio. Petitions to revoke the line KFR is purchasing in the event the exemption under 49 U.S.C. 10502(d) lease of the line between Kettle Falls may be filed at any time. The filing of and West Kettle Falls expires or is DEPARTMENT OF THE TREASURY a petition to revoke will not terminated. automatically stay the transaction. Fiscal Service An original and 10 copies of all 1 The rail line that KFR is purchasing is located pleadings, referring to STB Finance between milepost 4.7, near West Kettle Falls, and Financial Management Service; Docket No. 34617, must be filed with milepost 77.14, at San Poil. While the termini of Proposed Collection of Information: this line are located in the State of Washington, the List of Data (A) and List of Data (B) the Surface Transportation Board, 1925 segment of the line between milepost 34.375 and K Street, NW., Washington, DC 20423– milepost 48.79 is located in British Columbia, AGENCY: Financial Management Service, Canada. Consequently, the Board has jurisdiction 0001. In addition, a copy of each Fiscal Service, Treasury. pleading must be served on Karl Morell, only over the acquisition of the two segments in the United States described above. ACTION: Of Counsel, Ball Janik LLP, 1455 F Notice and request for 2 The rail segment that KFR is leasing is located comments. Street, NW., Suite 225, Washington, DC between milepost 61.0, near Chewelah, and 20005. milepost 144.0, near Columbia Gardens, British SUMMARY: The Financial management Board decisions and notices are Columbia, Canada. The segment of the Chewelah- Columbia Gardens line between milepost 139.71 Service, as part of its continuing effort available on our Web site at http:// and milepost 144.0 is located in British Columbia. to reduce paperwork and respondent www.stb.dot.gov. Consequently, the Board has jurisdiction only over burden, invites the general public and Decided: December 20, 2004. the lease of the line segment in the United States other Federal agencies to take this described here. BNSF is retaining restricted trackage rights over the segment of the line KFR is opportunity to comment on a 4 The rail lines being leased by ATN will not leasing between milepost 61.0, near Chewelah, and continuing information collection. By connect with the rail lines being acquired by KFR. milepost 96.0, near Kettle Falls. this notice, the Financial Management
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Service solicits comments concerning maintenance and purchase of services to Estimated Number of Respondents: the form ‘‘List of Data (A) and List of provide information. 1,094. Data (B).’’ Estimated Time Per Respondent: 20 Wanda Rogers, DATES: Written comments should be hours. Assistant Commissioner, Financial Estimated Total Annual Burden received on or before February 28, 2005. Operations. Hours: 5,920. ADDRESSES: Direct all written comments [FR Doc. 04–28346 Filed 12–27–04; 8:45 am] Comments: Comments submitted in to Financial Management Service, 3700 BILLING CODE 4810–35–M East West Highway, Records and response to this notice will be Information Management Program Staff, summarized and/or included in the Room 135, Hyattsville, Maryland 20782. DEPARTMENT OF THE TREASURY request for Office of Management and Budget approval. All comments will FOR FURTHER INFORMATION CONTACT: Fiscal Service become a matter of public record. Requests for additional information Comments are invited on (a) Whether should be directed to Rose Miller, Financial Management Service; the collection of information is Surety Bond Branch, 3700 East West Proposed Collection of Information: necessary for the proper performance of Highway, Room 632F, Hyattsville, MD Schedule of Excess Risks the functions of the agency, including 20782, (202) 874–6850. whether the information shall have SUPPLEMENTARY INFORMATION: Pursuant AGENCY: Financial Management Service, practical utility; (b) the accuracy of the to the Paperwork Reduction Act of 1995, Fiscal Service, Treasury. agency’s estimate of the burden of the (44 U.S.C. 3506(c)(2)(A)), the Financial ACTION: Notice and request for collection of information; (c) ways to Management Service solicits comments comments. enhance that quality, utility, and clarity on the collection of information of the information to be collected; (d) SUMMARY: described below: The Financial Management ways to minimize the burden of the Title: List of Data (A) and List of Data Service, as part of its continuing effort collection of informaion on (B). to reduce paperwork and respondent respondents, including through the use OMB Number: 1510–0047. burden, invites the general public and of automated collection techniques or Form Number: TFS 2211. other Federal agencies to take this other forms of information technology; Abstract: This information is opportunity to comment on a and (e) estimates of capital or start-up collected from insurance companies to continuing information collection. By costs and costs of operation, assist Treasury Department in this notice, the Financial Management maintenance and purchase of services to determining acceptability of the Service solicits comments concerning provide information. companies applying for a Certificate of the form ‘‘Schedule of Excess Risks.’’ Wanda Rogers, Authority to write or reinsure Federal DATES: Written comments should be Study bonds. received on or before February 28, 2005. Assistant Commissioner, Financial Operations. Current Actions: Extension of ADDRESSES: Direct all written comments currently approved collection. to Financial Management Service, 3700 [FR Doc. 04–28348 Filed 12–27–04; 8:45 am] Type of Review: Regular. East West Highway, Records and BILLING CODE 4810–35–M Affected Public: Business or other for- Information Management Program Staff, Room 135, Hyattsville, Maryland 20782. profit. DEPARTMENT OF THE TREASURY Estimated Number of Respondents: FOR FURTHER INFORMATION CONTACT: 30. Requests for additional information Fiscal Service Estimated Time Per Respondent: 18 should be directed to Rose Miller, hours. Surety Bond Branch, 3700 East West Financial Management Service; Estimated Total Annual Burden Highway, Room 632F, Hyattsville, MD Application and Renewal Fees Hours: 540. 20782, (202) 874–6850. Imposed on Surety Companies and Comments: Comments submitted in SUPPLEMENTARY INFORMATION: Pursuant Reinsuring Companies; Increase in response to this notice will be to the Paperwork Reduction Act of 1995, Fees Imposed summarized and/or included in the (44 U.S.C. 3506(c)(2)(A)), the Financial SUMMARY: Effective December 31, 2004, request for Office of Management and Management Service solicits comments The Department of the Treasury, Budget approval. All comments will on the collection of information Financial Management Service, is become a matter of public record. described below: increasing the fees it imposes on and Comments are invited on: (a) Whether Title: Schedule of Excess Risks. collects from surety companies and the collection of information is OMB Number: 1510–0004. reinsuring companies. necessary for the proper performance of Form Number: FMS 285–A. the functions of the agency, including Abstract: This information is FOR FURTHER INFORMATION CONTACT: whether the information shall have collected to assist the Treasury Surety Bond Branch at (202) 874–6765. practical utility; (b) the accuracy of the Department in determining whether a SUPPLEMENTARY INFORMATION: The fees agency’s estimate of the burden of the certified or applicant company is imposed and collected, as referred to in collection of information; (c) ways to solvent and able to carry out its 31 CFR 223.22, cover the costs incurred enhance the quality, utility, and clarity contracts, and whether the company is by the Government for services of the information to be collected; (d) in compliance with Treasury excess risk performed relative to qualifying ways to minimize the burden of the regulations for writing Federal surety corporate sureties to write Federal collection of information on bonds. business. These fees are determined in respondents, including through the use Current Actions: Extension of accordance with the Office of of automated collection techniques or currently approved collection. Management and Budget Circular A–25, other forms of information technology; Type of Review: Regular. as amended. The change in fees is the and (e) estimates of capital or start-up Affected Public: Business or other for- result of a thorough analysis of costs costs and costs of operation, profit. associated with the Surety Bond Branch.
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The new fee rate schedule is as FOR FURTHER INFORMATION CONTACT: minimize the burden of the collection of follows: Requests for additional information or information on respondents, including (1) Examination of a company’s copies of the form and instructions through the use of automated collection application for a Certificate of Authority should be directed to Carol Savage at techniques or other forms of information as an acceptable surety or as an Internal Revenue Service, room 6516, technology; and (e) estimates of capital acceptable reinsuring company on 1111 Constitution Avenue NW., or start-up costs and costs of operation, Federal bonds—$6,800. Washington, DC 20224, or at (202) 622– maintenance, and purchase of services (2) Determination of a company’s 3945, or through the Internet at to provide information. continued qualification for annual [email protected]. Approved: December 20, 2004. renewal of its Certificate of Authority— SUPPLEMENTARY INFORMATION: Carol Savage, $4,000. Title: Fuel Tax Guidance, Request for Management and Program Analyst. (3) Examination of a company’s comments. [FR Doc. 04–28330 Filed 12–27–04; 8:45 am] application for recognition as an OMB Number: 1545–1915. BILLING CODE 4830–01–P Admitted Reinsurer (except on excess Notice Number: Notice 2005–04. risks running to the United States)— Abstract: Notice 2005–04 provides $2,400. guidance on certain excise tax Code (4) Determination of a company’s DEPARTMENT OF VETERANS provisions that were added or effected AFFAIRS continued qualification for annual by the American Jobs Creation Act of renewal of its authority as an Admitted 2004. The information will be used by Allowance for Private Purchase of an Reinsurer—$1,700. the IRS to verify that the proper amount Outer Burial Receptacle in Lieu of a Questions concerning this notice of tax is reported, excluded, refunded, Government-Furnished Graveliner for should be directed to the Surety Bond or credited. a Grave in a VA National Cemetery Branch, Financial Accounting and Current Actions: There are no changes Services Division, Financial being made to the notice at this time. AGENCY: Department of Veterans Affairs. Management Service, Department of the Type of Review: Extension of a ACTION: Notice. Treasury, Hyattsville, MD 20782, currently approved collection. SUMMARY: Public Law 104–275 was Telephone (202) 874–6850. Affected Public: Business or other for- enacted on October 9, 1996. It allowed profit organizations, not-for-profit Dated: December 16, 2004. the Department of Veterans Affairs (VA) institutions, farms, Federal, state, local Wanda J. Rogers, to provide a monetary allowance or tribal governments. Assistant Commissioner, Financial towards the private purchase of an outer Estimated Number of Respondents: Operations, Financial Management Service. burial receptacle for use in a VA 20,263. [FR Doc. 04–28347 Filed 12–27–04; 8:45 am] national cemetery. Under VA regulation Estimated Time Per Respondent: 1 BILLING CODE 4810–35–M (38 CFR 1.629), the allowance is equal hour, 41 minutes. to the average cost of Government- Estimated Total Annual Burden furnished graveliners minus any Hours: 34,390. DEPARTMENT OF THE TREASURY administrative costs to VA. The law The following paragraph applies to all continues to provide a veteran’s Internal Revenue Service of the collections of information covered survivors with the option of selecting a by this notice: Government-furnished graveliner for Proposed Collection; Comment An agency may not conduct or use in a VA national cemetery where Request for Notice 2005–04 sponsor, and a person is not required to such use is authorized. respond to, a collection of information AGENCY: Internal Revenue Service (IRS), The purpose of this Notice is to notify unless the collection of information Treasury. interested parties of the average cost of displays a valid OMB control number. Government-furnished graveliners, ACTION: Notice and request for Books or records relating to a collection administrative costs that relate to comments. of information must be retained as long processing a claim, and the amount of as their contents may become material SUMMARY: The Department of the the allowance payable for qualifying in the administration of any internal Treasury, as part of its continuing effort interments that occur during calendar revenue law. Generally, tax returns and to reduce paperwork and respondent year 2005. tax return information are confidential, burden, invites the general public and FOR FURTHER INFORMATION CONTACT: as required by 26 U.S.C. 6103. Lisa other Federal agencies to take this Ciolek, Capital and Performance opportunity to comment on proposed Request for Comments Budgeting (41B1B), National Cemetery and/or continuing information Comments submitted in response to Administration, Department of Veterans collections, as required by the this notice will be summarized and/or Affairs, 810 Vermont Avenue, NW., Paperwork Reduction Act of 1995, included in the request for OMB Washington, DC 20420. Telephone: Public Law 104–13 (44 U.S.C. approval. All comments will become a 202–273–5161 (this is not a toll-free 3506(c)(2)(A)). Currently, the IRS is matter of public record. Comments are number). soliciting comments concerning Notice invited on: (a) Whether the collection of SUPPLEMENTARY INFORMATION: Under 38 2005–04, Fuel Tax Guidance, Request information is necessary for the proper U.S.C. 2306(e)(3) and Public Law 104– for comments. performance of the functions of the 275, Section 213, VA may provide a DATES: Written comments should be agency, including whether the monetary allowance for the private received on or before February 28, 2005 information shall have practical utility; purchase of an outer burial receptacle to be assured of consideration. (b) the accuracy of the agency’s estimate for use in a VA national cemetery where ADDRESSES: Direct all written comments of the burden of the collection of its use is authorized. The allowance for to R. Joseph Durbala, Internal Revenue information; (c) ways to enhance the qualified interments that occur during Service, Room 6516, 1111 Constitution quality, utility, and clarity of the calendar year 2005 is the average cost of Avenue NW., Washington, DC 20224. information to be collected; (d) ways to Government-furnished graveliners in
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fiscal year 2004, less the administrative Veterans Affairs, and is available for ACTION: Notice of Government-owned costs incurred by VA in processing and licensing in accordance with 35 U.S.C. invention available for licensing. paying the allowance in lieu of the 207 and 37 CFR part 404 and/or Government-furnished graveliner. Cooperative Research and Development SUMMARY: The invention listed below is The average cost of Government- Agreements (CRADA) Collaboration owned by the U.S. Government as furnished graveliners is determined by under 15 U.S.C. 3710a to achieve represented by the Department of taking VA’s total cost during a fiscal expeditious commercialization of Veterans Affairs, and is available for year for single-depth graveliners that results of federally funded research and licensing in accordance with 35 U.S.C. were procured for placement at the time development. Foreign patents are filed 207 and 37 CFR part 404 and/or of interment and dividing it by the total on selected inventions to extend market Cooperative Research and Development number of such graveliners procured by coverage for U.S. companies and may Agreements (CRADA) Collaboration VA during that fiscal year. The also be available for licensing. under 15 U.S.C. 3710a to achieve calculation excludes both graveliners FOR FURTHER INFORMATION CONTACT: expeditious commercialization of procured and pre-placed in gravesites as Technical and licensing information on results of federally funded research and part of cemetery gravesite development the invention may be obtained by development. Foreign patents are filed projects and all double-depth writing to: Robert W. Potts, Department on selected inventions to extend market graveliners. Using this method of of Veterans Affairs, Director Technology computation, the average cost was Transfer Program, Office of Research coverage for U.S. companies and may determined to be $171.77 for fiscal year and Development, 810 Vermont Avenue also be available for licensing. 2004. NW., Washington, DC 20420; fax: (202) FOR FURTHER INFORMATION CONTACT: The administrative costs incurred by 254–0260; e-mail: VA consist of those costs that relate to Technical and licensing information on bob[email protected]. Any request processing and paying an allowance in the invention may be obtained by for information should include the lieu of the Government-furnished writing to: Robert W. Potts, Department number and title for the relevant graveliner. These costs have been of Veterans Affairs, Director Technology invention as indicated below. Issued determined to be $9.75 for calendar year Transfer Program, Office of Research patents may be obtained from the 2005. and Development, 810 Vermont Avenue The net allowance payable for Commissioner of Patents, U.S. Patent NW., Washington, DC 20420; fax: (202) and Trademark Office, Washington, DC qualifying interments occurring during 254–0260; e-mail: 20231. calendar year 2005, therefore, is [email protected]. Any request SUPPLEMENTARY INFORMATION: $162.02. The for information should include the invention available for licensing is: number and title for the relevant Approved: December 17, 2004. International Patent Application No. Anthony J. Principi, PCT/US03/32602 ‘‘Detection/ invention as indicated below. Issued Secretary of Veterans Affairs. Localization and Staging of Tumors patents may be obtained from the [FR Doc. 04–28362 Filed 12–27–04; 8:45 am] Using Labeled Activated Lymphocytes Commissioner of Patents, U.S. Patent BILLING CODE 8320–01–P Directed to a Tumor Specific Epitope.’’ and Trademark Office, Washington, DC 20231. Dated: December 17, 2004. SUPPLEMENTARY INFORMATION: The DEPARTMENT OF VETERANS Anthony J. Principi, invention available for licensing is: AFFAIRS Secretary, Department of Veterans Affairs. [FR Doc. 04–28363 Filed 12–27–04; 8:45 am] International Patent Application No. Office of Research and Development; BILLING CODE 8320–01–P PCT/US03/07934 ‘‘Methods and Government Owned Invention Compositions Using Cellular Available for Licensing Asialodeterminants and DEPARTMENT OF VETERANS Glycoconjugates for Targeting Cells to AGENCY: Office of Research and AFFAIRS Development, VA. Tissues and Organs.’’ ACTION: Notice of Government-owned Office of Research and Development; Dated: December 17, 2004. invention available for licensing. Government Owned Invention Anthony J. Principi, Available for Licensing SUMMARY: The invention listed below is Secretary, Department of Veterans Affairs. owned by the U.S. Government as AGENCY: Office of Research and [FR Doc. 04–28364 Filed 12–27–04; 8:45 am] represented by the Department of Development, VA. BILLING CODE 8320–01–P
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Part II
Department of Defense Department of the Army
32 CFR Part 518 The Freedom of Information Act Program; Proposed Rule
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DEPARTMENT OF DEFENSE Flexibility Act does not apply because 518.20 Collection of fees and fee rates. the proposed rule does not have a 518.21 Collection of fees and fee rates for Department of the Army significant economic impact on a technical data. substantial number of small entities Subpart G—Reports 32 CFR Part 518 within the meaning to the Regulatory 518.22 Reports control. RIN 0702–AA45 Flexibility Act, 5 U.S.C. 601–612. 518.23 Annual report content. C. Paperwork Reduction Act Appendices to Part 518 The Freedom of Information Act Program The Department of the Army has Appendix A to Part 518—References. determined that the Paperwork Appendix B to Part 518—Addressing FOIA AGENCY: Department of the Army, DoD. Reduction Act does not apply because Requests. ACTION: Proposed rule; request for the proposed rule does not impose Authority: 5 U.S.C. 551, 552, 552a, 5101– comments. recordkeeping or information collection 5108, 5110–5113, 5115, 5332–5334, 5341–42, requirements from contractors or 5504–5509, 7154; 10 U.S.C. 130, 1102, 2320– SUMMARY: The Department of the Army members of the public. 2321, 2328; 18 U.S.C. 798, 3500; 31 U.S.C. is proposing to revise our rules in 3710; 35 U.S.C. 181–188; 42 U.S.C. 2162; 44 D. Executive Order 12866 U.S.C. 33; and Executive Order 12600. support of the Freedom of Information Act as required by public law and The Department of the Army has PART 518—THE ARMY FREEDOM OF updates the provisions for access and determined that according to the criteria INFORMATION ACT PROGRAM release of information from all Army defined in Executive Order 12866, this information systems (automated and proposed rule is not a significant Subpart A—General provisions manual) that further supports the regulatory action. Army’s Records Management Program. § 518.1 Purpose. Bruno C. Leuyer, This part provides policies and DATES: Comments submitted to the Chief, Freedom of Information and Privacy procedures for implementation of the address below on or before February 28, Office. Freedom of Information Act (5 U.S.C. 2005 will be considered. List of Subjects in 32 CFR part 518 552, as amended) and Department of ADDRESSES: You may submit comments, Defense Directive (DoDD) 5400.7 and Freedom of Information Act, identified by ‘‘32 CFR Part 518 and RIN promotes uniformity in the Department Administrative practices and 0702–AA45’’ in the subject line, by any of Defense (DoD) Freedom of procedures. of the following methods: Information Act (FOIA) Program (AR25– • Federal eRulemaking Portal: http:// For the reasons stated in the 55). This Army regulation implements www.regulations.gov. Follow the preamble, the Department of the Army provisions for access and release of instructions for submitting comments. proposes to revise 32 CFR part 518— information from all Army information • E-mail: The Army Freedom of Information Act systems (automated and manual) in [email protected]. Program as follows: support of Army Information Include ‘‘32 CFR Part 518 and RIN Management (AR 25–1). 0702–AA45’’ in the subject line of the PART 518—THE FREEDOM OF message. INFORMATION ACT PROGRAM § 518.2 References. • Mail: U.S. Army Records Subpart A—General provisions Required and related publications are listed in Appendix A of this part. Management and Declassification Sec. Agency, Freedom of Information and 518.1 Purpose. § 518.3 Explanation of abbreviations and Privacy Office, ATTN: AHRC–PDD–FP, 518.2 References. terms. (Ms. Carter), Casey Bldg., Suite 144, 518.3 Explanation of abbreviations and 7701 Telegraph Road, Alexandria, VA terms. Abbreviations and special terms used 22315–3905. 518.4 Responsibilities. in this part are explained in the glossary 518.5 Authority. of AR 25–55. FOR FURTHER INFORMATION CONTACT: 518.6 Public information. Brenda Carter (703) 428–6503. 518.7 FOIA terms defined. § 518.4 Responsibilities. SUPPLEMENTARY INFORMATION: 518.8 Freedom of Information (a) The Deputy Chief of Staff for requirements. Personnel (DCS, G–1) is responsible for A. Background Subpart B—FOIA Reading Rooms issuing policy and establishing guidance This proposed revision prescribes for the Army FOIA Program. DCS, G–1 518.9 Reading room. procedures and responsibilities of the 518.10 ‘‘(a)(2)’’ materials. has the responsibility to approve Freedom of Information Act, in 518.11 Other materials. exceptions to this part that are accordance with the Electronic Freedom consistent with controlling law and of Information Act (FOIA) Amendments Subpart C—Exemptions regulations. DCS, G–1 may delegate the of 1996. The Electronic Freedom of 518.12 General. approval authority, in writing, to a Information Act Amendments of 1996 518.13 FOIA exemptions. division chief, under its supervision, changed the response time from 10 to 20 Subpart D—For Official Use Only within that agency in the grade of O6 or days, required Multitrack processing of 518.14 General. civilian equivalent. FOIA requests, required an Electronic (b) The U.S. Army Human Resources FOIA Reading Room, and changed the Subpart E—Release and Processing Command, (AHRC), The Adjutant Procedures requirements for the Annual Report and General (TAG), Records Management the timetable for that report from 518.15 General provisions. and Declassification Agency (RMDA), is calendar to fiscal year. 518.16 Initial determinations. responsible for developing and 518.17 Appeals. recommending policy to DCS, G–1 518.18 Judicial actions. B. Regulatory Flexibility Act concerning the Army FOIA program and The Department of the Army has Subpart F—Fee Schedule overall execution of the program under determined that the Regulatory 518.19 General provisions. the policy and guidance of DCS, G–1.
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(c) The Chief of Information Officer (8) AR 70–31 (technical reports); records requested through public (CIO), G6 will provide oversight of the (9) AR 20–1, AR 385–40 and DA Pam information channels by news media FOIA program as necessary in 385–40 (aircraft accident investigations); representatives that would not be compliance with Federal Statutes, (10) AR 195–2 (criminal investigation withheld if requested under the FOIA regulations, Office of Management and activities); should be released upon request. Budget (OMB), and the Office of (11) AR 190–45 (Military Police Prompt responses to requests for Secretary of Defense (OSD). records and reports); information from news media (d) Heads of Army Staff agencies, field (12) AR 360–1 (Army public affairs: representatives should be encouraged to operating agencies, major Army public information, general policies on eliminate the need for these requesters commands (MACOMS), and subordinate release of information to the public); to invoke the provisions of the FOIA commands are responsible for the (13) AR 380–5 and DoD 5200.1–R and thereby assist in providing timely supervision and execution of the FOIA (national security classified information to the public. Similarly, program in functional areas and information); requests from other members of the activities under their command. (14) AR 380–5 paragraph 7–101e public for information that would not be (e) Heads of Joint Service agencies or (policies and procedures for allowing withheld under the FOIA should commands for which the Army is the persons outside the Executive Branch to continue to be honored through Executive Agent, or otherwise has do unofficial historical research in appropriate means without requiring the responsibility for providing fiscal, classified Army records); requester to invoke the FOIA. logistical, or administrative support, (15) AR 380–10 (Technology Transfer (b) FOIA handbook. The Department will adhere to the policies and for disclosure of information and of the Army Freedom of Information procedures in this part. contacts with foreign representatives; Act/Privacy Act (DA FOIA/PA) Office (f) Commander, Army and Air Force (16) AR 381–45 (U.S. Army shall prepare, in addition to FOIA Exchange Service (AAFES), is Intelligence and Security Command regulations, a handbook for the use of responsible for the supervision of the investigation files); the public in obtaining information from FOIA program within that command (17) AR 385–40 (safety reports and its organizations. This handbook will be pursuant to this part. records); a short, simple explanation of what the (18) AR 600–8–104 (military FOIA is designed to do, and how a § 518.5 Authority. personnel information management member of the public can use it to (a) This part governs written FOIA records); access government records. The DA requests from members of the public. It (19) AR 600–85 (alcohol and drug FOIA/PA Office handbook will explain does not preclude the release of abuse records); the types of records that can be obtained personnel or other records to agencies or (20) AR 608–19 (family advocacy through FOIA requests, why some individuals in the Federal Government records); and records cannot, by law, be made for use in official work. (21) AR 690 (series civilian personnel available, and how the Army activity (b) Soldiers and civilian employees of records, FAR, DoD Federal Acquisition determines whether or not the record the Department of the Army (DA) may, Regulation Supplement (DFARS) and can be released. The handbook will also as private citizens, request DA or other the Army Federal Acquisition explain how to make a FOIA request, agencies’ records under the FOIA. They Regulation Supplement (AFARS) how long the requester can expect to must prepare requests at their own procurement matters). wait for a reply, and appeal rights. The expense and on their own time. They handbook will supplement other § 518.6 Public information. may not use Government equipment, information locator systems, such as the supplies, or postage to prepare personal (a) Public information. The public has Government Information Locator FOIA requests. It is not necessary for a right to information concerning the Service (GILS), and explain how a soldiers or civilian employees to go activities of its Government. Army requester can obtain more information through the chain of command to policy is to conduct its activities in an about those systems. The handbook will request information under the FOIA. open manner and provide the public be available on paper and through (c) Requests for DA records processed with a maximum amount of accurate electronic means and contain the under the FOIA may be denied only in and timely information concerning its following additional information, accordance with the FOIA (5 U.S.C. activities, consistent always with the complete with electronic links to the 552(b)), as implemented by this part. legitimate public and private interests of below elements: The location of reading Guidance on the applicability of the the American people. A record room and the types and categories of FOIA is also found in the Federal requested by a member of the public information available; the location of Acquisition Regulation (FAR). who follows rules established by proper the World Wide Web page; a reference (d) Release of some records may also authority in DA shall not be withheld in to the Army FOIA regulation and how be affected by the programs that created whole or in part unless the record is to obtain a copy; a reference to the Army them. They are discussed in the exempt from mandatory partial or total FOIA annual report and how to obtain following regulations: disclosure under the FOIA. As a matter a copy; and the location of the GILS (1) AR 20–1 (Inspector General of policy, Army activities shall make page. The DA FOIA handbook, ‘‘A activities and procedures); discretionary disclosures of exempt Citizen’s Guide to Request Army (2) AR 27–10 (military justice); records or information only after full Records Under the Freedom of (3) AR 27–20 (claims); and deliberate consideration of the Information Act (FOIA),’’ can be (4) AR 27–40 (litigation: release of institutional, commercial, and personal accessed on-line at http:// information and appearance of privacy interests that could be www.rmda.belvoir.army.mil/. ‘‘The witnesses); implicated by disclosure of the Major Automated Information Systems (5) AR 27–60 (intellectual property); information. Activities must be Descriptions’’ can be accessed at (6) AR 36–2 (Government Accounting prepared to present a sound legal basis www.defenselink.mil/pubs/foi. Office audits); in support of their determinations. In (c) Control system. A request for (7) AR 40–66, AR 40–68, and AR 40– order that the public may have timely records that invokes the FOIA shall 400 (medical records); information concerning Army activities, enter a formal control system designed
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to ensure accountability and compliance categories: Those created before entering decision to: Withhold all or part of a with the FOIA. Any request for Army Government service; private materials requested record; deny a fee category records that either explicitly or brought into, created, or received in the claim by a requester; deny a request for implicitly cites the FOIA shall be office that were not created or received expedited processing due to processed under the provisions of this in the course of transacting Government demonstrated compelling need; deny a part, unless otherwise required. business; and work-related personal request for waiver or reduction of fees; papers that are not used in the deny a request to review an initial fee § 518.7 FOIA terms defined. transaction of Government business in estimate; and confirm that no records (a) FOIA request. A written request for accordance with Public Law 86–36, were located during the initial search. Army records that reasonably describes National Security Information Requesters also may appeal the failure the record(s) sought, made by any Exemption. to receive a response determination person, including a member of the (2) A record must exist and be in the within the statutory time limits, a fee public (U.S. or foreign citizen/entity), an possession and control of DA at the time estimate, and any determination that the organization, or a business, but not of the request to be considered subject requester believes is adverse in nature. including a Federal Agency or a fugitive to this part and the FOIA. There is no (g) Public interest. The interest in from the law, that either explicitly or obligation to create or compile a record obtaining official information that sheds implicitly invokes the FOIA, DoDD to satisfy a FOIA request. light on an activity’s performance of its 5400.7, DoD 5400.7–R, this part, or (3) Hard copy or electronic records statutory duties because the information Army Activity supplementing that are subject to FOIA requests under falls within the statutory purpose of the regulations or instructions. All 5 U.S.C. 552(a)(3), and that are available FOIA to inform citizens about what requesters should also indicate a to the public through an established their Government is doing. That willingness to pay fees associated with distribution system such as the statutory purpose, however, is not the processing of their request. Government Printing Office (GPO), fostered by disclosure of information Requesters may ask for a waiver of fees, Federal Register, National Technical about private citizens accumulated in but should also express a willingness to Information Service (NTIS), or the various governmental files that reveals pay fees in the event of a waiver denial. Internet, normally need not be nothing about an agency’s or official’s Written requests may be received by processed under the provisions of the own conduct. postal service or other commercial FOIA. If a request is received for such (h) Electronic record. Records delivery means, by facsimile, or information, Army Activities shall (including e-mail) that are created, electronically (such as e-mail). Requests provide the requester with guidance, stored, and retrievable by electronic received by facsimile or electronically inclusive of any written notice to the means. must have a postal mailing address public, on how to obtain the (i) Federal agency. As defined by 5 included since it may not be practical to information. However, if the requester U.S.C. 552(f)(1), a Federal agency is any provide a substantive response insists that the request be processed executive department, military electronically. The request is considered under the FOIA, then the request shall department, Government corporation, properly received, or perfected, when be processed under the FOIA. If there is Government controlled corporation, or the conditions in this paragraph have any doubt as to whether the request other establishment in the executive been met and the request arrives at the must be processed, contact DA, FOIA/ branch of the Government (including FOIA office of the Activity in possession PA Office. the Executive Office of the President), or of the records. (c) Army activity. A specific area of any independent regulatory agency. (b) Agency record. The products of organizational or functional (j) Law enforcement investigation. An data compilation, such as all books, responsibility within DA, authorized to investigation conducted by a command papers, maps, photographs, and receive and act independently on FOIA or activity for law enforcement purposes machine readable materials, inclusive of requests. relating to crime, waste, fraud or those in electronic form or format, or (d) Initial denial authority (IDA). An national security. Such investigations other documentary materials, regardless official who has been granted authority may include gathering evidence for of physical form or characteristics, made by the Secretary of the Army to deny criminal prosecutions and for civil or or received by an agency of the United records requested under the FOIA based regulatory proceedings. States Government under Federal law in on one or more of the nine categories of connection with the transaction of exemptions from mandatory disclosure. § 518.8 Freedom of Information public business and in DA possession An IDA also: Denies a fee category claim requirements. and control at the time the FOIA request by a requester; denies a request for (a) Compliance with the FOIA. Army is made. expedited processing due to personnel are expected to comply with (1) The following are not included demonstrated compelling need; denies a the FOIA, this part, and Army FOIA within the definition of the word request for a waiver or reduction of fees; policy in both letter and spirit. This ‘‘record’’: Objects or articles, such as reviews a fee estimate; and confirms strict adherence is necessary to provide structures, furniture, vehicles and that no records were located in response uniformity in the implementation of the equipment, whatever their historical to a request. Army FOIA Program and to create value, or value as evidence; Anything (e) Appellate authority. The Secretary conditions that will promote public that is not a tangible or documentary of the Army or designee having trust. record, such as an individual’s memory jurisdiction for this purpose over the (b) Openness with the public. The DA or oral communication; Personal records record, or any of the other adverse shall conduct its activities in an open of an individual not subject to agency determinations. The DA appellate manner consistent with the need for creation or retention requirements, authority is the Office of the Army security and adherence to other created and maintained primarily for General Counsel (OGC). requirements of law and regulation. the convenience of an agency employee, (f) Administrative appeal. A request Records not specifically exempt from and not distributed to other agency by a member of the general public, made disclosure under the Act shall, upon employees for their official use. under the FOIA, asking the appellate request, be made readily accessible to Personal papers fall into three authority of the Army to reverse a the public in accordance with rules
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promulgated by competent authority, perfect or correct the request, or to limit practicable. Actions by Army Activities whether or not the Act is invoked. the scope to allow for the most to initially deny or affirm the initial (1) Operations Security (OPSEC). DA expeditious response. The statutory 20 denial on appeal of a request for officials who release records under the working day time limit applies upon expedited processing and a failure to FOIA must also consider OPSEC. The receipt of a perfected or correct FOIA respond in a timely manner shall be Army implementing directive is AR request. Before mailing a final response subject to judicial review. Initial 530–1. determination and those records or determination of denials of expedited (2) DA Form 4948–R. This form lists portions thereof deemed releasable, processing will be immediately references and information frequently records custodians will obtain a written forwarded to the IDA for action. If the used for FOIA requests related to legal opinion from their servicing judge IDA upholds the denial, the requester OPSEC. Persons who routinely deal advocate concerning the releasibility of will be informed of his or her right to with the public (by telephone or letter) the requested records. The legal opinion appeal. on such requests should keep the form must cite specific exemptions, (i) Imminent threat. Compelling need on their desks as a guide. appropriate justification, and identify if means that the failure to obtain the (c) Avoidance of procedural obstacles. the records were processed under the records on an expedited basis could Army Activities shall ensure that FOIA, PA (including the applicable reasonably be expected to pose an procedural matters do not unnecessarily systems notice), or both. imminent threat to the life or physical impede a requester from obtaining DA (1) Multi-track processing. When an safety of an individual. records promptly. The Army shall Army Activity has a significant number (ii) Alleged Federal Government provide assistance to requesters to help of pending requests that prevents a activity. Compelling need also means them understand and comply with response determination being made that the information is urgently needed procedures established by this part and within 20 working days, the requests by an individual primarily engaged in any supplemental regulations published shall be processed in a multitrack disseminating information in order to by the Army Activities. Coordination of processing system, based on the date of inform the public concerning actual or referral of requests with DA FOIA/PA receipt, the amount of work and time alleged Federal Government activity. An Office should be made telephonically in involved in processing the requests, and individual primarily engaged in order to respond to the requester in a whether the request qualifies for disseminating information means a timelier manner. Requests will not be expedited processing. Army Activities person whose primary activity involves mailed to the DA FOIA/PA Office for may establish as many processing publishing or otherwise disseminating disposition or coordination with other queues as they wish; however, as a information to the public. IDAs. minimum, three processing tracks shall Representatives of the news media (d) Prompt action on requests and be established, all based on a first-in, would normally qualify as individuals final response determinations. first-out concept, and rank ordered by primarily engaged in disseminating Generally, when a member of the public the date of receipt of the request. One information. Other persons must complies with the procedures track shall be a processing queue for demonstrate that their primary activity established in this part or instructions simple requests, one track for complex involves publishing or otherwise for obtaining DA records, and after the requests, and one track shall be a disseminating information to the public. request is received by the official processing queue for expedited (iii) General public interest. Urgently designated to respond, Army Activities processing. Determinations as to needed means that the information has shall endeavor to provide a final whether a request is simple or complex a particular value that will be lost if not response determination within the shall be made by each Army Activity. disseminated quickly. Ordinarily this statutory 20 working days. If a Army Activities shall provide a means a breaking news story of general significant number of requests, or the requester whose request does not public interest. However, information of complexity of the requests prevent a qualify for the fastest queue an historical interest only or information final response determination within the opportunity to limit the scope of the sought for litigation or commercial statutory time period, Army Activities request in order to qualify for the fastest activities would not qualify, nor would shall advise the requester of this fact, queue. This multitrack processing a news media publication or broadcast and explain how the request will be system does not obviate an Activity’s deadline unrelated to the news breaking responded to within its multitrack responsibility to exercise due diligence nature of the information. processing system. A final response in processing requests in the most (iv) Certified statement. A determination is notification to the expeditious manner possible. demonstration of compelling need by a requester that the records are released or (2) Expedited processing. A separate requester shall be made by a statement partially released, or will be released on queue shall be established for requests certified by the requester to be true and a certain date, or the records are meeting the test for expedited correct to the best of his or her withheld under an appropriate FOIA processing. Expedited processing shall knowledge. This statement must exemption, or the records cannot be be granted to a requester after the accompany the request in order to be provided for one or more of the other requester requests such and considered and responded to within the reasons. Interim responses demonstrates a compelling need for the 10 calendar days required for decisions acknowledging receipt of the request, information. Notice of the determination on expedited access. negotiations with the requester as to whether to grant expedited (v) Other reasons for expedited concerning the scope of the request, the processing in response to a requester’s processing. Another reason that merits response timeframe, and fee agreements compelling need shall be provided to expedited processing by Army FOIA are encouraged; however, such actions the requester within 10 calendar days offices is an imminent loss of do not constitute a final response after receipt of the request in the Army substantial due process rights. A determination pursuant to the FOIA. If Activity’s office that will determine demonstration of imminent loss of a request fails to meet minimum whether to grant expedited processing. substantial due process rights shall be requirements as set forth, Activities Once the Army Activity has determined made by a statement certified by the shall contact the requester and inform to grant expedited processing, the requester to be true and correct to the the requester what would be required to request shall be processed as soon as best of his or her knowledge. The
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statement mentioned in paragraph to individuals in their official capacity, practicable, Army Activities shall (c)(2)(iv) of this section must the provisions of this part apply if the contact the requester to aid in accompany the request in order to be same individual seeks the records in a identifying the records sought and in considered and responded to within the private or personal capacity. reformulating the request to reduce the 10 calendar days required for decisions (g) Creating a record. A record must burden on the agency in complying with on expedited access. Once the decision exist and be in the possession and the Act. DA FOIA officials will reply to has been made to expedite the request control of DA at the time of the search unclear requests by: Describing the for this reason, the request may be to be considered subject to this part and defects in the requests; explaining the processed in the expedited processing the FOIA. There is no obligation to types of information described below, queue behind those requests qualifying create or compile a record to satisfy a and ask the requester for such for compelling need. FOIA request. An Army Activity, information; and explaining that no (vi) Administrative appeals. These however, may compile a new record action will be taken on the request until same procedures also apply to requests when so doing would result in a more the requester replies to the letter. for expedited processing of useful response to the requester, or be (1) The following guidelines are administrative appeals. less burdensome to the agency than provided to deal with generalized (e) Use of exemptions. It is Army providing existing records, and the requests and are based on the principle policy to make records publicly requester does not object. Cost of of reasonable effort. Descriptive available, unless the record qualifies for creating or compiling such a record may information about a record may be exemption under one or more of the not be charged to the requester unless divided into two broad categories: nine exemptions. Discretionary releases the fee for creating the record is equal Category I is file-related and includes of information protected under the to or less than the fee that would be information such as type of record (for FOIA should be made only after full and charged for providing the existing example, memorandum), title, index deliberate consideration of the record. Fee assessments shall be in citation, subject area, date of record institutional, commercial, and personal accordance with Subpart F of this part. creation, and originator; Category II is privacy interests that could be (1) Concerning electronic data, the event-related and includes the implicated by disclosure of the issue of whether records are actually circumstances that resulted in the information. When Army activities created or merely extracted from an record being created or the date and determine to withhold information existing database is not always readily circumstances surrounding the event using one of the nine exemptions, the apparent. Consequently, when the record covers. Department of Justice (DOJ) will defend responding to FOIA requests for (2) Generally, a record is not the position unless it is found to be electronic data where creation of a reasonably described unless the lacking a Sound Legal Basis for denial. record, programming, or particular description contains sufficient Category (1) Parts of a requested record may be format are questionable, Army Activities I information to permit an organized, exempt from disclosure under the FOIA. should apply a standard of non random search based on the Army The proper DA official may delete reasonableness. Activity’s filing arrangements and exempt information and release the (2) If the capability exists to respond existing retrieval systems, or unless the remainder to the requester. The proper to the request, and the effort would be record contains sufficient Category II official also has the discretion under the a business as usual approach, then the information to permit an inference of FOIA to release exempt information request should be processed. However, the Category I elements needed to when appropriate; he or she must the request need not be processed where conduct such a search. exercise this discretion in a reasonable the capability to respond does not exist (3) The following guidelines deal with manner, within regulations consistent without a significant expenditure of requests for personal records. with current policy considerations. The resources, thus not being a normal Ordinarily, when personal identifiers excised copies shall clearly reflect the business as usual approach. As used in are provided only in connection with a denied information by the use of this sense, a significant expenditure of request for records concerning the brackets, indicating the removal of resources in both time and/or requester, only records in a PA system information. Bracketed areas must be manpower that would cause a of records that can be retrieved by sufficiently removed so as to reveal no significant interference with the personal identifiers need be searched. information. The best means to ensure operation of the Army Activity’s However, if an Army Activity has illegibility is to cut out the information automated information system would reason to believe that records on the from a copy of the document and not be a business as usual approach. requester may exist in a record system reproduce the appropriate pages. (h) Description of requested record. other than a PA system, the Army (2) If the document is declassified, all Identification of the record desired is Activity shall search that system under classification markings shall be lined the responsibility of the requester. The the provisions of the FOIA. In either through with a single black line, which requester must provide a description of case, Army Activities may request a will allow the markings to be read. The the desired record that enables the reasonable description of the records document shall then be stamped Government to locate the record with a desired before searching for such ‘‘Unclassified.’’ reasonable amount of effort. In order to records under the provisions of the (f) Public domain. Nonexempt records assist Army Activities in conducting FOIA and the PA. If the record is released under the authority of this part more timely searches, requesters should required to be released under the FOIA, are considered to be in the public endeavor to provide as much identifying the Privacy Act does not bar its domain. Such records may also be made information as possible. When an Army disclosure. available in the DA reading room in Activity receives a request that does not (4) The previous guidelines paper form, as well as electronically, to reasonably describe the requested notwithstanding, the decision of the facilitate public access. Exempt records record, it shall contact the requester and Army Activity concerning disclosed without authorization by the afford the requester the opportunity to reasonableness of description must be appropriate Army FOIA official do not perfect the request. Army Activities are based on knowledge of its files. If the lose their exempt status. Also, while not obligated to act on the request until description enables Army Activity authority may exist to disclose records the requester perfects the request. When personnel to locate the record with
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reasonable effort, the description is misaddressed shall refer the request to direct coordination and obtaining adequate. The fact that a FOIA request the proper address and advise the concurrence from the Activity. The is broad or burdensome in its magnitude requester. Army Activities making requester then shall be notified of such does not, in and of itself, entitle an referrals of requests for records shall referral. Army Activities shall not, in Army Activity to deny the request on include with the referral, a point of any case, release or deny such records the ground that it does not reasonably contact by name, a telephone number, without prior consultation with the describe the records sought. The key and an e-mail address. If the office other Army Activity. factor is the ability of the Army receiving the FOIA request does not (4) Army Activities that receive Activity’s staff to reasonably ascertain know where the requested records are referred requests shall answer them in and locate which records are being located, that activity will contact the accordance with the time limits requested. DA, FOIA/PA Office, to determine the established by the FOIA, this part, and (i) Referrals. The Army FOIA referral office where the request should be their multitrack processing queues, policy is based upon the concept of the referred. based upon the date of initial receipt of originator of a record making a release (1) An Army Activity shall refer for the request at the referring Activity or determination on its information. If an response directly to the requester a agency. (5) Agencies outside DA that are Army Activity receives a request for FOIA request for a record that it holds to another Army Activity or agency subject to the FOIA. records originated by another Army (i) An Army Activity may refer a Activity, it will contact the Army outside the Army, if the record originated in the other Army Activity or FOIA request for any record that Activity to determine if it also received outside agency. Whenever a record or a originated in an agency outside DA or the request, and if not, obtain portion of a record is referred to another that is based on information obtained concurrence from the other Army Army Activity or to a Government from an outside agency to the agency for Activity to refer the request. An Army Agency outside of the Army for a release direct response to the requester after Activity shall refer a FOIA request for a determination and direct response, the coordination with the outside agency, if classified record that it holds to another requester shall be informed of the that agency is subject to FOIA. Army Activity, DoD Component, or referral, unless it has been determined Otherwise, the Army Activity must agency outside the DoD, if the record that notification would reveal exempt respond to the request. originated in another Army Activity or information. Referred records shall only (ii) An Army Activity shall refer to the DoD Component or outside agency, or if be identified to the extent consistent agency that provided the record any the classification is derivative. In this with security requirements. FOIA request for investigative, situation, provide the record and a (2) An Army Activity may refer a intelligence, or any other type of records release recommendation on the record request for a record that it originated to that are on loan to DA for a specific with the referral action. In either another Army Activity or agency when purpose, if the records are restricted situation, the requester shall be advised the other Army Activity or agency has from further release and so marked. of the action taken, unless exempt a valid interest in the record, or the However, if for investigative or information would be revealed. While record was created for the use of the intelligence purposes, the outside referrals to originators of information other Army Activity or agency. In such agency desires anonymity, an Army result in obtaining the best possible situations, provide the record and a Activity may only respond directly to decision on release of the information, release recommendation on the record the requester after coordination with the the policy does not relieve Army with the referral action. Include a point outside agency. Activities from the responsibility of of contact with the telephone number. (6) Army Activities that receive making a release decision on a record An example of such a situation is a requests for records of the National should the requester object to referral of request for audit reports prepared by the Security Council (NSC), the White the request and the record. Should this U.S. Army Audit Agency. These House, or the White House Military situation occur, Army Activities shall advisory reports are prepared for the use Office (WHMO) shall process the still coordinate with the originator of of contracting officers and their release requests. Army records in which the the information prior to making a to the audited contractor shall be at the NSC or White House has a concurrent release determination. A request discretion of the contracting officer. A reviewing interest, and NSC, White received by an Army Activity having no FOIA request shall be referred to the House, or WHMO records discovered in records responsive to a request shall be appropriate Army Activity and the Army Activity’s files shall be forwarded referred routinely to another Army requester shall be notified of the through DA, FOIA/PA Office, to the Activity, if the other Army Activity has referral, unless exempt information Washington Headquarters Services, reason to believe it has the requested would be revealed. Another example is Office For Freedom of Information and records. Prior to notifying a requester of a record originated by an Army Activity Security Review (OFOISR). The OFOISR a referral to another Army Activity, the or agency that involves foreign relations, shall coordinate with the NSC, White Army Activity receiving the initial and could affect an Army Activity or House, or WHMO and return the records request shall consult with the other organization in a host foreign country. to the originating agency after Army Activity to determine if that Army Such a request and any responsive coordination. Activity’s association with the material records may be referred to the affected (7) To the extent referrals are is exempt. If the association is exempt, Army Activity or organization for consistent with the policies expressed the Army Activity receiving the initial consultation prior to a final release by this section, referrals between offices request will protect the association and determination within DA. of the same Army Activity are any exempt information without (3) Within DA, an Army Activity shall authorized. revealing the identity of the protected ordinarily refer a FOIA request and a (8) On occasion, the DA receives Army Activity. The protected Army copy of the record it holds but that FOIA requests for General Accounting Activity should be responsible for originated with another Army Activity Office (GAO) records containing Army submitting the justifications required in or that contains substantial information information. Even though the GAO is any litigation. Any Army Activity obtained from another Army Activity, to outside the Executive Branch, and not receiving a request that has been that Activity for direct response, after subject to the FOIA, all FOIA requests
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for GAO documents containing Army records and who cite or imply only the information without a FOIA exemption, information received either from the PA, will have their requests processed release all non-responsive and public or on referral from the GAO shall under the provisions of both the PA and responsive information that is not be processed under the provisions of the the FOIA. If the PA system of records is exempt. For non-responsive information FOIA. exempt from the provisions of 5 U.S.C. that is exempt, notify the requester that (j) Authentication. Records provided 552a(d)(1) and if the records, or any even if the information were determined under this part shall be authenticated portion thereof, are exempt under the responsive, it would likely be exempt with an appropriate seal, whenever FOIA, the requester shall be so advised under (state appropriate exemption(s)). necessary, to fulfill an official with the appropriate PA and FOIA Advise the requester of the right to Government or other legal function. exemption. Appeals shall be processed request this information under a This service, however, is in addition to under both Acts. separate FOIA request. The separate that required under the FOIA and is not (3) Requesters who seek records about request shall be placed in the same included in the FOIA fee schedule. themselves that are not contained in a location within the processing queue as Army Activities may charge for the Privacy Act system of records and who the original request. service at a rate of $5.20 for each cite or imply the PA will have their (3) If the responsive record is authentication. requests processed under the provisions classified, and the requester does not (k) Records management. FOIA of the FOIA, since the PA does not agree to deletion of non-responsive records shall be maintained and apply to these records. Appeals shall be information without a FOIA exemption, disposed of in accordance with the processed under the FOIA. release all unclassified responsive and National Archives and Records (4) Requesters who seek records about non-responsive information that is not Administration (NARA) General themselves that are contained in a PA exempt. The classified, non-responsive Records Schedule and DoD Component system of records and who cite or imply information need not be reviewed for records schedules. the FOIA or both Acts will have their declassification at this point. Advise the (l) Record-keeping requirements in requests processed under the provisions requester that even if the classified accordance with the Army Records of both the PA and the FOIA. If the PA information were determined Information Management System system of records is exempt from the responsive, it would likely be exempt (ARIMS). The records listed below are provisions of 5 U.S.C. 552a(d)(1) and if under 5 U.S.C. 552(b)(1), and other required by ARIMS in the conduct of the records, or any portion thereof, are exemptions if appropriate. Advise the the daily business of the Army to exempt under the FOIA, the requester requester of the right to request this provide adequate and proper shall be so advised with the appropriate information under a separate FOIA documentation to protect the rights and PA and FOIA exemption. Appeals shall request. The separate request shall be interests of individuals and the Federal be processed under both Acts. placed in the same location within the Government. The full description of the (5) Requesters who seek access to processing queue as the original request. records and their disposition is found at agency records that are not part of a PA (o) Honoring form or format requests. https://www2.arims.army.mil. system of records, and who cite or Army Activities shall provide the record (1) FOIA requests, access, and denials; imply the PA and FOIA, will have their in any form or format requested by the (2) FOIA administrative files; requests processed under the FOIA requester if the record is readily (3) FOIA appeals; since the PA does not apply to these reproducible in that form or format. (4) FOIA controls; records. Appeals shall be processed Army Activities shall make reasonable (5) FOIA reports; under the FOIA. Requesters who seek efforts to maintain their records in forms (6) Access to information files; access to agency records and who cite or formats that are reproducible. In (7) Safeguarded nondefense or imply the FOIA will have their responding to requests for records, information releases; requests and appeals processed under Army Activities shall make reasonable (8) Nonsafeguarded information the FOIA. efforts to search for records in electronic releases; (6) Requesters shall be advised in the form or format, except when such efforts (9) Unauthorized disclosure reports; final response letter, which Act(s) was would significantly interfere with the (10) Acknowledgement; and (were) used, inclusive of appeal rights operation of the Army Activities’ (11) Initial Denial Authority as outlined in paragraphs (m)(1) through automated information system. Such designations/appointments. (5) of this section. determinations shall be made on a case- (m) Relationship between the FOIA (n) Non-responsive information in by-case basis. and the Privacy Act (PA). Not all responsive records. Army Activities requesters are knowledgeable of the shall interpret FOIA requests liberally Subpart B—FOIA Reading Rooms appropriate statutory authority to cite when determining which records are when requesting records, nor are all of responsive to the requests, and may § 518.9 Reading room. them aware of appeal procedures. In release non-responsive information. (a) Reading room location. The DA some instances, they may cite neither However, should Army Activities desire shall provide an appropriate facility or Act, but will imply one or both Acts. to withhold non-responsive facilities where the public may inspect For these reasons, the below guidelines information, the following steps shall be and copy or have copied the records are provided to ensure that requesters accomplished: described in paragraphs (b)(1) through receive the greatest amount of access (1) Consult with the requester, and (4) of this section. In addition to the rights under both Acts. ask if the requester views the records described, DA may elect to (1) If the record is required to be information as responsive, and if not, place other records in their reading released under the FOIA, the PA does seek the requester’s concurrence to room, and also make them electronically not bar its disclosure. Unlike the FOIA, delete the non-responsive information available to the public. The Army may the PA applies only to U.S. citizens and without a FOIA exemption. Reflect this share reading room facilities with DoD aliens lawfully admitted for permanent concurrence in the response letter. Components if the public is not unduly residence. (2) If the responsive record is inconvenienced, and also may establish (2) Requesters who seek records about unclassified, and the requester does not decentralized reading rooms. When themselves contained in a PA system of agree to deletion of non-responsive appropriate, the cost of copying may be
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imposed on the person requesting the tactics, standards of performance, or (b) The DA FOIA/PA Office shall material in accordance with the criteria for defense, prosecution, or promptly publish quarterly or more provisions of Subpart F of this part. The settlement of cases; and frequently, and distribute, by sale or Army FOIA Public Reading Room is (ii) Operations and maintenance otherwise, copies of each index of operated by the DA, FOIA/PA Office. manuals and technical information ‘‘(a)(2)’’ materials or supplements (b) Record availability. The FOIA concerning munitions, equipment, thereto unless it publishes in the requires that records described in 5 systems, and intelligence activities. Federal Register an order containing a U.S.C. 552(a)(2)(A), (B), (C), and (D) (4) (a)(2)(D) records. Those 5 U.S.C. determination that publication is created on or after November 1, 1996, 552(a)(3) records, which because of the unnecessary and impracticable. A copy shall be made available electronically, nature of the subject matter, have of each index or supplement not as well as in hard copy in the FOIA become or are likely to become the published shall be provided to a reading room for inspection and subject of subsequent requests for requester at a cost not to exceed the copying, unless such records are substantially the same records. These direct cost of duplication as set forth in published and copies are offered for records are referred to as FOIA- Subpart F of this part. sale. All portions determined to be processed (a)(2) records. (c) Each index of ‘‘(a)(2)’’ materials or exempt in accordance with 5 U.S.C. 552 (i) Army Activities shall decide on a supplement thereto shall be arranged (reference (a)) shall be deleted from all case by case basis whether records fall topically or by descriptive words rather 5 U.S.C. 552(a)(2) records made into this category, based on previous than by case name or numbering system available to the general public. In every experience of the Army Activity with so that members of the public can case, justification for the deletion must similar records; particular readily locate material. Case name and be fully explained in writing, and the circumstances of the records involved, numbering arrangements, however, may extent of such deletion shall be including their nature and the type of also be included for Army convenience. indicated on the record that is made information contained in them; or the (d) A general index of FOIA-processed publicly available, unless such identity and number of requesters and (a)(2) records shall be made available to indication would harm an interest whether there is widespread press, the public, both in hard copy and protected by an exemption under which historic, or commercial interest in the electronically. the deletion was made. If technically records. feasible, the extent of the deletion in (ii) This provision is intended for § 518.11 Other materials. electronic records or any other form of situations where public access in a (a) Any available index of Army record shall be indicated at the place in timely manner is important, and it is not material published in the Federal the record where the deletion was made. intended to apply where there may be Register, such as material required to be However, the Army may publish in the a limited number of requests over a published by Section 552(a)(1) of the Federal Register a description of the short period of time from a few FOIA, shall be made available in the basis upon which it will delete requesters. Army Activities may remove Army FOIA Public Reading Room, and identifying details of particular types of the records from this access medium electronically to the public. records to avoid clearly unwarranted when the appropriate officials (b) Although not required to be made invasions of privacy, or competitive determine that access is no longer available in response to FOIA requests harm to business submitters. In necessary. or made available in FOIA Reading appropriate cases, the Army may refer to (iii) Should a requester submit a FOIA Rooms, ‘‘(a)(1)’’ materials shall, when this description rather than write a request for FOIA-processed (a)(2) feasible, be made available to the public separate justification for each deletion. records, and insist that the request be in FOIA reading rooms for inspection 5 U.S.C. 552(a)(2)(A), (B), (C), and (D) processed, Army Activities shall process and copying, and by electronic means. records are: the FOIA request. However, Army Examples of ‘‘(a)(1)’’ materials are (1) (a)(2)(A) records. Final opinions, Activities have no obligation to process descriptions of an agency’s central and including concurring and dissenting a FOIA request for 5 U.S.C. 552(a)(2)(A), field organization, and to the extent they opinions, and orders made in the (B), and (C) records because these affect the public, rules of procedures, adjudication of cases, as defined in 5 records are required to be made public descriptions of forms available, U.S.C. 551, that may be cited, used, or and not FOIA-processed under instruction as to the scope and contents relied upon as precedents in future paragraph (a)(3) of the FOIA. of papers, reports, or examinations, and adjudications; § 518.10 ‘‘(a)(2)’’ materials. any amendment, revision, or report of (2) (a)(2)(B) records. Statements of the aforementioned. policy and interpretations that have (a) The DA FOIA/PA Office shall been adopted by the agency that are not maintain in the facility an index of Subpart C—Exemptions published in the Federal Register; and materials described in paragraphs (b)(1) (3) (a)(2)(C) records. Administrative through (4) of § 518.9, that are issued, § 518.12 General. staff manuals and instructions, or adopted, or promulgated after July 4, Records that meet the exemption portions thereof that establish Army 1967. No ‘‘(a)(2)’’ materials issued, criteria of the FOIA may be withheld policy or interpretations of policy that promulgated, or adopted after July 4, from public disclosure and need not be affect a member of the public. This 1967 that are not indexed and either published in the Federal Register, made provision does not apply to instructions made available or published may be available in a library reading room, or for employees on tactics and techniques relied upon, used or cited as precedent provided in response to a FOIA request. to be used in performing their duties, or against any individual unless such to instructions relating only to the individual has actual and timely notice § 518.13 FOIA exemptions. internal management of the Army. of the contents of such materials. Such The following types of records may be Examples of manuals and instructions materials issued, promulgated, or withheld in whole or in part from not normally made available are: adopted before July 4, 1967 need not be public disclosure under the FOIA, (i) Those issued for audit, indexed, but must be made available unless otherwise prescribed by law. A investigation, and inspection purposes, upon request if not exempted under this discretionary release of a record to one or those that prescribe operational part. requester shall prevent the withholding
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of the same record under a FOIA Activities are encouraged to consult the Army Activities shall apply the low 2 exemption if the record is subsequently DA, FOIA/PA Office, and the U.S. DoJ exemption as applicable. requested by someone else. However, a ‘‘Freedom of Information Act Guide & (c) Number 3 (5 U.S.C. 552(b)(3)). FOIA exemption may be invoked to Privacy Act Overview’’ for a more in Those concerning matters that a statute withhold information that is similar or depth discussion on the legal history of specifically exempts from disclosure by related to that which has been the the use of the low (b)(2) exemption. terms that permit no discretion on the subject of a discretionary release. In When only a minimal Government issue, or in accordance with criteria applying exemptions, the identity of the interest would be affected established by that statute for requester and the purpose for which the (administrative burden), Army withholding or referring to particular record is sought are irrelevant with the Activities shall apply the sound legal types of matters to be withheld. The DA, exception that an exemption may not be basis standard regarding disclosure of FOIA/PA Office, maintains a list of invoked where the particular interest to the information. Army Activities shall (b)(3) statutes used within the DoD, and be protected is the requester’s interest. apply the low 2 exemption as provides updated lists of these statutes However, if the subject of the record is applicable. to Army Activities on a periodic basis. the requester for the record and the (1) Records qualifying under high A few examples of such statutes are: record is contained in a PA system of (b)(2) are those containing or (1) Personnel in Overseas, Sensitive, records, it may only be denied to the constituting statutes, rules, regulations, or Routinely Deployable Units: requester if withholding is both orders, manuals, directives, nondisclosure of personally identifying authorized by AR 25–71 and by a FOIA instructions, security classification information, 10 U.S.C. 130(b). exemption. guides, and sensitive but unclassified Additionally, the names and duty (a) Number 1 (5 U.S.C. 552 (b)(1)). information related to America’s addresses (postal and/or e-mail) of Those properly and currently classified homeland security and critical Army military and civilian personnel in the interest of national defense or infrastructure information the release of who are assigned to units that are foreign policy, as specifically authorized which would allow circumvention of sensitive, routinely deployable, or under the criteria established by these records thereby substantially stationed in foreign territories can Executive Order and implemented by hindering the effective performance or constitute a clearly unwarranted regulations, such as DoD 5200.1–R. present an unwarranted risk of adverse invasion of personal privacy and may Although material is not classified at the impact on the ability of other agencies also be withheld in accordance with time of the FOIA request, a to protect other important records of a FOIA Exemption 3. Names and duty classification review may be undertaken significant function of the DA. Examples addresses (postal and/or e-mail) to determine whether the information include: published in telephone directories, should be classified. The procedures in (i) Those operating rules, guidelines, organizational charts, rosters and DoD 5200.1–R apply. If the information and manuals for Army investigators, similar materials for personnel assigned qualifies as exemption 1 information, inspectors, auditors, or examiners that to units that are sensitive, routinely there is no discretion regarding its must remain privileged in order for the deployable, or stationed in foreign release. In addition, this exemption Army Activity to fulfill a legal territories are withholdable under this shall be invoked when the following requirement; exemption, in accordance with 10 situations are apparent: (1) The fact of the existence or (ii) Personnel and other U.S.C. 130 ‘‘Personnel in Overseas, nonexistence of a record would itself administrative matters, such as Sensitive, or Routinely Deployable reveal classified information. In this examination questions and answers Units;’’ situation, Army Activities shall neither used in training courses or in the (2) Classification and Declassification confirm nor deny the existence or determination of the qualifications of of Restricted Data, 42 U.S.C. 2162; nonexistence of the record being candidates for employment, entrance on (3) Disclosure of Classified requested. A ‘‘refusal to confirm or duty, advancement, or promotion; and Information, 18 U.S.C. 798(a); deny’’ response must be used (iii) Computer software, the release of (4) Authority to Withhold from Public consistently, not only when a record which would allow circumvention of a Disclosure Certain Technical Data, 10 exists, but also when a record does not statute, DoD or Army rules, regulations, U.S.C. 130 and DoDD 5230.25; exist. Otherwise, the pattern of using a orders, manuals, directives, or (5) Confidentiality of Medical Quality ‘‘no record’’ response when a record instructions. In this situation, the use of Assurance Records: Qualified Immunity does not exist, and a ‘‘refusal to confirm the software must be closely examined for Participants, 10 U.S.C. 1102(f); or deny’’ when a record does exist will to ensure a circumvention possibility (6) Physical Protection of Special itself disclose national security exists. Nuclear Material: Limitation on information. (2) Records qualifying under the low Dissemination of Unclassified (2) Compilations of items of (b)(2) profile are those that are trivial Information, 10 U.S.C. 128; information that are individually and housekeeping in nature for which (7) Protection of Intelligence Sources unclassified may be classified if the there is no legitimate public interest or and Methods, 50 U.S.C. 403–3(c)(6); compiled information reveals additional benefit to be gained by release, and it (8) Prohibition on Release of association or relationship that meets would constitute an administrative Contractor Submitted Proposals, 10 the standard for classification under an burden to process the request in order U.S.C. 2305(g); existing executive order for to disclose the records. Examples (9) Restrictions on Disclosing and classification and DoD 5200.1–R, and is include rules of personnel’s use of Obtaining Contractor Bid or Proposal not otherwise revealed in the individual parking facilities or regulation of lunch Information or Source Selection items of information. hours, statements of policy as to sick Information, 41 U.S.C. 423; and (b) 5 U.S.C. 552(b)(2). Those related leave, and administrative data such as (10) Secrecy of Certain Inventions and solely to the internal personnel rules file numbers, mail routing stamps, Filing Applications in a Foreign and practices of the DoD or any of its initials, data processing notations, brief Country, 35 U.S.C. 181–188. Any Components. This exemption has two references to previous communications, records containing information relating profiles, high (b)(2) and low (b)(2). and other like administrative markings. to inventions that are the subject of
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patent applications on which Patent information submitted with an (1) Examples of the deliberative Secrecy Orders have been issued. application for a research grant, or with process include: (d) Number 4 (5 U.S.C. 552 (b)(4)). a report while research is in progress; (i)The non-factual portions of staff Those containing trade secrets or (6) Technical or scientific data papers, to include after-action reports, commercial or financial information developed by a contractor or lessons learned, and situation reports that an Army Activity receives from a subcontractor exclusively at private containing staff evaluations, advice, person or organization outside the expense, and technical or scientific data opinions, or suggestions; Government with the understanding developed in part with Federal funds (ii) Advice, suggestions, or that the information or record will be and in part at private expense, wherein evaluations prepared on behalf of the retained on a privileged or confidential the contractor or subcontractor has DA by individual consultants or by basis in accordance with the customary retained legitimate proprietary interests boards, committees, councils, groups, handling of such records. Records in such data in accordance with 10 panels, conferences, commissions, task within the exemption must contain U.S.C. 2320–2311 and DoD Federal forces, or other similar groups that are trade secrets, or commercial or financial Acquisition Regulation Supplement formed for the purpose of obtaining records, the disclosure of which is likely (DFARS), Subpart 27.4. Technical data advice and recommendations.; to cause substantial harm to the developed exclusively with Federal (iii) Those non-factual portions of competitive position of the source funds may be withheld under evaluations by DoD Component providing the information, impair the Exemption Number 3 if it meets the personnel of contractors and their Government’s ability to obtain necessary criteria of 10 U.S.C. 130 and DoDD products; (iv) Information of a speculative, information in the future, or impair 5230.25; tentative, or evaluative nature or such some other legitimate Government (7) Computer software, which is interest. Commercial or financial matters as proposed plans to procure, copyrighted in accordance with 17 lease or otherwise acquire and dispose information submitted on a voluntary U.S.C. 106, ‘Exclusive rights in basis, absent any exercised authority of materials, real estate, facilities or Copyrighted Works, the disclosure of functions, when such information prescribing criteria for submission is which would have an adverse impact on protected without any requirement to would provide undue or unfair the potential market value of a competitive advantage to private show competitive harm. If the copyrighted work; and information qualifies as exemption 4 personal interests or would impede (8) Proprietary information submitted information, there is no discretion in its legitimate government functions; strictly on a voluntary basis, absent any release. Examples include: (v) Trade secret or other confidential (1) Commercial or financial exercised authority prescribing criteria research development, or commercial information received in confidence in for submission. Examples of exercised information owned by the Government, connection with loans, bids, contracts, authorities prescribing criteria for where premature release is likely to or proposals set forth in or incorporated submission are statutes, Executive affect the Government’s negotiating by reference in a contract entered into Orders, regulations, invitations for bids, position or other commercial interest; between the Army Activity and the requests for proposals, and contracts. (vi) Those portions of official reports offeror that submitted the proposal, as Submission of information under these of inspection, reports of the Inspector well as other information received in authorities is not voluntary. Generals, audits, investigations, or confidence or privileged, such as trade (e) Number 5 (5 U.S.C. 552 (b)(5)). surveys pertaining to safety, security, or secrets, inventions, discoveries, or other Those containing information the internal management, proprietary data. Additionally, when the considered privileged in litigation, administration, or operation of one or provisions of 10 U.S.C. 2305(g) and 41 primarily under the deliberative process more Army Activities, when these U.S.C. 423 are met, certain proprietary privilege. Except as provided in records have traditionally been treated and source selection information may be paragraphs (e) (1) through (5) of this by the courts as privileged against withheld under exemption 3; section, internal advice, disclosure in litigation; and (2) Statistical data and commercial or recommendations, and subjective (vii) Planning, programming, and financial information concerning evaluations, as contrasted with factual budgetary information that is involved contract performance, income, profits, matters that are reflected in deliberative in the defense planning and resource losses, and expenditures, if offered and records pertaining to the decision- allocation process. received in confidence from a contractor making process of an agency, whether (2) If any such intra-or inter-agency or potential contractor; within or among agencies (as defined in record or reasonably segregable portion (3) Personal statements given in the 5 U.S.C. 552(e)), or within or among of such record hypothetically would be course of inspections, investigations, or Army Activities. In order to meet the made available routinely through the audits, when such statements are test of this exemption, the record must discovery process in the course of received in confidence from the be both deliberative in nature, as well as litigation with the Army, then it should individual and retained in confidence part of a decision-making process. not be withheld under the FOIA. If, because they reveal trade secrets or Merely being an internal record is however, the information hypothetically commercial or financial information insufficient basis for withholding under would not be released at all, or would normally considered confidential or this exemption. Also potentially only be released in a particular case privileged; exempted are records pertaining to the during civil discovery where a party’s (4) Financial data provided in attorney-client privilege and the particularized showing of need might confidence by private employers in attorney work-product privilege. override a privilege, then the record connection with locality wage surveys Discretionary disclosure decisions may be withheld. Discovery is the that are used to fix and adjust pay should be made only after full and formal process by which litigants obtain schedules applicable to the prevailing deliberate consideration of the information from each other for use in wage rate of employees within the DA; institutional, commercial, and personal the litigation. Consult with legal counsel (5) Scientific and manufacturing privacy interests that could be to determine whether exemption 5 processes or developments concerning implicated by disclosure of the material would be routinely made technical or scientific data or other information. available through the discovery process.
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(3) Intra- or inter-agency memoranda (2) Army components shall ordinarily not sufficient to outweigh the privacy or letters that are factual, or those withhold lists of names (including interest. In this situation, Army reasonably segregable portions that are active duty military, civilian employees, Activities shall neither confirm nor factual, are routinely made available contractors, members of the National deny the existence or nonexistence of through discovery, and shall be made Guard and Reserves, and military the record being requested. This is a available to a requester, unless the dependents) and other personally ‘‘Glomar’’ response, and exemption 6 factual material is otherwise exempt identifying information, including lists must be cited in the response. from release, inextricably intertwined of e-mail addresses of personnel Additionally, in order to ensure with the exempt information, so currently or recently assigned within a personal privacy is not violated during fragmented as to be uninformative, or so particular component, unit, referrals, Army Activities shall redundant of information already organization, or office within the Army. coordinate telephonically or in person available to the requester as to provide Home addresses, including private e- with other Army Activities or DoD no new substantive information. mail addresses, are normally not Components or Federal Agencies before (4) A direction or order from a releasable without the consent of the referring a record that is exempt under superior to a subordinate, though individuals concerned. This includes the ‘‘Glomar’’ concept. See Phillippi v. contained in an internal lists of home addresses and military CIA, 546 F.2d 1009 (D.C. Cir. 1976). communication, generally cannot be quarters’ addressees without the (v) A ‘‘refusal to confirm or deny’’ withheld from a requester if it occupant’s name. response must be used consistently, not constitutes policy guidance or a (i) Privacy interest. A privacy interest only when a record exists, but also decision, as distinguished from a may exist in personal information even when a record does not exist. discussion of preliminary matters or a though the information has been Otherwise, the pattern of using a ‘‘no request for information or advice that disclosed at some place and time. If records’’ response when a record does would compromise the decision-making personal information is not freely not exist and a ‘‘refusal to confirm or process. available from sources other than the deny’’ when a record does exist will (5) An internal communication Federal Government, a privacy interest itself disclose personally private concerning a decision that subsequently exists in its nondisclosure. The fact that information. Refusal to confirm or deny has been made a matter of public record the Federal Government expended should not be used when: must be made available to a requester funds to prepare, index and maintain (A) The person whose personal when the rationale for the decision is records on personal information, and privacy is in jeopardy has provided the expressly adopted or incorporated by the fact that a requester invokes FOIA to requester a waiver of his or her privacy obtain these records indicates the reference in the record containing the rights; information is not freely available. decision. (B) The person initiated or directly (ii) The right to privacy of deceased (f) Number 6 (5 U.S.C. 552 (b)(6)). participated in an investigation that lead persons is not entirely settled, but the to the creation of an agency record seeks Information in personnel and medical majority rule is that death extinguishes files, as well as similar personal access to that record; or their privacy rights. However, (C) The person whose personal information in other files, and lists of particularly sensitive, graphic, personal privacy is in jeopardy is deceased, the personally identifying information of details about the circumstances Agency is aware of that fact, and Army personnel, that, if disclosed to a surrounding an individual’s death may disclosure would not invade the privacy requester, other than the person about be withheld when necessary to protect of the deceased’s family. whom the information is about, would the privacy interests of surviving family (g) Number 7 (5 U.S.C. 552 (b)(7)). result in a clearly unwarranted invasion members. Even information that is not Records or information compiled for of personal privacy. Release of particularly sensitive in and of itself law enforcement purposes, i.e., civil, information about an individual may be withheld to protect the privacy criminal, or military, including the contained in a Privacy Act System of interests of surviving family members if implementation of Executive Orders or Records that would constitute a clearly disclosure would rekindle grief, regulations issued pursuant to law. This unwarranted invasion of privacy is anguish, pain, embarrassment, or cause exemption may be invoked to prevent prohibited, and could subject the a disruption of their peace of minds. disclosure of documents not originally releaser to civil and criminal penalties. Additionally, the deceased’s social created for, but later gathered for law If the information qualifies as security number should be withheld enforcement purposes. With the exemption 6 information, there is no since it is used by the next of kin to exception of parts (C) and (F), this discretion regarding its release. receive benefits. Disclosures of the exemption is discretionary. If (1) Examples of other files containing deceased’s social security number may information qualifies as exemption personal information similar to that be made to the immediate next of kin. (7)(C) or (7)(F) information, there is no contained in personnel and medical (iii) A clearly unwarranted invasion of discretion in its release. files include: the privacy of third parties identified in (1) This exemption applies, however, (i) Those compiled to evaluate or a personnel, medical or similar record only to the extent that production of adjudicate the suitability of candidates constitutes a basis for deleting those such law enforcement records or for civilian employment or membership reasonably segregable portions of that information could result in the in the Armed Forces, and the eligibility record. When withholding third party following: of individuals (civilian, military, or personal information from the subject of (i) Could reasonably be expected to contractor employees) for security the record and the record is contained interfere with law enforcement clearances, or for access to particularly in a Privacy Act system of records, proceedings (5 U.S.C. 552(b)(7)(A)); sensitive classified information; and consult with legal counsel. (ii) Would deprive a person of the (ii) Files containing reports, records, (iv) This exemption also applies when right to a fair trial or to an impartial and other material pertaining to the fact of the existence or nonexistence adjudication (5 U.S.C. 552(b)(7)(B)); personnel matters in which of a responsive record would itself (iii) Could reasonably be expected to administrative action, including reveal personally private information, constitute an unwarranted invasion of disciplinary action, may be taken. and the public interest in disclosure is the personal privacy of a living person,
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or to surviving family members of an (i) Statements of witnesses and other not subject to 5 U.S.C. 552(b)(7), the individual identified in such a record (5 material developed during the course of response to the requester will state that U.S.C. 552(b)(7)(C)); the investigation and all materials no records were found. (iv) This exemption also applies when prepared in connection with related (h) Number 8 (5 U.S.C. 552(b)(8)). the fact of the existence or nonexistence Government litigation or adjudicative Those contained in or related to of a responsive record would itself proceedings; examination, operation or condition reveal personally private information, (ii) The identity of firms or reports prepared by, on behalf of, or for and the public interest in disclosure is individuals being investigated for the use of any agency responsible for the not sufficient to outweigh the privacy alleged irregularities involving regulation or supervision of financial interest. In this situation, Activities contracting with the DoD when no institutions. shall neither confirm nor deny the indictment has been obtained or any (i) Number 9 (5 U.S.C. 552(b)(9)). existence or nonexistence of the record civil action filed against them by the Those containing geological and being requested. This is a ‘‘Glomar’’ United States; and geophysical information and data response, and exemption (7)(C) must be (iii) Information obtained in (including maps) concerning wells. cited in the response. Additionally, in confidence, expressed or implied, in the order to ensure personal privacy is not course of a criminal investigation by a Subpart D—For Official Use Only violated during referrals, Army criminal law enforcement agency or Activities shall coordinate with other office within an Army Activity or a DoD § 518.14 General. Army Activities or DoD Components or Component, or a lawful national Information that has not been given a Federal Agencies before referring a security intelligence investigation security classification pursuant to the record that is exempt under the conducted by an authorized agency or criteria of an Executive Order, but ‘‘Glomar’’ concept; office within an Army Activity or a DoD which may be withheld from the public (v) A ‘‘refusal to confirm or deny’’ Component. National security because disclosure would cause harm to response must be used consistently, not intelligence investigations include an interest protected by one or more only when a record exists, but also background security investigations and FOIA exemptions 2 through 9 (see when a record does not exist. those investigations conducted for the Subpart C of this part) shall be Otherwise, the pattern of using a ‘‘no purpose of obtaining affirmative or considered as being for official use only records’’ response when a record does counterintelligence information. (FOUO). No other material shall be not exist and a ‘‘refusal to confirm or (3) The right of individual litigants to considered FOUO and FOUO is not deny’’ when a record does exist will investigative records currently available authorized as an additional form of itself disclose personally private by law (such as, the Jencks Act, 18 classification to protect national information; U.S.C. 3500), is not diminished. security interests. Additional (vi) Refusal to confirm or deny should (4) Excluded from exemption 7 are information on FOUO and other not be used when the person whose two situations applicable to DoD. controlled, unclassified information personal privacy is in jeopardy has (Activities considering invoking an may be found in DoD 5200.1–R, provided the requester with a waiver of exclusion based on the following ‘‘Information Security Program’’ or by his or her privacy rights; or the person scenarios should first consult through contacting the DA FOIA/PA Office. whose personal privacy is in jeopardy is legal counsel, to the DoJ, Office of deceased, and the Agency is aware of Information and Privacy (DoJ OIP). Subpart E—Release and Processing that fact and disclosure would not (i) Whenever a request is made that Procedures invade the privacy of the deceased’s involves access to records or § 518.15 General provisions. family; information compiled for law (vii) Could reasonably be expected to enforcement purposes, and the (a) Since the policy of the DoD is to disclose the identity of a confidential investigation or proceeding involves a make the maximum amount of source, including a source within DoD, possible violation of criminal law where information available to the public a State, local, or foreign agency or there is reason to believe that the subject consistent with its other authority, or any private institution that of the investigation or proceeding is responsibilities, written requests for an furnishes the information on a unaware of its pendency, and the Army record made under the provisions confidential basis; and could disclose disclosure of the existence of the of 5 U.S.C. 552(a)(3) of the FOIA may be information furnished from a records could reasonably be expected to denied only when: confidential source and obtained by a interfere with enforcement proceedings, (1) The record is subject to one or criminal law enforcement authority in a Activities may, during only such times more of the exemptions of the FOIA; criminal investigation or by an agency as that circumstance continues, treat the (2) The record has not been described conducting a lawful national security records or information as not subject to well enough to enable the Army intelligence investigation (5 U.S.C. the FOIA. In such a situation, the Activity to locate it with a reasonable 552(b)(7)(D)); response to the requester will state that amount of effort by an employee (viii) Would disclose techniques and no records were found. familiar with the files; or procedures for law enforcement (ii) Whenever informant records (3) The requester has failed to comply investigations or prosecutions, or would maintained by a criminal law with the procedural requirements, disclose guidelines for law enforcement enforcement organization within an including the written agreement to pay investigations or prosecutions if such Army Activity or a DoD Component or payment of any required fee imposed disclosure could reasonably be expected under the informant’s name or personal by the instructions of the Army Activity to risk circumvention of the law (5 identifier are requested by a third party concerned. When personally U.S.C. 552(b)(7)(E)); or using the informant’s name or personal identifiable information in a record is (ix) Could reasonably be expected to identifier, the Activity may treat the requested by the subject of the record or endanger the life or physical safety of records as not subject to the FOIA, his attorney, notarization of the request, any individual (5 U.S.C. 552(b)(7)(F)). unless the informant’s status as an or a statement certifying under the (2) Some examples of exemption 7 informant has been officially confirmed. penalty of perjury that their identity is are: If it is determined that the records are true and correct may be required.
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Additionally, written consent of the (6) OPSEC/FOIA advisors do not, by institution if the person concerned is an subject of the record is required for their actions, relieve FOIA personnel inmate or patient there. disclosure from a PA system of records, and custodians processing FOIA (vii) Copies of records or information to include the subject’s attorney. requests of their responsibility to protect from them may be given to authorized (4) Release of information under the classified or exempted information. representatives of certain agencies. The FOIA can have an adverse impact on (b) The provisions of the FOIA are National Academy of Sciences, the OPSEC. The Army implementing reserved for persons with private National Research Council, and other directive for OPSEC is AR 530–1. It interests as opposed to U.S. Federal accredited agencies are eligible to requires that OPSEC points of contact be Agencies seeking official information. receive such information when they are named for all HQDA staff agencies and Requests from private persons will be engaged in cooperative studies, with the for all commands down to battalion made in writing, and should clearly approval of The Surgeon General of the level. The FOIA official for the staff show all other addressees within the Army. However, certain information on agency or command will use DA Form Federal Government to which the drug and alcohol use cannot be released. 4948–R to announce the OPSEC/FOIA request was also sent. This procedure AR 600–85 covers the Army’s substance advisor for the command. Persons will reduce processing time abuse program. named as OPSEC points of contact will requirements, and ensure better inter- (viii) Copies of pertinent parts of a be OPSEC/FOIA advisors. Command and intra-agency coordination. patient’s records can be furnished to the OPSEC/FOIA advisors should However, if the requester does not show staff judge advocate or legal officer of implement the policies and procedures all other addressees to which the the command in connection with the in AR 530–1, consistent with this part request was also sent, Army Activities Government’s collection of a claim. If and with the following considerations: shall still process the request. Army proper, the legal officer can release this (i) Documents or parts of documents Activities should encourage requesters information to the tortfeasor’s insurer properly classified in the interest of to send requests by mail, facsimile, or without the patient’s consent. national security must be protected. by electronic means. Disclosure of Classified documents may be released in Note: Information released to third parties records to individuals under the FOIA must be accompanied by a statement of the response to a FOIA request only under is considered public release of AR 380–5, Chapter III. AR 380–5 conditions of release. The statement will information, except as provided in this specify that the information not be disclosed provides that if parts of a document are paragraph. DA officials will release the to other persons except as privileged not classified and can be segregated following records, upon request, to the communication between doctor and patient. with reasonable ease, they may be persons specified below, even though released, but parts requiring continued (2) Military personnel records. these records are exempt from release to protection must be clearly identified. Military personnel records will be (ii) The release of unclassified the general public. The statutory 20 released under these conditions: documents could violate national working day limit applies. (i) DA must provide specific security. When this appears possible, (1) Medical records. Commanders or information about a person’s military OPSEC/FOIA advisors should request a chiefs of medical treatment facilities service (statement of military service) in classification evaluation of the will release information— response to a request by that person or document by its proponent under AR (i) On the condition of sick or injured with that person’s written consent to his 380–5, paragraphs 2–204, 2–600, 2–800, patients to the patient’s relatives to the or her legal representative; and 2–801. In such cases, other FOIA extent permitted by law and regulation. (ii) Papers relating to applications for, exemptions may also apply. (ii) That a patient’s condition has designation of beneficiaries under, and (iii) A combination of unclassified become critical to the nearest known allotments to pay premiums for, documents, or parts of them, could relative or to the person the patient has National Service Life Insurance or combine to supply information that named to be informed in an emergency. Serviceman’s Group Life Insurance will might violate national security if (iii) That a diagnosis of psychosis has be released to the applicant or to the released. When this appears possible, been made to the nearest known relative insured. If the insured is adjudged OPSEC/FOIA advisors should consider or to the person named by the patient. insane (evidence of an insanity classifying the combined information (iv) On births, deaths, and cases of judgment must be included) or dies, the per AR 380–5, paragraph 2–211. communicable diseases to local officials records will be released, on request, to (iv) A document or information may (if required by local laws). designated beneficiaries or to the next of not be properly or currently classified (v) Copies of records of present or kin; when a FOIA request for it is received. former soldiers, dependents, civilian (iii) Copies of DA documents that In this case, the request may not be employees, or patients in DA medical record the death of a soldier, a denied on the grounds that the facilities will be released to the patient dependent, or a civilian employee will document or information is classified or to the patient’s representative on be released, on request, to that person’s except in accordance with Executive written request. The attending physician next of kin, life insurance carrier, and Order 12958 as amended, Section 1.6(d), can withhold records if he or she thinks legal representative. A person acting on and AR 380–5, paragraph 2–204, and that release may injure the patient’s behalf of someone else concerned with with approval of the Army OGC. mental or physical health; in that case, the death (e.g., the executor of a will) (5) OPSEC/FOIA advisors will; advise copies of records will be released to the may also obtain copies by submitting a persons processing FOIA requests on patient’s next of kin or legal written request that includes evidence related OPSEC requirements; help representative or to the doctor or dentist of his or her representative capacity. custodians of requested documents chosen by the patient. If the patient is That representative may give written prepare requests for classification adjudged insane, or dies, the copies will consent for release to others; or evaluations; and help custodians of be released, on written request, to the (iv) Papers relating to the pay and requested documents identify the parts patient’s next of kin or legal allowances or allotments of a present or of documents that must remain representative. former soldier will be released to the classified under this section and AR (vi) Copies of records may be given to soldier or his or her authorized 380–5. a Federal or State hospital or penal representative. If the soldier is deceased,
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these papers will be released to the next the identity, credibility, or testimony of (ii) Tort claims. A claimant or a of kin or legal representatives. prospective witnesses. Statements claimant’s attorney may request a record (3) Civilian personnel records. concerning evidence or argument in the that relates to a pending administrative Civilian Personnel Officers (CPO) with case, whether or not that evidence or tort claim filed against the DA. Refer custody of papers relating to the pay argument may be used at the trial. Any such requests promptly to the claims and allowances or allotments of current opinion on the accused’s guilt. Any approving or settlement authority that or former civilian employees will opinion on the possibility of a plea of has monetary jurisdiction over the release them to the employee or his or guilty to the offense charged, or of a plea pending claim. These authorities will her authorized representative. If the to a lesser offense; follow AR 27–20. The request may employee is deceased, these records will (iii) Other considerations. concern an incident in which the be released to the next of kin or legal Photographing or televising the accused. pending claim is not as large as a representative. However, a CPO cannot DA personnel should not encourage or potential claim; in such a case, refer the release statements of witnesses, medical volunteer assistance to news media in request to the authority that has records, or other reports or documents photographing or televising an accused monetary jurisdiction over the potential pertaining to compensation for injuries or suspected person being held or claim. A potential claimant or his or her or death of a DA civilian employee. transported in military custody. DA attorney may request information under (4) Accused persons. Release of representatives should not make circumstances clearly indicating that it information to the public concerning photographs of an accused or suspect will be used to file a tort claim, though accused persons before determination of available unless a law enforcement none has yet been filed. Refer such the case. Such release may prejudice the function is served. Requests from news requests to the staff judge advocate or accused’s opportunity for a fair and media to take photographs during legal officer of the command. That impartial determination of the case. The courts-martial are governed by AR 360– authority, when subordinate, will following procedures apply: 1; promptly inform the Chief, U.S. Army (i) The following information (iv) Fugitives from justice. This Claims Service (USACS), of the concerning persons accused of an section does not restrict the release of substance of the request and the content offense may be released by the information to enlist public aid in of the record. (Mailing address: U.S. convening authority to public news apprehending a fugitive from justice; or Army Claims Service, ATTN: JACS– agencies or media. The accused’s name, (v) Exceptional cases. Permission to TCC, Fort George G. Meade, MD 20755– grade or rank, unit, regular assigned release information from military 5360. IDA officials who receive requests duties, and other information as allowed personnel records to public news will refer them directly to the Chief, by AR 25–71, paragraph 3–3a. The agencies or media may be requested USACS. They will also advise the substance or text of the offense of which from The Judge Advocate General requesters of the referral and the basis the person is accused. The identity of (TJAG). Requests for information from for it. The Chief, USACS, will process the apprehending or investigating military personnel records will be requests according to this part and AR agency and the length or scope of the processed according to this part. investigation before apprehension. The (5) Litigation, tort claims, and 27–20, paragraph 1–10. factual circumstances immediately contract disputes. Release of (iii) Contract disputes. Each request surrounding the apprehension, information or records under this for a record that relates to a potential including the time and place of section are subject to the time contract dispute or a dispute that has apprehension, resistance, or pursuit. limitations prescribed by the FOIA. The not reached final decision by the The type and place of custody, if any; requester must be advised of the reasons contracting officer will be treated as a (ii) Information that will not be for nonrelease or referral. request for procurement records and not released. Before evidence has been (i) Litigation. Each request for a record as litigation. However, the officials will presented in open court, subjective related to pending litigation involving consider the effect of release on the observations or any information not the United States will be referred to the potential dispute. Those officials may incontrovertibly factual will not be staff judge advocate or legal officer of consult with the USALSA, Contract released. Background information or the command. He or she will promptly Appeals Division. (Mailing address: U.S. information relating to the inform the Litigation Division, U.S. Army Legal Services Agency, ATTN: circumstances of an apprehension may Army Legal Services Agency (USALSA), JALS–CA, 901 North Stuart Street, be prejudicial to the best interests of the of the substance of the request and the Arlington, VA 22203. If the request is accused, and will not be released unless content of the record requested. for a record that relates to a pending it serves a law enforcement function. (Mailing address: U.S. Army Litigation contract appeal to the Armed Services The following kinds of information will Center, 901 N. Stuart Street, Arlington, Board of Contract Appeals, or to a final not be released: Observations or VA 22203–1837. If information is decision that is still subject to appeal comments on an accused’s character released for use in litigation involving (i.e., 90 days have not lapsed after and demeanor, including those at the the United States, the Chief, Army receipt of the final decision by the time of apprehension and arrest or Litigation Division (AR 27–40, para 1– contractor) then the request will be: during pretrial custody. Statements, 4d) must be advised of the release. He Treated as involving a contract dispute; admissions, confessions, or alibis or she will note the release in such and referred to the USALSA, Contract attributable to an accused, or the fact of investigative reports. Information or Appeals Division. refusal or failure of the accused to make records normally exempted from release (6) Special nuclear material. a statement. Reference to confidential (i.e., personnel and medical records) Dissemination of unclassified sources, investigative techniques and may be releasable to the judge or court information concerning physical procedures, investigator notes, and concerned, for use in litigation to which protection of special nuclear material. activity files. This includes reference to the United States is not a party. Refer (i) Unauthorized dissemination of fingerprint tests, polygraph such requests to the local staff judge unclassified information pertaining to examinations, blood tests, firearms advocate or legal officer, who will security measures, including security identification tests, or similar laboratory coordinate it with the Litigation Center, plans, procedures, and equipment for tests or examinations. Statements as to USALSA. the physical protection of special
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nuclear material, is prohibited under 10 promotion boards, school graduations/ martial; nonjudicial punishment of U.S.C. 128. completions, and awards and similar military personnel under the Uniform (ii) This prohibition shall be applied personal achievements. They may Code of Military Justice, Article 15; by the Deputy Chief of Staff, G–3 as the release the names and duty addresses of nonpunitive measures such as IDA, to prohibit the dissemination of key officials, if such release is administrative reprimands and any such information only if and to the determined to be in the interests of admonitions; suspensions of civilian extent that it is determined that the advancing official community relation’s employees; and similar documents. If unauthorized dissemination of such functions. DA has specific instructions on the information could reasonably be (c) Requests from government request, the following will apply. expected to have a significant adverse officials. Requests from officials of State Subordinate commanders will not effect on the health and safety of the or local Governments for Army Activity release any information without public or the common defense and records shall be considered the same as securing the consent of the proper security by significantly increasing the any other requester. Requests from installation commander. The likelihood of illegal production of members of Congress not seeking installation commander may release the nuclear weapons, theft, diversion, or records on behalf of a Congressional information unless the request is for a sabotage of special nuclear materials, Committee, Subcommittee, either House classified or ‘‘FOUO’’ document. In that equipment, or facilities. sitting as a whole, or made on behalf of case the commander will refer the (iii) In making such a determination, their constituents shall be considered request promptly to the Chief of Army personnel may consider what the the same as any other requester. Legislative Liaison for action, including likelihood of an illegal production, Requests from officials of foreign the recommendations of the theft, diversion, or sabotage would be if governments shall be considered the transmitting agency and copies of the the information proposed to be same as any other requester; however, requested records with the referral. prohibited from dissemination were at Army Intelligence elements are (iv) Military personnel records. Only no time available for dissemination. statutorily prohibited from releasing HQDA can release information from (iv) Army personnel shall exercise the records responsive to requests made by these records. Custodians will refer all foregoing authority to prohibit the any foreign government or a requests from Congress directly and dissemination of any information representative of a foreign government. promptly to the Chief of Legislative described so as to apply the minimum Requests from officials of foreign Liaison, HQDA, Washington, DC 20310– restrictions needed to protect the health governments that do not invoke the 1600. and safety of the public or the common FOIA shall be referred to appropriate defense and security, and upon a (v) Criminal investigation records. foreign disclosure channels and the Only the Commanding General, U.S. determination that the unauthorized requester so notified. Army Criminal Investigation Command dissemination of such information (d) Privileged release outside of the (USACIDC), can release any USACIDC- could reasonably be expected to result FOIA to U.S. government officials. in a significant adverse effect on the Records exempt from release to the originated criminal investigation file. health and safety of the public or the public under the FOIA may be disclosed For further information, see AR 195–2. common defense and security by in accordance with Army regulations to (vi) Other exempt records. significantly increasing the likelihood of agencies of the Federal Government, Commanders or chiefs will refer illegal production of nuclear weapons, whether legislative, executive, or requests for all other categories of theft, diversion, or sabotage of special administrative, as follows: exempt information directly to the Chief nuclear materials, equipment, or (1) In response to a request of a of Legislative Liaison. They will include facilities. Committee or Subcommittee of a copy of the material requested and, as (v) Army employees shall not use this Congress, or to either House sitting as a appropriate, recommendations authority to withhold information from whole in accordance with DoDD 5400.4. concerning release or denial. the appropriate committees of Congress. The Army implementing directive is AR (vii) All other records. The (7) Names and duty addresses. Lists 1–20. Commanders or chiefs will notify commander or chief with custody of the of names, including telephone the Chief of Legislative Liaison of all records will furnish all other directories, organizational charts, and/or releases of information to members of information promptly; to other Federal staff directories published by Congress or staffs of congressional Agencies, both executive and installations or activities, and other committees. Organizations that in the administrative, as determined by the personally identifying information will normal course of business are required head of an Army Activity or designee; ordinarily be withheld when requested to provide information to Congress may or in response to an order of a Federal under the FOIA. This does not preclude be excepted. Handle requests by court, Army Activities shall release a discretionary release of names and members of Congress (or staffs of information along with a description of duty information of personnel who, by congressional committees) for the restrictions on its release to the the nature of their position and duties, inspection of copies of official records public; frequently interact with the public, such as follows: (viii) Disciplinary actions and as general officers, public affairs (i) National security classified criminal investigations. Requests for officers, and other personnel designated records, follow AR 380–5; access to, or information from, the as official command spokespersons. The (ii) Civilian personnel records, records of disciplinary actions or IDA for telephone directories is members of Congressional Committees, criminal investigations will be honored delegated to the DA, FOIA/PA Office. Subcommittees, or Joint Committees if proper credentials are presented. Public Affairs Offices may, after careful may examine official personnel folders Representatives of the Office of analysis, release information to the extent that the subject matter falls Personnel Management may be given determined to have legitimate news within their established jurisdictions, as information from personnel files of value, such as notices of personnel permitted by 5 CFR 297.401(i); employees actually employed at reassignments to new units or (iii) Information related to organizations or activities. Each such installations within the continental disciplinary action. This paragraph request will be considered on its merits. United States, results of selection/ refers to records of trial by courts- The information released will be the
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minimum required in connection with discussions of these areas. Included are civilian equivalent. Requests for the investigation being conducted. records created or kept within the IDA’s delegation authority below this level (ix) Other types of requests. All other area of responsibility; records retired by, must be submitted, after coordination, official requests received by DA or referred to, the IDA’s headquarters or to the DA FOIA/PA Office, with detailed elements from agencies of the executive office; and records of predecessor justification, for approval. Such branch (including other military organizations. If a request involves the delegations must not slow FOIA actions. departments) will be honored, if there areas of more than one IDA, the IDA to If an IDA’s delegate denies a FOIA or fee are no compelling reasons to the whom the request was originally waiver request, the delegate must contrary. If there are reasons to addressed will normally respond to it; clearly state that he or she is acting for withhold the records, the requests will however, the affected IDAs may consult the IDA and identify the IDA by name be submitted for determination of the on such requests and agree on and position in the written response to propriety of release to the appropriate responsibility for them. IDAs will the requester. IDAs will send only the addresses shown in Appendix B of this complete all required coordination at names, offices, and telephone numbers part. initial denial level. This includes of their delegates to the DA, FOIA/PA (2) Army Activities shall inform classified records retired to the NARA Office. IDAs will keep this information officials receiving records under the when a mandatory declassification current. provisions of this section that those review is necessary. Requests and/or (d) The officials designated by Army records are exempt from public release responsive documents should not be Activities to make initial determinations under the FOIA. Army Activities also sent to the DA FOIA/PA Office for should consult with public affairs shall advise officials of any special initial denial authority or to forward to officers (PAOs) to become familiar with handling instructions. Classified other offices within the DA. subject matters that are considered to be information is subject to the provisions (b) FOIA requesters may ultimately newsworthy, and advise PAOs of all of DoD 5200.1–R, and information appeal if they are dissatisfied with requests from news media contained in Privacy Act systems of adverse determinations. It is crucial to representatives. In addition, the officials records is subject to DoD 5400.11–R. forward complete packets to the IDAs. should inform PAOs in advance when (e) Consultation with affected DoD Ensure cover letters list all attachments they intend to withhold or partially component. (1) When an Army Activity and describe from where the records withhold a record, if it appears that the receives a FOIA request for a record in were obtained, i.e., a PA system of withholding action may be challenged which an affected Army or DoD records (including the applicable in the media. A FOIA release or denial organization (including a Combatant systems notice), or other. If a FOIA action, appeal, or court review may Command) has a clear and substantial action is complicated, include a generate public or press interest. In such interest in the subject matter, chronology of events to assist the IDA in case, the IDA (or delegate) should consultation with that affected Army or understanding what happened in the consult the Chief of Public Affairs or the DoD organization is required. As an course of processing the FOIA request. command or organization PAO. The IDA example, where an Army Activity If a file does not include documentation should inform the PAO contacted of the receives a request for records related to described below, include the tab, and issue and obtain advice and DoD operations in a foreign country, the insert a page marked ‘‘not applicable’’ or recommendations on handling its public cognizant Combatant Command for the ‘‘not used.’’ The order and contents of affairs aspect. Any advice or area involved in the request shall be FOIA file attachments follow: (Tab A or recommendations requested or obtained consulted before a release is made. 1) The original FOIA request and should be limited to this aspect. Consultations may be telephonic, envelope (if applicable); (Tab B or 2) Coordination must be completed within electronic, or in hard copy. The response letter; (Tab C or 3) Copies the statutory 20 working day FOIA (2) The affected Activity shall review of all records entirely released, single- response limit. (The point of contact for the circumstances of the request for sided; (Tab D or 4) Copies of the Army Chief of Public Affairs is host-nation relations, and provide, administrative processing documents, HQDA (SAPA–OSR), Washington D.C. where appropriate, FOIA processing including extension letters and ‘‘no 20310–1500). If the request involves assistance to the responding DoD records’’ certificates, in chronological actual or potential litigation against the Component regarding release of order; (Tab E or 5) Copies of all records United States, release must be information. Responding Army partially released or entirely denied, coordinated with The Judge Advocate Activities shall provide copies of single-sided. For partially released General (TJAG). responsive records to the affected DoD records, mark in yellow highlighter (or (e) The following officials are Component when requested. The other readable highlighter) those designated IDAs for the areas of affected DoD Component shall receive a portions withheld; and (Tab F or 6) responsibility outlined below: courtesy copy of all releases in such Legal opinions(s). (1) The Administrative Assistant to circumstances. (c) The initial determination of the Secretary of the Army is authorized (3) Nothing in § 518.19 shall impede whether to make a record available or to act for the Secretary of the Army on the processing of the FOIA request grant a fee waiver upon request may be requests for all records maintained by initially received by an Army Activity. made by any suitable official designated the Office of the Secretary of the Army by the Army Activity in published and its serviced activities as well as § 518.16 Initial determinations. regulations. The presence of the requests requiring the personal attention (a) Initial denial authority. The DA marking ‘‘FOUO’’ does not relieve the of the Secretary of the Army. This also officials are designated as the Army’s designated official of the responsibility includes civilian Equal Employment only IDAs. Only an IDA, his or her to review the requested record for the Opportunity (EEO) actions. (See DCS, delegate, or the Secretary of the Army purpose of determining whether an G–1 for military Equal Opportunity (EO) can deny FOIA requests for DA records. exemption under this part is applicable actions). The Administrative Assistant Each IDA will act on direct and referred and should be invoked. IDAs may to the Secretary of the Army has requests for records within his or her delegate all or part of their authority to delegated its authority to the Chief area of functional responsibility. (See a division chief under its supervision Attorney and Legal Services Directorate, the proper AR in the 10 series for full within the Agency in the grade of 05/ U.S. Army Resources & Programs
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Agency. (See DCS, G1 for military Equal Directorate, U.S. Army Resources & at DA medical facilities, to include Opportunity (EO) actions) Programs Agency. The Chief Attorney alcohol and drug treatment/test records. (2) The Assistant Secretary of the and Legal Services Director, U.S. Army (15) The Chief of Chaplains is Army (Financial Management and Resources & Programs Agency acts on authorized to act on requests for records Comptroller) is authorized to act on requests for records of the Chief of Staff involving ecclesiastical relationships, requests for finance and accounting and its Field Operating Agencies. (See rites performed by DA chaplains, and records. Requests for CONUS finance TJAG for the (GOMO) actions). nonprivileged communications relating and accounting records should be (9) The Deputy Chief of Staff, G–3 is to clergy and active duty chaplains’ referred to the Defense Finance and authorized to act on requests for records military personnel files. Accounting Service (DFAS). The Chief relating to International Affairs policy, (16) The Judge Advocate General is Attorney and Legal Services Directorate, planning, integration and assessments, authorized to act on requests for records acts on requests for non-finance and strategy formulation, force development, relating to claims, courts-martial, legal accounting records of the Assistant individual and unit training policy, services, administrative investigations, Secretary of the Army (Financial strategic and tactical command and and similar legal records. TJAG is also Management and Comptroller). control systems, nuclear and chemical authorized to act on requests for the (3) The Assistant Secretary of the matters, use of DA forces. GOMO actions and records described Army (Acquisition, Logistics, & (10) The Deputy Chief of Staff, G–8 is elsewhere in this regulation, especially Technology) is authorized to act on authorized to act on requests for records if those records relate to litigation in requests for procurement records other relating to programming, material which the United States has an interest. than those under the purview of the integration and externally directed In addition, TJAG is authorized to act on Chief of Engineers and the Commander, reviews. requests for records that are not within U.S. Army Materiel Command. The (11) The Office of the Deputy Chief of the functional areas of responsibility of Chief Attorney and Legal Services Staff, G–1 is authorized to act on the any other IDA, including, but not Directorate, acts on requests for non- following records: Personnel board limited to requests for records for procurement records of the Assistant actions, Equal Opportunity (military) Commands, and activities. Secretary of the Army (Acquisition, and sexual harassment, health (17) The Chief, National Guard Logistics and Technology). promotions, physical fitness and well Bureau, is authorized to act on requests (4) The Deputy Assistant Secretary of being, command and leadership policy for all personnel and medical records of the Army (Civilian Personnel Policy)/ records, HIV and suicide policy, retired, separated, discharged, deceased, Director of Civilian Personnel, Office of substance abuse programs except for and active Army National Guard the Assistant Secretary of the Army individual treatment records which are military personnel, including technician (Manpower and Reserve Affairs) is the responsibility of the Surgeon personnel, unless such records clearly authorized to act on requests for civilian General, retiree benefits, services, and fall within another IDA’s responsibility. personnel records, personnel programs, (excluded are individual This authority includes, but is not administration and other civilian personnel records of retired military limited to, National Guard organization personnel matters, except for EEO personnel, which are the responsibility and training files; plans, operations, and (civilian) matters which will be acted on of the U.S. Army Human Resources readiness files, policy files, historical by the Administrative Assistant to the Command-St. Louis (AHRC–STL), DA files, files relating to National Guard Secretary of the Army. The Deputy dealings with Veterans Affairs, U.S. military support, drug interdiction, and Assistant Secretary of the Army Soldier’s and Airmen’s Home, retention, civil disturbances; construction, civil (Civilian Personnel Policy)/Director of promotion, and separation; recruiting works, and ecology records dealing with Civilian Personnel has delegated this and MOS policy issues, personnel travel armories, facilities within the States, authority to the Chief, Policy and and transportation entitlements, ranges, etc.; Equal Opportunity Program Development Division. military strength and statistics, The investigative records; aviation program (5) The Chief Information Officer, G– Army Librarian, demographics, and records and financial records dealing 6 is authorized to act on requests for Manprint. with personnel, operation and records pertaining to Army Information (12) The Deputy Chief of Staff, G–4 is maintenance, and equipment budgets. Technology, command, control authorized to act on requests for records (18) The Chief of Army Reserve is communications and computer systems relating to DA logistical requirements authorized to act on requests for all and the Information Resources and determinations, policy concerning personnel and medical records of Management Program (automation, materiel maintenance and use, retired, separated, discharged, deceased, telecommunications, visual information, equipment standards, and logistical and reserve component military records management, publications and readiness. personnel, and all U.S. Army Reserve printing). (13) The Chief of Engineers is (USAR) records, unless such records (6) The Inspector General is authorized to act on requests for records clearly fall within another IDA’s authorized to act on requests for all involving civil works, military responsibility. Records under the Inspector General Records. construction, engineer procurement, responsibility of the Chief of Army (7) The Auditor General is authorized and ecology; and the records of the U.S. Reserve include records relating to to act on requests for records relating to Army Engineer divisions, districts, USAR plans, policies, and operations; audits done by the U.S. Army Audit laboratories, and field operating changes in the organizational status of Agency under AR 10–2. This includes agencies. USAR units; mobilization and requests for related records developed (14) The Surgeon General, demobilization policies, active duty by the Audit Agency. Commander, U.S. Army Medical tours, and the Individual Mobilization (8) The Director of the Army Staff is Command, is authorized to act on Augmentation program. authorized to act on requests for all requests for medical research and (19) The Commander, United States records of the Chief of Staff and its Field development records, and the medical Army Materiel Command (AMC) is Operating Agencies. The Director of the records of active duty military authorized to act on requests for the Army Staff has delegated its authority to personnel, dependents, and persons records of AMC headquarters and to the Chief Attorney and Legal Services given physical examination or treatment subordinate commands, units, and
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activities that relate to procurement, (24) The Assistant Chief of Staff for FOIA request; or the requester disagrees logistics, research and development, Installation Management (ACSIM) is with the fee estimate. and supply and maintenance authorized to act on requests for records (5) Records not reasonably described. operations. relating to planning, programming, A record has not been described with (20) The Provost Marshal General execution and operation of Army sufficient particularity to enable the (PMG) is authorized to act on all installations. This includes base Army or DoD Component to locate it by requests for provost marshal activities realignment and closure activities, conducting a reasonable search. and law enforcement functions for the environmental activities other than (6) Not a proper FOIA request for army, all matters relating to police litigation, facilities and housing some other reason. The requester has intelligence, physical security, criminal activities, and installation management failed unreasonably to comply with investigations, corrections and support activities. procedural requirements, other than fee- internment (to include confinement and (25) The Commander, United States related, imposed by this part or Army correctional programs for U.S. prisoners, Army Intelligence and Security Activity supplementing regulations. criminal investigations, provost marshal Command, is authorized to act on (7) Not an agency record. The activities, and military police support. requests for intelligence and security information requested is not a record The PMG is responsible for the Office of records, foreign scientific and within the meaning of the FOIA and this Security, Force Protection, and Law technological records, intelligence part. Enforcement Division and is the training, intelligence threat assessments, (8) Duplicate request. The request is a functional proponent for AR 190-series and foreign liaison information. duplicate request (e.g., a requester asks (Military Police) and 195-series (26) The Commander, U.S. Army for the same information more than (Criminal Investigation), AR 630–10 Safety Center, is authorized to act on once). This includes identical requests Absent Without Leave, Desertion, and requests for Army safety records. received via different means (e.g., Administration of Personnel Involved in (27) The Commander, United States electronic mail, facsimile, mail, and Civilian Court Proceedings, and AR Army Test and Evaluation Command courier) at the same or different times. 633–30, Military Sentences to (ATEC), is authorized to act on requests (9) Other (specify). Any other reason Confinement. for the records of ATEC headquarters, a requester does not comply with (21) The Commander, U.S. Army its subordinate commands, units, and published rules other than those Criminal Investigation Command activities that relate to test and outlined in paragraphs (f) (1) through (8) (USACIDC), is authorized to act on evaluation operations. of this section. requests for criminal investigative (28) The General Counsel, Army and (10) Partial or total denial. The record records of USACIDC headquarters, its Air Force Exchange Service (AAFES), is is denied in whole or in part in subordinate activities, and military authorized to act on requests for AAFES accordance with procedures set forth in police reports. This includes criminal records, under AR 60–20/AFR 147–14. the FOIA. investigation records, investigation-in- (29) Special IDA authority for time- (g) Denial tests. To deny a requested progress records, and all military police event related records may be designated record that is in the possession and records and reports. on a case-by-case basis. These will be control of an Army Activity, it must be (22) The Commander, United States published in the Federal Register. You determined that the record is exempt Army Human Resources Command may contact the DA, FOIA/PA Office to under one or more of the exemptions of (USAHRC), is authorized to act on obtain current information on special the FOIA. An outline of the FOIA’s requests for military personnel files delegations. exemptions is contained in Subpart C of relating to active duty (other than those (f) Reasons for not releasing a record. this part. of reserve and retired personnel) The following are reasons for not (h) Reasonably segregable portions. military personnel matters, personnel complying with a request for a record Although portions of some records may locator, physical disability under 5 U.S.C. 552(a)(3). be denied, the remaining reasonably determinations, and other military (1) No records. A reasonable search of segregable portions must be released to personnel administration records; files failed to identify responsive the requester when it reasonably can be records relating to military casualty and records. The records custodian will assumed that a skillful and memorialization activities; heraldic prepare a detailed no records certificate. knowledgeable person could not activities, voting, records relating to This certificate must include, at a reconstruct the excised information. identification cards, naturalization and minimum, what areas or offices were Unless indicating the extent of the citizenship, commercial solicitation, searched and how the search was deletion would harm an interest Military Postal Service Agency and conducted (manually, by computer, protected by an exemption, the amount Army postal and unofficial mail service. etc.). The certificate will be signed by of deleted information shall be (23) The Commander, USARC-StL has the records custodian and will include indicated on the released portion of been delegated authority to act on behalf his or her grade and title. The original paper records by use of brackets or of the USAHRC for requests concerning certificate will be forwarded to the IDA. darkened areas indicating removal of all personnel and medical records of Preprinted ‘‘check-the-block’’ or ‘‘fill-in- information. In no case shall the deleted retired, separated, discharged, deceased, the-blank’’ no records certificates are areas be left ‘‘white’’ without the use of and reserve component military not authorized. brackets to show the bounds of deleted personnel, unless such records clearly (2) Referrals. The request is information. In the case of electronic fall within another IDA’s authority. The transferred to another Army Activity or deletion, or deletion in audiovisual or authority does not include records DoD Component, or to another Federal microfiche records, if technically relating to USAR plans, policies, and Agency. feasible, the amount of redacted operations; changes in the (3) Request withdrawn. The request is information shall be indicated at the organizational status of USAR units, withdrawn by the requester. place in the record such deletion was mobilization and demobilization (4) Fee-related reason. The requester made, unless including the indication policies; active duty tours, and the is unwilling to pay fees associated with would harm an interest protected by the individual mobilization augmentation a request; the requester is past due in exemption under which the deletion is program. the payment of fees from a previous made. This may be done by use of
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brackets, shaded areas, or some other (3) The final response to the requester and the Activity determines that it identifiable technique that will clearly should contain information concerning cannot make a response determination show the limits of the deleted the fee status of the request, consistent within that additional 10 working day information. When a record is denied in with the provisions of Subpart F, of this period, the requester shall be notified whole, the response advising the part. When a requester is assessed fees and provided an opportunity to limit requester of that determination will for processing a request, the requester’s the scope of the request so that it may specifically state that it is not reasonable fee category shall be specified in the be processed within the extended time to segregate portions of the record for response letter. Activities also shall limit, or an opportunity to arrange an release. provide the requester with a complete alternative time frame for processing the (i) Response to requester. Whenever cost breakdown (e.g., 115 pages of office request or a modified request. Refusal possible, initial determinations to reproduction at $0.15 per page; 5 by the requester to reasonably modify release or deny a record normally shall minutes of computer search time at the request or arrange for an alternative be made and the decision reported to $43.50 per minute, 3 hours of time frame shall be considered a factor the requester within 20 working days professional level search at $44 per in determining whether exceptional after receipt of a proper request by the hour, etc.) in the response letter. circumstances exist with respect to official designated to respond. When an (4) The explanation of the substantive Army Activity’s request backlogs. Army Activity has a significant number basis for a denial shall include specific Exceptional circumstances do not of pending requests which prevent a citation of the statutory exemption include a delay that results from response determination within the 20 applied under provisions of this part; predictable activity backlogs, unless the working day period, the requester shall e.g., 5 U.S.C. 552 (b)(1). Merely referring Army Activity demonstrates reasonable be so notified in an interim response, to a classification; to a ‘‘FOUO’’ marking progress in reducing its backlog. and advised whether their request on the requested record; or to this part (2) Unusual circumstances that may qualifies for the fast track or slow track or an Army Activity’s regulation does justify delay are: the need to search for within the Army Activity’s multitrack not constitute a proper citation or and collect the requested records from processing system. Requesters who do explanation of the basis for invoking an other facilities that are separate from the not meet the criteria for fast track exemption. office determined responsible for a (5) When the time for response processing shall be given the release or denial decision on the becomes an issue, the official opportunity to limit the scope of their requested information; the need to responsible for replying shall request in order to qualify for fast track search for, collect, and appropriately acknowledge to the requester the date of processing. examine a voluminous amount of the receipt of the request. separate and distinct records which are (1) When a decision is made to release (6) When denying a request for requested in a single request; and the a record, a copy should be made records, in whole or in part, an Army need for consultation, which shall be available promptly to the requester once Activity shall make a reasonable effort conducted with all practicable speed, he has complied with preliminary to estimate the volume of the records with other agencies having a substantial procedural requirements. denied and provide this estimate to the interest in the determination of the (2) When a request for a record is requester, unless providing such an request, or among two or more Army denied in whole or in part, the official estimate would harm an interest Activities or DoD Components having a designated to respond shall inform the protected by an exemption of the FOIA. substantial subject-matter interest in the requester in writing of the name and This estimate should be in number of request. title or position of the official who made pages or in some other reasonable form (3) Army Activities may aggregate the determination, and shall explain to of estimation, unless the volume is certain requests by the same requester, the requester the basis for the otherwise indicated through deletions or by a group of requesters acting in determination in sufficient detail to on records disclosed in part. concert, if the Army Activity reasonably permit the requester to make a decision (7) When denying a request for believes that such requests actually concerning appeal. The requester records in accordance with a statute constitute a single request, which would specifically shall be informed of the qualifying as a FOIA exemption 3 otherwise satisfy the unusual exemptions on which the denial is statute, Army Activities shall, in circumstances set forth in paragraph based, inclusive of a brief statement addition to stating the particular statute (j)(2) of this section, and the requests describing what the exemption(s) cover. relied upon to deny the information, involve clearly related matters. Multiple When the initial denial is based in also state whether a court has upheld requests involving unrelated matters whole or in part on a security the decision to withhold the shall not be aggregated. If the requests classification, the explanation should information under the particular statute, are aggregated under these conditions, include a summary of the applicable and a concise description of the scope the requester or requesters shall be so Executive Order criteria for of the information being withheld. notified. classification, as well as an explanation, (j) Extension of time. In unusual (4) In cases where the statutory time to the extent reasonably feasible, of how circumstances, when additional time is limits cannot be met and no informal those criteria apply to the particular needed to respond to the initial request, extension of time has been agreed to, the record in question. The requester shall the Army Activity shall acknowledge inability to process any part of the also be advised of the opportunity and the request in writing within 20 working request within the specified time should procedures for appealing an unfavorable days, describe the circumstances be explained to the requester with a determination to a higher final authority requiring the delay, and indicate the request that he agree to await a within the Army Activity. The IDA will anticipated date for a substantive substantive response by an anticipated inform the requester of his or her right response that may not exceed 10 date. It should be made clear that any to appeal, in whole or part, the denial additional working days, except as such agreement does not prejudice the of the FOIA or fee waiver request and provided below: right of the requester to appeal the that the appeal must be sent through the (1) With respect to a request for which initial decision after it is made. Army IDA to the Secretary of the Army a written notice has extended the time Activities are reminded that the (ATTN: OGC). limits by 10 additional working days, requester still retains the right to treat
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this delay as a defacto denial with full known. When the requester brings court (3) The coordination provisions of administrative remedies. Only the action to compel disclosure, the this section also apply to any non-U.S. responsible IDA can extend it, and the submitter shall be promptly notified of Government record in the possession IDA must first coordinate with the OGC. this action. and control of the Army or DoD from (5) As an alternative to the taking of (1) If the submitted information is a multi-national organizations, such as formal extensions of time the proposal in response to a solicitation for the North Atlantic Treaty Organization negotiation by the cognizant FOIA a competitive proposal, and the (NATO), United Nations Commands, the coordinating office of informal proposal is in the possession and North American Aerospace Defense extensions in time with requesters is control of DA (see 10 U.S.C. 2305(g)), Command (NORAD), the Inter-American encouraged where appropriate. the proposal shall not be disclosed, and Defense Board, or foreign governments. (k) Misdirected requests. Misdirected no submitter notification and Coordination with foreign governments requests shall be forwarded promptly to subsequent analysis is required. The under the provisions of this section may the Army Activity or other Federal proposal shall be withheld from public be made through Department of State, or Agency with the responsibility for the disclosure pursuant to 10 U.S.C. 2305(g) the specific foreign embassy. records requested. The period allowed and exemption (b)(3) of the FOIA. This (m) File of initial denials. Copies of for responding to the request statute does not apply to bids, all initial withholdings or denials shall misdirected by the requester shall not unsolicited proposals, or any proposal be maintained by each Army Activity in begin until the request is received by the that is set forth or incorporated by a form suitable for rapid retrieval, Army Activity that manages the records reference in a contract between an Army periodic statistical compilation, and requested. Activity and the offeror that submitted management evaluation. Records denied (l) Records of non-U.S. Government the proposal. In such situations, normal for any of the reasons contained in source. When a request is received for submitter notice shall be conducted § 518.20 shall be maintained for a a record that falls under exemption 4, except for sealed bids that are opened period of six years to meet the statute that was obtained from a non-U.S. and read to the public. The term, of limitations requirement. Records will Government source, or for a record be maintained in accordance with AR containing information clearly proposal, means information contained in or originating from any proposal, 25–400–2. identified as having been provided by a (n) Special mail services. Army including a technical, management, or non-U.S. Government source, the source Activities are authorized to use cost proposal submitted by an offeror in of the record or information [also known registered mail, certified mail, response to solicitation for a as ‘‘the submitter’’ for matters pertaining certificates of mailing, and return competitive proposal, but does not to proprietary data under 5 U.S.C. 552, receipts. However, their use should be FOIA, Exemption (b)(4)] and E.O. include an offeror’s name or total price limited to instances where it appears 12600], shall be notified promptly of or unit prices when set forth in a record advisable to establish proof of dispatch that request and afforded reasonable other than the proposal itself. Submitter or receipt of FOIA correspondence. The time (14 calendar days) to present any notice, and analysis as appropriate, are requester shall be notified that they are objections concerning the release, required for exemption (b)(4) matters responsible for the full costs of special unless it is clear that there can be no that are not specifically incorporated in services. valid basis for objection. This practice is 10 U.S.C. 2305(g). (o) Receipt accounts. The Treasurer of required for those FOIA requests for (2) If the record or information was the United States has established two data not deemed clearly exempt from submitted on a strictly voluntary basis, accounts for FOIA receipts, and all disclosure under exemption (b)(4) of 5 absent any exercised authority that money orders or checks remitting FOIA U.S.C. 552, The FOIA. If, for example, prescribes criteria for submission, and fees should be made payable to the U.S. the record or information was provided after consultation with the submitter, it Treasurer. These accounts shall be used with actual or presumptive knowledge is absolutely clear that the record or for depositing all FOIA receipts, except of the non-U.S. Government source and information would customarily not be receipts for industrially funded and established that it would be made released to the public, the submitter non-appropriated funded activities. available to the public upon request, need not be notified. Examples of Components are reminded that the there is no obligation to notify the exercised authorities prescribing criteria below account numbers must be source. Any objections shall be for submission are statutes, Executive preceded by the appropriate disbursing evaluated. The final decision to disclose Orders, regulations, invitations for bids, office two digit prefix. Industrially information claimed to be exempt under requests for proposals, and contracts. funded and non-appropriated funded exemption (b)(4) shall be made by an Records or information submitted under activity FOIA receipts shall be official equivalent in rank to the official these authorities are not voluntary in deposited to the applicable fund. who would make the decision to nature. When it is not clear whether the (1) Receipt Account 3210 Sale of withhold that information under FOIA. information was submitted on a Publications and Reproductions, FOIA. When a substantial issue has been voluntary basis, absent any exercised This account shall be used when raised, the Army Activity may seek authority, and whether it would depositing funds received from additional information from the source customarily be released to the public by providing existing publications and of the information and afford the source the submitter, notify the submitter and forms that meet the Receipt Account and requester reasonable opportunities ask that it describe its treatment of the Series description found in Federal to present their arguments on the legal information, and render an objective Account Symbols and Titles. Deliver and substantive issues involved prior to evaluation. If the decision is made to collections within 30 calendar days to making an agency determination. When release the information over the the servicing finance and accounting the source seeks a restraining order or objection of the submitter, notify the office. take court action to prevent release of submitter and afford the necessary time (2) Receipt Account 3210 Fees and the record or information, the requester to allow the submitter to seek a Other Charges for Services, FOIA. This shall be notified, and action on the restraining order, or take court action to account is used to deposit search fees, request normally shall not be taken until prevent release of the record or fees for duplicating and reviewing (in after the outcome of that court action is information. the case of commercial requesters)
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records to satisfy requests that could not letter will list all attachments and also to appeals of initial determinations, be filled with existing publications or describe from where the records were to include establishing additional forms. obtained, i.e., a PA system of records processing queues as needed. (including the applicable systems (d) Delay in responding to an appeal. § 518.17 Appeals. notice, or other. If a file does not If additional time is needed due to the (a) General. If the official designated include documentation described unusual circumstances the final by the Army Activity to make initial below, include the tab, and insert a page decision may be delayed for the number determinations on requests for records marked ‘‘not applicable’’ or ‘‘not used.’’ of working days (not to exceed 10), that declines to provide a record because the The order and contents of FOIA file were not used as additional time for official considers it exempt under one or attachments follow: (Tab A or 1) The responding to the initial request. If a more of the exemptions of the FOIA, original FOIA request and envelope (if determination cannot be made and the that decision may be appealed by the applicable); (Tab B or 2) The IDA denial requester notified within 20 working requester, in writing, to a designated letter; (Tab C or 3) Copies of all records days, the appellate authority shall appellate authority. The appeal should entirely released, single-sided; (Tab D or acknowledge to the requester, in be accompanied by a copy of the letter 4) Copies of administrative processing writing, the date of receipt of the appeal, denying the initial request. Such documents, including extension letters the circumstances surrounding the appeals should contain the basis for and ‘‘no records’’ certificates, in delay, and the anticipated date for disagreement with the initial refusal. chronological order; (Tab E or 5) Copies substantive response. Requesters shall Appeal procedures also apply to the of all records partially denied or be advised that, if the delay exceeds the disapproval of a fee category claim by a completely denied, single-sided. For statutory extension provision or is for requester, disapproval of a request for records partially denied, mark in yellow reasons other than the unusual waiver or reduction of fees, disputes highlighter (or other readable circumstances they may consider their regarding fee estimates, review on an highlighter) those portions withheld; administrative remedies exhausted. expedited basis a determination not to and (Tab F or 6) Legal opinions(s); and They may, however, without grant expedited access to agency (ii) Assist the OGC as requested prejudicing their right of judicial records, for no record determinations during his or her consideration of the remedy, await a substantive response. when the requester considers such appeal. The Army Activity will continue to responses adverse in nature, not (2) Appeals of denial of records made process the case expeditiously. providing a response determination to a by the OGC, AAFES, shall be made to (e) Response to the requester. When FOIA request within the statutory time the Secretary of the Army when the the appellate authority (OGC) makes a limits, or any determination found to be Commander, AAFES, is an Army officer. final determination to release all or a adverse in nature by the requester. Upon Appeals of denial of records made by portion of records withheld by an IDA, an IDA’s receipt of a no records the OGC, AAFES, shall be made to the a written response and a copy of the determination appeal, the IDA will Secretary of the Air Force when the records so released should be forwarded direct the records custodian to conduct Commander is an Air Force officer. promptly to the requester after another records search and certify, in (b) Time of receipt. A FOIA appeal compliance with any preliminary writing, that is has made a good faith has been received by an Army Activity procedural requirements, such as effort that reasonably could be expected when it reaches the office of an payment of fees. Final refusal of an to produce the information requested. If appellate authority having jurisdiction, appeal must be made in writing by the no records are again found, the original the OGC. Misdirected appeals should be appellate authority or by a designated no records certificate will be forwarded referred expeditiously to the OGC. representative. The response, at a to the IDA for inclusion in the appeals (c) Time limits. The requester shall be minimum, shall include the following: packet. When denials have been made advised to file an appeal so that it is (1) The basis for the refusal shall be under the provisions of the FOIA and postmarked no later than 60 calendar explained to the requester in writing, the PA, and the denied information is days after the date of the initial denial both with regard to the applicable contained in a PA system of records, letter. If no appeal is received, or if the statutory exemption or exemptions appeals shall be processed under both appeal is postmarked after the invoked under provisions of the FOIA, the FOIA and the PA. If the denied conclusion of this 60-day period, the and with respect to other appeal information is not maintained in a PA case may be considered closed. matters; system of records, the appeal shall be However, exceptions to the above may (2) When the final refusal is based in processed under the FOIA. If a request be considered on a case-by-case basis. In whole or in part on a security is merely misaddressed, and the cases where the requester is provided classification, the explanation shall receiving Army Activity or DoD several incremental determinations for a include a determination that the record Component simply advises the requester single request, the time for the appeal meets the cited criteria and rationale of of such and refers the request to the shall not begin until the date of the final the governing Executive Order, and that appropriate Army or DoD Component, response. Records that are denied shall this determination is based on a this shall not be considered a no record be retained for a period of six years to declassification review, with the determination. meet the statute of limitations explanation of how that review (1) Appeals of adverse determinations requirement. Final determinations on confirmed the continuing validity of the from denial of records or ‘‘no record’’ appeals normally shall be made within security classification; determination, received by Army IDAs 20 working days after receipt. When an (3) The final denial shall include the must be forwarded through the denying Army Activity has a significant number name and title or position of the official IDA to the Secretary of the Army of appeals preventing a response responsible for the denial; (ATTN: OGC). On receipt of an appeal, determination within 20 working days, (4) In the case of appeals for total the IDA will— the appeals shall be processed in a denial of records, the response shall (i) Send the appeal to the Office of the multitrack processing system, based at a advise the requester that the information Secretary of the Army, OGC, together minimum, on the three processing being denied does not contain with a copy of the documents that are tracks established for initial requests. meaningful portions that are reasonably the subject of the appeal. The cover All of the provisions of the FOIA apply segregable;
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(5) When the denial is based upon an reasonable attorney fees and other mind the type of complaint that has exemption 3 statute, the response, in litigation costs. given rise to the lawsuit and provide addition to citing the statute relied upon (2) When the court orders the release information, which addresses the to deny the information, shall state of denied records, it may also issue a specific reason(s) for the complaint. whether a court has upheld the decision written finding that the circumstances (2) Responsibility for FOIA litigation. to withhold the information under the surrounding the withholding raise For the Army, under the general statute, and shall contain a concise questions whether Army Activity oversight of the OGC, FOIA litigation is description of the scope of the personnel acted arbitrarily and the responsibility of the General information withheld; or capriciously. In these cases, the special Litigation Branch, Army Litigation (6) The response shall advise the counsel of the Merit Systems Protection Division. If you are notified of a FOIA requester of the right to judicial review. Board shall conduct an investigation to lawsuit involving the Army, contact the (f) Consultation. Final refusal determine whether or not disciplinary General Litigation Branch immediately involving issues not previously resolved action is warranted. The Army Activity at: U.S. Army Litigation Center, General or that the Army Activity knows to be is obligated to take the action Litigation Branch (JALS–LTG), 901 inconsistent with rulings of other DoD recommended by the special counsel. North Stuart Street, Suite 700, Arlington Components ordinarily should not be (3) The court may punish the VA 22203–1837. The General Litigation made before consultation with the Army responsible official for contempt when Branch will provide guidance on OGC. Tentative decisions to deny an Army Activity fails to comply with gathering information and assembling a records that raise new or significant the court order to produce records that litigation report necessary to respond to it determines have been withheld legal issues of potential significance to FOIA litigation. improperly. (3) Litigation reports for FOIA other Agencies of the Government shall (e) Non-U. S. Government source lawsuits. As with any lawsuit, the Army be provided to the Army OGC. information. A requester may bring suit Litigation Division and DOJ will require § 518.18 Judicial actions. in an U.S. District Court to compel the a litigation report. This report should be (a) This section states current legal release of records obtained from a non- prepared with the assistance, and under and procedural rules for the government source or records based on the supervision of, the legal advisor. For information obtained from a non- convenience of the reader. The general guidance on litigation reports, government source. Such source shall statements of rules do not create rights see Army Regulation 27–40, paragraph be notified promptly of the court action. or remedies not otherwise available, nor 3–9. Unlike the usual 60-day time When the source advises that it is do they bind the DA or DoD to period to respond to complaints under seeking court action to prevent release, particular judicial interpretations or the Federal Rules of Civil Procedure, the Army Activity shall defer answering procedures. A requester may seek an complaints under the FOIA must be or otherwise pleading to the order from a U.S. District Court to answered within 30 days of the service complainant as long as permitted by the of the complaint. Therefore, it is compel release of a record after Court or until a decision is rendered in imperative to contact the Litigation administrative remedies have been the court action of the source, Division immediately and to begin exhausted; i.e., when refused a record whichever is sooner. preparing the litigation report without by the head of a Component or an (f) FOIA litigation. Personnel delay. appellate designee or when the Army responsible for processing FOIA (4) Specific guidance for FOIA Activity has failed to respond within the requests at the DoD Component level litigation reports. The following is time limits prescribed by the FOIA and shall be aware of litigation under the specific guidance for preparing a in this part. FOIA. Such information will provide litigation report in FOIA Litigation. The (b) The requester may bring suit in the management insights into the use of the required material should be indexed U.S. District Court in the district, in nine exemptions by Component and assembled under the following which the requester resides or is the personnel. Whenever a complaint under categories: requester’s place of business, in the the FOIA is filed in an U.S. District (i) Statement of facts. (Tab A). Provide district in which the record is located, Court, the Army Activity named in the a chronological statement of all facts or in the District of Columbia. complaint shall forward a copy of the related to the FOIA request, beginning (c) The burden of proof is on the complaint by any means to HQDA, with receipt of the request, responses to Army Activity to justify its refusal to OTJAG (DAJA–LT), with an information the request, and searches for responsive provide a record. The court shall copy to the Army OGC. In the DA, records. The statement of facts should evaluate the case de novo (anew) and HQDA OTJAG (DAJA–LT), WASH D.C. refer to supporting enclosed exhibits may elect to examine any requested 20310–2210 is also responsible for whenever possible. record in camera (in private) to forwarding this information to the (ii) Responses to pleadings. (Tab B). If determine whether the denial was Office of the Army OGC and to the DA you have been provided a copy of the justified. FOIA/PA Office. complaint, provide a line-by-line (d) When an Army Activity has failed (1) Bases for FOIA lawsuits. In answer to the factual statements in the to make a determination within the general, there are four categories of pleadings, along with recommendations statutory time limits but can complaints in a FOIA lawsuit; failure to on whether to admit or deny the demonstrate due diligence in respond to a request within time frames allegation. exceptional circumstances, to include established in the FOIA statute; (iii) Memorandum of law. (Tab C). No negotiating with the requester to modify challenge to the adequacy of search for memorandum of law is necessary in the scope of their request, the court may responsive records; challenge to FOIA lawsuits. If records were retain jurisdiction and allow the application of a FOIA Exemption; and withheld, provide a written statement Activity additional time to complete its procedural challenges, such as explaining the FOIA Exemption used to review of the records. application of waiver of fees. The withhold the information and the (1) If the court determines that the guidance below is intended to cover all rationale for its application in the requester’s complaint is substantially categories of complaints. In responding particular facts of your case. Include correct, it may require the U. S. to pay to litigation support requests, bear in here a copy of any legal review
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regarding the withholding of the Depending on the basis for the lawsuit, meaningless. If applicable, this issue records. with the assistance of their legal must be specifically addressed in the (iv) Potential witness information. advisor, witnesses should prepare a declaration. (Tab D). List the names, addresses, draft declaration to be included with the (iv) Sound legal basis. Army policy telephone number, facsimile number litigation report. promotes careful consideration of FOIA and e-mail addresses of all potential (vii) The following is some general requests and discretionary decisions to witnesses. At a minimum, this must guidance on the content of a declaration disclose information protected under include all of the following: the FOIA in FOIA litigation. Identify the declarant the FOIA. Discretionary disclosures Officer or Coordinator or other person and describe his or her qualifications should be made only after full and responsible for processing FOIA and responsibilities as they relate to the deliberate consideration of the requests; the individual(s) who actually FOIA; provide a statement indicating institutional, commercial, and personal conducted the search for responsive that the declarant is familiar with the privacy interests that could be records; the legal advisor(s) who specific request and the general subject implicated by disclosure of the reviewed or provided advice on the matter of the records; include a information. The decision to withhold request; and the point of contact at any statement of the searcher’s records, in whole or in part, otherwise office or agency to which the FOIA understanding of the exact nature of the exempt from disclosure under the FOIA request was referred. request, including any modification must exhibit a sound legal basis or (v) Exhibits. (Tab E). Provide copies of (narrowing or expanding the search present an unwarranted risk of adverse all correspondence regarding the FOIA based on communications with the impact on the ability of other agencies requester); generally, the factual portion request. This includes all to protect other important records. correspondence between the agency and of the declaration should be organized the requester, including any enclosures; as a chronological statement beginning Subpart F—Fee Schedule any referrals or forwarding of the with receipt of the request; provide a request to other agencies or offices; specific description of the system of § 518.19 General provisions. copies of all documents released to the records searched; and provide a (a) Authorities. The FOIA, as requester pursuant to the request in description of procedures used to search amended; the Paperwork Reduction Act litigation. If any information is withheld for the requested records, (manual (44 U.S.C. 35), as amended; the PA of or redacted, provide a complete copy of search of records, computer database 1974, as amended; the Budget and all withheld information. Identify search, etc.). This portion of the Accounting Act of 1921 and the Budget withheld information by placing declaration is especially important and Accounting Procedures Act, as brackets around all information when no records are found. The amended (see 31 U.S.C.); and 10 U.S.C. withheld and note in the margins of the declaration must reflect an adequate and 2328). document the specific FOIA exemption reasonable search for records in locations where responsive records are (b) Application. The fees described in applied to deny release of the this Subpart apply to FOIA requests, document; all records and likely to be found. (5) Special guidance for initial denial and conform to the Office of correspondence forwarded to the IDA, if Management and Budget Uniform applicable; all appeals by the requester; authorities. If any information was withheld, the IDA or person with Freedom of Information Act Fee if the withheld document is classified, Schedule and Guidelines. They reflect provide a summary of each document specific knowledge of the withholding must provide a specific statement of any direct costs for search, review (in the withheld. The Summary of classified case of commercial requesters), and documents should include the Exemptions to the FOIA, which were applied to the records. duplication of documents, collection of following: which is permitted by the FOIA. They (A) The classification of the (i) Withheld records. For withheld records, describe in reasonably specific are neither intended to imply that fees document; must be charged in connection with (B) The date of the document; detail all records or parts of records (C) The number of pages of the withheld. If the number of records is providing information to the public in document; extensive, use an index of the records the routine course of business, nor are (D) The author or creator of the and consider numbering the documents they meant as a substitute for any other document; to facilitate reference. It is also schedule of fees, such as DoD 7000.14– (E) The intended or actual recipient of permissible (and frequently helpful) to R, which does not supersede the the document; include redacted portions of records collection of fees under the FOIA. (F) The subject of the document and withheld as attachments or exhibits to Nothing in this subpart shall supersede an unclassified description of the the declarations. fees chargeable under a statute document sufficient to inform the court (ii) Exemptions. Include in the specifically providing for setting the of the nature of the contents of the declaration a specific statement level of fees for particular types of document; and demonstrating that all the elements of records. A ‘‘statute specifically (G) An explanation of the reason for each FOIA exemption are met. providing for setting the level of fees for withholding, including the specific (iii) Segregation. The FOIA requires particular types of records’’ (5 U.S.C. provision(s) of Executive Order 12,958 that all information not subject to an 552 FOIA, (a)(4)(A)(vi)) means any which permit classification of the exemption to the FOIA, which can be statute that enables a Government information. reasonably segregated from exempt Agency such as the GPO or the NTIS, to (vi) Draft declarations. (Tab F). A information, must be released to FOIA set and collect fees. Components should declaration is a statement for use in requesters. In any instance where an ensure that when documents that would litigation made under penalty of perjury entire document is withheld, the be responsive to a request are pursuant to specific statutory authority individual authorizing the withholding maintained for distribution by agencies (28 U.S.C. 1746) which need not be must specifically address that operating statutory-based fee schedule notarized. Declarations may be used by segregation and release of non-exempt programs such as GPO or NTIS, they the Army to support a motion to dismiss material was not possible without inform requesters of the steps necessary or to grant summary judgment. rendering the record essentially to obtain records from those sources.
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(1) The term ‘‘direct costs’’ means determine whether one or more of the considered in the Activity’s those expenditures an Activity actually statutory exemptions permit determinations. makes in searching for, reviewing (in withholding. It also includes processing (3) For the purposes of these the case of commercial requesters), and the documents for disclosure, such as restrictions, the word ‘‘pages’’ refers to duplicating documents to respond to a excising them for release. Review does paper copies of a standard size, which FOIA request. Direct costs include, for not include the time spent resolving will normally be ″81⁄2 × 11″ or ″11 × 14″. example, the salary of the employee general legal or policy issues regarding Thus, requesters would not be entitled performing the work (the basic rate of the application of exemptions. It should to 100 microfiche or 100 computer pay for the employee plus 16 percent of be noted that charges for commercial disks, for example. A microfiche that rate to cover benefits), and the costs requesters may be assessed only for the containing the equivalent of 100 pages of operating duplicating machinery. Not initial review. Activities may not charge or 100 pages of computer printout, included in direct costs are overhead for reviews required at the however, might meet the terms of the expenses such as costs of space, heating administrative appeal level of an restriction. or lighting the facility in which the exemption already applied. However, (4) In the case of computer searches, records are stored. records or portions of records withheld the first two free hours will be (2) The term ‘‘search’’ includes all in full under an exemption, which is determined against the salary scale of time spent looking, both manually and subsequently determined not to apply, the individual operating the computer electronically, for material that is may be reviewed again to determine the for the purposes of the search. As an responsive to a request. Search also applicability of other exemptions not example, when the direct costs of the includes a page-by-page or line-by-line previously considered. The costs for computer central processing unit, input- identification (if necessary) of material such a subsequent review would be output devices, and memory capacity in the record to determine if it, or properly assessable. equal $40.00 (two hours of equivalent portions thereof are responsive to the (c) Fee restrictions. No fees may be search at the clerical level), amounts of request. Activities should ensure that charged by any Army Activity if the computer costs in excess of that amount searches are done in the most efficient costs of routine collection and are chargeable as computer search time. In the event the direct operating cost of and least expensive manner so as to processing of the fee are likely to equal the hardware configuration cannot be minimize costs for both the Activity and or exceed the amount of the fee. With determined, computer search shall be the requester. For example, Activities the exception of requesters seeking based on the salary scale of the operator should not engage in line-by-line documents for a commercial use, executing the computer search. searches, when duplicating an entire Activities shall provide the first two document known to contain responsive (d) Fee waivers. Documents shall be hours of search time, and the first one furnished without charge, or at a charge information, would prove to be the less hundred pages of duplication without expensive and quicker method of reduced below fees assessed to the charge. For example, for a request (other complying with the request. Time spent categories of requesters when the than one from a commercial requester) reviewing documents in order to Activity determines that waiver or that involved two hours and fifteen determine whether to apply one or more reduction of the fees is in the public minutes of search time, and resulted in of the statutory exemptions is not search interest because furnishing the one hundred and twenty-five pages of time, but review time. information is likely to contribute (3) The term ‘‘duplication’’ refers to documents, an Activity would significantly to public understanding of the process of making a copy of a determine the cost of only ten minutes the operations or activities of DA and is document in response to a FOIA of search time, and only five pages of not primarily in the commercial interest request. Such copies can take the form reproduction. If this processing cost was of the requester. of paper copy, microfiche, audiovisual, equal to, or less than the cost to the (1) When assessable costs for a FOIA or machine-readable documentation Activity for billing the requester and request total $15.00 or less, fees shall be (e.g., magnetic tape or disc), among processing the fee collected, no charges waived automatically for all requesters, others. Every effort will be made to would result. regardless of category. ensure that the copy provided is in a (1) Requesters receiving the first two (2) Decisions to waive or reduce fees form that is reasonably useable, the hours of search and the first one that exceed the automatic waiver requester shall be notified that the copy hundred pages of duplication without threshold shall be made on a case-by- provided is the best available and that charge are entitled to such only once per case basis. Disclosure of the information the Activity’s master copy shall be made request. Consequently, if an Activity, ‘‘is in the public interest because it is available for review upon appointment. after completing its portion of a request, likely to contribute significantly to For duplication of computer-stored finds it necessary to refer the request to public understanding of the operations records, the actual cost, including the a subordinate office, another Army or activities of the Government.’’ operator’s time, shall be charged. In Activity or DoD Component, or another (i) Activities should analyze whether practice, if an Activity estimates that Federal Agency for action their portion the subject matter of the request assessable duplication charges are likely of the request, the referring Activity involves issues that will significantly to exceed $25.00, it shall notify the shall inform the recipient of the referral contribute to the public understanding requester of the estimate, unless the of the expended amount of search time of the operations or activities of DA or requester has indicated in advance his and duplication cost to date. DoD. Requests for records in the or her willingness to pay fees as high as (2) The elements to be considered in possession of the Army or DoD, which those anticipated. Such a notice shall determining the ‘‘cost of collecting a were originated by non-government offer a requester the opportunity to fee’’ are the administrative costs to the organizations and are sought for their confer with Activity personnel with the Activity of receiving and recording a intrinsic content, rather than object of reformulating the request to remittance, and processing the fee for informative value, will likely not meet his or her needs at a lower cost. deposit in the Department of Treasury’s contribute to public understanding of (4) The term ‘‘review’’ refers to the special account. The cost to the the operations or activities of either DA process of examining documents located Department of Treasury to handle such or DoD. An example of such records in response to a FOIA request to remittance is negligible and shall not be might be press clippings, magazine
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articles, or records forwarding a information in a manner that will be examples, news media organizations particular opinion or concern from a informative to the general public. have a commercial interest as business member of the public regarding an Requesters should be asked to describe organizations; however, their inherent Army or DoD activity. Similarly, their qualifications, the nature of their role of disseminating news to the disclosures of records of considerable research, the purpose of the requested general public can ordinarily be age may or may not bear directly on the information, and their intended means presumed to be of a primary interest. current activities of either DA or DoD; of dissemination to the public. Therefore, any commercial interest however, the age of a particular record (iv) Activities must differentiate the becomes secondary to the primary shall not be the sole criteria for denying relative significance or impact of the interest in serving the public. Similarly, relative significance under this factor. It disclosure against the current level of scholars writing books or engaged in is possible to envisage an informative public knowledge, or understanding, other forms of academic research, may issue concerning the current activities of which exists before the disclosure. In recognize a commercial benefit, either DA or DoD, based upon historical other words, will disclosure on a directly, or indirectly (through the documentation. Requests of this nature current subject of wide public interest institution they represent); however, must be closely reviewed consistent be unique in contributing previously normally such pursuits are primarily with the requester’s stated purpose for unknown facts, thereby enhancing undertaken for educational purposes, desiring the records and the potential public knowledge, or will it basically and the application of a fee charge for public understanding of the duplicate what is already known by the would be inappropriate. Conversely, operations and activities of DA or DoD. general public? A decision regarding data brokers or others who merely (ii) The informative value of the significance requires objective compile government information for information to be disclosed requires a judgment, rather than subjective marketing can normally be presumed to close analysis of the substantive determination, and must be applied have an interest primarily of a contents of a record, or portion of the carefully to determine whether commercial nature. record, to determine whether disclosure disclosure will likely lead to a (5) Activities are reminded that the is meaningful, and shall inform the significant public understanding of the factors and examples used in this public on the operations or activities of issue. Activities shall not make value section are not all inclusive. Each fee DA or DoD. While the subject of a judgments as to whether the information decision must be considered on a case- request may contain information that is important enough to be made public. by-case basis and upon the merits of the concerns operations or activities of DA (4) Disclosure of the information ‘‘is information provided in each request. or DoD, it may not always hold great not primarily in the commercial interest When the element of doubt as to potential for contributing to a of the requester.’’ whether to charge or waive the fee meaningful understanding of these (i) If the request is determined to be cannot be clearly resolved, Activities operations or activities. An example of of a commercial interest, Activities should rule in favor of the requester. such would be a previously released should address the magnitude of that (6) In addition, the following record that has been heavily redacted, interest to determine if the requester’s additional circumstances describe the balance of which may contain only commercial interest is primary, as situations where waiver or reduction of random words, fragmented sentences, or opposed to any secondary personal or fees are most likely to be warranted: paragraph headings. A determination as non-commercial interest. In addition to (i) A record is voluntarily created to to whether a record in this situation will profit-making organizations, individual prevent an otherwise burdensome effort contribute to the public understanding persons or other organizations may have to provide voluminous amounts of of the operations or activities of DA or a commercial interest in obtaining available records, including additional DoD must be approached with caution, certain records. Where it is difficult to information not requested; or and carefully weighed against the determine whether the requester is of a (ii) A previous denial of records is arguments offered by the requester. commercial nature, Activities may draw reversed in total, or in part, and the Another example is information already inference from the requester’s identity assessable costs are not substantial (e.g. known to be in the public domain. and circumstances of the request. $15.00—$30.00). Disclosure of duplicative, or nearly Activities are reminded that in order to (e) Fee assessment. Fees may not be identical information already existing in apply the commercial standards of the used to discourage requesters, and to the public domain may add no FOIA, the requester’s commercial this end, FOIA fees are limited to meaningful new information concerning benefit must clearly override any standard charges for direct document the operations and activities of DA or personal or non-profit interest. search, review (in the case of DoD. (ii) Once a requester’s commercial commercial requesters) and duplication. (iii) The contribution to an interest has been determined, Activities (1) In order to be as responsive as understanding of the subject by the should then determine if the disclosure possible to FOIA requests while general public is likely to result from would be primarily in that interest. This minimizing unwarranted costs to the disclosure that will inform, or have the requires a balancing test between the taxpayer, Activities shall adhere to the potential to inform the public, rather commercial interest of the request following procedures: than simply the individual requester or against any public benefit to be derived (i) Each request must be analyzed to small segment of interested persons. as a result of that disclosure. Where the determine the category of the requester. The identity of the requester is essential public interest is served above and If the Activity determination regarding in this situation in order to determine beyond that of the requester’s the category of the requester is different whether such requester has the commercial interest, a waiver or than that claimed by the requester, the capability and intention to disseminate reduction of fees would be appropriate. Activity should notify the requester to the information to the public. Mere Conversely, even if a significant public provide additional justification to assertions of plans to author a book, interest exists, and the relative warrant the category claimed, and that researching a particular subject, doing commercial interest of the requester is a search for responsive records will not doctoral dissertation work, or indigence determined to be greater than the public be initiated until agreement has been are insufficient without demonstrating interest, then a waiver or reduction of attained relative to the category of the the capacity to further disclose the fees would be inappropriate. As requester. Absent further category
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justification from the requester, and from the date of the billing), the Activity Activities should seek additional within a reasonable period of time (i.e., may require the requester to pay the full clarification before assigning the request 30 calendar days), the Activity shall amount owed, plus any applicable to a specific category. render a final category determination, interest, or demonstrate that he or she (ii) When Activities receive a request and notify the requester of such has paid the fee, and to make an for documents for commercial use, they determination, to include normal advance payment of the full amount of should assess charges, which recover administrative appeal rights of the the estimated fee before the Activity the full direct costs of searching for, determination. The requester should be begins to process a new or pending reviewing for release, and duplicating advised that, notwithstanding any request from the requester. Interest will the records sought. Commercial appeal, a search for responsive records be at the rate prescribed in 31 U.S.C. requesters (unlike other requesters) are will not be initiated until the requester 3717, and confirmed with respective not entitled to two hours of free search indicates a willingness to pay assessable Finance and Accounting Offices; time, nor 100 free pages of reproduction costs appropriate for the category (vii) After all work is completed on a of documents. Moreover, commercial determined by the Activity; request, and the documents are ready requesters are not normally entitled to a (ii) Requesters should submit a fee for release, Activities may request waiver or reduction of fees based upon declaration appropriate for the below payment before forwarding the an assertion that disclosure would be in categories. Commercial requesters documents, particularly for those the public interest. However, because should indicate a willingness to pay all requesters who have no payment use is the exclusive determining criteria, search, review and duplication costs. history, or for those requesters who have it is possible to envision a commercial Educational or Noncommercial failed previously to pay a fee in a timely enterprise making a request that is not Scientific Institution or News Media fashion (i.e., within 30 calendar days for commercial use. It is also possible requesters should indicate a willingness from the date of the billing; that a non-profit organization could to pay duplication charges, if (viii) The administrative time limits of make a request that is for commercial applicable, in excess of 100 pages if the FOIA will begin only after the use. Such situations must be addressed more than 100 pages of records are Activity has received a willingness to on a case-by-case basis. desired. All other requesters should pay fees and satisfaction as to category (3) Educational institution requesters. indicate a willingness to pay assessable determination, or fee payments (if Fees shall be limited to only reasonable search and duplication costs; appropriate); and standard charges for document (iii) Activities must be prepared to (ix) Activities may charge for time duplication (excluding charges for the provide an estimate of assessable fees if spent searching for records, even if that first 100 pages) when the request is desired by the requester. While it is search fails to locate records responsive made by an educational institution recognized that search situations will to the request. Activities may also whose purpose is scholarly research. vary among Activities, and that an charge search and review (in the case of Requesters must reasonably describe the estimate is often difficult to obtain prior commercial requesters) time if records records sought. The term ‘‘educational to an actual search, requesters who located are determined to be exempt institution’’ refers to a pre-school, a desire estimates are entitled to such from disclosure. In practice, if the public or private elementary or before committing to a willingness to Activity estimates that search charges secondary school, an institution of pay. Should Activities’ actual costs are likely to exceed $25.00, it shall graduate high education, an institution exceed the amount of the estimate or the notify the requester of the estimated of undergraduate higher education, an amount agreed to by the requester, the amount of fees, unless the requester has institution of professional education, amount in excess of the estimate or the indicated in advance his or her and an institution of vocational requester’s agreed amount shall not be willingness to pay fees as high as those education, which operates a program or charged without the requester’s anticipated. Such a notice shall offer the programs of scholarly research. Fees agreement; requester the opportunity to confer with shall be waived or reduced in the public (iv) No Army Activity may require Activity personnel with the object of interest if the criteria above have been advance payment of any fee; i.e., reformulating the request to meet his or met. payment before work is commenced or her needs at a lower cost. (4) Non-commercial scientific continued on a request, unless the (2) Commercial Requesters. Fees shall institution requesters. Fees shall be requester has previously failed to pay be limited to reasonable standard limited to only reasonable standard fees in a timely fashion, or the agency charges for document search, review charges for document duplication has determined that the fee will exceed and duplication when records are (excluding charges for the first 100 $250.00. As used in this sense, a timely requested for commercial use. pages) when the request is made by a fashion is 30 calendar days from the Requesters must reasonably describe the non-commercial scientific institution date of billing (the fees have been records sought. whose purpose is scientific research. assessed in writing) by the Activity; (i) The term ‘‘commercial use’’ request Requesters must reasonably describe the (v) Where an Activity estimates or refers to a request from, or on behalf of records sought. The term ‘‘non- determines that allowable charges that a one who seeks information for a use or commercial scientific institution’’ refers requester may be required to pay are purpose that furthers the commercial, to an institution that is not operated on likely to exceed $250.00, the Activity trade, or profit interest of the requester a ‘‘commercial’’ basis and that is shall notify the requester of the likely or the person on whose behalf the operated solely for the purpose of cost and obtain satisfactory assurance of request is made. In determining whether conducting scientific research, the full payment where the requester has a a requester properly belongs in this results of which are not intended to history of prompt payments, or require category, Activities must determine the promote any particular product or an advance payment of an amount up to use to which a requester will put the industry. the full estimated charges in the case of documents requested. Moreover, where (5) Activities shall provide documents requesters with no history of payment; an Activity has reasonable cause to to requesters for the cost of duplication (vi) Where a requester has previously doubt the use to which a requester will alone, excluding charges for the first failed to pay a fee charged in a timely put the records sought, or where that 100 pages. To be eligible for inclusion fashion (i.e., within 30 calendar days use is not clear from the request itself, in these categories, requesters must
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show that the request is being made libraries, private repositories of for any fees that remain outstanding 30 under the auspices of a qualifying Government records, information calendar days from the date of billing institution and that the records are not vendors, data brokers or similar (the first demand notice) to the sought for commercial use, but in marketers of information whether to requester of the amount owed. The furtherance of scholarly (from an industries and businesses, or other interest rate shall be as prescribed in 31 educational institution) or scientific entities. U.S.C. 3717. Activities should verify the (from a non-commercial scientific (7) All Other Requesters. Activities current interest rate with respective institution) research. shall charge requesters who do not fit Finance and Accounting Offices. After (6) Representatives of the news media. into any of the categories, fees which one demand letter has been sent, and 30 Fees shall be limited to only reasonable recover the full direct cost of searching calendar days have lapsed with no standard charges for document for and duplicating records, except that payment, Activities may submit the debt duplication (excluding charges for the the first two hours of search time and to respective Finance and Accounting first 100 pages) when the request is the first 100 pages of duplication shall Offices for collection pursuant to the made by a representative of the news be furnished without charge. Requesters Debt Collection Act. media. Requesters must reasonably must reasonably describe the records (h) Computation of fees. The fee describe the records sought. sought. Requests from subjects about schedule shall be used to compute the (i) The term ‘‘representative of the themselves will continue to be treated search, review (in the case of news media’’ refers to any person under the fee provisions of the Privacy commercial requesters) and duplication actively gathering news for an entity Act of 1974, which permit fees only for costs associated with processing a given that is organized and operated to duplication. Activities are reminded FOIA request. Costs shall be computed publish or broadcast news to the public. that this category of requester may also on time actually spent. Neither time- The term ‘‘news’’ means information be eligible for a waiver or reduction of based nor dollar-based minimum that is about current events or that fees if disclosure of the information is charges for search, review and would be of current interest to the in the public interest as defined in duplication are authorized. The public. Examples of news media entities paragraph (e)(6)(ii) of this section. include television or radio stations (f) Aggregating requests. Except for appropriate fee category of the requester broadcasting to the public at large and requests that are for a commercial use, shall be applied before computing fees. publishers of periodicals (but only in an Activity may not charge for the first DD Form 2086 (Record of Freedom of those instances when they can qualify two hours of search time or for the first Information (FOI) Processing Cost) will as disseminators of ‘‘news’’) who make 100 pages of reproduction. However, a be used to annotate fees for processing their products available for purchase or requester may not file multiple requests FOIA information. subscription by the general public. at the same time, each seeking portions (i) Refunds. In the event that an These examples are not meant to be all- of a document or documents, solely in Activity discovers that it has inclusive. Moreover, as traditional order to avoid payment of fees. When an overcharged a requester or a requester methods of news delivery evolve (e.g., Activity reasonably believes that a has overpaid, the Activity shall electronic dissemination of newspapers requester or, on rare occasions, a group promptly refund the charge to the through telecommunications services), of requesters acting in concert, is requester by reimbursement methods such alternative media would be attempting to break a request down into that are agreeable to the requester and included in this category. In the case of a series of requests for the purpose of the Activity. ‘‘freelance’’ journalists, they may be avoiding the assessment of fees, the § 518.20 Collection of fees and fee rates. regarded as working for a news agency may aggregate any such requests organization if they can demonstrate a and charge accordingly. One element to (a) Collection of fees. Collection of solid basis for expecting publication be considered in determining whether a fees will be made at the time of through that organization, even though belief would be reasonable is the time providing the documents to the not actually employed by it. A period in which the requests have requester or recipient when the publication contract would be the occurred. For example, it would be requester specifically states that the clearest proof, but Activities may also reasonable to presume that multiple costs involved shall be acceptable or look to the past publication record of a requests of this type made within a 30- acceptable up to a specified limit that requester in making this determination. day period had been made to avoid fees. covers the anticipated costs. Collection (ii) To be eligible for inclusion in this For requests made over a longer period, of fees may not be made in advance category, a requester must meet the however, such a presumption becomes unless the requester has failed to pay criteria in paragraph (e)(6)(i) of this harder to sustain and Activities should previously assessed fees within 30 section, and his or her request must not have a solid basis for determining that calendar days from the date of the be made for commercial use. A request aggregation is warranted in such cases. billing by the Activity, or the Activity for records supporting the news Activities are cautioned that before has determined that the fee will be in dissemination function of the requester aggregating requests from more than one excess of $250. shall not be considered to be a request requester, they must have a concrete (b) Search time. that is for a commercial use. For basis on which to conclude that the (1) Costs for manual searches. example, a document request by a requesters are acting in concert and are newspaper for records relating to the acting specifically to avoid payment of Hourly investigation of a defendant in a current fees. In no case may Activities aggregate Type Grade rate ($) criminal trial of public interest could be multiple requests on unrelated subjects presumed to be a request from an entity from one requester. Clerical ...... E9/GS 8 and 20 eligible for inclusion in this category, (g) Debt Collection Act of 1982 (Pub. below. and entitled to records at the cost of L. 97–365). The Debt Collection Act Professional .... 01–06/GS 9–GS 44 reproduction alone (excluding charges provides for a minimum annual rate of 15. interest to be charged on overdue debts Executive ...... 07/ST/SL/SES–1 75 for the first 100 pages). and above. (iii) ‘‘Representative of the news owed the Federal Government. Contractor ...... 44 media’’ does not include private Activities may levy this interest penalty
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(2) Computer search. Fee assessments person doing the work. Audiovisual information released under the FOIA. for computer search consists of two materials provided to a requester need DD Form 2086–1 will be used to parts; individual time (hereafter referred not be in reproducible format or quality. annotate fees for technical data. The to as human time), and machine time. Army audiovisual materials are referred form is available through normal (i) Human time. Human time is all the to as ‘‘visual information.’’ publication channels. time spent by humans performing the (f) Other records. Direct search and (b) Waiver. Activities shall waive the necessary tasks to prepare the job for a duplication cost for any record not payment of costs described in paragraph machine to execute the run command. described above shall be computed in (a) of this section, which are greater If execution of a run requires monitoring the manner described for audiovisual than the costs that would be required for by a human, that human time may be documentary material. release of this same information if the also assessed as computer search. The (g) Costs for special services. request is made by a citizen of the terms ‘‘programmer/operator’’ shall not Complying with requests for special United States or a United States be limited to the traditional services is at the discretion of the corporation, and such citizen or programmers or operators. Rather, the Activities. Neither the FOIA, nor its fee corporation certifies that the technical terms shall be interpreted in their structure cover these kinds of services. data requested is required to enable it to broadest sense to incorporate any Therefore, Activities may recover the submit an offer, or determine whether it human involved in performing the costs of special services requested by is capable of submitting an offer to computer job (e.g. technician, the requester after agreement has been provide the product to which the administrative support, operator, obtained in writing from the requester to technical data relates to the United programmer, database administrator, or pay for one or more of the following States or a contractor with the United action officer). services: States. However, Activities may require (ii) Machine time. Machine time (1) Certifying that records are true the citizen or corporation to pay a involves only direct costs of the Central copies; and/or deposit in an amount equal to not more Processing Unit (CPU), input/output (2) Sending records by special than the cost of complying with the devices, and memory capacity used in methods such as express mail, etc. request, which will be refunded upon the actual computer configuration. Only submission of an offer by the citizen or this CPU rate shall be charged. No other § 518.21 Collection of fees and fee rates for technical data. corporation; machine related costs shall be charged. (i) The release of technical data is In situations where the capability does (a) Fees for technical data. Technical requested in order to comply with the not exist to calculate CPU time, no data, other than technical data that terms of an international agreement; or, machine costs can be passed on to the discloses critical technology with (ii) The Activity determines that such requester. When CPU calculations are military or space application, if required a waiver is in the interest of the United not available, only human time costs to be released under the FOIA, shall be States. shall be assessed to requesters. Should released after the person requesting (c) Fee rates. Army Activities lease computers, the such technical data pays all reasonable (1) Costs for a manual search of services charged by the lesser shall not costs attributed to search, duplication technical data. be passed to the requester under the and review of the records to be released. Technical data, as used in this section, Hourly FOIA. Type Grade rate ($) (c) Duplication costs. means recorded information, regardless of the form or method of the recording Clerical ...... E9/GS 8 and 13.25 Cost per of a scientific or technical nature below. Type page (including computer software Minimum 8.30 (cents) documentation). This term does not Charge. include computer software, or data Pre-printed material ...... 02 Notes: Professional and Executive (To be Office Copy ...... 15 incidental to contract administration, established at actual hourly rate prior to Microfiche ...... 25 such as financial and/or management search. A minimum charge will be established Computer copies (tapes, discs or information. Army Activities shall at 1⁄2 hourly rates. 1 printouts) ...... ( ) retain the amounts received by such a (2) Computer search is based on the 1Actual cost of duplicating the tape, disc or release, and it shall be merged with and total cost of the cpu, input-output printout (includes operator’s time and cost of available for the same purpose and the devices, and memory capacity of the the medium). same time period as the appropriation actual computer configuration. The (d) Review time costs (in the case of from which the costs were incurred in wage for the computer operator and/or commercial requesters). complying with request. All reasonable programmer determining how to costs as used in this sense are the full conduct, and subsequently executing costs to the Federal Government of Type Grade Hourly the search will be recorded as part of the rate ($) rendering the service, or fair market computer search. value of the service, whichever is (d) Duplication costs for technical Clerical ...... E9/GS 8 and 20 higher. Fair market value shall be data. below. determined in accordance with Professional .... 01–06/GS 9–GS 44 15. commercial rates in the local Type Cost ($) Executive ...... 07/ST/SL/SES–1 75 geographical area. In the absence of a and above. known market value, charges shall be Aerial photograph, maps, speci- Contractor ...... 44 based on recovery of full costs to the fications, permits, charts, blue- Federal Government. The full costs shall prints, and other technical engi- neering documents ...... 2.50 (e) Audiovisual documentary include all direct and indirect costs to Engineering data (microfilm). materials. Search costs are computed as conduct the search and to duplicate the a. Aperture cards for any other record. Duplication cost is records responsive to the request. This Silver duplicate negative, per card .75 the actual direct cost of reproducing the cost is to be differentiated from the When key punched and verified, material, including the wage of the direct costs allowable for other types of per card ...... 85
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Type Cost ($) 8320.1–M, ‘‘Data Administration responded to and denied in full based Procedures.’’ on one or more of the FOIA exemptions. Diazo duplicate negative, per card .65 (3) The reporting requirement (Do not report ‘‘Other Reason When key punched and verified, outlined is assigned Report Control Responses’’ as denials here, unless a per card ...... 75 Symbol DD–DA&M(A)1365, FOIA FOIA exemption is also used). b. 35 mm roll film, per frame ...... 50 Report to Congress. (5) ‘‘Other reason’’ responses. Enter c. 16 mm roll film, per frame ...... 45 (b) Reporting time. Each DA IDA shall the total number of initial FOIA requests d. Paper prints (engineering draw- prepare statistics and accumulate ings), each ...... 1.50 in which you were unable to provide all e. Paper reprints of microfilm indi- paperwork for the preceding fiscal year or part of the requested information ces, each ...... 10 on those items prescribed for the annual based on an ‘‘Other Reason’’ response. report. The IDAs will follow guidelines (6) Total actions. Enter the total (e) Review time costs of technical below and submit the information to the number of FOIA actions taken during data. DA, FOIA/PA Office, on or before the the fiscal year. This number will be the 15th day of each October. sum of items 1b, through 1e. Total (1) Each reporting activity will submit Type Grade Hourly Actions must be equal to or greater than rate ($) the information requested on the DD the number of Total Requests Processed. Form 2564,’Annual Report Freedom of (b) ITEM 2 initial request exemptions Clerical ...... E9/GS 8 and 13.25 Information Act.’’ The form is available below. and other reasons. (1) Exemptions through normal publication channels. invoked on initial request Minimum 8.30 (2) Each IDA will submit the Charge. determinations. Enter the number of information requested on the DD Form times an exemption was claimed for Notes:Professional and Executive (To be 2564, excluding items 3, 4, and 9c. established at actual hourly rate prior to (3) The Judge Advocate General each request that was denied in full or search. A minimum charge will be established (DAJA) and Chief of Engineers (COE) in part. Since more than one exemption at 1⁄2 hourly rates. will submit the information requested may be claimed when responding to a (f) Other technical data records. on the Form DD 2564, item 9c. single request, this number will be equal Charges for any additional services not (4) The General Counsel (SAGC) will to or greater than the sum of paragraphs specifically consistent with Volume 11A submit the information requested on the (a)(3) and (4), of this section. The (b)(7) of DoD 7000.14–R, shall be made by DD Form 2564, items 3 and 4. exemption is reported by subcategories Activities at the following rates: (5) The DA, FOIA/PA Office will (A) through (F): (A) Interfere with compile the data submitted in the Enforcement; (B) Fair Trial Right; (C) Type Cost ($) Army’s Annual Report. This report will Invasion of Privacy; (D) Protect be submitted to the DoD Office for Confidential Source; (E) Disclose 1. Minimum charge for office copy Freedom of Information and Security Techniques, and (F) Endanger Life or (up to six images) ...... 3.50 Review on or before the 30th day of Safety. 2. Each additional image ...... 10 (2) ‘‘Other reasons’’ cited on initial 3. Each typewritten page ...... 3.50 each November. determinations. Identify the ‘‘Other 4. Certification and validation with § 518.23 Annual report content. seal, each ...... 5.20 Reason’’ response cited when 5. Hand-drawn plots and The current edition of DD Form 2564 responding to a FOIA request and enter sketches, each hour or fraction shall be used to submit Activity input. the number of times each was claimed. thereof ...... 12.00 Instructions for completion follows: (i) No records. Enter the number of (a) ITEM 1 initial request times a reasonable search of files failed determinations. Please note that initial Subpart G—Reports to identify records responsive to subject PA requests, which are also processed request. § 518.22 Reports control. as initial FOIA requests, are reported (ii) Referrals. Enter the number of (a) General. (1) The Annual FOIA here. times a request was referred to another (1) Total requests processed. Enter the Report is mandated by the statute and DoD Component or Federal Agency for total number of initial FOIA requests reported on a fiscal year basis. Due to action. responded to (completed) during the the magnitude of the requested statistics (iii) Request withdrawn. Enter the fiscal year. This should include pending number of times a request and/or appeal and the need to ensure accuracy of cases at the end of the prior fiscal year, was withdrawn by a requester. reporting, Army Activities shall track Total Actions is the sum of Items 1b this data as requests are processed. This through 1e, on the DD Form 2564. This (iv) Fee-related reason. Requester is will also facilitate a quick and accurate total may exceed Total Requests unwilling to pay the fees associated compilation of statistics. Army Processed. with a request; the requester is past due Activities shall forward their report to (2) Granted in full. Enter the total in the payment of fees from a previous DA, FOIA/PA Office, no later than number of initial FOIA requests FOIA request; or the requester disagrees October 15 following the fiscal year’s responded to that were granted in full with a fee estimate. close. It may be submitted electronically during the fiscal year. (This may include (v) Records not reasonably described. and via hard copy accompanied by a requests granted by your office, yet still Enter the number of times a FOIA computer diskette. In turn, DA and DoD requiring action by another office). request could not be acted upon since will produce a consolidated report for a (3) Denied in part. Enter the total the record had not been described with submission to the Attorney General and number of initial FOIA requests sufficient particularity to enable the ensure that a copy of the consolidated responded to and denied in part based Army Activity to locate it by conducting report is placed on the Internet for on one or more of the FOIA exemptions. a reasonable search. public access. (Do not report ‘‘Other Reason (vi) Not a proper FOIA request for (2) Existing Army standards and Responses’’ as a partial denial here, some other reason. Enter the number of registered data elements are to be unless a FOIA exemption is also used). times the requester has failed utilized to the greatest extent possible in (4) Denied in full. Enter the total unreasonably to comply with accordance with the provisions of DoD number of initial FOIA requests procedural requirements, other than fee-
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related imposed by this part or an Army here, unless a FOIA exemption is used hours, is the close of the reporting Activity’s supplementing regulation. also). period. (vii) Not an agency record. Enter the (v) ‘‘Other reason’’ responses. Enter (ii) The number for the beginning number of times a requester was the total number of FOIA appeals in report period must be the same number provided a response indicating the which you were unable to provide the reported as of the end of the report requested information was not a record requested information based on an period from the previous report. within the meaning of the FOIA and this ‘‘Other Reason’’ response. (2) Median age of initial requests part. (vi) Total actions. Enter the total pending: Report the median age in days (viii) Duplicate request. Record number of FOIA appeal actions taken (including holidays and weekends) of number of duplicate requests closed for during the fiscal year. This number will initial requests pending. that reason (e.g., request for the same be the sum of items 3b, through 3e, and (3) Examples of median calculation. information by the same requester). This should be equal to or greater than the (i) If given five cases aged 10, 25, 35, 65, includes identical requests received via number of Total Appeal Responses, item and 100 days from date of receipt as of different means (e.g., electronic mail, 3a on the report form. the previous September 30th, the total facsimile, mail, and courier) at the same (d) ITEM 4 Appeal exemptions and requests pending is five (5). The median or different times. other reasons. (1) Exemptions Invoked age (days) of open requests is the (ix) Other (Specify). Any other reason on Appeal Determinations. Enter the middle, not average value, in this set of a requester does not comply with number of times an exemption was numbers (10, 25, 35, 65, and 100), 35 published rules, other than those claimed for each appeal that was denied (the middle value in the set). reasons outlined in paragraphs (b) (2) (i) in full or in part. Since more than one (ii) If given six pending cases, aged through (viii) of this section. exemption may be claimed when 10, 20, 30, 50, 120, and 200 days from (x) Total. Enter the sum of paragraphs responding to a single request, this date of receipt, as of the previous (b) (2) (i) through (ix) of this section, in number will be equal to or greater than September 30th, the total requests the block provided on the form (total the sum of items 3c, and 3d on the pending is six (6). The median age other reasons). This number will be report form. Note that the (b)(7) (days) of open requests 40 days (the equal to or greater than the number in exemption is reported by subcategory mean [average] of the two middle item 1e on the report form, since more (A) through (F): (A) Interfere with numbers in the set, in this case the than one reason may be claimed for Enforcement; (B) Fair Trial Right; (C) average of middle values 30 and 50). each ‘‘Other Reason’’ response. Invasion of Privacy; (D) Protect (4) Accuracy of calculations. (3) (b)(3) Statutes invoked on initial Confidential Source; (E) Disclose Activities must ensure the accuracy of determinations. Identify the number of Techniques, and (F) Endanger Life or calculations. As backup, the raw data times you have used a specific statute to Safety. used to perform calculations should be support each (b)(3) exemption. List the (2) ‘‘Other reasons’’ cited on appeal recorded and preserved. This will statutes used to support each (b)(3) determinations. Identify the ‘‘Other enable recalculation of median [and exemption; the number of instances in Reason’’ response cited when mean values] as necessary. Activities which the statute was cited; note responding to a FOIA appeal and enter may require subordinate elements to whether or not the statute has been the number of times each was claimed. forward raw data, as deemed necessary upheld in a court hearing; and provide This number may be equal to or and appropriate. a concise description of the material possibly greater than the number in item (5) Average. If an Activity believes withheld in each individual case by the 3e on the report form, since more than that ‘‘average’’ (mean) processing time is statute’s use. Ensure you cite the one reason may be claimed for each a better measure of performance, then specific sections of the acts invoked. ‘‘Other Reason’’ response. report ‘‘averages’’ (means) as well as The total number of instances reported (3) (b)(3) Statutes invoked on appeal median values (e.g., with data reflected will be equal to or greater than the total determinations. Identify the number of and plainly labeled on plain bond as an number of (b)(3) exemptions listed in times a specific statute has been used to attachment to the report). However, Item 2a on the report form. (c) ITEM 3 appeal determinations. support each (b)(3) exemption identified ‘‘average’’ (mean) values will not be Please note that PA appeals, which are in item 4a on the report form DD 2564. included in the consolidated Army also processed as FOIA appeals, are List the statutes used to support each report unless all Activities report it. reported here. (b)(3) exemption; the number of (f) ITEM 6 number of initial requests (i) Total appeal responses. Enter the instances in which the statute was cited; received during the fiscal year. Enter the total number of FOIA appeals note whether or not the statute has been total number of initial FOIA requests responded to (completed) during the upheld in a court hearing; and provide received during the reporting period fiscal year. a concise description of the material (fiscal year being reported). (ii) Granted in full. Enter the total withheld in each individual case by the (g) ITEM 7 types of requests processed number of FOIA appeals responded to statute’s use. Ensure citation to the and median age. Information is reported and granted in full during the year. specific sections of the statute invoked. for three types of initial requests (iii) Denied in part. Enter the total The total number of instances reported completed during the reporting period: number of FOIA appeals responded to will be equal to or greater than the total Simple; Complex; and Expedited and denied in part based on one or more number of (b)(3) exemptions listed in Processing. The following items of of the FOIA exemptions. (Do not report Item 4a on the report form. information are reported for these ‘‘Other Reason Responses’’ as a partial (e) ITEM 5 Number and median age requests: denial here, unless a FOIA exemption is of initial cases pending: (1) Total number of initial requests. used also.) (1) Total initial cases pending: Enter the total number of initial requests (iv) Denied in full. Enter the total (i) Beginning and ending report processed [completed] during the number of FOIA appeals responded to period: Midnight, 2400 hours, reporting period (fiscal year) by type and denied in full based on one or more September 30,of the Preceding Year -or- (Simple, Complex and Expedited of the FOIA exemptions. (Do not report 0001 hours, October 1,is the beginning Processing) in the appropriate row on ‘‘Other Reason Responses’’ as denials of the report period. Midnight, 2400 the form.
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(2) Median age (Days). Enter the during the fiscal year, aged 10, 25, 35, fiscal year. This includes search, review median number of days [calendar days 65, 79, 90 and 400 days when and reproduction costs only. including holidays and weekends] completed. The total number of requests (i) ITEM 9 FOIA program costs. (1) required to process each type of case completed was seven (7). The median Number of full time staff. Enter the (Simple, Complex and Expedited age (days) of completed requests is 65, number of personnel your agency had Processing) during the period in the the middle value in the set. dedicated to working FOIA full time appropriate row on the form. (h) ITEM 8 Fees collected from the during the fiscal year. This will be (3) Example. Given seven initial public. Enter the total amount of fees expressed in work-years [man-years]. requests, multitrack—simple completed collected from the public during the For example: ‘‘5.1, 3.2, 1.0, 6.5, et al.’’
TABLE 7–1.—SAMPLE COMPUTATION OF WORK YEARS FOR FULL TIME STAFF
Number of Employee months Work-years Note worked
Smith, Jane ...... 6 .5 Hired full time at middle of fiscal year. Public, John Q...... 4 .34 Dedicated to full time FOIA processing last quarter of the fiscal year. Brown, Tom ...... 12 1.0 Worked FOIA full time all fiscal year.
Totals ...... 22 1.84
(2) Number of part time staff. Enter had dedicated to working FOIA part expressed in work-years [man-years]. the number of personnel your agency time during the fiscal year. This will be For example: ‘‘5.1, 3.2, 1.0, 6.5, et al.’’
TABLE 7–2.—COMPUTATION OF WORK YEARS FOR PART TIME STAFF
Number of Employee months Work-years Note worked
Public, John Q...... 200 .1 Amount of time devoted to part time FOIA processing before becoming full time FOIA processor in previous example. White, Sally ...... 400 .2 Processed FOIAs part time while working as paralegal in General Counsel’s Of- fice. Peters, Ron ...... 1,000 .5 Part time employee dedicated to FOIA processing.
Totals ...... *1,600/2,000 ...... *(hours worked in a year) equals 0.8 work-years.
(3) Estimated Litigation Cost. Report summarized and used in computing (8) AR 40–66 Medical Record your best estimate of litigation costs for total costs. Administration and Health Care Documentation; the FY. Include all direct and indirect (iv) An overhead rate of 25% shall be expenses associated with FOIA (9) AR 40–68 Quality Assurance added to all calculated costs for Administration; litigation in U.S. District Courts, U.S. supervision, space, and administrative (10) AR 40–400 Patient Administration; Circuit Courts of Appeals, and the U.S. support. (11) AR 195–2 Criminal Investigation Supreme Court. Activities; (4) Total Program Cost. Report the (j) ITEM 10 authentication. The (12) AR 25–71 The Army Privacy Program; total cost of FOIA program operation official that approves the agency’s report (13) AR 360–1 The Army Public Affairs within your agency. Include your submission to DA will sign and date; Program; litigation costs in this total. While you enter typed name and duty title; and (14) AR 380–5 Department of the Army do not have to report detailed cost provide both the agency’s name and Information Security Program; information as in the past, you should phone number for questions about the (15) AR 381–10 U.S. Army Intelligence report. The consolidated Annual FOIA Activities; be able to explain the techniques by (16) AR 381–12 Subversion and Espionage which you derived your agency’s total Report will be made available to the public in electronic format by DoD. Directed Against The U.S. Army (SAEDA); cost figures if the need arises. (17) AR 381–20 The Army (i) Before the close of each fiscal year, Appendix A to Part 518—References Counterintelligence Program; the DoD OFOISR will dispatch the latest (18) AR 530–1 Operations Security OSD Composite Rate Chart for military (a) References. (OPSEC); personnel to DoD Components. This (1) AR 1–20 Legislative Liaison; (19) AR 600–85 Army Substance Abuse information may be used in computing (2) AR 20–1 Inspector General Activities Program; and and Procedures; military personnel costs. (20) AR 608–18 The Army Family (3) AR 25–1 The Army Information Advocacy Program. (ii) Army Activities should compute Management; their civilian personnel costs using rates (b) Related publications. A related (4) AR 25–11 Record Communications and publication is merely a source of additional from local Office of Personnel the Privacy Communications System; information. The user does not have to read Management (OPM) Salary Tables and (5) AR 25–400–2 The Army Records it to understand this part. shall add 16% for benefits. Information Management System (ARIMS); (1) AR 10–5 Headquarters, Department of (iii) Data captured on DD Form 2086, (6) AR 27–20 Claims; the Army; and DD Form 2086–1, shall be (7) AR 36–2 Audit Reports and Follow-up; (2) AR 27–10 Military Justice;
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(3) AR 27–40 Litigation; (30) Public Law 86–36 National Security (1) Current publications and records of DA (4) AR 27–60 Intellectual Property; Information Exemption, Codified at 50 U.S.C. field commands, installations, and (5) AR 60–20 Army and Air Force 402, as amended; organizations. See also: http:// Exchange Service Operating Policies AFR (31) Public Law 104–191 Health Insurance books.army.mil/. 147–14; Portability and Accountability Act of 1996, (2) Send the request to the commander of (6) AR 70–31 Standards for Technical Codified at 42 U.S.C. 1171–1179, as the command, installation, or organization, to Reporting; amended; the attention of the FOIA Official. (7) AR 190–45 Law Enforcement Reporting; (32) Section 822 of the National Defense (3) Consult AR 25–400–2 (ARIMS) for more (8) AR 380–10 Foreign Disclosure and Authorization Act for FY 90 and 91 (Pub. L. detailed listings of all record categories kept Contacts with Foreign Representatives; 101–189, November 29, 1989: 103 Stat. 1382, in DA offices. (9) AR 381–45 Investigative Records 1503); (4) Contact the installation or organization Repository; (33) 5 U.S.C. 551–559, Administrative public affairs officer for help if you cannot (10) AR 385–40 Accident Reporting and Procedures Act; determine the official within a specific Records; (34) 5 U.S.C. 552, as amended: public organization to whom your request should be (11) DA Pam 25–30 Consolidated Army information; agency rules, opinions, orders, addressed. Publications and Index Forms; records, and proceedings. (FOIA); (b) Department of the Army publications. (12) DA Pam 25–51 The Army Privacy (35) 5 U.S.C. 552a, as amended: records Send requests for current administrative, Program—System of Records Notices and about individuals, (PA of 1974); training, technical, and supply publications Exemption Rules; (36) 10 U.S.C. 128, Physical Protection of to the National Technical Information (13) DoD Directive 5100.3 Support of the Special Nuclear Material: Limitation on Service, U.S. Department of Commerce, 5285 Headquarters of Combatant and Subordinate Dissemination of Unclassified Information; Port Royal Road, Springfield, VA 22161. Joint Commands, November 15, 1999; (37) 10 U.S.C. 130, Authority to Withhold NTIS handles general public requests for (14) DoD Directive 5230.24 Distribution from Public Disclosure Certain Technical unclassified, uncopyrighted, and Statements on Technical Documents, March Data; nondistribution-restricted Army publications 18, 1987; (38) 10 U.S.C. 130 (b), Personnel in not sold through the Superintendent of (15) DoD Directive 5230.25 Withholding of Overseas, Sensitive, or Routinely Deployable Documents. Unclassified Technical Data From Public Units: nondisclosure of personally (c) Military personnel records. Send Disclosure, November 6, 1984; identifying information; requests for military personnel records of (16) DoD Directive 5230.9 Clearance of (39) 10 U.S.C. 1102 (f), Confidentiality of information as follows: DoD Information for Public Release, April 9, Medical Quality Assurance Records: (1) Army Reserve personnel not on active 1996; Qualified Immunity for Participants; duty and retired personnel—Commander, (40) 10 U.S.C. 2305(g) Prohibition on U.S. Army Human Resources Command, St. (17) DoD Directive 5400.4 Provision of Release of Contractor Proposals; Louis, 1 Reserve Way, St. Louis, MO 63132– Information to Congress, January 30, 1978; (41) 10 U.S.C. 2320–2321, Rights in 5200; commercial. (18) DoD Directive 5400.7 DoD Freedom of Technical Data; (2) Army officer personnel discharged or Information Act (FOIA) Program, September (42) 10 U.S.C. 2328, Release of Technical deceased after July 1, 1917 and Army 29, 1997; Data under Freedom of Information Act: enlisted personnel discharged or deceased (19) DoD Directive 5400.11 DOD Privacy Recovery of Costs; after November 1, 1912—Director, National Program, December 13, 1999; (43) 17 U.S.C. 106, Exclusive Rights in Personnel Records Center, 9700 Page Ave., (20) DoD Directive 7650.1 General Copyrighted Works; St. Louis, MO 63132–5100. Accounting Office (GAO) and Comptroller (44) 18 U.S.C. 798, Disclosure of Classified (3) Army personnel separated before the General Access to Records, September 11, Information; dates specified in paragraph (2), above—Old 1997; (45) 18 U.S.C. 3500, The Demands for Military and Civilian Records Unit (Archives (21) DoD Directive 7650.2 General Production of Statements and Reports of 1), National Archives and Records Accounting Office Reviews and Reports, July Witnesses (The Jencks Act); Administration, Washington, DC 20408– 13, 2000; (46) 31 U.S.C. 3717, Interest and Penalty on 0001. (22) DoD Directive 8910.1 Management and Claims; (4) Army National Guard officer Control of Information Requirements, June (47) 32 CFR Part 518, The Army FOIA personnel—Chief, National Guard Bureau. 11, 1993; Program; Army National Guard enlisted personnel— (23) DoD Federal Acquisition Regulation (48) 35 U.S.C. 181–188, Secrecy of Certain Adjutant General of the proper State. Supplement (DFARS), Part 227—Patents, Inventions and Filing of Application in (5) Active duty commissioned and warrant Data, and Copyrights, See also 48 CFR part Foreign Country; officer personnel—Commander, U.S. Army 227; (49) 41 U.S.C. 423, Restrictions on Human Resources Command, ATTN: AHRC– (24) Department of Defense Financial Disclosing and Obtaining Contractor Bid or FOI, Alexandria, VA 22332–0404; Management Regulation (Reimbursable Proposal Information or Source Selection commercial. Active duty enlisted Operations, Policy and Procedures) Volume Information; personnel—Commander, U.S. Army Enlisted 11A, April 2003 authorized by DoD (50) 42 U.S.C. 2162, Classification and Records and Evaluation Center, ATTN: Instruction 7000.14, DoD Financial Declassification of Restricted Data; PCRE–RP, 8899 East 56th Street, Management Policy and Procedures, (51) 44 U.S.C. 3301–3324, Disposal of Indianapolis, IN 46249–5301; commercial. November 15, 1992; Records; (d) Medical records. (1) Medical records of (25) DoD Instruction 5400.10 OSD (52) 45 CFR Part 164, Security and Privacy non-active duty military personnel. Use the Implementation of DoD Freedom of of Individually Identifiable Health same addresses as for military personnel Information Act Program, January 24, 1991; Information; and records. (26) DoD 5200.1–R Information Security (53) 50 U.S.C. 403–3, War and National (2) Medical records of military personnel Program, January 1997, authorized by DoD Defense, Protection of Intelligence Sources on active duty. Address the medical Directive 5200.1, December 13, 1996, DoD and Methods. treatment facility where the records are kept. Information Security Program; Appendix B to Part 518—Addressing If necessary request locator service. (27) DoD 5400.7–R DoD Freedom of FOIA Requests (3) Medical records of civilian employees Information Act Program, September 4, 1998; and all dependents. Address the medical (28) DoD 5400.11–R Department of Defense (a) General. Army records may be treatment facility where the records are kept. Privacy Program, August 1983, authorized by requested from those Army officials who are If the records have been retired, send DoD Directive 5400.11, December 13, 1999, listed in 32 CFR Part 518 (see appendix A of requests to the Director, National Personnel DoD Privacy Program; this part). Contact the DA FOIA/PA Office, to Records Center, Civilian Records Facility, (29) Executive Order 12600 Predisclosure coordinate the referral of requests if there is 111 Winnebago St., St. Louis, MO 63118– Notification Procedures for Confidential uncertainty as to which Army activity may 4199. Commercial Information, June 23, 1987, 52 have the records. Send requests to particular (e) Legal records. (1) Records of general FR 23781; installations or organizations as follows: courts-martial and special courts-martial in
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which bad conduct discharge was approved. Llewellyn Avenue, Fort George G. Meade, (2) Corps of Engineers procurement: For cases not yet forwarded for appellate MD 20755–5360. Commander, U.S. Army Corps of Engineers, review, apply to the staff judge advocate of (6) Records involving debarred or 20 Massachusetts Avenue, ATTN: CECC–K, the command having jurisdiction over the suspended contractors. Apply to U.S. Army WASH DC 20314–1000. case. For cases forwarded for appellate Legal Services Agency (JALS–PF), 901 North (3) All other procurement: HQDA (DAJA– review and for old cases, apply to the U. S. Stewart Street, Arlington, VA 22203. KL), 2200 Army Pentagon, Washington, D.C. Army Legal Services Agency, ATTN: JALS– (7) Records of all other legal matters (other 20310–2200. CCO, 901 North Stuart Street, Arlington, VA than records kept by a command, (i) Criminal investigation files. Send 22203. installation, or organization staff judge requests involving criminal investigation (2) Records of special courts-martial not advocate). Apply to HQDA (DAJA–AL), files to the Commander, U.S. Army Criminal involving a bad conduct discharge. These Washington D.C. 20310–2200. Investigation Command, ATTN: CICR–FP, records are kept for 10 years after completion (f) Civil works program records. Civil 6010 6th St., Bldg. #1465, Ft. Belvoir, VA of the case. If the case was completed within works records include those relating to 22060–5585. Only the Commanding General, the past three years, apply to the staff judge construction, operation, and maintenance for USACIDC, can release any USACIDC- the improvement of rivers, harbors, and advocate of the headquarters where it was originated criminal investigation file. waterways for navigation, flood control, and reviewed. If the case was completed from 3 (j) Personnel security investigation files related purposes, including shore protection to 10 years ago, apply to the National and general Army intelligence records. Send work by the Army. Apply to the proper Personnel Records Center (Military Records), requests for personnel security investigation division or district office of the Corps of 9700 Page Ave., St. Louis, MO 63132–5100. files, intelligence investigation and security Engineers. If necessary to determine the If the case was completed more than 10 years records, and records of other Army proper office, contact the Commander, U.S. intelligence matters to the Commander, U.S. ago, the only evidence of conviction is the Army Corps of Engineers, 20 Massachusetts special courts-martial order in the person’s Army Intelligence and Security Command, Avenue, ATTN: CECC–K, Washington DC ATTN: IAMG–CIC–FOI/PO, 4552 Pike Road, permanent records. 20314–1000. (3) Records of summary courts-martial. Fort George G. Meade, MD 20755–5995. (g) Civilian personnel records. Send (k) Inspector General records. Send Locally maintained records are retired 3 requests for personnel records of current requests involving records within the years after action of the supervisory civilian employees to the employing Inspector General system to HQDA (SAIG– authority. Request records of cases less than installation. Send requests for personnel ZXL), 1700 Army Pentagon, Washington, DC 3 years old from the staff judge advocate of records of former civilian employees to the 20310–1700. AR 20–1 governs such records. the headquarters where the case was Director, National Personnel Records Center, (l) Army records in Government records reviewed. After 10 years, the only evidence Civilian Records Facility, 111 Winnebago St., depositories. Non-current Army records are of conviction is the summary courts-martial St. Louis, MO 63118–4199. in the National Archives of the United States, order in the person’s permanent records. (h) Procurement records. Send requests for Washington, DC 20408–0001; in Federal (4) Requests submitted under paragraphs information about procurement activities to Records Centers of NARA; and in other (e) (2), and (3), of this appendix. These the contracting officer concerned or, if not records depositories. Requesters must write requests will be processed in accordance feasible, to the procuring activity. If the directly to the heads of these depositories for with Subpart E of this part. The IDA is The contracting officer or procuring activity is not copies of such records. A list of pertinent Judge Advocate General, HQDA (DAJA–CL), known, send inquiries as follows: records depositories is published in AR 25– Washington DC 20310–2200. (1) Army Materiel Command procurement: 400–2, table 10–1. (5) Administrative settlement of claims. Commander, U.S. Army Materiel Command, Apply to the Chief, U.S. Army Claims ATTN: AMCID–F, 5001 Eisenhower Ave., [FR Doc. 04–27848 Filed 12–27–04; 8:45 am] Service, ATTN: JACS–TC, Building 4411, Alexandria, VA 22333–0001. BILLING CODE 3710–08–U
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Part III
Department of Defense General Services Administration National Aeronautics and Space Administration 48 CFR Chapter 1, Parts 5, 6, et al. Federal Acquisition Circular 2001–27; Introduction, Free Trade Agreements— Australia and Morocco; Small Entity Compliance Guide; Final Rules
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DEPARTMENT OF DEFENSE and National Aeronautics and Space via the Internet at http:// Administration (NASA). www.acqnet.gov/far. GENERAL SERVICES ACTION: Summary presentation of DATES: For effective date and comment ADMINISTRATION interim rule. date, see separate document which follows. NATIONAL AERONAUTICS AND SUMMARY: This document summarizes FOR FURTHER INFORMATION CONTACT: The SPACE ADMINISTRATION the Federal Acquisition Regulation FAR Secretariat, at (202) 501–4755, for (FAR) rule agreed to by the Civilian information pertaining to status or 48 CFR Chapter 1 Agency Acquisition Council and the publication schedules. For clarification Defense Acquisition Regulations of content, contact the analyst whose Federal Acquisition Circular 2001–27; Council in this Federal Acquisition name appears in the table below in Introduction Circular (FAC) 2001–27. A companion relation to the FAR case. Please cite document, the Small Entity Compliance FAC 2001–27, FAR case 2004–027. AGENCIES: Department of Defense (DoD), Guide (SECG), follows this FAC. The Interested parties may also visit our General Services Administration (GSA), FAC, including the SECG, is available Web site at http://www.acqnet.gov/far.
Item Subject FAR case Analyst
I ...... Free Trade Agreements—Australia and Morocco ...... 2004–027 Davis.
SUPPLEMENTARY INFORMATION: A the Secretary of Defense, the and National Aeronautics and Space summary of the FAR rule follows. For Administrator of General Services, and Administration (NASA). the actual revisions and/or amendments the Administrator for the National ACTION: Interim rule with request for to this FAR case, refer to the specific Aeronautics and Space Administration. comments. item number and subject set forth in the Unless otherwise specified, all document following this item summary. Federal Acquisition Regulation (FAR) SUMMARY: The Civilian Agency FAC 2001–27 amends the FAR as and other directive material contained Acquisition Council and the Defense specified below: in FAC 2001–27 is effective January 1, Acquisition Regulations Council Free Trade Agreements—Australia and 2005. (Councils) have agreed on an interim Morocco (FAR case 2004–027) Dated: December 21, 2004. rule amending the Federal Acquisition Lt. Col. Vincent Feck, Regulation (FAR) to implement new This interim rule allows contracting Free Trade Agreements with Australia officers to purchase the products of Deputy Director (Operations), Defense Procurement and Acquisition Policy. and Morocco as approved by Congress Australia and Morocco without (Public Laws 108–286 and 108–302). application of the Buy American Act if Dated: December 22, 2004. These Free Trade Agreements are the acquisition is subject to the Free David A. Drabkin, scheduled to go into effect January 1, Trade Agreements. The U.S. Trade Senior Procurement Executive, General 2005. Representative negotiated Free Trade Services Administration. The interim rule also establishes a Agreements with Australia and table of services excluded from the Morocco, which go into effect January 1, Dated: December 21, 2004. coverage of the various trade 2005, according to Public Laws 108–286 Scott Thompson, agreements, corrects the threshold for and 108–302. These Agreements join the Acting Deputy Chief Acquisition Officer, Canadian services, revises the list of North American Free Trade Agreement National Aeronautics and Space Least Developed Countries, revises FAR (NAFTA) and the Chile and Singapore Administration. terminology relating to international Free Trade Agreements which are [FR Doc. 04–28399 Filed 12–27–04; 8:45 am] trade agreements and the Trade already in the FAR. The threshold for BILLING CODE 6820–EP–P applicability of the Australian Free Agreements Act (TAA), and revises the Trade Agreement is $58,550 (the same FAR clauses that implement application as other Free Trade Agreements to date), DEPARTMENT OF DEFENSE of the Buy American Act (41 U.S.C. 10a, but the threshold for applicability of the 10b, 10b–1, and 10c) and trade Morocco Free Trade Agreement is GENERAL SERVICES agreements to construction material. $175,000. Because of the short statutory ADMINISTRATION DATES: Effective Date: January 1, 2005. time frame, this is an interim rule. Also Comment Date: Interested parties in this rule are changes requested by the NATIONAL AERONAUTICS AND should submit comments to the FAR U.S. Trade Representative, in the list of SPACE ADMINISTRATION Secretariat at the address shown below Least Developed Countries, and changes on or before February 28, 2005, to be in terminology on how the FAR uses the 48 CFR Parts 5, 6, 9, 12, 14, 17, 22, 25, considered in the formulation of a final terms ‘‘designated country’’ and ‘‘Trade and 52 rule. Agreements Act.’’ Some technical [FAC 2001–27; FAR Case 2004–027] ADDRESSES: Submit comments changes are also included. identified by FAC 2001–27, FAR case RIN 9000–AK09 Dated: December 22, 2004. 2004–027, by any of the following Laura Auletta, methods: Federal Acquisition Regulation; Free • Director, Contract Policy Division. Trade Agreements—Australia and Federal eRulemaking Portal: http:// Morocco www.regulations.gov. Follow the Federal Acquisition Circular instructions for submitting comments. Federal Acquisition Circular (FAC) AGENCIES: Department of Defense (DoD), • Agency Web site: http:// 2001–27 is issued under the authority of General Services Administration (GSA), www.acqnet.gov/far/ProposedRules/
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proposed.htm. Click on the FAR case threshold for services from Canada from of ‘‘eligible product’’ to include number to submit comments. $25,000 to $58,550 (FAR 25.402(b)). ‘‘construction material’’ and modifies • E-mail: farcase.2004–[email protected]. • Terminology. the construction clauses that implement Include FAC 2001–27, FAR case 2004– 1. The TAA and the WTO Agreement the trade agreements to extend 027, in the subject line of the message. on Government Procurement. The FAR nondiscriminatory treatment to all • Fax: (202) 501–4067. currently equates the term ‘‘Trade designated country construction • Mail: General Services Agreements Act’’ with the Agreement material, including Caribbean Basin Administration, Regulatory Secretariat on Government Procurement (meaning country construction material. (VIR), 1800 F Street, NW., Room 4035, the World Trade Organization 2. Cost of components. The rule ATTN: Laurieann Duarte, Washington, Government Procurement Agreement makes a technical correction to the DC 20405. (‘‘WTO GPA’’) (see FAR 25.400(a)(1)). definition of ‘‘cost of components’’ as Instructions: Please submit comments The Trade Agreements Act (19 U.S.C. contained in the clauses that apply Buy only and cite FAC 2001–27, FAR case 2501 et seq.) (TAA) is not synonymous American Act and trade agreements to 2004–027, in all correspondence related with the WTO GPA. The TAA provides construction material (52.225–9, Buy to this case. All comments received will authority for the President (designated American Act—Construction Materials, be posted without change to http:// by Executive Order 12260 of December and 52.225–11, Buy American Act— www.acqnet.gov/far/ProposedRules/ 31, 1980 to the United States Trade Construction Materials under Trade proposed.htm, including any personal Representative (USTR)) to waive Agreements). When applied to information provided. discriminatory purchasing requirements components of construction material, FOR FURTHER INFORMATION CONTACT: The (such as the Buy American Act), the definition must be modified in the FAR Secretariat at (202) 501–4755, for designate eligible countries (including second paragraph to delete the term information pertaining to status or least developed countries), and bar ‘‘end product’’ and replace it with the publication schedules. For clarification procurement from non-designated term ‘‘construction material.’’ Note that of content, contact Ms. Cecelia Davis, countries. It does not contain thresholds the definition of the term ‘‘component’’ Procurement Analyst, at (202) 219– or the terms of the various trade in these clauses has already been so 0202. Please cite FAC 2001–27, FAR agreements. The rule substitutes the modified. case 2004–027. term ‘‘World Trade Organization • Revising the list of Least Developed SUPPLEMENTARY INFORMATION: Government Procurement Agreement’’ Countries. The U.S. Trade in all places in the FAR where the term Representative has requested that the A. Background ‘‘Trade Agreements Act’’ is currently list of Least Developed Countries (LDC) New Free Trade Agreements. This used to mean the WTO GPA. be revised. These countries are included rule amends FAR Part 25 and the 2. ‘‘Designated country,’’ ‘‘WTO GPA within the definition of ‘‘designated clauses at 52.212–3, Offeror country,’’ and ‘‘least developed country’’. This list has been approved Representations and Certifications— country.’’ The list of designated by the Trade Policy Staff Committee. Commercial Items, 52.212–5, Contract countries at FAR 25.001 is currently a The TAA allows USTR (pursuant to Terms and Conditions Required to combination of WTO members subject authority delegated from the President Implement Statutes or Executive to the WTO GPA (WTO GPA countries) in Executive Order 12260) to waive the Orders— Commercial Items, 52.225–3, and certain least developed countries purchasing prohibition and Buy American Act—Free Trade for which the USTR has waived discriminatory purchasing requirements Agreements—Israeli Trade Act, 52.225– discriminatory purchasing for LDCs. As defined in 19 U.S.C. 2518, 4, Buy American Act—Free Trade requirements, in accordance with a ‘‘least developed country’’ is ‘‘any Agreements—Israeli Trade Act section 301 of the TAA. The rule country on the United Nations General Certificate, 52.225–5, Trade Agreements, redefines ‘‘designated country’’ to Assembly list of least developed 52.225–6, Trade Agreements Certificate, include WTO GPA countries, Free Trade countries.’’ The countries designated as 52.225–9, Buy American Act— Agreement countries, least developed eligible countries under the TAA are Construction Materials, and 52.225–11, countries, and Caribbean Basin listed in the FAR to inform contracting Buy American Act—Construction countries. Free Trade Agreement officers of countries that are eligible to Materials under Trade Agreements, and countries and Caribbean Basin countries participate in Federal Government 52.225–12, Notice of Buy American Act are now also designated countries. Each procurement. Botswana is no longer Requirement—Construction Materials of these terms will retain a separate designated as an LDC by the United under Trade Agreements, to implement definition, because in some instances, Nations. Further, the following new Free Trade Agreements with the regulation does not apply to all countries have been designated as LDCs Australia and Morocco, as approved by designated countries, but only some of by the United Nations, but are not Congress (Public Laws 108–286 and the specific subsets. currently included in the FAR list: 108–302). The Free Trade Agreements • FAR clauses that implement Afghanistan; Angola; Burma (Myanmar); with Australia and Morocco waive the application of the Buy American Act Cambodia; Democratic Republic of applicability of the Buy American Act and trade agreements to construction Congo; Eritrea; Ethiopia; Laos; Liberia; for some foreign supplies and material. Madagascar; Mauritania; Senegal; construction materials from Australia 1. Caribbean Basin construction Solomon Islands; Sudan; East Timor; and Morocco, and specify procurement material. The Federal Register notices and Zambia. Therefore, the USTR has procedures designed to ensure fairness, issued by the USTR under the Caribbean removed Botswana and included the applicable to the acquisition of supplies Basin Trade Initiative state that additional LDCs, with the exceptions of and services. ‘‘products’’ of the listed Caribbean Basin Burma (Myanmar), Liberia and Sudan, Other related revisions. countries shall continue to be treated as which are subject to United States • Table of excluded services. The rule ‘‘eligible products’’ (unless excluded economic sanctions. includes a table of excluded services to from duty-free treatment under 19 This is not a significant regulatory improve clarity. U.S.C. 2703(b)). To be consistent with action and, therefore, was not subject to • NAFTA threshold for Canadian the statutory definition at 19 U.S.C. review under Section 6(b) of Executive services. The rule corrects the NAFTA 2518(4), this rule modifies the definition Order 12866, Regulatory Planning and
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Review, dated September 30, 1993. This List of Subjects in 48 CFR Parts 5, 6, 9, PART 9—CONTRACTOR rule is not a major rule under 5 U.S.C. 12, 14, 17, 22, 25, and 52 QUALIFICATIONS 804. Government procurement. I 6. Amend section 9.205 by revising B. Regulatory Flexibility Act Dated: December 22, 2004. paragraph (b) to read as follows: Laura Auletta, The interim rule is not expected to Director, Contract Policy Division. 9.205 Opportunity for qualification before have a significant economic impact on I award. a substantial number of small entities Therefore, DoD, GSA, and NASA amend 48 CFR parts 5, 6, 9, 12, 14, 17, * * * * * within the meaning of the Regulatory (b) The activity responsible for Flexibility Act, 5 U.S.C. 601, et seq. 22, 25, and 52 as set forth below: I 1. The authority citation for 48 CFR establishing a qualification requirement Although the rule opens up Government parts 5, 6, 9, 12, 14, 17, 22, 25, and 52 must keep any list maintained of those procurement to the products of is revised to read as follows: already qualified open for inclusion of Australia and Morocco and Caribbean Authority: 40 U.S.C. 121(c); 10 U.S.C. additional products, manufacturers, or Basin country construction material, the other potential sources. Councils do not anticipate any chapter 137; and 42 U.S.C. 2473(c). significant economic impact on U.S. PART 5—PUBLICIZING CONTRACT PART 12—ACQUISITION OF small businesses. The Department of ACTIONS COMMERCIAL ITEMS Defense only applies the trade 12.205 [Amended] agreements to the non-defense items I 2. Amend section 5.202 by revising listed at DFARS 225.401–70, and paragraph (a)(12) to read as follows: I 7. Amend section 12.205 by removing acquisitions that are set aside for small from paragraph (c) ‘‘subject to the Trade 5.202 Exceptions. businesses are exempt. Therefore, an Agreements Act’’ and adding ‘‘covered Initial Regulatory Flexibility Analysis * * * * * by the World Trade Organization (a) * * * has not been performed. The Councils Government Procurement Agreement’’ (12) The proposed contract action is will consider comments from small in its place. by a Defense agency and the proposed entities concerning the affected FAR contract action will be made and PART 14—SEALED BIDDING Parts 5, 6, 9, 12, 14, 17, 22, 25, and 52 performed outside the United States and in accordance with 5 U.S.C. 610. its outlying areas, and only local sources I 8. Amend section 14.409–1 by revising Interested parties must submit such will be solicited. This exception does the introductory text of paragraph (a)(2) comments separately and should cite 5 not apply to proposed contract actions to read as follows: U.S.C 601, et seq. (FAC 2001–27, FAR covered by the World Trade case 2004–027), in correspondence. Organization Government Procurement 14.409–1 Award of unclassified contracts. C. Paperwork Reduction Act Agreement or a Free Trade Agreement (a)(1) * * * (see Subpart 25.4); (2) For acquisitions covered by the The Paperwork Reduction Act does * * * * * World Trade Organization Government apply; however, these changes to the Procurement Agreement or a Free Trade FAR do not impose additional 5.203 [Amended] Agreement (see 25.408(a)(5)), agencies information collection requirements to I 3. Amend section 5.203 in the first must include in notices given the provisions at FAR 52.212–3, 52.225– sentence of paragraph (h) by removing unsuccessful bidders from World Trade 4, 52.225–6, and 52.225–11 regarding ‘‘subject to the Trade Agreements Act’’ Organization Government Procurement the paperwork burdens previously and adding ‘‘covered by the World Trade Agreement or Free Trade Agreement approved under OMB Control Numbers Organization Government Procurement countries— 9000–0130, 9000–0025, and 9000–0141. Agreement’’ in its place. * * * * * The impact is negligible. I 4. Amend section 5.301 by revising paragraph (a)(1); and removing from PART 17—SPECIAL CONTRACTING D. Determination To Issue an Interim paragraph (c) ‘‘subject to the Trade METHODS Rule Agreements Act,’’ and adding ‘‘covered I 9. Amend section 17.203 by revising A determination has been made under by the World Trade Organization paragraph (h) to read as follows: the authority of the Secretary of Defense Government Procurement Agreement or (DoD), the Administrator of General a Free Trade Agreement,’’ in its place. 17.203 Solicitations. The revised text reads as follows: Services (GSA), and the Administrator * * * * * of the National Aeronautics and Space 5.301 General. (h) Include the value of options in Administration (NASA) that urgent and (a) * * * determining if the acquisition will compelling reasons exist to promulgate (1) Covered by the World Trade exceed the World Trade Organization this interim rule without prior Organization Government Procurement Government Procurement Agreement or opportunity for public comment. This Agreement or a Free Trade Agreement Free Trade Agreement thresholds. action is necessary because the Free (see Subpart 25.4); or Trade Agreements with Australia and * * * * * PART 22—APPLICATION OF LABOR Morocco, as approved by Congress LAWS TO GOVERNMENT (Public Laws 108–286 and 108–302), are PART 6—COMPETITION ACQUISITIONS scheduled to go into effect January 1, REQUIREMENTS 22.1503 [Amended] 2005. However, pursuant to Public Law 98–577 and FAR 1.501, the Councils 6.303–1 [Amended] I 10. Amend section 22.1503 by will consider public comments received I 5. Amend section 6.303–1 by removing removing from the end of paragraph in response to this interim rule in the paragraph (d) and redesignating (b)(4) ‘‘(see 25.403(b))’’ and adding ‘‘(see formation of the final rule. paragraph (e) as paragraph (d). 25.402(b))’’ in its place.
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PART 25—FOREIGN ACQUISITION service that, due to applicability of a from another country, has been trade agreement to a particular substantially transformed in a WTO I 11. Amend section 25.003 by revising acquisition, is not subject to GPA country into a new and different the definitions ‘‘Designated country’’, discriminatory treatment. article of commerce with a name, ‘‘Designated country end product’’, * * * * * character, or use distinct from that of ‘‘Eligible product’’, and ‘‘Free Trade Free Trade Agreement country’’ the article or articles from which it was Agreement country’’; and adding the means Australia, Canada, Chile, Mexico, transformed. The term refers to a definitions ‘‘Least developed country’’, Morocco, or Singapore. product offered for purchase under a ‘‘Least developed country end product’’, * * * * * supply contract, but for purposes of ‘‘World Trade Organization Government Least developed country means any of calculating the value of the end product Procurement Agreement (WTO GPA) the following countries: Afghanistan, includes services (except transportation country’’, and ‘‘WTO GPA country end Angola, Bangladesh, Benin, Bhutan, services) incidental to the article, product’’ to read as follows: Burkina Faso, Burundi, Cambodia, Cape provided that the value of those 25.003 Definitions. Verde, Central African Republic, Chad, incidental services does not exceed that of the article itself. * * * * * Comoros, Democratic Republic of Designated country means any of the Congo, Djibouti, East Timor, Equatorial 25.204 [Amended] Guinea, Eritrea, Ethiopia, Gambia, following countries: I (1) A World Trade Organization Guinea, Guinea-Bissau, Haiti, Kiribati, 12. Amend section 25.204 by removing Government Procurement Agreement Laos, Lesotho, Madagascar, Malawi, from paragraph (a) ‘‘excepted under the country (Aruba, Austria, Belgium, Maldives, Mali, Mauritania, Trade Agreements Act or’’ and adding Canada, Cyprus, Czech Republic, Mozambique, Nepal, Niger, Rwanda, ‘‘covered by the WTO GPA or a’’ in its Denmark, Estonia, Finland, France, Samoa, Sao Tome and Principe, place. Germany, Greece, Hong Kong, Hungary, Senegal, Sierra Leone, Solomon Islands, I 13. Revise section 25.400 to read as Iceland, Ireland, Israel, Italy, Japan, Somalia, Tanzania, Togo, Tuvalu, follows: Uganda, Vanuatu, Yemen, or Zambia. Korea (Republic of), Latvia, 25.400 Scope of subpart. Liechtenstein, Lithuania, Luxembourg, Least developed country end product Malta, Netherlands, Norway, Poland, means an article that— (a) This subpart provides policies and Portugal, Singapore, Slovak Republic, (1) Is wholly the growth, product, or procedures applicable to acquisitions Slovenia, Spain, Sweden, Switzerland, manufacture of a least developed that are covered by— or United Kingdom); country; or (1) The World Trade Organization (2) A Free Trade Agreement country (2) In the case of an article that Government Procurement Agreement (Australia, Canada, Chile, Mexico, consists in whole or in part of materials (WTO GPA), as approved by Congress in Morocco, or Singapore); from another country, has been the Uruguay Round Agreements Act (3) A least developed country substantially transformed in a least (Pub. L. 103–465); (Afghanistan, Angola, Bangladesh, developed country into a new and (2) Free Trade Agreements (FTA), Benin, Bhutan, Burkina Faso, Burundi, different article of commerce with a consisting of— Cambodia, Cape Verde, Central African name, character, or use distinct from (i) NAFTA (the North American Free Republic, Chad, Comoros, Democratic that of the article or articles from which Trade Agreement, as approved by Republic of Congo, Djibouti, East Timor, it was transformed. The term refers to a Congress in the North American Free Equatorial Guinea, Eritrea, Ethiopia, product offered for purchase under a Trade Agreement Implementation Act of Gambia, Guinea, Guinea-Bissau, Haiti, supply contract, but for purposes of 1993 (19 U.S.C. 3301 note)); Kiribati, Laos, Lesotho, Madagascar, calculating the value of the end product, (ii) Chile FTA (the United States-Chile Malawi, Maldives, Mali, Mauritania, includes services (except transportation Free Trade Agreement, as approved by Mozambique, Nepal, Niger, Rwanda, services) incidental to the article, Congress in the United States-Chile Free Samoa, Sao Tome and Principe, provided that the value of those Trade Agreement Implementation Act Senegal, Sierra Leone, Solomon Islands, incidental services does not exceed that (Pub. L. 108–77)); Somalia, Tanzania, Togo, Tuvalu, of the article itself. (iii) Singapore FTA (the United Uganda, Vanuatu, Yemen, or Zambia); * * * * * States-Singapore Free Trade Agreement, or World Trade Organization as approved by Congress in the United (4) A Caribbean Basin country Government Procurement Agreement States-Singapore Free Trade Agreement (Antigua and Barbuda, Aruba, Bahamas, (WTO GPA) country means any of the Implementation Act (Pub. L. 108–78)); Barbados, Belize, British Virgin Islands, following countries: Aruba, Austria, (iv) Australia FTA (the United Costa Rica, Dominica, Dominican Belgium, Canada, Cyprus, Czech States—Australia Free Trade Republic, El Salvador, Grenada, Republic, Denmark, Estonia, Finland, Agreement, as approved by Congress in Guatemala, Guyana, Haiti, Honduras, France, Germany, Greece, Hong Kong, the United States— Australia Free Trade Jamaica, Montserrat, Netherlands Hungary, Iceland, Ireland, Israel, Italy, Agreement Implementation Act (Pub. L. Antilles, Nicaragua, St. Kitts and Nevis, Japan, Korea (Republic of), Latvia, 108–286); and St. Lucia, St. Vincent and the Liechtenstein, Lithuania, Luxembourg, (v) Morocco FTA (The United States— Grenadines, or Trinidad and Tobago). Malta, Netherlands, Norway, Poland, Morocco Free Trade Agreement, as Designated country end product Portugal, Singapore, Slovak Republic, approved by Congress in the United means a WTO GPA country end Slovenia, Spain, Sweden, Switzerland, States— Morocco Free Trade Agreement product, an FTA country end product, or United Kingdom. Implementation Act (Pub. L. 108–302); a least developed country end product, WTO GPA country end product means (3) The least developed country or a Caribbean Basin country end an article that— designation made by the U.S. Trade product. (1) Is wholly the growth, product, or Representative, pursuant to the Trade * * * * * manufacture of a WTO GPA country; or Agreements Act (19 U.S.C. 2511(b)(4)), Eligible product means a foreign end (2) In the case of an article that in acquisitions covered by the WTO product, construction material, or consists in whole or in part of materials GPA;
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(4) The Caribbean Basin Trade Implementation Act of 1985 (19 U.S.C. paragraph (a)(5) ‘‘(but see 6.303–1(d))’’; Initiative (CBTI) (determination of the 2112 note)); or and revising paragraph (b) to read as U.S. Trade Representative that end (6) The Agreement on Trade in Civil follows: products or construction material Aircraft (U.S. Trade Representative 25.401 Exceptions. granted duty-free entry from countries waiver of the Buy American Act for designated as beneficiaries under the signatories of the Agreement on Trade * * * * * Caribbean Basin Economic Recovery Act in Civil Aircraft, as implemented in the (b) In the World Trade Organization (19 U.S.C. 2701, et seq.), with the Trade Agreements Act of 1979 (19 Government Procurement Agreement exception of Panama, must be treated as U.S.C. 2513)). (WTO GPA) and each FTA, there is a (b) For application of the trade eligible products in acquisitions covered U.S. schedule that lists services that are agreements that are unique to individual by the WTO GPA); excluded from that agreement in agencies, see agency regulations. acquisitions by the United States. (5) The Israeli Trade Act (the U.S.- I 14. Amend section 25.401 by removing Acquisitions of the following services Israel Free Trade Area Agreement, as from paragraph (a)(2) ‘‘, including all are excluded from coverage by the U.S. approved by Congress in the United services purchased in support of military schedule of the WTO GPA or an FTA as States-Israel Free Trade Area forces located overseas’’; removing from indicated in this table:
The service (Federal Service Codes from the Federal Procurement Data System NAFTA and Singapore Australia and Product/Service Code Manual are indicated in parentheses for some WTO GPA Chile FTA FTA Morocco FTA services.)
(1) All services purchased in support of military services overseas...... XXXX (2) (i) Automatic data processing (ADP) telecommunications and trans- X X ...... mission services (D304), except enhance (i.e., value-added) tele- communications services.. (ii) ADP teleprocessing and timesharing services (D305), telecommuni- X X ...... cations network management services (D316), automated news services, data services or other information services (D317), and other ADP and telecommunications services (D399). (iii) Basic telecommunications network services (i.e., voice telephone **XX services, packet-switched data transmission services, circuit- switched data transmission services, telex services, telegraph serv- ices, facsimile services, and private leased circuit services, but not information services, as defined in 47 U.S.C. 153(20)).. (3) Dredging ...... XXXX (4) (i) Operation and management contracts of certain Government or pri- X ...... X ...... vately owned facilities used for Government purposes, including Federally Funded Research and Development Centers. (ii) Operation of all Department of Defense, Department of Energy, or * * X * * X the National Aeronautics and Space Administration facilities; and all Government-owned research and development facilities or Govern- ment-owned environmental laboratories. (5) Research and development ...... XXXX (6) Transportation services (including launching services, but not including XXXX travel agent services—V503). (7) Utility services...... XXXX (8) Maintenance, repair, modification, rebuilding and installation of equip- ...... X ...... X ment related to ships (J019). (9) Nonnuclear ship repair (J998) ...... X ...... X
*NOTE 1. Acquisitions of the services listed at (2)(iii) of this table are a subset of the excluded services at (2)(i) and (ii), and are therefore not covered under the WTO GPA. **NOTE 2. Acquisitions of the services listed at (4)(ii) of this table are a subset of the excluded services at (4)(i), and are therefore not covered under the WTO GPA.
I 15. Revise section 25.402 to read as least developed country. The President country in which the firm providing the follows: has delegated this waiver authority to services is established. See Subpart 25.5 the U.S. Trade Representative. In for evaluation procedures for supply 25.402 General. acquisitions covered by the WTO GPA, contracts covered by trade agreements. (a)(1) The Trade Agreements Act (19 Free Trade Agreements, or the Israeli (b) The value of the acquisition is a U.S.C. 2501, et seq.) provides the Trade Act, the USTR has waived the determining factor in the applicability authority for the President to waive the Buy American Act and other of trade agreements. Most of these dollar Buy American Act and other discriminatory provisions for eligible thresholds are subject to revision by the discriminatory provisions for eligible products. Offers of eligible products U.S. Trade Representative products from countries that have receive equal consideration with approximately every 2 years. The signed an international trade agreement domestic offers. various thresholds are summarized as with the United States, or that meet (2) The contracting officer shall follows: certain other criteria, such as being a determine the origin of services by the
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Supply contract Service contract Construction Trade agreement (equal to or ex- (equal to or ex- contract (equal to ceeding) ceeding) or exceeding)
WTO GPA ...... $175,000 $175,000 $6,725,000 FTAs: NAFTA: —Canada ...... 25,000 58,550 7,611,532 —Mexico ...... 58,550 58,550 7,611,532 Chile FTA ...... 58,550 58,550 6,725,000 Singapore FTA ...... 58,550 58,550 6,725,000 Australia FTA ...... 58,550 58,550 6,725,000 Morocco FTA ...... 175,000 175,000 6,725,000 Israeli Trade Act ...... 50,000 ......
I 16. Amend section 25.403 by revising section 25.404 is added to read as unless no offers of such end products the section heading and paragraphs (a), follows: were received; (b)(1) introductory text, (b)(3), and (c)(1) 25.404 Least developed countries. * * * * * to read as follows: (3) If there were no offers of U.S.- For acquisitions covered by the WTO 25.403 World Trade Organization made or designated country end GPA, least developed country end products, make a nonavailability Government Procurement Agreement and products, construction material, and Free Trade Agreements. determination (see 25.103(b)(2)) and services must be treated as eligible award on the low offer (see 25.403(c)). (a) Eligible products from WTO GPA products. and FTA countries are entitled to the (c) For acquisitions not covered by the nondiscriminatory treatment specified 25.405 Caribbean Basin Trade Initiative. WTO GPA, but subject to the Buy in 25.402(a)(1). The WTO GPA and Under the Caribbean Basin Trade American Act (an FTA or the Israeli FTAs specify procurement procedures Initiative, the United States Trade Trade Act also may apply), the designed to ensure fairness (see 25.408). Representative has determined that, for following applies: (b) Thresholds. (1) To determine acquisitions covered by the WTO GPA, * * * * * whether the acquisition of products by Caribbean Basin country end products, I 22. Amend section 25.503 by revising lease, rental, or lease-purchase contract construction material, and services must paragraph (a)(2) to read as follows: (including lease-to-ownership, or lease- be treated as eligible products. 25.503 Group offers. with-option-to purchase) is covered by I 19. Amend section 25.406 by revising the WTO GPA or an FTA, calculate the the first sentence to read as follows: (a) * * * estimated acquisition value as follows: (2) If the acquisition is covered by the 25.406 Israeli Trade Act. * * * * * WTO GPA and any part of the offer consists of items restricted in (3) If, in any 12-month period, Acquisitions of supplies by most accordance with 25.403(c). recurring or multiple awards for the agencies are covered by the Israeli Trade same type of product or products are Act, if the estimated value of the 25.504–2 WTO GPA/Caribbean Basin anticipated, use the total estimated acquisition is $50,000 or more but does Trade Initiative/FTAs. not exceed the WTO GPA threshold for value of these projected awards to * * * * * supplies (see 25.402(b)). * * * determine whether the WTO GPA or an I 23. Revise 25.504–2 section heading to FTA applies. Do not divide any I 20. Amend section 25.408 by revising read as set forth above; and remove acquisition with the intent of reducing paragraph (a) introductory text and (a)(5) ‘‘Trade Agreement Act applies’’ from the the estimated value of the acquisition to read as follows: first sentence of the undesignated below the dollar threshold of the WTO 25.408 Procedures. paragraph following the table in Example GPA or an FTA. 1 and adding ‘‘acquisition is covered by (a) If the WTO GPA or an FTA applies (c) Purchase restriction. (1) Under the the WTO GPA’’ in its place. Trade Agreements Act (19 U.S.C. 2512), (see 25.401), the contracting officer in acquisitions covered by the WTO must— 25.504–3 [Amended] GPA, acquire only U.S.-made or * * * * * I 24. Amend section 25.504–3 in designated country end products or U.S. (5) Provide unsuccessful offerors from paragraphs (b) and (c) by removing from or designated country services, unless WTO GPA or FTA countries notice in the first sentence of the undesignated offers for such end products or services accordance with 14.409–1 or 15.503. paragraph following the tables in are either not received or are * * * * * Examples 2 and 3 ‘‘subject to the Trade insufficient to fulfill the requirements. I 21. Amend section 25.502 by revising Agreements Act’’ and adding ‘‘covered This purchase restriction does not apply the introductory text of paragraph (b), by the WTO GPA’’ in their place. below the WTO GPA threshold for paragraphs (b)(1) and (b)(3), and the 25.504–4 [Amended] supplies and services, even if the introductory text of paragraph (c) to read acquisition is covered by an FTA. as follows: I 25. Amend section 25.504–4 in 25.405 [Removed] paragraph (a) by removing from the 25.502 Application. paragraph entitled ‘‘Problem’’, following I 17. Remove section 25.405. * * * * * the table, ‘‘Trade Agreements Act does (b) For acquisitions covered by the not apply’’ and adding ‘‘acquisition is 25.404 [Redesignated as 25.405] WTO GPA (see Subpart 25.4)— not covered by the WTO GPA’’ in its I 18. Section 25.404 is redesignated as (1) Consider only offers of U.S.-made place; and removing ‘‘subject to the section 25.405 and revised; and a new or designated country end products, Trade Agreements Act’’ from the last
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paragraph of ‘‘STEP 2’’, and adding END PRODUCTS OF AUSTRALIA, CAN- definition ‘‘End product of Australia, ‘‘covered by the WTO GPA’’ in its place. ADA, CHILE, MEXICO, OR SINGAPORE Canada, Chile, Mexico, or Singapore’’; OR ISRAELI END PRODUCTS: and removing the definitions ‘‘Free 25.1002 [Amended] Trade Agreement country’’ and ‘‘Free Trade Agreement country end product’’; I 26. Amend section 25.1002 in the first Line item No. Country of origin and sentence of paragraph (a) by removing I c. By revising the first and last ‘‘Trade Agreements Act’’ and adding sentences of paragraph (c) of the clause ‘‘WTO GPA’’ in its place. to read as follows: 25.1101 [Amended] 52.225–3 Buy American Act—Free Trade Agreements—Israeli Trade Act. I 27. Amend section 25.1101 by removing from the first sentence of [List as necessary] * * * * * paragraph (c)(1) ‘‘Trade Agreements Act * * * * * Buy American Act—Free Trade applies’’ and adding ‘‘acquisition is (4) * * * Agreements—Israeli Trade Act (Jan 2005) covered by the WTO GPA’’ in its place. (i) The offeror certifies that each end (a) * * * product, except those listed in paragraph End product of Australia, Canada, Chile, I 28. Amend section 25.1102 by revising (g)(4)(ii) of this provision, is a U.S.-made or Mexico, or Singapore means an article that— paragraph (c)(1) and the last sentence of designated country end product, as defined (1) Is wholly the growth, product, or paragraph (c)(3) to read as follows: in the clause of this solicitation entitled manufacture of Australia, Canada, Chile, ‘‘Trade Agreements.’’ Mexico, or Singapore; or 25.1102 Acquisition of construction. (ii) The offeror shall list as other end (2) In the case of an article that consists in products those end products that are not * * * * * whole or in part of materials from another U.S.-made or designated country end country, has been substantially transformed (c) * * * products. * * * in Australia, Canada, Chile, Mexico, or (1) List in paragraph (b)(3) of the (iii) The Government will evaluate offers in Singapore into a new and different article of accordance with the policies and procedures commerce with a name, character, or use clause all foreign construction material of FAR Part 25. For line items covered by the distinct from that of the article or articles excepted from the requirements of the WTO GPA, the Government will evaluate from which it was transformed. The term Buy American Act, other than WTO offers of U.S.-made or designated country refers to a product offered for purchase under GPA country, least developed country, end products without regard to the a supply contract, but for purposes of or FTA country construction material. restrictions of the Buy American Act. The calculating the value of the end product Government will consider for award only includes services (except transportation * * * * * offers of U.S.-made or designated country services) incidental to the article, provided (3) * * * List in paragraph (b)(3) of end products unless the Contracting Officer that the value of those incidental services the clause all foreign construction determines that there are no offers for such does not exceed that of the article itself. material excepted from the requirements products or that the offers for such products * * * * * are insufficient to fulfill the requirements of (c) Delivery of end products. The of the Buy American Act, other than the solicitation. designated country, or Australian, Contracting Officer has determined that FTAs * * * * * (except the Morocco FTA) and the Israeli Chilean, or Moroccan construction I 30. Amend section 52.212–5 by— Trade Act apply to this acquisition. * * * If material. I a. Removing from the clause heading the Contractor specified in its offer that the * * * * * ‘‘(Dec 2004)’’ and adding ‘‘(Jan 2005)’’ in Contractor would supply an end product of Australia, Canada, Chile, Mexico, or its place; Singapore or an Israeli end product, then the PART 52—SOLICITATION PROVISIONS I b. Revising paragraph (b)(24)(i) and AND CONTRACT CLAUSES Contractor shall supply an end product of (b)(25) to read as follows: Australia, Canada, Chile, Mexico, or Singapore, an Israeli end product or, at the 52.212–5 Contract Terms and Conditions I 29. Amend section 52.212–3 by Contractor’s option, a domestic end product. Required To Implement Statutes or revising paragraphs (g)(1)(ii), (g)(4)(i), Executive Orders—Commercial Items. * * * * * the first sentence of (g)(4)(ii), and * * * * * I 32. Amend section 52.225–4 by— (g)(4)(iii) of the provision to read as I a. Revising the date of the provision to follows: CONTRACT TERMS AND CONDITIONS read ‘‘(Jan 2005)’’; REQUIRED TO IMPLEMENT STATUTES OR I b. Revising the last sentence of 52.212–3 Offeror Representations and EXECUTIVE ORDERS—COMMERCIAL paragraph (a) of the provision; and Certifications—Commercial Items. ITEMS (JAN 2005) I c. Revising paragraph (b) of the * * * * * (b) * * * provision to read as follows: (24)(i) 52.225–3, Buy American Act—Free Offeror Representations and Certifications— Trade Agreements— Israeli Trade Act (Jan 52.225–4 Buy American Act—Free Trade Commercial Items (Jan 2005) 2005) (41 U.S.C. 10a–10d, 19 U.S.C. 3301 Agreements—Israeli Trade Act Certificate. * * * * * note, 19 U.S.C. 2112 note, Pub. L. 108–77, * * * * * (g)(1) * * * 108–78, 108–286). * * * * * Buy American Act—Free Trade (ii) The offeror certifies that the following Agreements—Israeli Trade Act Certificate (25) 52.225–5, Trade Agreements (Jan supplies are end products of Australia, (Jan 2005) Canada, Chile, Mexico, or Singapore, or 2005) (19 U.S.C. 2501, et seq., 19 U.S.C. 3301 (a) * * * The terms ‘‘component,’’ Israeli end products as defined in the clause note). * * * * * ‘‘domestic end product,’’ ‘‘end product,’’ of this solicitation entitled ‘‘Buy American ‘‘end product of Australia, Canada, Chile, I Act—Free Trade Agreements—Israeli Trade 31. Amend section 52.225–3— Mexico, or Singapore,’’ ‘‘foreign end I Act’’: a. By revising the date of the clause to product,’’ ‘‘Israeli end product,’’ and ‘‘United read ‘‘(JAN 2005)’’; States’’ are defined in the clause of this I b. In paragraph (a) of the clause by solicitation entitled ‘‘Buy American Act— adding, in alphabetical order, the Free Trade Agreements—Israeli Trade Act.’’
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(b) The offeror certifies that the following (4) A Caribbean Basin country (Antigua 52.225–6 Trade Agreements Certificate. supplies are end products of Australia, and Barbuda, Aruba, Bahamas, Barbados, * * * * * Canada, Chile, Mexico, or Singapore or Belize, British Virgin Islands, Costa Rica, Israeli end products as defined in the clause Dominica, Dominican Republic, El Salvador, Trade Agreements Certificate (Jan 2005) of this solicitation entitled ‘‘Buy American Grenada, Guatemala, Guyana, Haiti, (a) The offeror certifies that each end Act—Free Trade Agreements—Israeli Trade Honduras, Jamaica, Montserrat, Netherlands product, except those listed in paragraph (b) Act’’: Antilles, Nicaragua, St. Kitts and Nevis, St. of this provision, is a U.S.-made or Lucia, St. Vincent and the Grenadines, or designated country end product, as defined END PRODUCTS OF AUSTRALIA, CAN- Trinidad and Tobago). in the clause of this solicitation entitled ADA, CHILE, MEXICO, OR SINGAPORE Designated country end product means a ‘‘Trade Agreements.’’ WTO GPA country end product, an FTA OR ISRAELI END PRODUCTS: (b) The offeror shall list as other end country end product, a least developed products those supplies that are not U.S.- country end product, or a Caribbean Basin made or designated country end products. Country of country end product. Line item No. origin *** * * * * * (c) The Government will evaluate offers in Least developed country end product accordance with the policies and procedures means an article that— of Part 25 of the Federal Acquisition (1) Is wholly the growth, product, or Regulation. For line items covered by the manufacture of a least developed country; or WTO GPA, the Government will evaluate (2) In the case of an article that consists in offers of U.S.-made or designated country whole or in part of materials from another end products without regard to the [List as necessary] country, has been substantially transformed restrictions of the Buy American Act. The Government will consider for award only * * * * * in a least developed country into a new and different article of commerce with a name, offers of U.S.-made or designated country I 33. Amend section 52.225–5 by— character, or use distinct from that of the end products unless the Contracting Officer I a. Revising the date of the clause to article or articles from which it was determines that there are no offers for such read ‘‘(Jan 2005)’’; transformed. The term refers to a product products or that the offers for those products I b. Removing from paragraph (a) of the offered for purchase under a supply contract, are insufficient to fulfill the requirements of clause the definition ‘‘Caribbean Basin but for purposes of calculating the value of this solicitation. country’’; revising the definitions the end product, includes services (except (End of provision) ‘‘Designated country’’ and ‘‘Designated transportation services) incidental to the article, provided that the value of those 52.225–9 [Amended] country end product’’; removing the incidental services does not exceed that of I 35. Amend section 52.225–9 in the definition ‘‘Free Trade Agreement the article itself. clause heading by removing ‘‘(June country’’; adding, in alphabetical order, * * * * * 2003)’’ and adding ‘‘(Jan 2005)’’ in its the definitions ‘‘Least developed country WTO GPA country end product means an place; and in paragraph (a) in the end product’’ and ‘‘WTO GPA country article that— definition ‘‘Cost of components’’ by end product’’; and (1) Is wholly the growth, product, or removing from the end of paragraph (2) I c. Revising paragraph (b) of the clause manufacture of a WTO GPA country; or the words ‘‘end product’’ and adding to read as follows: (2) In the case of an article that consists in whole or in part of materials from another ‘‘construction material’’ in its place. 52.225–5 Trade Agreements. country, has been substantially transformed I 36. Amend section 52.225–11— * * * * * in a WTO GPA country into a new and I a. By removing from the clause different article of commerce with a name, heading ‘‘(Oct 2004)’’ and adding ‘‘(Jan Trade Agreements (Jan 2005) character, or use distinct from that of the 2005)’’ in its place; (a) * * * article or articles from which it was I b. In paragraph (a) by adding, in Designated country means any of the transformed. The term refers to a product alphabetical order, the definition following countries: offered for purchase under a supply contract, ‘‘Caribbean Basin country construction but for purposes of calculating the value of (1) A World Trade Organization material’’; by removing from the end of Government Procurement Agreement country the end product includes services, (except (Aruba, Austria, Belgium, Canada, Cyprus, transportation services) incidental to the paragraph (2) in the definition ‘‘Cost of Czech Republic, Denmark, Estonia, Finland, article, provided that the value of those components’’ the words ‘‘end product’’ France, Germany, Greece, Hong Kong, incidental services does not exceed that of and adding ‘‘construction material’’ in its Hungary, Iceland, Ireland, Israel, Italy, Japan, the article itself. place; by revising the definitions Korea (Republic of), Latvia, Liechtenstein, (b) Delivery of end products. The ‘‘Designated country’’ and ‘‘Designated Lithuania, Luxembourg, Malta, Netherlands, Contracting Officer has determined that the country construction material’’; by Norway, Poland, Portugal, Singapore, Slovak WTO GPA and FTAs apply to this removing the definition ‘‘Free Trade Republic, Slovenia, Spain, Sweden, acquisition. Unless otherwise specified, these Agreement country’’; and by adding the trade agreements apply to all items in the Switzerland, or United Kingdom); definitions ‘‘Least developed country (2) A Free Trade Agreement country Schedule. The Contractor shall deliver under (Australia, Canada, Chile, Mexico, Morocco, this contract only U.S.-made or designated construction material’’ and ‘‘WTO GPA or Singapore); country end products except to the extent country construction material’’; (3) A least developed country (Afghanistan, that, in its offer, it specified delivery of other I c. By revising paragraphs (b)(1) and Angola, Bangladesh, Benin, Bhutan, Burkina end products in the provision entitled ‘‘Trade (b)(2) of the clause; and Faso, Burundi, Cambodia, Cape Verde, Agreements Certificate.’’ I d. By revising Alternate I. The added Central African Republic, Chad, Comoros, (End of clause) and revised text reads as follows: Democratic Republic of Congo, Djibouti, East Timor, Equatorial Guinea, Eritrea, Ethiopia, I 34. Amend section 52.225–6 by— 52.225–11 Buy American Act— Gambia, Guinea, Guinea-Bissau, Haiti, I a. Removing from the provision Construction Materials under Trade Agreements. Kiribati, Laos, Lesotho, Madagascar, Malawi, heading ‘‘(Jan 2004)’’ and adding ‘‘(Jan Maldives, Mali, Mauritania, Mozambique, 2005)’’ in its place; and * * * * * Nepal, Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon I b. Revising paragraph (a), the first Buy American Act—Construction Materials Islands, Somalia, Tanzania, Togo, Tuvalu, sentence of paragraph (b), and paragraph Under Trade Agreements (Jan 2005) Uganda, Vanuatu, Yemen, or Zambia); or (c) of the provision to read as follows: (a) Definitions. ***
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Caribbean Basin country construction from another country, has been substantially and the introductory text of (d)(3) to read material means a construction material that— transformed in a WTO GPA country into a as follows: (1) Is wholly the growth, product, or new and different construction material manufacture of a Caribbean Basin country; or distinct from the materials from which it was 52.225–12 Notice of Buy American Act (2) In the case of a construction material transformed. Requirement—Construction Materials that consists in whole or in part of materials * * * * * Under Trade Agreements. from another country, has been substantially (b) Construction materials. (1) This clause * * * * * transformed in a Caribbean Basin country implements the Buy American Act (41 U.S.C. into a new and different construction Notice of Buy American Act Requirement— 10a–10d) by providing a preference for material distinct from the materials from Construction Materials Under Trade domestic construction material. In addition, which it was transformed. Agreements (Jan 2005) the Contracting Officer has determined that * * * * * the WTO GPA and Free Trade Agreements (a) Definitions. ‘‘Construction material,’’ Designated country means any of the (FTAs) apply to this acquisition. Therefore, ‘‘designated country construction material,’’ following countries: the Buy American Act restrictions are waived ‘‘domestic construction material,’’ and (1) A World Trade Organization for designated country construction ‘‘foreign construction material,’’ as used in Government Procurement Agreement country materials. this provision, are defined in the clause of (Aruba, Austria, Belgium, Canada, Cyprus, (2) The Contractor shall use only domestic, this solicitation entitled ‘‘Buy American Czech Republic, Denmark, Estonia, Finland, designated country construction material in Act—Construction Materials Under Trade France, Germany, Greece, Hong Kong, performing this contract, except as provided Agreements’’ (Federal Acquisition Regulation Hungary, Iceland, Ireland, Israel, Italy, Japan, in paragraphs (b)(3) and (b)(4) of this clause. (FAR) clause 52.225–11). Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, * * * * * * * * * * Norway, Poland, Portugal, Singapore, Slovak Alternate I (Jan 2005). As prescribed in (d) Alternate offers. (1) When an offer Republic, Slovenia, Spain, Sweden, 25.1102(c)(3), delete the definition of includes foreign construction material, other Switzerland, or United Kingdom); ‘‘designated country construction material’’ than designated country construction (2) A Free Trade Agreement country from the definitions in paragraph (a) of the material, that is not listed by the Government (Australia, Canada, Chile, Mexico, Morocco, basic clause, add the following definition of in this solicitation in paragraph (b)(3) of FAR or Singapore); ‘‘Australian, Chilean, or Moroccan clause 52.225–11, the offeror also may submit (3) A least developed country (Afghanistan, construction material’’ to paragraph (a) of the an alternate offer based on use of equivalent Angola, Bangladesh, Benin, Bhutan, Burkina basic clause, and substitute the following domestic or designated country construction Faso, Burundi, Cambodia, Cape Verde, paragraphs (b)(1) and (b)(2) for paragraphs material. Central African Republic, Chad, Comoros, (b)(1) and (b)(2) of the basic clause: * * * * * Democratic Republic of Congo, Djibouti, East Australian, Chilean, or Moroccan (3) If the Government determines that a Timor, Equatorial Guinea, Eritrea, Ethiopia, construction material means a construction particular exception requested in accordance Gambia, Guinea, Guinea-Bissau, Haiti, material that— with paragraph (c) of FAR clause 52.225–11 Kiribati, Laos, Lesotho, Madagascar, Malawi, (1) Is wholly the growth, product, or does not apply, the Government will evaluate Maldives, Mali, Mauritania, Mozambique, manufacture of Australia, Chile, or Morocco; only those offers based on use of the Nepal, Niger, Rwanda, Samoa, Sao Tome and or equivalent domestic or designated country Principe, Senegal, Sierra Leone, Solomon (2) In the case of a construction material construction material, and the offeror shall be Islands, Somalia, Tanzania, Togo, Tuvalu, that consists in whole or in part of materials required to furnish such domestic or Uganda, Vanuatu, Yemen, or Zambia); or from another country, has been substantially designated country construction material. An (4) A Caribbean Basin country (Antigua transformed in Australia, Chile, or Morocco offer based on use of the foreign construction and Barbuda, Aruba, Bahamas, Barbados, into a new and different construction material for which an exception was Belize, British Virgin Islands, Costa Rica, material distinct from the materials from requested— Dominica, Dominican Republic, El Salvador, which it was transformed. Grenada, Guatemala, Guyana, Haiti, * * * * * (b) Construction materials. (1) This clause (End of provision) Honduras, Jamaica, Montserrat, Netherlands implements the Buy American Act (41 U.S.C. Antilles, Nicaragua, St. Kitts and Nevis, St. 10a–10d) by providing a preference for * * * * * Lucia, St. Vincent and the Grenadines, or domestic construction material. In addition, Alternate II (Jan 2005). *** Trinidad and Tobago). the Contracting Officer has determined that (a) Definitions. ‘‘Australian, Chilean, or Designated country construction material the WTO GPA and all the Free Trade Moroccan construction material,’’ ‘‘Caribbean means a construction material that is a WTO Agreements except NAFTA apply to this Basin country construction material,’’ GPA country construction material, an FTA acquisition. Therefore, the Buy American Act ‘‘construction material,’’ ‘‘domestic country construction material, a least restrictions are waived for WTO GPA country construction material,’’ ‘‘foreign construction developed country construction material, or and Australian, Chilean, and Moroccan, least material,’’ ‘‘least developed country a Caribbean Basin country construction developed country, and Caribbean Basin construction material,’’ and ‘‘WTO GPA material. country construction materials. country construction material,’’ as used in * * * * * (2) The Contractor shall use only domestic, this provision, are defined in the clause of Least developed country construction WTO GPA country, Australian, Chilean, or this solicitation entitled ‘‘Buy American material means a construction material that— Moroccan, least developed country, or Act—Construction Materials Under Trade (1) Is wholly the growth, product, or Caribbean Basin country construction Agreements’’ (Federal Acquisition Regulation manufacture of a least developed country; or material in performing this contract, except (FAR) clause 52.225–11). (2) In the case of a construction material as provided in paragraphs (b)(3) and (b)(4) of (d)(1) When an offer includes foreign that consists in whole or in part of materials this clause. construction material, other than WTO GPA from another country, has been substantially country, Australian, Chilean, or Moroccan, transformed in a least developed country into I 37. Amend section 52.225–12 by— least developed country, or Caribbean Basin a new and different construction material I a. Removing from the provision country construction material, that is not distinct from the materials from which it was heading ‘‘(JAN 2004)’’ and adding ‘‘(JAN listed by the Government in this solicitation transformed. 2005)’’ in its place; in paragraph (b)(3) of FAR clause 52.225–11, the offeror also may submit an alternate offer * * * * * I b. Revising paragraphs (a), (d)(1), and based on use of equivalent domestic, WTO WTO GPA country construction material the introductory text of (d)(3) of the means a construction material that— GPA country, Australian, Chilean, or (1) Is wholly the growth, product, or provision; and Moroccan, least developed country, or manufacture of a WTO GPA country; or I c. Removing from Alternate II ‘‘(Jan Caribbean Basin country construction (2) In the case of a construction material 2004)’’ and adding ‘‘(Jan 2005)’’ in its material. that consists in whole or in part of materials place; and revising paragraphs (a), (d)(1), * * * * *
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(3) If the Government determines that a and National Aeronautics and Space Australia and Morocco without particular exception requested in accordance Administration (NASA). application of the Buy American Act if with paragraph (c) of FAR clause 52.225–11 ACTION: Small Entity Compliance Guide. the acquisition is subject to the Free does not apply, the Government will evaluate Trade Agreements. The U.S. Trade only those offers based on use of the SUMMARY: This document is issued Representative negotiated Free Trade equivalent domestic, WTO GPA country, under the joint authority of the Agreements with Australia and Australian, Chilean, or Moroccan, least Secretary of Defense, the Administrator Morocco, which go into effect January 1, developed country, or Caribbean Basin of General Services and the country construction material, and the offeror Administrator for the National 2005, according to Public Laws 108–286 shall be required to furnish such domestic, and 108–302. These Agreements join the WTO GPA country, Australian, Chilean, or Aeronautics and Space Administration. This Small Entity Compliance Guide has North American Free Trade Agreement Moroccan, least developed country, or (NAFTA) and the Chile and Singapore Caribbean Basin country construction been prepared in accordance with material. An offer based on use of the foreign Section 212 of the Small Business Free Trade Agreements which are construction material for which an exception Regulatory Enforcement Fairness Act of already in the FAR. The threshold for was requested— 1996. It consists of a summary of the applicability of the Australian Free * * * * * rule appearing in Federal Acquisition Trade Agreement is $58,550 (the same [FR Doc. 04–28400 Filed 12–27–04; 8:45 am] Circular (FAC) 2001–27 which amends as other Free Trade Agreements to date), the FAR. An asterisk (*) next to a rule but the threshold for applicability of the BILLING CODE 6820–EP–P indicates that a regulatory flexibility Morocco Free Trade Agreement is analysis has been prepared. Interested $175,000. Because of the short statutory DEPARTMENT OF DEFENSE parties may obtain further information time frame, this is an interim rule. Also regarding this rule by referring to FAC in this rule are changes requested by the GENERAL SERVICES 2001–27, which precedes this U.S. Trade Representative, in the list of ADMINISTRATION document. These documents are also Least Developed Countries, and changes available via the Internet at http:// in terminology on how the FAR uses the NATIONAL AERONAUTICS AND www.acqnet.gov/far. terms ‘‘designated country’’ and ‘‘Trade SPACE ADMINISTRATION FOR FURTHER INFORMATION CONTACT: Agreements Act.’’ Some technical Laurieann Duarte, FAR Secretariat, (202) changes are also included. 48 CFR Chapter 1 501–4225. For clarification of content, contact Cecelia Davis at (202) 219–0202. Dated: December 22, 2004. Federal Acquisition Regulation; Small Laura Auletta, Entity Compliance Guide Free Trade Agreements—Australia and Morocco Director, Contract Policy Division. [FR Doc. 04–28401 Filed 12–27–04; 8:45 am] AGENCIES: Department of Defense (DoD), This interim rule allows contracting General Services Administration (GSA), officers to purchase the products of BILLING CODE 6820–EP–P
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Reader Aids Federal Register Vol. 69, No. 248 Tuesday, December 28, 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. Presidential Documents 4 CFR Executive orders and proclamations 741–6000 3 CFR Proposed Rules: The United States Government Manual 741–6000 Proclamations: 21...... 75878, 76979 Other Services 7350 (See 7858)...... 77603 5 CFR Electronic and on-line services (voice) 741–6020 7561 (Amended by 7858) ...... 77603 317...... 70355 Privacy Act Compilation 741–6064 352...... 70355 7850...... 70351 Public Laws Update Service (numbers, dates, etc.) 741–6043 359...... 70355 7851...... 70353 TTY for the deaf-and-hard-of-hearing 741–6086 451...... 70355 7852...... 71689 530...... 70355 7853...... 74945 ELECTRONIC RESEARCH 531...... 70355, 75451 7854...... 74947 World Wide Web 534...... 70355 7855...... 76371 575...... 70355 7856...... 76595 Full text of the daily Federal Register, CFR and other publications 630...... 77139 7857...... 77135 is located at: http://www.gpoaccess.gov/nara/index.html 841...... 69805 7858...... 77603 Federal Register information and research tools, including Public 842...... 69805 Inspection List, indexes, and links to GPO Access are located at: Executive Orders: 843...... 69805 http://www.archives.gov/federallregister/ 12473 (Amended by EO 13365)...... 71333 6 CFR E-mail 13286 (See EO Proposed Rules: FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 13362) ...... 70173 5...... 70402 an open e-mail service that provides subscribers with a digital 13289 (See EO form of the Federal Register Table of Contents. The digital form 13363) ...... 70175 7 CFR of the Federal Register Table of Contents includes HTML and 13303 (Amended by 51...... 76835 PDF links to the full text of each document. EO 13364)...... 70177 56...... 76373 To join or leave, go to http://listserv.access.gpo.gov and select 13315 (See EO 60...... 77609 Online mailing list archives, FEDREGTOC-L, Join or leave the list 13364) ...... 70177 210...... 70871, 70872 (or change settings); then follow the instructions. 13350 (See EO 220...... 70872 13364) ...... 70177 301...... 76378 PENS (Public Law Electronic Notification Service) is an e-mail 13362...... 70173 319...... 71691 service that notifies subscribers of recently enacted laws. 13363...... 70175 354...... 71660 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 13364...... 70177 371...... 76378 and select Join or leave the list (or change settings); then follow 13365...... 71333 457...... 74405 the instructions. 13366...... 76591 784...... 76836 FEDREGTOC-L and PENS are mailing lists only. We cannot 13367...... 77605 905...... 70874, 76597 respond to specific inquiries. Administrative Orders: 920...... 76379 Memorandums: 958...... 76381 Reference questions. Send questions and comments about the Memorandum of 980...... 76381 Federal Register system to: [email protected] October 21, 2004 ...... 70349 982...... 76385 The Federal Register staff cannot interpret specific documents or Memorandum of 1005...... 71697 regulations. December 8, 2004 ...... 74935 1006...... 71697 Memorandum of 1007...... 71697 FEDERAL REGISTER PAGES AND DATE, DECEMBER December 8, 2004 ...... 74937 1280...... 77570 Memorandum of 1464...... 70367 69805–70050...... 1 December 8, 2004 ...... 74939 1775...... 70877 70051–70178...... 2 Memorandum of 1806...... 75454, 77609 70179–70350...... 3 December 8, 2004 ...... 74941 1822...... 75454, 77609 70351–70536...... 6 Presidential 1902...... 75454, 77609 70537–70870...... 7 Determinations: 1925...... 75454, 77609 70871–71338...... 8 No. 2005–07 of 1930...... 75454, 77609 71339–71690...... 9 November 29, 1940...... 75454, 77609 71691–72108...... 10 2004 ...... 72109 1942...... 75454, 77609 72109–74404...... 13 No. 2005–08 of 1944...... 75454, 77609 74405–74946...... 14 November 29, 1951 ...... 70883, 75454, 77609 74947–75222...... 15 2004 ...... 74931 1955...... 75454, 77609 75223–75450...... 16 No. 2005–09 of 1956...... 75454, 77609 75451–75818...... 17 December 6, 2004 ...... 74933 1965...... 75454, 77609 75819–76372...... 20 No. 2005–11 of 3560...... 75454, 77609 76373–76594...... 21 December 10, 3565...... 75454, 77609 76595–76834...... 22 2004 ...... 76587 Proposed Rules: 76835–77138...... 23 No. 2005–15 of 319...... 71736 77139–77608...... 27 December 21, 500...... 75880 77609–77880...... 28 2004 ...... 77607 929...... 69996
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930...... 71744 71702, 72111, 72112, 74953, 279...... 72054 301...... 70547 945...... 76884 74954, 74955, 75454, 76042, Proposed Rules: 602 ...... 70547, 70550, 76614, 983...... 71749 76391 200...... 77424 77625 989...... 71753 73...... 70887, 72113 201...... 77424 Proposed Rules: 91...... 74413, 77596 228...... 75774 1 ...... 70578, 71757, 75492, 9 CFR 95...... 74413 229...... 75774 76422, 76635, 77324, 77678, 166...... 70179 97...... 74415 230...... 75774, 77424 77679 317...... 74405 119...... 76841 240 ...... 71126, 71256, 75774, 26...... 70404 381...... 74405 121...... 75835, 76841 77424 31...... 76422 430...... 70051 135...... 76841 242 ...... 71126, 75774, 77424 301...... 71757 Proposed Rules: Proposed Rules: 249...... 71126, 77424 417...... 76884 39 ...... 69829, 69832, 69834, 270...... 77424 27 CFR 69836, 69838, 69842, 69844, 9...... 70889, 71372 10 CFR 70202, 70204, 70564, 70566, 18 CFR 19...... 76599 70568, 70571, 70574, 70936, 11...... 71364 28 CFR 70938, 72134, 72136, 74461, 25...... 74949 Proposed Rules: 16...... 72114 74463, 74465, 75267, 75270, 34...... 76599 Ch. 1 ...... 70077 906...... 75243 40...... 76599 75273, 75275, 75277, 75280, 55...... 76599 75282, 76632, 77144, 77675, 20 CFR 29 CFR 60...... 76599 77677 655...... 77326 61...... 74898 570...... 75382 95...... 74949 656...... 77326 579...... 75382 Proposed Rules: 63...... 74898 65...... 74898 21 CFR 580...... 75382 25...... 75007 1926...... 70373 95...... 75007 67...... 74898 1...... 71562, 71655 71 ...... 70208, 71756, 75490, 2590...... 75798 10...... 74418 4011...... 69820 11 CFR 75491, 76421, 77146 11...... 71562 91...... 74898 4022...... 69820, 74973 Proposed Rules: 179...... 76401, 76844 4044...... 69821, 74973 121...... 74898 510...... 70053 100...... 76626 Proposed Rules: 135...... 74898 520...... 70053, 74418 104...... 76626 1...... 75408 522...... 70054, 70055 114...... 76628 15 CFR 4...... 75408 558...... 70056 300...... 71388 1210...... 76423 6...... 74416 876...... 77621 1952...... 75436 12 CFR 732...... 71356 880...... 70702 4000...... 77679 734...... 71356 884...... 77623 30...... 77610 4010...... 77679 740...... 71356 1310...... 74957 41...... 77610 742...... 71356 201...... 75819 744...... 71356 Proposed Rules: 30 CFR 203...... 77139 165...... 70082 750...... 69814 18...... 70752 208...... 77610 1301...... 70576 772...... 71356 917...... 75835 211...... 77610 774...... 76842 22 CFR 938...... 71528, 71551 222...... 77610 806...... 70543 225...... 77610 122...... 70888 Proposed Rules: 31 CFR 334...... 77610 129...... 70888 710...... 70754 364...... 77610 10...... 75839 711...... 70754 Proposed Rules: 506...... 76601 103...... 74439, 76847 712...... 70754 226...... 75885 516...... 76601 515...... 75468 713...... 70754 541...... 76601 23 CFR 538...... 75468 714...... 70754 560...... 76601 560...... 75468 715...... 70754 650...... 74419 563...... 76601 Proposed Rules: 716...... 70754 655...... 69815 564...... 76601 10...... 75887 717...... 70754 567...... 76601 24 CFR 718...... 70754 568...... 77610 32 CFR 719...... 70754 200...... 74894 570...... 76601, 77610 503...... 76412 720...... 70754 202...... 75802 571...... 77610 630...... 76412 721...... 70754 203...... 77112 635...... 75245 Proposed Rules: 722...... 70754 206...... 75204 226...... 70925 723...... 70754 570...... 70864 Proposed Rules: Proposed Rules: 518...... 77836 13 CFR 724...... 70754 725...... 70754 200...... 75812 634...... 76548 121...... 70180 726...... 70754 206...... 70244 637...... 75287 125...... 75820 214...... 77118 727...... 70754 33 CFR Proposed Rules: 728...... 70754 970...... 75188 121...... 70197 729...... 70754 2004...... 70868 100...... 70551, 70552 3280...... 70016 117 ...... 70057, 70059, 70373, 14 CFR 16 CFR 71704, 71706, 74441, 74975, 23...... 70885, 74407 1...... 76611 25 CFR 75472, 75845 25...... 76389 Proposed Rules: 165 ...... 70374, 71708, 71709, 39 ...... 69807, 69810, 70368, 17 CFR 542...... 69847 74442, 76413, 76415, 76417, 70537, 70539, 71339, 71340, 15...... 76392 77139 71342, 71344, 71347, 71349, 16...... 76392 26 CFR Proposed Rules: 71351, 71353, 74411, 74412, 17...... 76392 1 ...... 70547, 70550, 75455, 100...... 70578 75223, 75225, 75228, 75231, 18...... 76392 76612, 76614, 77625 110...... 71758, 75009 75233, 75236, 75826, 75830, 19...... 76392 25...... 70547 117 ...... 70091, 70209, 72138, 75833, 76603, 76605, 76610, 21...... 76392 31 ...... 69819, 70547, 76404 75011, 75013, 75493 76839, 76979 240...... 70852 53...... 70547 151...... 77147 71 ...... 70053, 70185, 70371, 248...... 71322 55...... 70547 165 ...... 70211, 71758, 75009, 70372, 70541, 70542, 71701, 275...... 72054 156...... 70547 77684
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34 CFR 82...... 76655 79...... 72020 628...... 76660 Proposed Rules: 93...... 72140 80...... 76864 652...... 76660 606...... 76636 141...... 76897 90 ...... 70378, 75144, 77522 901...... 75017 607...... 76636 261...... 77690 101...... 70378, 72020 970...... 75017 611...... 76636 271...... 70946, 74467 Proposed Rules: 637...... 76636 272...... 71391 1 ...... 72046, 75174, 77560 49 CFR 300...... 74467, 75891 2...... 77560 648...... 76636 171 ...... 70902, 75208, 76044 656...... 76636 720...... 75496 20...... 77560 721...... 70404 21...... 77560 172...... 75208, 76044 657...... 76636 173 ...... 70902, 75208, 76044 658...... 76636 22...... 75174, 77560 41 CFR 24...... 75174, 77560 174...... 70902 660...... 76636 175 ...... 70902, 75208, 76044 661...... 76636 Proposed Rules: 25...... 77560 51-2...... 70214 27 ...... 72046, 75174, 77560 176...... 70902, 76044 662...... 76636 177...... 70902 663...... 76636 51-3...... 70214 73 ...... 71396, 75016, 75017 51-4...... 70214 74...... 77560 178...... 70902, 76044 664...... 76636 180...... 76044 669...... 76636 78...... 77560 42 CFR 80...... 77560 219...... 72133 35 CFR 1003...... 74451 87...... 77560 534...... 77663 571 ...... 70904, 74848, 75486, Proposed Rules: 90...... 74174, 77560 Ch. 1 ...... 71375 76298, 76865 1001...... 71766 95...... 77560 36 CFR 97...... 77560 585...... 70904 43 CFR 101...... 77560 586...... 70904 13...... 70061 589...... 70904 44...... 70557 242...... 70074 48 CFR 590...... 70904 1228...... 74976, 76848 1880...... 70557 Ch. 1...... 76340, 76358, 77870, 596...... 70904 Proposed Rules: 44 CFR 77879 597...... 70904 242...... 70940 Ch. 2 ...... 74995 Proposed Rules: 64 ...... 70377, 75481, 77650 Ch. 35 ...... 75266 121...... 76423 37 CFR 65 ...... 70185, 71718, 72128, 2 ...... 76341, 76347, 76350, 371...... 76664 75483 201...... 70377 76352 571...... 75020 67 ...... 70191, 70192, 71721, 202...... 77636 4...... 76341 572...... 70947 72131, 75484 211...... 77636 5...... 77870 830...... 77150 212...... 77636 Proposed Rules: 6...... 77870 1507...... 71767 253...... 69822 67 ...... 72156, 72158, 75496, 9...... 76347, 77870 75499 38 CFR 11...... 76358 50 CFR 45 CFR 12...... 76350, 77870 21...... 74977 13...... 76350 14...... 70379 Proposed Rules: 303...... 77659 14...... 76341, 77870 17...... 70382, 71723 5...... 77578 Proposed Rules: 15...... 76341, 76350 100...... 70074 650...... 71395 17...... 77870 222...... 69826 40 CFR 19...... 76355 223...... 69826 22...... 77637 46 CFR 22 ...... 76347, 76352, 77870 229...... 75862 9...... 70552, 75472 310...... 74454 25...... 77870 300...... 71731, 77672 52 ...... 69823, 70893, 70895, 531...... 75850 28...... 76347 622...... 70196 71375, 71712, 72115, 72118, 41...... 76358 635 ...... 70396, 71732, 71735 75473, 75478, 75847, 76417, 47 CFR 42...... 76356 648 ...... 70919, 70923, 75864, 76617, 76848, 76854, 76855, 0...... 70316 44...... 76347, 76358 77674 77639, 77642, 77645, 77647 1 ...... 70378, 72020, 75144, 51...... 76358 660...... 77012 63...... 74979, 76859 77522 52 ...... 76341, 76347, 76352, 679 ...... 69828, 70924, 74455, 70...... 75478 2...... 71380, 72020 76358, 77870 75004, 75005, 75865, 76870 81...... 75847 4...... 70316 203...... 74989 Proposed Rules: 82...... 76982 11...... 72020 206...... 74990 17 ...... 69878, 70412, 70580, 180 ...... 70897, 71714, 76619 15...... 71380, 72020 209...... 74989 70971, 71284, 72161, 74468, 228...... 75256 18...... 70562 212...... 74991 75608, 76428, 77152, 77158, 268...... 76863 21...... 72020 213...... 74991 77167, 77703, 77706 271...... 70898, 74444 22...... 75144 217...... 74992 20...... 71770 300...... 74448, 75847 24...... 75144, 77522 219...... 74995 21...... 75892 712...... 70552 27 ...... 70378, 72020, 75144 225...... 74991 92...... 76362 Proposed Rules: 54...... 74985 236...... 75000 100...... 70940 52 ...... 69863, 70944, 70945, 63...... 70316 237...... 75000 223...... 76673 71390, 71764, 75495, 76886, 64...... 71383, 77141 252...... 74989, 74991 226...... 71880, 74572 76888, 76889, 77149, 77687, 73 ...... 71384, 71385, 71386, 504...... 77661 229...... 70094 77688, 77689, 77690 71387, 72020, 74988, 75860, 909...... 75001 635...... 71771 60...... 69864, 71472 75861, 76420 970...... 75001 648...... 70414, 77173 63 ...... 69864, 75015, 76642, 74...... 70378, 72020 Proposed Rules: 660...... 70973 76894 76...... 72020 619...... 76660 679 ...... 70589, 70605, 70974, 70...... 75495 78...... 72020 625...... 76660 76682
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REMINDERS comments due by 1-7- Commercial packaged The items in this list were COMMENTS DUE NEXT 05; published 12-8-04 boilers; Open for [FR 04-26952] comments until further editorially compiled as an aid WEEK to Federal Register users. Bering Sea and Aleutian notice; published 10-21- Inclusion or exclusion from Islands groundfish; 04 [FR 04-17730] AGRICULTURE correction; comments ENERGY DEPARTMENT this list has no legal DEPARTMENT significance. due by 1-7-05; Federal Energy Regulatory Agricultural Marketing published 12-22-04 [FR Commission Service 04-27979] Electric rate and corporate Gulf of Alaska groundfish; RULES GOING INTO Cotton classing, testing and regulation filings: standards: comments due by 1-6- EFFECT DECEMBER 28, Virginia Electric & Power Classification services to 05; published 12-7-04 2004 [FR 04-26832] Co. et al.; Open for growers; 2004 user fees; comments until further Caribbean, Gulf, and South Open for comments until notice; published 10-1-03 AGRICULTURE Atlantic fisheries— further notice; published [FR 03-24818] DEPARTMENT 5-28-04 [FR 04-12138] Red snapper; comments ENVIRONMENTAL Agricultural Marketing Fish and shellfish; country of due by 1-7-05; PROTECTION AGENCY Service origin labeling; comments published 11-23-04 [FR due by 1-3-05; published 04-25961] Air pollutants, hazardous; Lamb promotion, research, national emission standards: and information order; 10-5-04 [FR 04-22309] Marine mammals: referendum procedures; Sweet cherries grown in— Commercial fishing Electric utility steam published 12-27-04 Washington; comments due authorizations— generating units; Fisheries categorized comments due by 1-3-05; ENVIRONMENTAL by 1-3-05; published 11-3- according to frequency published 12-1-04 [FR 04- PROTECTION AGENCY 04 [FR 04-24443] of incidental takes; 26579] AGRICULTURE Air programs; approval and 2005 list; comments Air quality implementation DEPARTMENT promulgation; State plans due by 1-3-05; plans; approval and for designated facilities and Animal and Plant Health published 12-2-04 [FR promulgation; various pollutants: Inspection Service 04-26577] States: Virginia; published 10-29-04 Exportation and importation COURT SERVICES AND Oregon; comments due by and interstate transportation Air quality implementation OFFENDER SUPERVISION 1-3-05; published 12-1-04 of animals and animal AGENCY FOR THE [FR 04-26475] plans; approval and products: promulgation; various DISTRICT OF COLUMBIA Pennsylvania; comments States: Livestock identification; Semi-annual agenda; Open for due by 1-7-05; published alternative numbering 12-8-04 [FR 04-26941] Indiana; published 10-29-04 comments until further systems use; comments notice; published 12-22-03 Environmental statements; Texas; published 10-29-04 due by 1-7-05; published [FR 03-25121] availability, etc.: 11-8-04 [FR 04-24828] Practice and procedure: DEFENSE DEPARTMENT Coastal nonpoint pollution Plant-related quarantine, Environmental Appeals Acquisition regulations: control program— domestic: Board; clarification of Pilot Mentor-Protege Minnesota and Texas; address for documents Golden nematode; Program; Open for Open for comments filed; published 12-28-04 comments due by 1-7-05; comments until further until further notice; published 11-8-04 [FR 04- notice; published 12-15-04 published 10-16-03 [FR GENERAL SERVICES 24827] ADMINISTRATION [FR 04-27351] 03-26087] AGRICULTURE Acquisition regulations: Federal Acquisition Regulation Hazardous waste program DEPARTMENT (FAR): authorizations: Federal Procurement Data Rural Utilities Service Definitions clause; System; direct access by Tennessee; comments due comments due by 1-3-05; non-governmental entities; Electric loans: by 1-7-05; published 12-8- published 11-1-04 [FR 04- published 12-28-04 Operational controls; 04 [FR 04-26943] elimination; comments due 24231] Pesticides; tolerances in food, HEALTH AND HUMAN by 1-7-05; published 11-8- Technical amendments and animal feeds, and raw SERVICES DEPARTMENT 04 [FR 04-24789] corrections; comments agricultural commodities: due by 1-3-05; published Children and Families COMMERCE DEPARTMENT QST 2808, bacillus pumilus Administration 11-1-04 [FR 04-24284] Industry and Security strain; comments due by ENERGY DEPARTMENT Child Support Enforcement Bureau 1-3-05; published 11-3-04 Program: Meetings: Chemical Weapons [FR 04-24250] Child support orders review Convention Regulations: Environmental Management Thifensulfuron-methyl; and adjustment; Site-Specific Advisory comments due by 1-3-05; Requirements update and Board— reasonable quantitative clarification; comments published 11-3-04 [FR 04- Oak Ridge Reservation, standard; published 12-28- due by 1-6-05; published 24249] TN; Open for comments 04 12-7-04 [FR 04-26517] Water pollution control: until further notice; TRANSPORTATION National Pollutant Discharge COMMERCE DEPARTMENT published 11-19-04 [FR DEPARTMENT Elimination System— National Oceanic and 04-25693] Federal Aviation Concentrated animal Atmospheric Administration ENERGY DEPARTMENT Administration feeding operations in Fishery conservation and Energy Efficiency and Airworthiness directives: New Mexico and management: Renewable Energy Office Oklahoma; general Bombardier; published 11- Alaska; fisheries of Commercial and industrial permit for discharges; 29-04 Exclusive Economic equipment; energy efficiency Open for comments Ostmecklenburgische Zone— program: until further notice; Flugzeugbau GmbH; Bering Sea and Aleutian Test procedures and published 12-7-04 [FR published 11-26-04 Islands groundfish; efficiency standards— 04-26817]
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Water pollution; effluent Class II special Federal sector labor STATE DEPARTMENT guidelines for point source controls; Open for organizations; comments International Traffic in Arms categories: comments until further due by 1-3-05; published regulations: Meat and poultry products notice; published 8-23- 11-3-04 [FR 04-24451] Registration fee change; processing facilities; Open 04 [FR 04-19179] LABOR DEPARTMENT comments due by 1-7-05; for comments until further HOMELAND SECURITY Occupational Safety and published 12-8-04 [FR 04- notice; published 9-8-04 DEPARTMENT Health Administration 26954] [FR 04-12017] Coast Guard Safety and health standards: OFFICE OF UNITED STATES FARM CREDIT Anchorage regulations: Hexavalent chromium; TRADE REPRESENTATIVE ADMINISTRATION California; comments due by occupational exposure; Trade Representative, Office Farm credit system: 1-4-05; published 11-5-04 comments due by 1-3-05; of United States Funding and fiscal affairs, [FR 04-24687] published 10-4-04 [FR 04- Generalized System of loan policies, and Maryland; Open for 21488] Preferences: operations, and funding comments until further NATIONAL AERONAUTICS 2003 Annual Product operations, etc.— notice; published 1-14-04 AND SPACE Review, 2002 Annual Investments, liquidity and [FR 04-00749] ADMINISTRATION Country Practices Review, divestiture; liquidity Ports and waterways safety: Federal Acquisition Regulation and previously deferred reserve requirement; Potomac and Anacosta (FAR): product decisions; comments due by 1-3- Rivers, DC and VA; Definitions clause; petitions disposition; Open 05; published 11-16-04 security zone; comments comments due by 1-3-05; for comments until further [FR 04-25395] due by 1-3-05; published published 11-1-04 [FR 04- notice; published 7-6-04 FEDERAL 12-3-04 [FR 04-26669] 24231] [FR 04-15361] COMMUNICATIONS San Francisco, CA— NATIONAL ARCHIVES AND TRANSPORTATION COMMISSION Safety zone; comments RECORDS ADMINISTRATION DEPARTMENT Common carrier services: due by 1-4-05; Records management: Federal Aviation Interconnection— Administration published 11-5-04 [FR Electronic mail and records; Incumbent local exchange 04-24684] management and Airworthiness directives: carriers unbounding HOMELAND SECURITY disposition; comments due Airbus; comments due by 1- obligations; local DEPARTMENT by 1-3-05; published 11-3- 6-05; published 12-7-04 competition provisions; Privacy Act; implementation; 04 [FR 04-24403] [FR 04-26797] wireline services comments due by 1-5-05; BAE Systems (Operations) offering advanced NUCLEAR REGULATORY published 12-6-04 [FR 04- COMMISSION Ltd.; comments due by 1- telecommunications 3-05; published 12-1-04 26743] Environmental statements; capability; Open for [FR 04-26496] INTERIOR DEPARTMENT availability, etc.: comments until further Boeing; comments due by Fish and Wildlife Service Fort Wayne State notice; published 12-30- 1-3-05; published 12-1-04 Developmental Center; 99 [FR 04-28531] Endangered and threatened [FR 04-26492] species permit applications Open for comments until FEDERAL TRADE Bombardier; comments due COMMISSION Recovery plans— further notice; published 5-10-04 [FR 04-10516] by 1-3-05; published 12-1- Fair and Accurate Credit Paiute cutthroat trout; 04 [FR 04-26493] PERSONNEL MANAGEMENT Transactions Act: Open for comments British Aerospace; OFFICE Credit score disclosure; fair until further notice; comments due by 1-3-05; and reasonable fee; published 9-10-04 [FR Veterans recruitment published 12-1-04 [FR 04- comments due by 1-5-05; 04-20517] appointments; eligibility 26498] criteria; comments due by published 11-8-04 [FR 04- Endangered and threatened Gulfstream; comments due 1-4-05; published 11-5-04 24841] species: by 1-3-05; published 11-4- [FR 04-24779] GENERAL SERVICES Critical habitat 04 [FR 04-24519] ADMINISTRATION designations— SECURITIES AND Rolls-Royce plc; comments Federal Acquisition Regulation Lane Mountain milk-vetch; EXCHANGE COMMISSION due by 1-7-05; published (FAR): comments due by 1-7- Investment companies: 11-8-04 [FR 04-24817] Definitions clause; 05; published 12-8-04 Eligible portfolio company; Saab; comments due by 1- comments due by 1-3-05; [FR 04-26876] definition; comments due 3-05; published 12-1-04 published 11-1-04 [FR 04- Munz’s onion; comments by 1-7-05; published 11-8- [FR 04-26495] 24231] due by 1-3-05; 04 [FR 04-24788] Schempp-Hirth Flugzeugbau published 12-1-04 [FR HEALTH AND HUMAN SMALL BUSINESS GmbH; comments due by 04-26473] SERVICES DEPARTMENT ADMINISTRATION 1-3-05; published 12-9-04 Food and Drug INTERNATIONAL TRADE Disaster loan areas: [FR 04-26640] Administration COMMISSION Maine; Open for comments Class D airspace; comments Reports and guidance Practice and procedure: until further notice; due by 1-5-05; published documents; availability, etc.: Investigations relating to published 2-17-04 [FR 04- 12-6-04 [FR 04-26750] Evaluating safety of global and bilateral 03374] Class E airspace; comments antimicrobial new animal safeguard actions, market SOCIAL SECURITY due by 1-7-05; published drugs with regard to their disruption, etc. and injury ADMINISTRATION 11-23-04 [FR 04-25885] microbiological effects on to domestic industries Social security benefits: VOR Federal airways; from subsidized exports; bacteria of human health Federal old age, survivors, comments due by 1-7-05; comments due by 1-4-05; concern; Open for and disability insurance— published 11-23-04 [FR 04- comments until further published 11-5-04 [FR 04- 25881] 24704] Digestive system; notice; published 10-27-03 impairments evaluation; TRANSPORTATION [FR 03-27113] LABOR DEPARTMENT medical criteria; DEPARTMENT Medical devices— Labor-Management comments due by 1-7- Federal Motor Carrier Safety Dental noble metal alloys Standards Office 05; published 11-8-04 Administration and base metal alloys; Standards of conduct: [FR 04-24782] Motor carrier safety standards:
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Drivers’ hours of service Rear impact protection; road in ‘‘slip law’’ (individual 2004 (Dec. 17, 2004; 118 and records of duty construction controlled pamphlet) form from the Stat. 3638) status; supporting horizontal discharge Superintendent of Documents, documents requirements; semitrailers; exclusion U.S. Government Printing Last List December 14, 2004 comments due by 1-3-05; from standard; comments Office, Washington, DC 20402 published 11-3-04 [FR 04- due by 1-3-05; published (phone, 202–512–1808). The 24176] 11-19-04 [FR 04-25703] text will also be made TRANSPORTATION available on the Internet from Public Laws Electronic DEPARTMENT GPO Access at http:// Notification Service Federal Railroad LIST OF PUBLIC LAWS www.gpoaccess.gov/plaws/ (PENS) Administration index.html. Some laws may Railroad safety: This is a continuing list of not yet be available. Locomotive crashworthiness; public bills from the current session of Congress which H.R. 4012/P.L. 108–457 PENS is a free electronic mail comments due by 1-3-05; notification service of newly have become Federal laws. It To amend the District of published 11-2-04 [FR 04- enacted public laws. To 24148] may be used in conjunction Columbia College Access Act with ‘‘PLUS’’ (Public Laws subscribe, go to http:// TRANSPORTATION of 1999 to reauthorize for 2 Update Service) on 202–741– listserv.gsa.gov/archives/ DEPARTMENT additional years the public 6043. This list is also publaws-l.html National Highway Traffic school and private school available online at http:// tuition assistance programs Safety Administration Note: This service is strictly www.archives.gov/ established under the Act. Motor vehicle safety for E-mail notification of new federal—register/public—laws/ (Dec. 17, 2004; 118 Stat. standards: laws. The text of laws is not public—laws.html. 3637) Rear impact guard labels; available through this service. comments due by 1-3-05; The text of laws is not S. 2845/P.L. 108–458 PENS cannot respond to published 11-19-04 [FR published in the Federal Intelligence Reform and specific inquiries sent to this 04-25704] Register but may be ordered Terrorism Prevention Act of address.
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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 21:14 Dec 27, 2004 Jkt 205001 PO 00000 Frm 00001 Fmt 4721 Sfmt 4721 E:\FR\FM\28DECL.LOC 28DECL viii Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Reader Aids
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 ...... (869–052–00171–6) ...... 61.00 Oct. 1, 2004 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 ...... (869–052–00173–2) ...... 64.00 Oct. 1, 2004 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 ...... (869–052–00174–1) ...... 56.00 Oct. 1, 2004 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 ...... (869–052–00176–7) ...... 50.00 Oct. 1, 2004 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 ...... (869–052–00179–1) ...... 56.00 Oct. 1, 2004 300–399 ...... (869–052–00127–9) ...... 40.00 July 1, 2004 1200–End ...... (869–052–00180–5) ...... 61.00 Oct. 1, 2004 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 ...... (869–052–00181–3) ...... 46.00 Oct. 1, 2004 *41–69 ...... (869–052–00182–1) ...... 39.00 Oct. 1, 2004 36 Parts *70–89 ...... (869–052–00183–0) ...... 14.00 Oct. 1, 2004 1–199 ...... (869–052–00130–9) ...... 37.00 July 1, 2004 *90–139 ...... (869–052–00184–8) ...... 44.00 Oct. 1, 2004 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 ...... (869–052–00188–1) ...... 40.00 Oct. 1, 2004 38 Parts: 500–End ...... (869–052–00189–9) ...... 25.00 Oct. 1, 2004 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) ...... (869–052–00197–0) ...... 50.00 Oct. 1, 2004 60 (Apps) ...... (869–052–00143–1) ...... 57.00 July 1, 2004 3–6 ...... (869–052–00198–8) ...... 34.00 Oct. 1, 2004 61–62 ...... (869–052–00144–9) ...... 45.00 July 1, 2004 *7–14 ...... (869–052–00199–6) ...... 56.00 Oct. 1, 2004 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 ...... (869–052–00201–1) ...... 47.00 Oct. 1, 2004 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 ...... (869–052–00202–0) ...... 60.00 Oct. 1, 2004
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Title Stock Number Price Revision Date 100–185 ...... (869–050–00201–9) ...... 63.00 Oct. 1, 2003 *186–199 ...... (869–052–00204–6) ...... 23.00 Oct. 1, 2004 200–399 ...... (869–050–00203–5) ...... 64.00 Oct. 1, 2003 *400–599 ...... (869–052–00206–2) ...... 64.00 Oct. 1, 2004 600–999 ...... (869–052–00207–1) ...... 19.00 Oct. 1, 2004 *1000–1199 ...... (869–052–00208–9) ...... 28.00 Oct. 1, 2004 1200–End ...... (869–048–00207–8) ...... 33.00 Oct. 1, 2003 50 Parts: 1–16 ...... (869–052–00210–1) ...... 11.00 Oct. 1, 2004 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 ...... (869–052–00215–1) ...... 45.00 Oct. 1, 2004 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.
VerDate jul 14 2003 21:14 Dec 27, 2004 Jkt 205001 PO 00000 Frm 00003 Fmt 4721 Sfmt 4721 E:\FR\FM\28DECL.LOC 28DECL