2–26–04 Thursday Vol. 69 No. 38 Feb. 26, 2004
Pages 8797–9188
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1 II Federal Register / Vol. 69, No. 38 / Thursday, February 26, 2004
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2 III
Contents Federal Register Vol. 69, No. 38
Thursday, February 26, 2004
Agricultural Marketing Service Education Department RULES NOTICES Dairy products; grading and inspection: Agency information collection activities; proposals, Fees and charges increase, 8797–8798 submissions, and approvals, 8940–8941 Grants and cooperative agreements; availability, etc.: Agriculture Department Innovation and improvement— See Agricultural Marketing Service Excellence in Economic Education Program, 9173–9178 See Forest Service Safe and Drug-Free Schools Programs— Cooperative Civic Education and Economic Education Air Force Department Exchange Program, 8941–8944 NOTICES Agency information collection activities; proposals, Employee Benefits Security Administration submissions, and approvals, 8939 NOTICES Agency information collection activities; proposals, Centers for Disease Control and Prevention submissions, and approvals, 8988–8990 NOTICES Agency information collection activities; proposals, Energy Department submissions, and approvals, 8969–8975 See Federal Energy Regulatory Commission Meetings: Radiation and Worker Health Advisory Board, 8975–8976 Environmental Protection Agency RULES Centers for Medicare & Medicaid Services Air quality implementation plans; approval and NOTICES promulgation; various States: Agency information collection activities; proposals, Pennsylvania, 8822–8824 submissions, and approvals, 8976–8977 Solid wastes: Hazardous waste; identification and listing— Coast Guard Exclusions, 8828–8833 RULES Water programs: Drawbridge operations: Underground injection control program— New Jersey, 8813–8815, 8817 Texas; Class III brine mining injection wells, 8824– North Carolina, 8815 8828 Rhode Island, 8815–8817 PROPOSED RULES Ports and waterways safety: Air quality implementation plans; approval and San Francisco Bay, CA— promulgation; various States: Security zones, 8817–8821 Michigan, 8905–8911 NOTICES Meetings: Executive Office of the President Commercial Fishing Industry Vessel Safety Advisory See Management and Budget Office Committee, 8983 See Presidential Documents
Commerce Department Federal Aviation Administration See International Trade Administration RULES See National Oceanic and Atmospheric Administration Airworthiness directives: Boeing, 8809–8811 Committee for the Implementation of Textile Agreements General Electric Co., 8801–8809 NOTICES Standard instrument approach procedures, 8811–8813 Cotton, wool, and man-made textiles: PROPOSED RULES Vietnam, 8937–8939 Airworthiness directives: Dornier, 8878–8884 Community Development Financial Institutions Fund General Electric Co., 8875–8878 NOTICES Raytheon, 8880–8881 Grants and cooperative agreements; availability, etc.: Prohibited areas, 8884–8885 Community Development Financial Institutions Program NOTICES Financial Assistance Component, 9018–9026 Aeronautical land-use assurance; waivers: Dane County Regional Airport, WI, 9002 Defense Department Airport noise compatibility program: See Air Force Department Martin County Airport/Witham Field, FL, 9003–9006 See Navy Department Noise exposure maps— Georgetown Municipal Airport, TX, 9006–9007 Defense Nuclear Facilities Safety Board Environmental statements; availability, etc.: NOTICES Mojave Airport, CA; East Kern Airport District launch Meetings; Sunshine Act, 8940 site operator license, 9007–9014
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Environmental statements; notice of intent: Federal Railroad Administration San Antonio International Airport, TX, 9014–9015 RULES Railroad workplace safety: Roadway maintenance machine safety, 8834–8839 Federal Communications Commission RULES Federal Reserve System Digital television stations; table of assignments: Mississippi, 8833–8834 NOTICES North Dakota, 8834 Agency information collection activities; proposals, NOTICES submissions, and approvals, 8967–8969 Common carrier services: Banks and bank holding companies: Telecommunications carrier eligibility designation Formations, acquisitions, and mergers, 8969 petitions— Virginia Cellular, LLC; Virginia service area, 8958–8964 Fish and Wildlife Service Wireless telecommunications services— RULES Direct broadcast satellite service licenses; auction, Endangered and threatened species: 8965–8966 Critical habitat designations— Meetings: Santa Ana sucker, 8839–8861 2007 World Radiocommunication Conference Advisory PROPOSED RULES Committee, 8966 Endangered and threatened species: Network Reliability and Interoperability Council, 8966– Critical habitat designations— 8967 Santa Ana sucker, 8911–8915 NOTICES Endangered and threatened species and marine mammal Federal Deposit Insurance Corporation permit applications, 8984 NOTICES Endangered and threatened species permit applications, Agency information collection activities; proposals, 8984–8985 submissions, and approvals, 8967 Meetings: North American Wetlands Conservation Council, 8985 Federal Election Commission NOTICES Food and Drug Administration Meetings; Sunshine Act, 8967 RULES Human drugs and biological products: Bar code label requirements, 9119–9171 Federal Energy Regulatory Commission NOTICES RULES Agency information collection activities; proposals, Electric utilities (Federal Power Act), Natural Gas Policy submissions, and approvals, 8977–8981 Act, and oil pipeline companies (Interstate Commerce Reports and guidance documents; availability, etc.: Act): MedWatch voluntary and mandatory reporting forms; Quarterly financial reporting requirements and annual correction, 9028 reports revisions, 9029–9118 NOTICES Forest Service Environmental statements; notice of intent: NOTICES Corpus Christi LNG, L.P. et al., 8950–8952 Environmental statements; notice of intent: Sabine Pass LNG, L.P. et al., 8953–8955 Rio Grande National Forest, CO, 8934–8935 Hydroelectric applications, 8955–8957 Meetings: Applications, hearings, determinations, etc.: Resource Advisory Committees— ANR Pipeline Co., 8944 Catron County, 8935–8936 Cypress Gas Pipeline, LLC, 8944 Madera County, 8935 Dominion Transmission, Inc., 8944–8945 Wrangell-Petersburg, 8936 Eastern Shore Natural Gas Co., 8945 Entergy Asset Management, Inc., et al., 8945–8946 Health and Human Services Department Idaho Power Co., 8946 See Centers for Disease Control and Prevention Invenergy TN, LLC, 8946 See Centers for Medicare & Medicaid Services Iroquois Gas Transmission System, L.P., 8946–8947 See Food and Drug Administration Maritimes & Northeast Pipeline, L.L.C., 8947 See Health Resources and Services Administration Northern Natural Gas Co., 8947 Portland Natural Gas Transmission System, 8947–8948 Health Resources and Services Administration Southern California Water Co., 8948 NOTICES Stingray Pipeline Co., L.L.C., 8948–8949 Agency information collection activities; proposals, Trailblazer Pipeline Co., 8949 submissions, and approvals, 8981–8982 Transcontinental Gas Pipe Line Corp., 8949 Health professional shortage areas: Viking Gas Transmission Co., 8949–8950 Recruitment of clinicians to become commissioned officers and of sites for assignment of CO’s, 8982– Federal Highway Administration 8983 NOTICES Environmental statements; notice of intent: Homeland Security Department Cache County, UT, 9015 See Coast Guard
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Interior Department National Credit Union Administration See Fish and Wildlife Service RULES See National Park Service Credit unions: See Surface Mining Reclamation and Enforcement Office Share insurance and appendix— NOTICES Living trust accounts, 8798–8801 Meetings: Delaware and Lehigh National Heritage Corridor National Highway Traffic Safety Administration Commission, 8983–8984 NOTICES Agency information collection activities; proposals, Internal Revenue Service submissions, and approvals, 9015–9016 PROPOSED RULES Income taxes: National Oceanic and Atmospheric Administration Charitable remainder trusts; ordering rule application; RULES hearing cancellation, 8885–8886 Fishery conservation and management: Notional principal contracts; contingent nonperiodic Alaska; fisheries of Exclusive Economic Zone— payments, 8886–8898 Pacific cod, 8874 NOTICES West Coast States and Western Pacific fisheries— Agency information collection activities; proposals, Pacific Coast groundfish, 8861–8874 submissions, and approvals, 9026–9027 PROPOSED RULES Meetings: Fishery conservation and management: Taxpayer Advocacy Panels, 9027 Northeastern United States fisheries— Atlantic sea scallop, 8915–8933 International Trade Administration NOTICES NOTICES Meetings: Antidumping: Caribbean Fishery Management Council, 8936–8937 Stainless steel sheet and strip in coils from— New England Fishery Management Council, 8937 France, 8936 National Park Service Justice Department NOTICES See Justice Programs Office Meetings: NOTICES Denali National Park Subsistence Resource Commission, Pollution control; consent judgments: 8985–8986 J.R. Simplot Co., 8986 Sporting Goods Properties, Inc., 8986–8987 Navy Department Justice Programs Office NOTICES Meetings: NOTICES Naval Academy, Board of Visitors, 8939–8940 Meetings: Patent licenses; non-exclusive, exclusive, or partially Global Justice Information-Sharing Initiative Federal exclusive: Advisory Committee, 8987 Lumitox Gulf L.C., 8940 Labor Department See Employee Benefits Security Administration Nuclear Regulatory Commission NOTICES NOTICES Agency information collection activities; proposals, Applications, hearings, determinations, etc.: submissions, and approvals, 8987 FirstEnergy Nuclear Operating Co., 8991 Library of Congress Office of Management and Budget RULES See Management and Budget Office Copyright Arbitration Royalty Panel rules and procedures: Sound recordings and ephemeral recordings; digital Postal Service performance right; rates and terms PROPOSED RULES Correction, 8822 Domestic Mail Manual: Copyright office and procedures: Packaging and closure requirements, mailing containers, Copyright claims registration; ‘‘Best Edition’’ of published and parcel sorting equipment; changes, 8899–8905 motion pictures for Library of Congress collections, 8821–8822 Presidential Documents EXECUTIVE ORDERS Management and Budget Office Manufacturing; Federal Government policy to encourage NOTICES innovation (EO 13329), 9179–9182 Federal programs; cost-effectiveness analysis; discount rates Committees; establishment, renewal, termination, etc.: (Circular A-94), 8991–8992 Access and Mobility, Interagency Transportation Coordinating Council on; establishment (EO 13330), National Aeronautics and Space Administration 9183–9187 NOTICES Meetings: Research and Special Programs Administration Advisory Council, 8990 NOTICES President’s Commission on Implementation of United Hazardous materials: States Space Exploration Policy, 8990–8991 Applications; exemptions, renewals, etc., 9016–9018
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Securities and Exchange Commission See National Highway Traffic Safety Administration NOTICES See Research and Special Programs Administration Meetings; Sunshine Act, 8992 Securities, etc.: Treasury Department Sarbanes-Oxley Act of 2002; implementation— See Community Development Financial Institutions Fund Financial Accounting Standards Board; accounting See Internal Revenue Service support fee; review, 8992 Public Company Accounting Oversight Board; budget and annual accounting support fee, 8992–8993 Separate Parts In This Issue Self-regulatory organizations; proposed rule changes: Boston Stock Exchange, Inc., 8993–8995 Part II Chicago Board Options Exchange, Inc., 8995–8998 Energy Department, Federal Energy Regulatory Chicago Stock Exchange, Inc., 8998–8999 Commission, 9029–9118 National Association of Securities Dealers, Inc., 8999– 9001 Part III State Department Health and Human Services Department, Food and Drug NOTICES Administration, 9119–9171 Grants and cooperative agreements; availability, etc.: China; democracy, human rights, and rule of law, 9001– Part IV 9002 Education Department, 9173–9178
Surface Mining Reclamation and Enforcement Office Part V PROPOSED RULES Executive Office of the President, Presidential Documents, Surface and underground mining activities: 9179–9182 Excess spoil fills, construction requirements; stream buffer zones, clarification Part VI Hearings, 8899 Executive Office of the President, Presidential Documents, Surface coal mining and reclamation operations: 9183–9187 Ownership and control of mining operations; definitions, permit requirements, enforcement actions, etc., 8898– 8899 Reader Aids Textile Agreements Implementation Committee Consult the Reader Aids section at the end of this issue for See Committee for the Implementation of Textile phone numbers, online resources, finding aids, reminders, Agreements and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents Transportation Department LISTSERV electronic mailing list, go to http:// See Federal Aviation Administration listserv.access.gpo.gov and select Online mailing list See Federal Highway Administration archives, FEDREGTOC-L, Join or leave the list (or change See Federal Railroad Administration 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.
3 CFR Executive Orders: 12958 (See EO 13329) ...... 9181 13329...... 9181 13330...... 9185 7 CFR 58...... 8797 12 CFR 745...... 8798 14 CFR 39 (2 documents) ....8801, 8809 97...... 8811 Proposed Rules: 39 (4 documents) ...8875, 8878, 8880, 8881 73...... 8884 18 CFR 141...... 9030 260...... 9030 357...... 9030 375...... 9030 21 CFR 201...... 9120 606...... 9120 610...... 9120 26 CFR Proposed Rules: 1 (2 documents) ...... 8885, 8886 30 CFR Proposed Rules: 701...... 8898 773...... 8898 774...... 8898 778...... 8898 780...... 8899 816...... 8899 817...... 8899 843...... 8898 847...... 8898 33 CFR 117 (5 documents) ...... 8813, 8815, 8817 165...... 8817 37 CFR 202...... 8821 262...... 8822 39 CFR Proposed Rules: 111...... 8899 40 CFR 52...... 8822 147...... 8824 261...... 8828 Proposed Rules: 52...... 8905 47 CFR 73 (2 documents) ....8833, 8834 49 CFR 214...... 8834 50 CFR 17...... 8839 660...... 8861 679...... 8874 Proposed Rules: 17...... 8911 648...... 8915
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Rules and Regulations Federal Register Vol. 69, No. 38
Thursday, February 26, 2004
This section of the FEDERAL REGISTER inspection services that cover the cost of will also enhance customer services contains regulatory documents having general providing these services. The hourly through improvements in office applicability and legal effect, most of which fees are established by equitably efficiency and timeliness of providing are keyed to and codified in the Code of distributing the program’s projected grading and inspection services and Federal Regulations, which is published under operating costs over the estimated hours information to users of dairy grading 50 titles pursuant to 44 U.S.C. 1510. of service—revenue hours—provided to and inspection services. The Code of Federal Regulations is sold by users of the service on a yearly basis. In view of these considerations, AMS the Superintendent of Documents. Prices of Program operating costs include will increase the hourly fees associated new books are listed in the first FEDERAL employee salaries and benefits—which with Federal dairy grading and REGISTER issue of each week. account for nearly 80 percent of the inspection services. The hourly fee for non-travel related operating costs— resident services provided between the training, and administrative costs. hours of 6:00 a.m. and 6:00 p.m. will DEPARTMENT OF AGRICULTURE Periodically, the fees must be adjusted increase from $51.00 to $57.00 per hour. to ensure that the program remains The hourly fee for nonresident services Agricultural Marketing Service financially self-supporting. between the hours of 6 a.m. and 6 p.m. AMS regularly reviews its user-fee- will increase from $56.00 to $62.00 per 7 CFR Part 58 financed programs to determine if the hour. The hourly fee for resident [Docket Number DA–03–03] fees are adequate. The most recent services provided between 6 p.m. and 6 review determined that the existing fee a.m. will be $61.60 and for nonresident RIN 0581–AC32 schedule, effective January 4, 1998, services the fee will be $68.20. For services performed in excess of 8 hours Increase in Fees for Federal Dairy would not generate sufficient revenues per day and for services performed on Grading and Inspection Services to recover operating costs for current and near-term periods while Saturday, Sunday, and legal holidays, 1 AGENCY: Agricultural Marketing Service, maintaining an adequate reserve 1 ⁄2 times the base fee would apply, and USDA. balance. Costs in FY 2004 are projected as a result, the fee will increase from ACTION: Final rule. at $5.95 million. Without a fee increase, $84.00 per hour to $93.00 per hour. FY 2004 revenues are projected at $5.71, SUMMARY: Executive Order 12866 The Agricultural Marketing and the trust fund balance would be This action has been determined to be Service (AMS) is revising the hourly $2.09 million. With a fee increase, FY ‘‘not significant’’ for purposes of fees charged for Federal dairy grading 2004 revenues are projected at $6.14 Executive Order 12866 and, therefore, and inspection services performed by million, and the trust fund balance the Dairy Grading Branch. Dairy grading has not been reviewed by the Office of would be $2.52 million. Management and Budget (OMB). and inspection services are voluntary Employee salaries and benefits and are financed through user-fees account for approximately 80.0% of the Regulatory Flexibility Act assessed to participants in the program. non-travel related operating budget. The The hourly fees will be adjusted by this Pursuant to the requirements set forth majority of travel costs are billed in the Regulatory Flexibility Act (5 action to reflect the increased costs of directly to the users of services provided providing service and to ensure that the U.S.C. 601, et seq.), the AMS has by the Dairy Grading Branch on a cost- considered the economic impact of this Dairy Grading Branch operates on a recovery basis. Since the January 4, financially self-supporting basis. action on small entities. It has 1998, fee increase, Federal salaries and determined that its provisions would EFFECTIVE DATE: April 4, 2004. location adjustments have increased not have a significant economic effect FOR FURTHER INFORMATION CONTACT: annually. The average salary has on a substantial number of small Duane R. Spomer, Associate Deputy increased approximately 17.4% during entities. Administrator for Standards and this 6-year period. As a result of these AMS provides voluntary Federal Grading, USDA, AMS, Dairy Programs, increases, annual salary and benefit dairy product grading and inspection telephone (202) 720–3171 or e-mail costs to the program are approximately services to about 350 users of services [email protected]. $556 thousand more today than in 1998. provided by the Dairy Grading Branch. SUPPLEMENTARY INFORMATION: Inflation has also increased the Manufacturing operations participating operational and administrative costs in the voluntary plant inspection Background associated with this program, and a fee program have their facility inspected The Secretary of Agriculture is increase is necessary to sustain the against established construction and authorized by the Agricultural program. If the short fall is allowed to sanitation requirements. Dairy products Marketing Act of 1946 (AMA), as continue, it will place the Dairy Grading manufactured in facilities complying amended (7 U.S.C. 1621, et seq.), to Branch in an unstable financial position with the USDA requirements are eligible provide voluntary Federal dairy grading that will adversely affect its ability to to be inspected and graded against and inspection services to facilitate the provide dairy grading and inspection official quality standards and orderly marketing of dairy products and services. specifications established by AMS and to enable consumers to obtain the This proposal will also generate funds certain contract provisions between quality of dairy products they desire. to automate current business practices buyer and seller. Products inspected or The AMA also provides for the of the Dairy Grading Branch that will graded by the Dairy Grading Branch collection of reasonable fees from users minimize the extent of future fee have certificates issued concerning the of the Federal dairy grading and increases. Automated business practices product’s quality and condition. Many
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of these users are small entities under this rule. There are no administrative SUMMARY: NCUA is amending its share the criteria established by the Small procedures which must be exhausted insurance rules to simplify them and Business Administration (13 CFR prior to any judicial challenge to the maintain parity with the deposit 121.201). This rule will raise the fee provisions of this rule. insurance rules of the Federal Deposit charged to businesses for voluntary Insurance Corporation (FDIC). Paperwork Reduction Act inspection and grading services for Specifically, the amendment changes dairy and related products and the This action would not impose any the existing rules concerning coverage evaluation of food processing additional reporting or recordkeeping for beneficial interests in living trust equipment. Even though the fee will be requirements on users of Federal dairy accounts. The rules are amended by raised, the increase is approximately grading and inspection services. eliminating the provisions that would 10.7% for nonresident service and Comments and Responses limit insurance coverage where the 11.8% for resident service and will not interest of the beneficiary is subject to significantly affect these entities. These AMS published a proposed rule in the a defeating contingency in a living trust businesses are under no obligation to Federal Register on October 3, 2003 (68 agreement. With the amendment, share use these voluntary user-fee based FR 57882) to increase the fees for insurance coverage of up to $100,000 is services, and any decision on their part Federal dairy grading and inspection provided per qualifying beneficiary to discontinue the use of the services services and requested comments by who, as of the date of an insured credit would not prevent them from marketing November 3, 2003. The Agency did not union’s failure, would become the their products. The AMS estimates that receive comments on this proposal. owner of assets in the living trust upon overall this rule would yield an List of Subjects in 7 CFR Part 58 the account owner’s death. The FDIC additional $522,000 annually. This recently amended its deposit insurance action reflects certain fee increases Dairy Products, Food grades and rules by making a similar change. This needed to recover the cost of inspection standards, Food labeling, Reporting and amendment is adopted as an interim and grading services rendered in recordkeeping requirements. rule to provide parity between NCUA accordance with the Agricultural ■ For the reason set forth in the and FDIC insurance regulations and aid Marketing Act. preamble, 7 CFR part 58 is amended as the public and prevent confusion over The AMS regularly reviews its user- follows: the amount of Federal account fee financed programs to determine if insurance available on those accounts. PART 58—GRADING AND fees are adequate and if costs are DATES: INSPECTION, GENERAL This final rule is effective on reasonable. The existing fee schedule April 1, 2004. Comments must be SPECIFICATIONS FOR APPROVED will not generate sufficient revenues to received on or before April 26, 2004. cover program costs while maintaining PLANTS AND STANDARDS FOR GRADES OF DAIRY PRODUCTS ADDRESSES: Direct comments to Becky an adequate reserve balance (four Baker, Secretary of the Board. Mail or months of costs) as called for by Agency ■ 1. The authority citation for 7 CFR part hand-deliver comments to: National policy. Without a fee increase, total 58 continues to read as follows: Credit Union Administration, 1775 revenue projections—including travel Authority: 7 U.S.C. 1621–1627. Duke Street, Alexandria, Virginia revenue—for Fiscal Year 2004 would be 22314–3428. You are encouraged to fax $5.71 million. Total costs—including Subpart A—[Amended] comments to (703) 518–6319 or e-mail travel costs—for the same period of time comments to [email protected] are projected to increase to $5.95 § 58.43 [Amended] instead of mailing or hand-delivering million. The shortfall, if allowed to ■ 2. In § 58.43, ‘‘$56.00’’ is removed and them. Whatever method you choose, continue, would translate into a trust ‘‘$62.00’’ is added in its place, and please send comments by one method fund balance of $431 thousand or 0.8 ‘‘$61.60’’ is removed and ‘‘$68.20’’ is only. months of operating reserve at the end added in its place. of FY 2007, which is below the Agency FOR FURTHER INFORMATION CONTACT: Ross policy requirement. § 58.45 [Amended] Kendall, Staff Attorney, Office of General Counsel, at the above address or This action raises the hourly fees ■ 3. In § 58.45, ‘‘$51.00’’ is removed and telephone: (703) 518–6562. charged to users of Federal dairy ‘‘$57.00’’ is added in its place. inspection and grading services. AMS SUPPLEMENTARY INFORMATION: estimates this action will provide the Dated: February 20, 2004. A. Background Dairy Grading Branch an additional A.J. Yates, $522 thousand annually. This will Administrator, Agricultural Marketing Living trusts have become an generate revenue to recover program Service. increasingly popular way for costs, automate business practices to [FR Doc. 04–4222 Filed 2–25–04; 8:45 am] individuals to transfer assets outside of minimize the extent of future fee BILLING CODE 3410–02–P probate while retaining control of the increases, and enhance customer funds during their lifetime. Where a services through improvements in office grantor establishes a share account with efficiency and timeliness of providing NATIONAL CREDIT UNION funds that are subject to a separate grading and inspection information to ADMINISTRATION living trust agreement, share insurance users of these services. coverage is provided in accordance with 12 CFR Part 745 NCUA’s rules that govern revocable Civil Justice Reform trust accounts. 12 CFR 745.4. The This action has been reviewed under Share Insurance; Living Trust NCUA believes, based on its experience Executive Order 12988, Civil Justice Accounts and upon the experience of the FDIC, Reform. This action is not intended to AGENCY: National Credit Union that many persons who have established have retroactive effect. This rule will Administration (NCUA). living trust accounts do not understand not preempt any State or local laws, the impact under the current rules of a ACTION: Interim final rule with request regulations, or policies unless they defeating contingency on the for comments. present an irreconcilable conflict with availability of separate insurance
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coverage for beneficial interests in the confusing. The FDIC reports that it has insurance coverage. The coverage would account, even for ‘‘qualifying had to deny separate insurance coverage still be $300,000 even if the trust beneficiaries’’ (the spouse, child, for some beneficiaries of living trusts in provides that the funds would go to the grandchild, parent or sibling of the cases where it was clear that the grantor children only if each graduates from grantor). was not aware of the impact of language college before the owner’s death because The rules were designed to cover a in the trust agreement. NCUA staff have defeating contingencies will no longer straightforward ‘‘payable on death’’ reviewed recent examples of trust be relevant for deposit insurance account, sometimes simply referred to agreements that appear to have purposes. as a ‘‘POD’’ account, that provides for inadvertently created defeating Another example would be where a the payment of any balance remaining contingencies that would thwart living trust provides that the owner’s in an account upon its owner’s death to separate insurance for otherwise spouse becomes the owner of the trust specified beneficiaries. Evidence of the qualifying beneficiaries. In addition, the assets upon the owner’s death but, if the intent of the account owner to pass current rules may require a detailed spouse predeceases the owner, the three funds to one or more beneficiaries may review of the trust documents to children then become the owners of the be as simple as a designation in the determine if a defeating contingency assets. In this case, if the spouse is alive account signature card such as ‘‘POD.’’ exists. This effort is both difficult and when the credit union fails, the account By contrast, a living trust arrangement time consuming. will be insured up to a maximum of involves a separate, often complex trust $100,000, because only the spouse is document that may specify that an B. Parity With FDIC Deposit Insurance entitled to the assets upon the owner’s identified beneficiary’s right to receive Rules death. If at the time of the credit union some portion of the account balance is The changes will minimize confusion failure, however, the spouse had dependent upon certain conditions. about the application of NCUA’s predeceased the owner, then the Currently, if the interest of a insurance rules to these types of account would be eligible for up to qualifying beneficiary in an account accounts and maintain parity with FDIC $300,000 coverage because there would established under the terms of a living insurance on similar accounts at banks be three qualifying beneficiaries entitled trust agreement is contingent upon and savings associations. The policy of to the trust assets upon the owner’s fulfillment of a specified condition, the NCUA Board is to maintain parity death. referred to as a defeating contingency, with the FDIC, since the account Consistent with the FDIC’s position, separate insurance is not available for insurance funds administered by both the NCUA has also determined not to that beneficial interest. Instead, the agencies are backed by the full faith and require a credit union to maintain beneficial interest would be added to credit of the Federal Government. records disclosing the names of living any individual account(s) of the grantor NCUA believes it important that trust beneficiaries and their respective and insured to a maximum of $100,000. members of the public who use living trust interests. The FDIC solicited Because the coverage for these types of trust accounts for the future transfer of comment specifically on this matter and accounts is under the same rules that ownership of family assets without loss concluded that to do so would be govern a simple ‘‘payable on death’’ of control during the owner’s life unnecessary and burdensome. The account, members and credit unions receive the same protection, whether the NCUA Board concurs with that sometimes mistakenly believe that accounts are maintained at credit judgment, recognizing that a grantor interests in living trusts are unions or other federally insured may elect to change the beneficiaries or automatically insured up to $100,000 institutions. their interests at any time before his or per qualifying beneficiary. her death and that requiring a credit C. The Interim Rule An example of a defeating union to maintain a current record of contingency is where an account owner NCUA has revised the current living this information is impractical and names his son as a beneficiary but trust account rules to provide for unnecessarily burdensome. The general specifies in the living trust document insurance coverage of up to $100,000 principles governing share insurance that his son’s ability to receive any share per qualifying beneficiary who, as of the coverage in NCUA’s regulations, of the trust funds is dependent upon date of a credit union’s failure, would however, require that the records of the him successfully completing college. become entitled to the living trust assets credit union disclose the basis for any Another common example is where a upon the owner’s death. While this claim of separate insurance. 12 CFR grantor’s will provides that funds in the approach provides insurance coverage 745.2(c). This obligation may be met if living trust account can be used to for qualifying beneficial interests the title of the account or other credit satisfy a legacy made in the will. A third irrespective of defeating contingencies, union records refer to a living trust. The example is where the interest of one a beneficiary’s trust interest that is final rule makes reference to this fact, beneficiary is dependent upon another dependent upon the death of another but specifically disclaims any beneficiary’s surviving the grantor. In trust beneficiary will still not qualify for requirement that the credit union’s each case, the current rule operates to separate insurance. If a beneficiary’s records must identify beneficiaries or prevent separate insurance coverage, interest is subordinate only to a life disclose the amount or nature of their even for a qualifying beneficiary, estate of another beneficiary, that interest in the account. because his or her interest is contingent. interest will be insured. The amended NCUA believes the final rule achieves Even though the existing rules contain rule allows for separate insurance for two important objectives: simplifying a definition of a defeating contingency both the life estate and the remainder the existing rule and providing and an explanation of how such a interest for qualified beneficiaries. consistency in how insurance coverage contingency can defeat separate An example that illustrates the basic is determined for all types of revocable insurance coverage, our experience, rule is where an account established trust accounts. With the amendment, consistent with that of the FDIC, is that under a living trust provides that the both living trust accounts and ‘‘payable the operation of the rule is not widely trust assets go in equal shares to the on death’’ accounts will have insurance understood. NCUA recognizes that the grantor’s three children upon the coverage calculated in the same fashion. rules governing the insurance of living grantor’s death. This account would be In each case, coverage is based upon the trust accounts are complex and eligible for $300,000 of deposit interest of the beneficiaries who will
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receive the account funds when the account balance of $300,000, the living the beginning of the next calendar owner dies, determined as of the date of trust account would be insured for at quarter following publication in the the credit union’s failure, regardless of least $100,000 because the grantor’s Federal Register. Consistent with the any contingencies or conditions spouse is a qualifying beneficiary. The FDIC’s approach, the rule will apply as affecting those interests. In addition, the $200,000 attributable to the grantor’s of that date to all living trust accounts amendment will provide credit unions nephews would be insured as the unless, upon the failure of an insured and their members with a better grantor’s single-ownership funds. If the credit union, a member who established understanding of the share insurance grantor has no other single-ownership a living trust account prior to April 1, coverage rules and will help to funds at the same credit union, then 2004, elects coverage under the previous eliminate the present confusion only $100,000 would be insured. Thus, living trust account rules. If a credit surrounding the coverage of living trust the $300,000 in the living trust account union fails between the date of accounts. would be insured for a total of $200,000 and $100,000 would be uninsured. The publication in the Federal Register and Non-qualifying beneficiaries NCUA believes this is a simple, April 1, 2004, NCUA will apply the The amendment does not change the balanced approach to insuring living final rule if doing so will result in way in which non-qualifying trust accounts where the living trust greater coverage for a living trust beneficiaries are treated for share provides for one or more life estate account. insurance purposes. As is the case with interests and is also consistent with the Regulatory Procedures traditional revocable trust accounts, a FDIC’s approach. beneficiary must be the spouse, child, Regulatory Flexibility Act grandchild, parent or sibling of the Appendix grantor in order to qualify for separate The interim rule makes a The Regulatory Flexibility Act insurance coverage. The interest of any corresponding change to Example 4, requires NCUA to prepare an analysis to non-qualifying beneficiary will be under part B of the appendix to part describe any significant economic added to any other single-ownership or 745, to reflect this amendment. It impact a proposed rule may have on a individual funds of the grantor and removes language that had been in that substantial number of small credit insured to a maximum of $100,000. example discussing the need to unions, defined as those under ten determine whether a defeating Life estate and remainder interests million dollars in assets. This rule only contingency adds an example to clarifies the share insurance coverage Living trusts sometimes provide for a illustrate the operation of the rule in available to credit union members, life estate interest for designated cases involving a life estate and without imposing any regulatory beneficiaries and a remainder interest remainder interests. burden. The final amendments would for other beneficiaries. The final rule addresses this situation by deeming D. Request for Comments not have a significant economic impact each life estate holder and each The Administrative Procedure Act on a substantial number of small credit remainder beneficiary to have an equal requires that an agency must provide an unions, and, therefore, a regulatory interest in the trust assets and provides opportunity for public comment before flexibility analysis is not required. up to $100,000 coverage per qualifying issuing a final rule unless it finds for Paperwork Reduction Act beneficiary. For example, assume a ‘‘good cause’’ that public comment is grantor creates a living trust providing impracticable, unnecessary, or contrary NCUA has determined that the final for a spouse to have a life estate interest to the public interest. 5 U.S.C. 553(b)(B). rule would not increase paperwork in the trust assets with the remaining The NCUA Board has determined that requirements under the Paperwork assets going to their two children upon public comment is unnecessary and Reduction Act of 1995 and regulations the spouse’s death. The assets in the contrary to the public interest because: of the Office of Management and trust are $300,000 and a living trust The rule preserves parity with recently Budget. account is opened for that full amount. amended account insurance rules Unless otherwise indicated in the trust, administered by the FDIC, 69 FR 2825 Executive Order 13132 the NCUA would deem each of the (January 21, 2004); the rule benefits Executive Order 13132 encourages beneficiaries to own an equal share of credit union members and employees by independent regulatory agencies to the $300,000, and the full amount simplifying how to determine the consider the impact of their actions on would be insured. This result would be amount of coverage available on a the same even if the spouse has the commonly used account; it increases the state and local interests. In adherence to power to invade the principal of the amount of coverage that is available for fundamental federalism principles, trust, because, under the amended rule, the benefit of credit union members; NCUA, an independent regulatory defeating contingencies are no longer and it does not prejudice credit union agency as defined in 44 U.S.C. 3502(5), relevant for insurance purposes. members or credit unions or require voluntarily complies with the executive Another example would be where the changes to current practices. order. The final rule would not have living trust provides for a life estate Nevertheless, this is an interim final substantial direct effects on the States, interest for the grantor’s spouse and rule, and the Board will accept on the connection between the national remainder interests for two nephews. As comments for a period of 60 days government and the States, or on the in the preceding example, each following the date of publication in the distribution of power and beneficiary would be deemed to have an Federal Register. All comments will be responsibilities among the various equal ownership interest in the trust considered and the rule may be changed levels of government. NCUA has assets, unless there were an indication in light of the comments received. determined that this rule does not specifying different ownership interests. E. Effective Date constitute a policy that has federalism Here the life estate holder is a qualifying implications for purposes of the beneficiary, the grantor’s spouse, but the To avoid confusion and preserve executive order. remainder beneficiaries, the grantor’s parity with the FDIC, this interim rule nephews, are not. As such, assuming an will become effective on April 1, 2004,
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The Treasury and General Government interest would not depend upon the daughter, D, as named beneficiaries. What is Appropriations Act, 1999—Assessment death of another beneficiary. If there is the insurance coverage? of Federal Regulations and Policies on more than one grantor, the beneficiary’s Answer: Since S and D are children of H, Families entitlement to the trust assets must be the owner of the account, the funds would normally be insured under the rules The NCUA has determined that this upon the death of the last grantor. The governing revocable trust accounts up to final rule would not affect family well- coverage provided in this paragraph (e) $100,000 as to each beneficiary, (§ 745.4(b)). being within the meaning of section 654 is irrespective of any other conditions in However, because this account is held in of the Treasury and General the trust that might prevent a connection with a living trust whose named Government Appropriations Act, 1999, beneficiary from acquiring an interest in beneficiaries are qualifying beneficiaries Pub. L. 105–277, 112 Stat. 2681 (1998). the share account upon the account under § 745.4, it must be scrutinized to owner’s death. The rules in paragraph determine whether the account complies Small Business Regulatory Enforcement (c) of this section on the interests of with all other provisions of this part. Fairness Act non-qualifying beneficiaries apply to Assuming that the account complies with all other requirements of this part, then it will The Small Business Regulatory living trust accounts. For living trust be treated as any other revocable trust. In this Enforcement Fairness Act of 1996 (Pub. accounts that provide for a life estate instance, it will be insured up to $100,000 as L. 104–121) provides generally for interest for designated beneficiaries and to each beneficiary (§ 745.4(e)). Assuming congressional review of agency rules. A a remainder interest for other that S and D have equal beneficial interests reporting requirement is triggered in beneficiaries, unless otherwise ($100,000 each), H is fully insured for this instances where NCUA issues a final indicated in the trust, each life estate account. rule as defined by section 551 of the holder and each remainder-man will be Example 5 deemed to have equal interests in the Administrative Procedure Act. 5 U.S.C. Question: H creates a living trust providing 551. NCUA has obtained the trust assets for share insurance for his wife to have a life estate interest in determination of the Office of purposes. Coverage will then be the trust assets with the remaining assets Management and Budget that this rule is provided under the rules in this going to their two children upon the wife’s not a major rule for purposes of the paragraph (e) up to $100,000 per death. The assets in the trust are $300,000 Small Business Regulatory Enforcement qualifying beneficiary. For a living trust and a living trust share account is opened for Fairness Act of 1996. account to qualify for coverage provided that full amount. What is the coverage under this paragraph (e), the records of amount? List of Subjects in 12 CFR Part 745 the credit union must reflect that the Answer: Unless otherwise indicated in the Credit unions, Share insurance. funds in the account are held pursuant trust, each beneficiary (all of whom here are qualifying beneficiaries) would be deemed to By the National Credit Union to a formal revocable trust, but the own an equal share of the $300,000; hence, Administration Board on February 19, 2004. credit union’s records need not indicate the full amount would be insured. This result Becky Baker, the names of the beneficiaries of the would be the same even if the wife has the living trust or their ownership interests Secretary of the Board. power to invade the principal of the trust, in the trust. Effective April 1, 2004, this inasmuch as defeating contingencies are not ■ Accordingly, NCUA amends 12 CFR paragraph (e) will apply to all living relevant for insurance purposes. Part 745 as follows: trust accounts, unless, upon an insured * * * * * credit union failure, a member who PART 745—SHARE INSURANCE AND [FR Doc. 04–4217 Filed 2–25–04; 8:45 am] established a living trust before April 1, APPENDIX BILLING CODE 7535–01–P 2004, chooses coverage under the ■ 1. The authority citation for part 745 previous living trust account rules. For continues to read as follows: any insured credit union failures DEPARTMENT OF TRANSPORTATION Authority: 12 U.S.C. 1752(5), 1757, 1765, occurring between February 19, 2004 1766, 1781, 1782, 1787, 1789. and April 1, 2004, the NCUA will apply Federal Aviation Administration ■ 2. Section 745.4 is amended by the living trust account rules in this revising paragraph (e) to read as follows: revised paragraph (e) if doing so would 14 CFR Part 39 benefit living trust account holders of [Docket No. 2004–NE–05–AD; Amendment § 745.4 Revocable trust accounts. such insured credit union. 39–13488; AD 2004–04–07] * * * * * * * * * * (e) Living Trusts. Insurance treatment ■ 3. The appendix to part 745 is RIN 2120–AA64 under this section also applies to amended by revising Example 4 and Airworthiness Directives; General revocable trust accounts held in adding new Example 5 under section B Electric Company (GE) CF6–80 Series connection with a so-called ‘‘living to read as follows: Turbofan Engines trust,’’ meaning a formal trust that an Appendix to Part 745–Examples of owner creates and retains control over AGENCY: Federal Aviation during his or her lifetime. If a named Insurance Coverage Afforded Accounts Administration (FAA), DOT. beneficiary in a living trust is a in Credit Unions Insured by the National Credit Union Share Insurance ACTION: Final rule; request for qualifying beneficiary under this comments. section, then the share account held in Fund connection with the living trust may be * * * * * SUMMARY: The FAA is superseding two eligible for share insurance under this existing airworthiness directives (ADs) B. How Are Revocable Trust Accounts section, assuming compliance with all Insured? for GE CF6–80 series turbofan engines the provisions of this part. This with certain stage 1 high-pressure coverage applies only if, at the time an * * * * * turbine (HPT) rotor disks. Those ADs insured credit union fails, a qualifying Example 4 currently require initial and repetitive beneficiary would be entitled to his or Question: Member H invests $200,000 in a inspections of certain stage 1 HPT rotor her interest in the trust assets upon the revocable trust account held in connection disks for cracks in the bottom of the grantor’s death and that ownership with a living trust with his son, S, and his dovetail slot. This action retains the
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initial inspection requirement, as a 27592, May 18, 2001). That AD requires also do not have rework procedures qualification for the mandatory rework initial and repetitive inspections of defined because the chamfered procedures for certain disks, and certain stage 1 HPT rotor disks installed breakedge rework machining was not continues repetitive inspections only for on CF6–80C2 turbofan engines for developed for this limited number of the disks for which the rework cracks in the bottoms of the dovetail parts. procedures are not yet defined. This slots. That AD resulted from a report of We are considering additional action requires reworking certain disks an uncontained failure of an engine rulemaking to add eddy current before further flight. In addition, this during a high-power ground run during inspections of the bottom of the CF6– AD expands the population of affected maintenance. On January 2, 2003, we 80A dovetail slots and the CF6–80A and engines and removes certain CF6–80E1 issued AD 2003–01–05, Amendment CF6–80C2 chamfer surfaces to the series disks from service. This AD 39–13016 (68 FR 1519, January 13, Airworthiness Limitations Section of results from the manufacturer’s 2003). That AD requires initial and the Instructions for Continued investigation and development of a repetitive inspections of certain stage 1 Airworthiness as part of the FAA’s rework procedure that chamfers the aft HPT rotor disks installed on CF6–80A ‘‘enhanced-disk inspection initiative.’’ series turbofan engines for cracks in the breakedge of the dovetail slot bottom. Relevant Service Information We are issuing this AD to detect and bottoms of the dovetail slots. AD 2003– prevent cracks in the bottoms of the 01–05 resulted from a report of an We have reviewed and approved the dovetail slots that could propagate to uncontained failure of a CF6–80A series technical contents of the following GE failure of the disk and cause an engine during climb. The manufacturer Service Bulletins (SBs) and Alert uncontained engine failure. investigated those two failures as well Service Bulletin (ASB) that describe DATES: Effective March 12, 2004. The as findings of cracks on other disks to procedures for removing, inspecting, Director of the Federal Register determine the root cause of the failures. and reworking certain stage 1 HPT rotor Those investigations showed that the disks: approved the incorporation by reference • of certain publications listed in the cracks started from tool marks, broach SB No. CF6–80E1 S/B 72–0251, burrs, damage sustained from improper dated January 22, 2004; regulations as of March 12, 2004. • We must receive any comments on handling and processing, and other SB No. CF6–80A S/B 72–0779, this AD by April 26, 2004. unknown causes. The manufacturer and Revision 1, dated January 22, 2004; the FAA have determined that those • SB No. CF6–80A S/B 72–0788, ADDRESSES: Use one of the following conditions could also exist on stage 1 Revision 2, dated December 17, 2003; addresses to submit comments on this HPT rotor disks that are installed in • ASB No. CF6–80C2 S/B 72-A1026, AD: certain CF6–80E1 series turbofan Revision 2, dated January 22, 2004; • By mail: Federal Aviation engines. Those conditions, if not • SB No. CF6–80C2 S/B 72–1089, Administration (FAA), New England corrected, could result in cracks in the Revision 2, dated December 18, 2003. Region, Office of the Regional Counsel, bottoms of the dovetail slots that could Attention: Rules Docket No. 2004–NE– Differences Between This AD and the propagate to failure of the disk and 05–AD, 12 New England Executive Park, Service Information cause an uncontained engine failure. Burlington, MA 01803–5299. The differences between this AD and • By fax: (781) 238–7055. Actions Since AD 2001–10–07 and AD the service information are as follows: • By e-mail: 9-ane- 2003–01–05 Were Issued • GE SB No. CF6–80A S/B 72–0779, [email protected] Since we issued those ADs, the Revision 1, dated January 22, 2004, You can get the service information manufacturer developed a rework applies to certain CF6–80A stage 1 HPT referenced in this AD from General procedure to eliminate the root causes rotor disks and requires an initial Electric Company via Lockheed Martin of the cracks. This rework procedure inspection at next exposure. However, Technology Services, 10525 Chester removes potentially damaged material this AD requires only the stage 1 HPT Road, Suite C, Cincinnati, Ohio 45215, from the breakedge and makes the rotor disks, P/N 9367M45G02, to have telephone (513) 672–8400, fax (513) geometry less susceptible to damage that only an initial inspection at the next 672–8422. could lead to cracks in the bottoms of shop visit, subject to cycle limitations You may examine the AD docket, by the dovetail slots and subsequent and subsequent repetitive inspections at appointment, at the FAA, New England failure. As part of the rework procedure, each piece part exposure. This AD Region, Office of the Regional Counsel, the disks are remarked with a different requires the other HPT rotor disks, to 12 New England Executive Park, part number. The rework replaces the which the SB applies, to have the Burlington, MA. You may examine the current requirements for initial and rework defined in SB No. CF6–80A S/ service information, by appointment, at repetitive inspections on those disks for B 72–0788, Revision 2, dated December the FAA, New England Region, Office of which rework is defined. 17, 2003. This AD also requires the the Regional Counsel, 12 New England Stage 1 HPT rotor disks, part number inspection of stage 1 HPT rotor disks, P/ Executive Park, Burlington, MA; or at (P/N) 9367M45G02, are an early N 9367M45G02, which have zero the Office of the Federal Register, 800 configuration, and no parts are believed cycles-since-new (CSN) before North Capitol Street, NW., suite 700, to be in service. These disks do not have installation into the engine. The SB does Washington, DC. rework procedures defined. Therefore not. FOR FURTHER INFORMATION CONTACT: the repetitive inspections remain for any • GE ASB No. CF6–80C2 S/B 72– Anthony W. Cerra Jr., Aerospace disks that may still be in service. A1026, Revision 2, dated January 22, Engineer, Engine Certification Office, The manufacturer developed a rework 2004, applies to certain CF6–80C2 stage FAA, Engine and Propeller Directorate, procedure for stage 1 HPT rotor disks, 1 HPT rotor disks, and requires initial 12 New England Executive Park, P/N 1862M23G01, to address cracks in inspections of the stage 1 HPT rotor Burlington, MA 01803–5299; telephone: the forward flange of the thermal shield disks at the next shop visit. However, (781) 238–7128, fax: (781) 238–7199. by machining the profile of the slot this AD requires only the stage 1 HPT SUPPLEMENTARY INFORMATION: On May bottom. A limited number of these disks rotor disks, P/N 1862M23G01, to have 10, 2001, the FAA issued AD 2001–10– were released to the field before the only an initial inspection at the next 07, Amendment 39–12233 (66 FR program was discontinued. These disks shop visit, subject to cycle limitations,
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and subsequent repetitive inspections at July 22, 2002), which governs our AD responsibilities among the various each piece-part exposure. This AD system. This regulation now includes levels of government. requires the other HPT rotor disks, to material that relates to special flight For the reasons discussed above, I which this ASB applies, to have the permits, alternative methods of certify that the regulation: rework defined in SB No. CF6–80C2 S/ compliance, and altered products. This 1. Is not a ‘‘significant regulatory B 72–1089, Revision 2, dated December material previously was included in action’’ under Executive Order 12866; 18, 2003. The cycle limitations in the each individual AD. Since this material 2. Is not a ‘‘significant rule’’ under the AD are based on the latest risk analysis is included in 14 CFR part 39, we will DOT Regulatory Policies and Procedures for CF6–80A and CF6–80C2 engines not include it in future AD actions. (44 FR 11034, February 26, 1979); and where the ASB’s cycle limitations are Comments Invited 3. Will not have a significant based on a risk analysis completed in economic impact, positive or negative, 2001 for only CF6–80C2 engines. This This AD is a final rule that involves on a substantial number of small entities AD also requires the inspection of stage requirements affecting flight safety and under the criteria of the Regulatory 1 HPT rotor disks, P/N 1862M23G01, was not preceded by notice and an Flexibility Act. which have zero CSN before installation opportunity for public comment; We prepared a summary of the costs into the engine. The ASB does not. however, we invite you to submit any to comply with this AD and placed it in • There are no differences between written relevant data, views, or the AD Docket. You may get a copy of GE SB No. CF6–80A S/B 72–0788, arguments regarding this AD. Send your this summary by sending a request to us comments to an address listed under Revision 2, dated December 17, 2003, at the address listed under ADDRESSES. ADDRESSES. and GE SB No. CF6–80C2 S/B 72–1089, Include ‘‘AD Docket No. Include ‘‘AD Docket No. 2004–NE–05– Revision 2, dated December 18, 2003, 2004–NE–05–AD’’ in the subject line of AD’’ in your request. and this AD except for the introduction your comments. If you want us to of compliance cycle limitations. acknowledge receipt of your mailed List of Subjects in 14 CFR Part 39 • There are no differences between comments, send us a self-addressed, Air transportation, Aircraft, Aviation GE SB No. CF6–80E1 S/B 72–0251, stamped postcard with the docket safety, Incorporation by reference, dated January 22, 2004, and this AD. number written on it; we will date- Safety. stamp your postcard and mail it back to FAA’s Determination and Requirements you. We specifically invite comments Adoption of the Amendment of This AD on the overall regulatory, economic, ■ Accordingly, under the authority The unsafe condition described environmental, and energy aspects of delegated to me by the Administrator, previously is likely to exist or develop the rule that might suggest a need to the Federal Aviation Administration on other GE CF6–80 series turbofan modify it. If a person contacts us amends part 39 of the Federal Aviation engines of the same type design. We are verbally, and that contact relates to a Regulations (14 CFR part 39) as follows: issuing this AD to detect and prevent substantive part of this AD, we will cracks in the bottoms of the dovetail summarize the contact and place the PART 39—AIRWORTHINESS slots that could propagate to failure of summary in the docket. We will DIRECTIVES the disk and cause an uncontained consider all comments received by the engine failure. This AD requires rework closing date and may amend the AD in ■ 1. The authority citation for part 39 of the dovetail slot bottom of certain light of those comments. continues to read as follows: stage 1 rotor disks. The disks must pass We are reviewing the writing style we Authority: 49 U.S.C. 106(g), 40113, 44701. an inspection to qualify for the rework. currently use in regulatory documents. Disks for which the rework has not been We are interested in your comments on § 39.13 [Amended] defined must continue to receive initial whether the style of this document is ■ 2. The FAA amends § 39.13 by and repetitive inspections. In addition, clear, and your suggestions to improve removing Amendment 39–12233 (66 FR this AD expands the population of the clarity of our communications with 27592, May 18, 2001), and Amendment affected engines and removes from you. You may get more information 39–13016 (68 FR 1519, January 13, service certain CF6–80E1 series disks. about plain language at http:// 2003), and by adding a new You must use the service information www.faa.gov/language and http:// airworthiness directive, Amendment 39– described previously to perform the www.plainlanguage.gov. 13488, to read as follows: actions required by this AD. Examining the AD Docket 2004–04–07 General Electric Company: FAA’s Determination of the Effective You may examine the AD Docket Amendment 39–13488. Docket No. Date (including any comments and service 2004–NE–05–AD. Supersedes AD 2001– Since an unsafe condition exists that information), by appointment, between 10–07, Amendment 39–12233, and AD 2003–01–05, Amendment 39–13016. requires the immediate adoption of this 8:00 a.m. and 4:30 p.m., Monday AD, we have found that notice and through Friday, except Federal holidays. Effective Date opportunity for public comment before See ADDRESSES for the location. (a) This airworthiness directive (AD) issuing this AD are impracticable, and becomes effective March 12, 2004. Regulatory Findings that good cause exists for making this Affected ADs amendment effective in less than 30 We have determined that this AD will days. not have federalism implications under (b) This AD supersedes AD 2001–10–07 Executive Order 13132. This AD will and AD 2003–01–05. Changes to 14 CFR Part 39—Effect on not have a substantial direct effect on Applicability the AD the States, on the relationship between (c) This AD applies to the General Electric On July 10, 2002, we issued a new the national Government and the States, Company (GE) CF6–80 turbofan engine version of 14 CFR part 39 (67 FR 47998, or on the distribution of power and models listed in the following Table 1:
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TABLE 1.—APPLICABILITY MODELS, PART NUMBERS, AIRPLANES
Stage 1 high pressure turbine (HPT) rotor disk Models part Nos. (PNs) Engines installed on but not limited to
CF6–80A, CF6–80A1, CF6–80A2, CF6–80A3 9234M67G22/G24/G25/G26. 9362M58G02/ Airbus A310 and Boeing 767 airplanes. G06/G07/G09. 9367M45G02/G04/G09. CF6–80C2A1, CF6–80C2A2, CF6–80C2A3, 1862M23G01. 9392M23G10/G12/G21. Airbus A300, A310, Boeing 747, 767, and CF6–80C2A5, CF6–80C2A8, CF6– 1531M84G02/G06/G08/G10. McDonnell Douglas MD11 airplanes. 80C2A5F, CF6–80C2B1, CF6–80C2B2, CF6–80C2B4, CF6–80C2B6, CF6– 80C2B1F, CF6–80C2B2F, CF6–80C2B4F, CF6–80C2B5F, CF6–80C2B6F, CF6– 80C2B6FA, CF6–80C2B7F, CF6–80C2D1F. CF6–80E1A2, CF6–80E1A4 ...... 1639M41P04 ...... Airbus A330 airplanes.
These engines are installed on, but not TABLE 2.—SNSOFCF6–80A SERIES through 3.A.(1)(b) of the Accomplishment limited to, the airplanes listed in Table 1 of STAGE 1 HPT ROTOR DISK P/N Instructions of GE SB No. CF6–80A S/B 72– this AD. 0788, Revision 2, dated December 17, 2003, 9362M58G09—WITH CHAMFERED to remark and inspect the rotor disk and Unsafe Condition BREAKEDGES—Continued remove from service as necessary. (d) This AD results from the (3) For disks that do not have the manufacturer’s investigation and GWN03TKG chamfered breakedges, inspect, rework and development of a rework procedure that GWN04FW2 remark the rotor disk. Use paragraph chamfers the aft breakedge of the dovetail GWN04HRE 3.A(2)(a) through 3.A(2)(b) of the slot bottom. The actions specified in this AD GWN04M9L Accomplishment Instructions of GE SB No. are intended to detect and prevent cracks in GWN03TKH CF6–80A S/B 72–0788, Revision 2, dated GWN04FW3 the bottoms of the dovetail slots that could December 17, 2003, to inspect, rework, and GWN04HRF propagate to failure of the disk and cause an remark the disk and remove from service as GWN04M9M uncontained engine failure. necessary. GWN03TKJ Stage 1 HPT Rotor Disks, P/Ns Compliance GWN04FW4 9234M67G22, G24, G25, G26, 9367M45G04, (e) You are responsible for having the GWN04HRG G09, 9362M58G02, G06, G07, and actions required by this AD performed within GWN04M9R 9362M58G09 With SNs Not Listed in Table the compliance times specified unless the GWN03W3M 2 of This AD actions have already been done. GWN04FW5 (g) For stage 1 HPT rotor disks, P/Ns GWN04HRH CF6–80A, –80A1, –80A2, and –80A3 Engines 9234M67G22, G24, G25, G26, 9367M45G04, GWN04M9T G09, 9362M58G02, G06, G07, and GWN03W3N Stage 1 HPT Rotor Disks, P/N 9362M58G09, 9362M58G09 with SNs not listed in Table 2 GWN04H0M With Chamfered Breakedges of this AD, inspect, rework, and remark the GWN04K8N (f) At the next piece-part exposure after the disks using paragraphs 3.A.(2) through GWN04M9W effective date of this AD, for stage 1 HPT 3.B.(2) of Accomplishment Instructions of GE GWN03W3R rotor disks, P/N 9362M58G09, with SNs SB No. CF6–80A S/B 72–0788, Revision 2, GWN04HRA listed in Table 2 of this AD, do the following: dated December 17, 2003, at the following: GWN04M9J (1) For stage 1 HPT rotor disks not installed TABLE 2.—SNSOFCF6–80A SERIES (1) Visually inspect the rotor disks for the in engines with both new and old hardware, STAGE 1 HPT ROTOR DISK P/N presence of a chamfer on the aft breakedges inspect, rework, remark, and remove from of the dovetail slot bottoms. Use paragraph service as necessary before further flight. 9362M58G09—WITH CHAMFERED 3.A. of GE Service Bulletin (SB) No. CF6–80A (2) For stage 1 HPT rotor disks that have BREAKEDGES S/B 72–0788, Revision 2, dated December 17, been inspected before the effective date of 2003, to do the inspection. this AD using any version of GE SB No. CF6– GWN03RD7 (2) For disks that have the chamfered 80A S/B 72–0779, inspect, rework, remark, GWN042J3 breakedges, remark, fluorescent penetrant and remove from service as necessary at the GWN04HRD inspect (FPI), and eddy current inspect (ECI) next Engine Shop Visit (ESV) using the GWN04M9K the rotor disk. Use paragraph 3.A.(1)(a) compliance times in the following Table 3:
TABLE 3.—COMPLIANCE TIMES FOR INSPECTION AND REWORK OF CF6–80A SERIES STAGE 1 HPT ROTOR DISKS, P/NS 9234M67G22, G24, G25, G26, 9367M45G04, G09, 9362M58G02, G06, G07, AND 9362M58G09 WITH SNS NOT LISTED IN TABLE 2 OF THIS AD—PREVIOUSLY INSPECTED
Stage 1 HPT rotor disk cycles-since-last-inspection (CSLI) on the effective date of this AD Compliance time for inspection and rework
(i) More than 1,500 CSLI ...... At the next ESV after the effective date of this AD, but not to exceed 4,500 CSLI. (ii) 1,500 CSLI or fewer ...... At the next ESV after the effective date of this AD, but not to exceed 3,500 CSLI.
(3) For stage 1 HPT rotor disks that have CF6–80A S/B 72–0779, inspect, rework, necessary at the next ESV using the not been inspected before the effective date remark, and remove from service as compliance times in the following Table 4: of this AD using any version of GE SB No.
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TABLE 4. COMPLIANCE TIMES FOR INSPECTION AND REWORK OF CF6–80A SERIES STAGE 1 HPT ROTOR DISKS, P/NS 9234M67G22, G24, G25, G26, 9367M45G04, G09, 9362M58G02, G06, G07, AND 9362M58G09 WITH SNS NOT LISTED IN TABLE 2 OF THIS AD—NOT PREVIOUSLY INSPECTED
Stage 1 HPT rotor disk cycles-since-new (CSN) on the effective date of this AD Compliance time for inspection and rework
(i) 10,000 or more CSN ...... At the next ESV or within 1,000 cycles-in-service (CIS) after the effec- tive date of this AD, whichever occurs first. (ii) 5,000 or more CSN but fewer than 10,000 CSN ...... At the next ESV or within 2,400 CIS after the effective date of this AD, whichever occurs first, but before accumulating 11,000 CSN. (iii) Fewer than 5,000 CSN ...... At the next ESV or within 3,500 CIS after the effective date of this AD, whichever occurs first, but before accumulating 7,400 CSN.
Stage 1 HPT Rotor Disks, P/N 9367M45G02 (1) For stage 1 HPT rotor disks not installed and remove from service as necessary at each (h) For stage 1 HPT rotor disks, P/N in engines with both new and old hardware, piece-part exposure. 9367M45G02, inspect the rotor disk dovetail inspect and remove from service as necessary (3) For stage 1 HPT rotor disks that have slot bottoms and remove the disk from before further flight. not been inspected, or were only inspected service as necessary using paragraphs 3.A. (2) For stage 1 HPT rotor disks that have with zero CSN before the effective date of through 3.C.(10)(i) of Accomplishment been inspected before the effective date of this AD using any version of GE SB No. CF6– Instructions of GE SB No. CF6–80A S/B 72– this AD using any version of GE SB No. CF6– 80A S/B 72–0779, inspect and remove from 0779, Revision 1, dated January 22, 2004, at 80A S/B 72–0779, and had more than zero service as necessary at the next ESV using the the following times: CSN at the time of that inspection, inspect compliance times in the following Table 5:
TABLE 5. COMPLIANCE TIMES FOR INSPECTION OF CF6–80A SERIES STAGE 1 HPT ROTOR DISKS, P/N 9367M45G02— NOT PREVIOUSLY INSPECTED
Stage 1 HPT rotor disk CSN on the effective date of this AD Compliance time for initial inspection
(i) 10,000 or more CSN ...... At the next ESV or within 1,000 CIS after the effective date of this AD, whichever occurs first. (ii) 5,000 or more CSN but fewer than 10,000 CSN ...... At the next ESV or within 2,400 CIS after the effective date of this AD, whichever occurs first, but before accumulating 11,000 CSN. (iii) Fewer than 5,000 CSN ...... At the next ESV or within 3,500 CIS after the effective date of this AD, whichever occurs first, but before accumulating 7,400 CSN.
(4) Thereafter, inspect at each piece-part TABLE 6.—SNSOFCF6–80C2 SERIES TABLE 6.—SNSOFCF6–80C2 SERIES exposure, and remove the rotor disk from STAGE 1 HPT ROTOR DISKS, P/N STAGE 1 HPT ROTOR DISKS, P/N service if necessary. 1531M84G10, WITH CHAMFERED 1531M84G10, WITH CHAMFERED CF6–80C2 Series Engines BREAKEDGES—Continued BREAKEDGES—Continued Stage 1 HPT Rotor Disks, P/N 1531M84G10, GWN03K3K GWN03K3W With Chamfered Breakedges GWN03RPG GWN0402J (i) At the next piece-part exposure after the GWN049M9 GWN04ALW effective date of this AD, for stage 1 HPT GWN03752 GWN03759 rotor disks, P/N 1531M84G10, with SNs GWN036JK GWN0375D listed in Table 6 of this AD, do the following: GWN03K3L GWN03K40 GWN0402A GWN0402K TABLE 6.—SNSOFCF6–80C2 SERIES GWN04AEP GWN04AM0 STAGE 1 HPT ROTOR DISKS, P/N GWN03753 GWN03981 GWN036JL GWN0375E 1531M84G10, WITH CHAMFERED GWN03K3M GWN03K6J BREAKEDGES GWN0402E GWN0402L GWN04AER GWN04AM1 GWN03111 GWN03754 GWN03982 GWN0369J GWN036JM GWN037H2 GWN03K3F GWN03K3N GWN03K7R GWN03RPD GWN0402F GWN0402M GWN049JM GWN04AET GWN04AM2 GWN03114 GWN03755 GWN03983 GWN036JG GWN036JN GWN0398A GWN03K3G GWN03K3R GWN03K7T GWN03RPE GWN0402G GWN0402N GWN049M7 GWN04ALR GWN04AM3 GWN03501 GWN03756 GWN03984 GWN036JH GWN0375A GWN0398C GWN03K3H GWN03K3T GWN03KR1 GWN03RPF GWN0402H GWN0402P GWN049M8 GWN04ALT GWN04AM4 GWN03699 GWN03757 GWN03985 GWN036JJ GWN0375C GWN039PF
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TABLE 6.—SNSOFCF6–80C2 SERIES TABLE 6.—SNSOFCF6–80C2 SERIES TABLE 6.—SNSOFCF6–80C2 SERIES STAGE 1 HPT ROTOR DISKS, P/N STAGE 1 HPT ROTOR DISKS, P/N STAGE 1 HPT ROTOR DISKS, P/N 1531M84G10, WITH CHAMFERED 1531M84G10, WITH CHAMFERED 1531M84G10, WITH CHAMFERED BREAKEDGES—Continued BREAKEDGES—Continued BREAKEDGES—Continued GWN03KR2 GWN0418R GWN04EMA GWN040R5 GWN04D56 GWN032G4 GWN04CGJ GWN04729 GWN03DCJ GWN03986 GWN03A4T GWN03R74 GWN039PG GWN03LNK GWN045T2 GWN03KR3 GWN0418T GWN04EMK GWN0418A GWN04D57 GWN032G5 GWN04CGL GWN031N2 GWN03DCK GWN03987 GWN03A4W GWN03R75 GWN039PH GWN03M88 GWN045T3 GWN03KR4 GWN0418W GWN04EML GWN0418C GWN04D58 GWN032G6 GWN04CGN GWN031N3 GWN03DCL GWN03988 GWN03C12 GWN03R76 GWN039PJ GWN03M89 GWN045T4 GWN03KR5 GWN044DP GWN04EMM GWN0418D GWN04D59 GWN032G7 GWN04CGT GWN031N4 GWN03DCM GWN03989 GWN03C13 GWN03R77 GWN039PK GWN03M8C GWN045T5 GWN03KR6 GWN0454E GWN04F8N GWN0418E GWN04DPW GWN032G8 GWN04CGW GWN031N5 GWN03DCN GWN04026 GWN03C14 GWN03R78 GWN039PL GWN03M8D GWN045T6 GWN03KR7 GWN0454F GWN04F8P GWN0418F GWN04DR4 GWN032G9 GWN04CH3 GWN031N6 GWN03DCP GWN04027 GWN03CA0 GWN03R79 GWN039PM GWN03M8E GWN045T7 GWN03KR8 GWN0454G GWN04FTJ GWN0418G GWN04DR9 GWN032GE GWN04CH5 GWN031N7 GWN03DCR GWN04028 GWN03DC9 GWN03R7A GWN039PN GWN03M8F GWN045T8 GWN03KRA GWN0454H GWN04FTL GWN0418H GWN04DRE GWN0335P GWN04CH8 GWN031N8 GWN03DME GWN04029 GWN03DCA GWN03R7C GWN03A4J GWN03M8J GWN045T9 GWN03KRC GWN0454J GWN04FTM GWN0418J GWN04DRJ GWN0335R GWN04CH9 GWN031N9 GWN03DMF GWN04189 GWN03DCC GWN03R7D GWN03A4K GWN03M8K GWN045TA GWN03KRD GWN0454K GWN04FTN GWN0418K GWN04E9K GWN033C5 GWN04CHA GWN031NA GWN03ER7 GWN04190 GWN03DCD GWN03R7E GWN03A4L GWN03NHN GWN045TC GWN03L2D GWN0454L GWN034KR GWN0418L GWN04E9L GWN03ER8 GWN04CHC GWN031NC GWN03R7F GWN04191 GWN03DCE GWN045TD GWN03A4M GWN03NHP GWN034KT GWN03L2E GWN0454M GWN03ER9 GWN0418M GWN04E9M GWN03R7G GWN04D52 GWN032G1 GWN045TE GWN04366 GWN03DCF GWN0350M GWN03A4N GWN03NHR GWN03ERA GWN03L2F GWN0454N GWN03R7H GWN0418N GWN04E9N GWN045TF GWN04D54 GWN032G2 GWN0350N GWN04722 GWN03DCG GWN03FTN GWN03A4P GWN03NHT GWN03R9G GWN03LNF GWN045T0 GWN045TG GWN0418P GWN04EM5 GWN0350P GWN04D55 GWN032G3 GWN03FTP GWN04726 GWN03DCH GWN03R9H GWN03A4R GWN03R73 GWN045TH GWN03LNJ GWN045T1 GWN0350R
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TABLE 6.—SNSOFCF6–80C2 SERIES TABLE 6.—SNSOFCF6–80C2 SERIES of the dovetail slot bottoms. Use paragraph STAGE 1 HPT ROTOR DISKS, P/N STAGE 1 HPT ROTOR DISKS, P/N 3.A. of GE SB No. CF6–80C2 S/B 72–1089, Revision 2, dated December 18, 2003, to do 1531M84G10, WITH CHAMFERED 1531M84G10, WITH CHAMFERED the inspection. BREAKEDGES—Continued BREAKEDGES—Continued (2) For disks that have the chamfered GWN03FTR GWN03RA2 breakedges, remark, FPI, and ECI the rotor GWN03R9J GWN048CH disk. Use paragraph 3.A.(1)(a) through GWN046F6 GWN035TJ 3.A.(1)(b) of the Accomplishment GWN0350T GWN03HTT Instructions of GE SB No. CF6–80C2 S/B 72– GWN03FTT GWN03RA3 1089, Revision 2, dated December 18, 2003, GWN03R9K GWN048CJ to remark and inspect the rotor disk, and GWN046F7 GWN035TK remove from service as necessary. GWN0350W GWN03J8T (3) For disks that do not have the GWN03FTW GWN03RA4 chamfered breakedges, inspect, rework and GWN03R9L GWN048CK remark the rotor disk. Use paragraph GWN046F8 GWN035TL 3.A.(2)(a) through 3.A.(2)(b) of the GWN035M5 GWN03J8W Accomplishment Instructions of GE SB No. GWN03FW0 GWN03RA5 CF6–80C2 S/B 72–1089, Revision 2, dated GWN03R9M GWN048CM December 18, 2003, to inspect, rework and GWN047LG GWN035TM GWN035M6 GWN03J90 remark the disk and remove from service as GWN03H56 GWN03RA6 necessary. GWN03R9N GWN048CN Stage 1 HPT Rotor Disks, P/Ns 9392M23G10, GWN047LH GWN0369A G12, G21, 1531M84G02, G06, G08, and GWN035M7 GWN03J91 1531M84G10 With SNs Not Listed in Table GWN03H57 GWN03RA7 6 of This AD GWN03R9P GWN048CP GWN047LJ GWN0369C (j) For stage 1 HPT rotor disks, P/Ns GWN035M8 GWN03J92 9392M23G10, G12, G21, 1531M84G02, G06, GWN03H58 GWN03RA8 G08, and 1531M84G10 with SNs not listed in GWN03R9R GWN048CR Table 6 of this AD, inspect, rework, and GWN047LK GWN0369D remark the disks using paragraphs 3.A.(2) GWN035M9 GWN03JNN through 3.B.(2) of Accomplishment GWN03HTL GWN03RP7 Instructions of GE SB No. CF6–80C2 S/B 72– GWN03R9T GWN049GH 1089, Revision 2, dated December 18, 2003, GWN047LL GWN0369E at the following: GWN035MA GWN03JNP (1) For stage 1 HPT rotor disks not installed GWN03HTM GWN03RP9 in engines with both new and old hardware, GWN03R9W GWN049GJ inspect, rework, remark, and remove from GWN048CD GWN0369G GWN035MC GWN03K3C service as necessary before further flight. GWN03HTN GWN03RPA (2) For stage 1 HPT rotor disks that have GWN03RA0 GWN049GK been inspected before the effective date of GWN048CF GWN0369H this AD using GE SB No. CF6–80C2 S/B 72– GWN035MD GWN03K3D A1024, Revision 1, dated November 3, 2000, GWN03HTP GWN03RPC or any version of GE ASB No. CF6–80C2 S/ GWN03RA1 GWN049JL B 72–A1026, inspect, rework, remark, and GWN048CG remove from service as necessary at the next GWN035TH (1) Visually inspect the rotor disks for the ESV using the compliance times in the GWN03HTR presence of a chamfer on the aft breakedges following Table 7:
TABLE 7.—COMPLIANCE TIMES FOR INSPECTION AND REWORK OF CF6–80C2 SERIES STAGE 1 HPT ROTOR DISKS, P/NS 9392M23G10, G12, G21, 1531M84G02, G06, G08, AND 1531M84G10 WITH SNS NOT LISTED IN TABLE 6 OF THIS AD—PREVIOUSLY INSPECTED
Stage 1 HPT rotor disk cycles-since-inspection (CSI) on the effective date of this AD Compliance time for inspection and rework
(i) More than 1,500 CSLI ...... At the next ESV or within 4,500 CSLI after the effective date of this AD, whichever occurs first. (ii) 1,500 CSLI or fewer ...... At the next ESV or within 3,500 CSLI after the effective date of this AD, whichever occurs first.
(3) For stage 1 HPT rotor disks that have 72–A1024, Revision 1, dated November 3, and remove from service as necessary at the not been inspected before the effective date 2000, or any version of GE ASB No. CF6– next ESV using the compliance times in the of this AD using GE SB No. CF6–80C2 S/B 80C2 S/B 72–A1026, inspect, rework, remark, following Table 8:
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TABLE 8.—COMPLIANCE TIMES FOR INSPECTION AND REWORK OF CF6–80C2 SERIES STAGE 1 HPT ROTOR DISKS, P/NS 9392M23G10, G12, G21, 1531M84G02, G06, G08, AND 1531M84G10 WITH SNS NOT LISTED IN TABLE 6 OF THIS AD—NOT PREVIOUSLY INSPECTED
Stage 1 HPT rotor disk cycles-since-new (CSN) on the effective date of this AD Compliance time for inspection and rework
(i) 10,000 or more CSN ...... At the next ESV or within 1,000 CIS after the effective date of this AD, whichever occurs first. (ii) 5,000 or more CSN but fewer than 10,000 CSN ...... At the next ESV or within 2400 CIS after the effective date of this AD, whichever occurs first, but before accumulating 11,000 CSN (iii) Fewer than 5,000 CSN...... At the next ESV or within 3,500 CIS after the effective date of this AD, whichever occurs first, but before accumulating 7,400 CSN.
Stage 1 HPT Rotor Disks, P/N 1862M23G01 (1) For stage 1 HPT rotor disks not installed inspect and remove from service as necessary (k) For stage 1 HPT rotor disk, P/N in engines with both new and old hardware, at each piece-part exposure. (3) For stage 1 HPT rotor disks that have 1862M23G01, inspect the rotor disk dovetail inspect and remove from service as necessary not been inspected, or were only inspected slot bottoms and remove the disk from before further flight. (2) For stage 1 HPT rotor disks that have with zero CSN before the effective date of service as necessary using paragraphs 3.A. this AD using any version of GE ASB No. been inspected before the effective date of through 3.C.(10)(i) of Accomplishment CF6–80C2 S/B 72–A1026, inspect and this AD using any version of GE ASB No. Instructions of GE ASB No. CF6–80C2 S/B remove from service as necessary at the next 72–A1026, Revision 2, dated January 22, CF6–80C2 S/B 72–A1026, and had more than ESV using the compliance times in the 2004, at the following times: zero CSN at the time of that inspection, following Table 9:
TABLE 9.—COMPLIANCE TIMES FOR INSPECTION OF CF6–80C2 SERIES STAGE 1 HPT ROTOR DISKS, P/N 1862M23G01—NOT PREVIOUSLY INSPECTED
Stage 1 HPT rotor disk CSN on the effective date of this AD Compliance time for initial inspection
(i) 10,000 or more CSN ...... At the next ESV or within 1,000 CIS after the effective date of this AD, whichever occurs first. (ii) 5,000 or more CSN but fewer than 10,000 CSN ...... At the next ESV or within 2,400 CIS after the effective date of this AD, whichever occurs first, but before accumulating 11,000 CSN. (iii) Fewer than 5,000 CSN ...... At the next ESV or within 3,500 CIS after the effective date of this AD, whichever occurs first, but before accumulating 7,400 CSN.
(4) Thereafter, inspect at each piece-part CF6–80E1A2, A4 Engines 3.A.(2) of Accomplishment Instructions of GE exposure, and remove the rotor disk from SB No. CF6–80E1 S/B 72–0251, dated Stage 1 HPT Rotor Disks, P/N 1639M41P04 service if necessary. January 22, 2004, at the following times: (l) For stage 1 HPT rotor disks, P/N (1) For stage 1 HPT rotor disks currently in 1639M41P04, remove the rotor disks from service, remove the disk using the service using paragraphs 3.A.(1) through compliance times in the following Table 10:
TABLE 10.—COMPLIANCE TIMES FOR REMOVAL OF CF6–80E1 STAGE 1 HPT ROTOR DISKS, P/N 1639M41P04
Stage 1 HPT rotor disk CSN on the effective date of this AD Compliance time for removal of disk
(i) More than 10,000 CSN ...... At the next ESV or within 600 CIS after the effective date of this AD, whichever occurs first. (ii) More than 5,000 CSN but fewer than or equal to 10,000 CSN ...... At the next ESV or within 2,500 CIS after the effective date of this AD, whichever occurs first, but before accumulating 10,600 CSN. (iii) Fewer than or equal to 5,000 CSN ...... At the next ESV or within 3,500 CIS after the effective date of this AD, whichever occurs first, but before accumulating 7,500 CSN.
(2) After the effective date of this AD, do (i) The removal of the upper compressor damaged or the disassembly is not related to not install any stage 1 HPT rotor disk, P/N stator case solely for airfoil maintenance. the cause for its removal from the engine. 1639M41P04, into any engine. (ii) The module level inspection of the high-pressure compressor rotor 3–9 spool. Reporting Requirements Definitions (iii) The replacement of stage 5 high- (n) Within five calendar days of the (m) For the purpose of this AD, the pressure compressor variable stator vane inspection, report the results of inspections following definitions apply: bushings or lever arms. that equal or exceed the reject criteria to: (1) An engine shop visit (ESV) is defined (2) Piece-part exposure is defined as when: Engine Certification Office, FAA, Engine and as the removal of an engine from an aircraft (i) The stage 1 HPT rotor disk is considered Propeller Directorate, 12 New England for maintenance in which a major engine completely disassembled according to the Executive park, Burlington, MA 01803–5299; flange is disassembled after the effective date manufacturer’s engine manual or other FAA- telephone (781) 238–7128; fax (781) 238– of this AD. The following actions, either approved engine manual; and 7199. Reporting requirements have been separately or in combination with each other, (ii) The disk has accumulated more than are not considered ESVs for the purpose of 100 cycles-in-service since the last piece-part approved by the Office of Management and this AD. inspection, provided that the part was not Budget and assigned OMB control number
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2120–0056. Be sure to include the following 80C2 S/B 72–A1026. We also recommend required by this AD. The Director of the information: that a copy of the data be sent to GE Airline Federal Register approved the incorporation (1) Engine model in which the stage 1 HPT Support Engineering, General Electric by reference of the documents listed in Table rotor disk was installed. Aircraft Engines, Customer Support Center, 1 11 of this AD in accordance with 5 U.S.C. (2) Part Number. Neumann Way, Mail Drop RM285, 552(a) and 1 CFR part 51. You can get a copy (3) Serial Number. Cincinnati, OH, 45215. from General Electric Company via Lockheed (4) Part CSN. Alternative Methods of Compliance Martin Technology Services, 10525 Chester (5) Part CSLI. Road, Suite C, Cincinnati, Ohio 45215, (p) The manager, Engine Certification (6) Date and location where inspection was Office, has the authority to approve telephone (513) 672–8400, fax (513) 672– done. alternative methods of compliance for this 8422. You may review copies at the FAA, (o) We recommend that you record the AD if requested using the procedures found New England Region, Office of the Regional inspection information and results on GE in 14 CFR 39.19. Counsel, 12 New England Executive Park, Form 1653–1, entitled CF6–80A/80C Stage 1 Burlington, MA; or at the Office of the HPT Disk Dovetail Slot Bottom Inspection. Material Incorporated by Reference Federal Register, 800 North Capitol Street, This form is available in any version of GE (q) You must use the service information NW., suite 700, Washington, DC. Table 11 SB CF6–80A S/B 72–0779, or GE ASB CF6– specified in Table 11 to perform the actions follows:
TABLE 11.—INCORPORATION BY REFERENCE
Service bulletin no. Page Revision Date
GE SB No. CF6–80E1 S/B 72–0251 ...... All ... Original .... January 22, 2004. Total Pages: 4 GE SB No. CF6–80A S/B 72–0779 ...... All ... 1 ...... January 22, 2004. Total Pages: 34 GE SB No. CF6–80A S/B 72–0788 ...... All ... 2 ...... December 17, 2003. Total Pages: 10 GE ASB No. CF6–80C2 S/B 72–A1026 ...... All ... 2 ...... January 22, 2004. Total Pages: 38 GE SB No. CF6–80C2 S/B 72–1089 ...... All ... 2 ...... December 18, 2003. Total Pages: 11
Related Information operations are prohibited and to warn via fax to (425) 227–1232. Comments (r) GE SB No. CF6–80C2 S/B 72–A1024, the flightcrew of the potential for may also be sent via the Internet using Revision 1, dated November 3, 2000 also reversion of the primary flight control the following address: 9-anm- pertains to the subject of this AD. system to direct mode during takeoff or [email protected]. Comments sent Issued in Burlington, Massachusetts, on landing and its associated airplane via fax or the Internet must contain February 13, 2004. effects. This AD also requires ‘‘Docket No. 2004–NM–28–AD’’ in the Peter A. White, installation of a placard in the flight subject line and need not be submitted Acting Manager, Engine and Propeller deck. This action also provides an in triplicate. Comments sent via the Directorate, Aircraft Certification Service. optional terminating action for the AFM Internet as attached electronic files must [FR Doc. 04–3798 Filed 2–25–04; 8:45 am] revision and placard installation. This be formatted in Microsoft Word 97 or BILLING CODE 4910–13–U action is necessary to prevent the 2000 or ASCII text. possibility of the airplane departing the Information pertaining to this runway during Category IIIB autoland amendment may be examined at the DEPARTMENT OF TRANSPORTATION operations due to autopilot disconnect FAA, Transport Airplane Directorate, in low visibility weather conditions, 1601 Lind Avenue, SW., Renton, Federal Aviation Administration and to warn the flightcrew of the Washington. potential for autopilot disconnect or FOR FURTHER INFORMATION CONTACT: 14 CFR Part 39 unscheduled speed brake retraction Gregg Nesemeier, Aerospace Engineer, during any landing, which could result Systems and Equipment Branch, ANM– [Docket No. 2004–NM–28–AD; Amendment in a departure from the runway. This 39–13489; AD 2004–04–08] 130S, FAA, Seattle Aircraft Certification action is intended to address the Office, 1601 Lind Avenue, SW., Renton, RIN 2120–AA64 identified unsafe conditions. Washington 98055–4056; telephone DATES: Effective February 26, 2004. (425) 917–6479; fax (425) 917–6590. Airworthiness Directives; Boeing Comments for inclusion in the Rules SUPPLEMENTARY INFORMATION: Model 777–200 Series Airplanes The FAA Docket must be received on or before has received a report indicating that, AGENCY: Federal Aviation April 26, 2004. during a test flight performed by the Administration, DOT. ADDRESSES: Submit comments in airplane manufacturer, a single primary ACTION: Final rule; request for triplicate to the Federal Aviation flight computer (PFC) reset on a Boeing comments. Administration (FAA), Transport Model 777–300ER series airplane. The Airplane Directorate, ANM–114, primary flight control system (PFCS) SUMMARY: This amendment adopts a Attention: Rules Docket No. 2004–NM– includes three PFCs, called channels. As new airworthiness directive (AD) that is 28–AD, 1601 Lind Avenue, SW., a result of analyzing the data from the applicable to certain Boeing Model 777– Renton, Washington 98055–4056. test flight, the airplane manufacturer 200 series airplanes. This action Comments may be inspected at this was able to reproduce single, dual, and requires a revision to the Airplane location between 9 a.m. and 3 p.m., triple channel resets during lab testing Flight Manual (AFM) to advise the Monday through Friday, except Federal of takeoff and landing scenarios. A flightcrew that Category IIIB autoland holidays. Comments may be submitted triple channel reset forces the PFCS
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from normal mode into direct mode. flight deck. This AD also provides an Comments are specifically invited on Reversion to direct mode during optional terminating action for the AFM the overall regulatory, economic, autoland disconnects the autopilot. revision and placard installation. The environmental, and energy aspects of During Category IIIB autoland optional terminating action is required the rule that might suggest a need to operations, loss of automatic rollout to be accomplished in accordance with modify the rule. All comments control in low visibility weather the AMM described previously. submitted will be available, both before conditions could result in the airplane and after the closing date for comments, Interim Action departing from the runway. in the Rules Docket for examination by Additionally, if the PFCS reverts to The AFM revision and placard interested persons. A report that direct mode after automatic speed brake required by this AD may be removed summarizes each FAA-public contact deployment during any landing, the upon installation of PFC hardware, P/N concerned with the substance of this AD speed brakes will retract. If this occurs, S251W700–102, and software, P/N will be filed in the Rules Docket. the flightcrew must manually deploy 2763–PFC–740–00, in all three PFCs. Commenters wishing the FAA to the speed brakes. Unscheduled speed This PFC hardware/software acknowledge receipt of their comments brake retraction during landing could configuration has been previously submitted in response to this rule must result in a runway overrun, particularly certified for Model 777 series airplanes. submit a self-addressed, stamped if stopping distance is critical. Boeing is currently developing new PFC postcard on which the following The PFC hardware and software hardware/software configurations, but statement is made: ‘‘Comments to configuration on Model 777–300ER we have not yet certified them. We may Docket Number 2004–NM–28–AD.’’ The series airplanes are identical to those on consider further rulemaking once these postcard will be date stamped and the affected Model 777–200 series new hardware/software configurations returned to the commenter. airplanes (PFC hardware, part number have been certified. (P/N) S251W700–103, and software, P/ Regulatory Impact N 2769–PFC–900–00). Therefore, the Determination of Rule’s Effective Date The regulations adopted herein will affected Model 777–200 series airplanes Since a situation exists that requires not have a substantial direct effect on may be subject to the same unsafe the immediate adoption of this the States, on the relationship between conditions. Model 777–300ER series regulation, it is found that notice and the national Government and the States, airplanes are not yet type certificated; opportunity for prior public comment or on the distribution of power and therefore, these airplanes are not subject hereon are impracticable, and that good responsibilities among the various to AD rulemaking. The airplane cause exists for making this amendment levels of government. Therefore, it is manufacturer is planning to revise the effective in less than 30 days. determined that this final rule does not software of the PFCs on these airplanes have federalism implications under before certification. Comments Invited Executive Order 13132. Explanation of Relevant Service Although this action is in the form of The FAA has determined that this Information a final rule that involves requirements regulation is an emergency regulation affecting flight safety and, thus, was not that must be issued immediately to The FAA has reviewed TASKS 27– preceded by notice and an opportunity correct unsafe conditions in aircraft, and 02–01–400–803, 27–02–01–000–801, for public comment, comments are that it is not a ‘‘significant regulatory and 27–02–01–400–802 of Chapter 27– invited on this rule. Interested persons action’’ under Executive Order 12866. It 02–01 of Boeing 777 Airplane are invited to comment on this rule by has been determined further that this Maintenance Manual (AMM), Document submitting such written data, views, or action involves an emergency regulation Number D633W101. The AMM arguments as they may desire. under DOT Regulatory Policies and describes procedures for removing all Communications shall identify the Procedures (44 FR 11034, February 26, three existing PFCs having hardware P/ Rules Docket number and be submitted 1979). If it is determined that this N S251W700–103 and software P/N in triplicate to the address specified emergency regulation otherwise would 2769–PFC–900–00, and installing under the caption ADDRESSES. All be significant under DOT Regulatory serviceable PFCs having hardware P/N communications received on or before Policies and Procedures, a final S251W700–102 and software P/N 2763– the closing date for comments will be regulatory evaluation will be prepared PFC–740–00. Accomplishment of the considered, and this rule may be and placed in the Rules Docket. A copy actions specified in the AMM is amended in light of the comments of it, if filed, may be obtained from the intended to adequately address the received. Factual information that Rules Docket at the location provided identified unsafe conditions. supports the commenter’s ideas and under the caption ADDRESSES. Explanation of the Requirements of the suggestions is extremely helpful in List of Subjects in 14 CFR Part 39 Rule evaluating the effectiveness of the AD Air transportation, Aircraft, Aviation Since unsafe conditions have been action and determining whether safety, Safety. identified that are likely to exist or additional rulemaking action would be develop on other airplanes of the same needed. Adoption of the Amendment type design that may be registered in the Submit comments using the following ■ United States at some time in the future, format: Accordingly, pursuant to the authority this AD requires a revision to the • Organize comments issue-by-issue. delegated to me by the Administrator, Airplane Flight Manual (AFM) to (1) For example, discuss a request to the Federal Aviation Administration advise the flightcrew that Category IIIB change the compliance time and a amends part 39 of the Federal Aviation autoland operations are prohibited and request to change the service bulletin Regulations (14 CFR part 39) as follows: (2) warn the flightcrew of the potential reference as two separate issues. • PART 39—AIRWORTHINESS for reversion of the PFCS to direct mode For each issue, state what specific DIRECTIVES during takeoff or landing and its change to the AD is being requested. associated airplane effects. This AD also • Include justification (e.g., reasons or ■ 1. The authority citation for part 39 requires installation of a placard in the data) for each request. continues to read as follows:
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Authority: 49 U.S.C. 106(g), 40113, 44701. Alternative Methods of Compliance 2. The FAA Regional Office of the region in which the affected airport is § 39.13 [Amended] (d) In accordance with 14 CFR 39.19, the Manager, Seattle Aircraft Certification Office, located; ■ 2. Section 39.13 is amended by adding FAA, is authorized to approve alternative 3. The Flight Inspection Area Office the following new airworthiness methods of compliance (AMOCs) for this AD. which originated the SIAP; or, directive: Effective Date 4. The Office of Federal Register, 800 North Capitol Street, NW., Suite 700, (e) This amendment becomes effective on 2004–04–08 Boeing: Amendment 39–13489. Washington, DC. Docket 2004–NM–28–AD. February 26, 2004. Applicability: Model 777–200 series For Purchase—Individual SIAP airplanes, variable numbers WC381 through Issued in Renton, Washington, on February copies may be obtained from: WC385 inclusive, WC446, and WC447; 20, 2004. 1. FAA Public Inquiry Center (APA– certificated in any category. Ali Bahrami, 200), FAA Headquarters Building, 800 Compliance: Required as indicated, unless Acting Manager, Transport Airplane Independence Avenue, SW., accomplished previously. Directorate, Aircraft Certification Service. Washington, DC 20591; or To prevent the possibility of the airplane [FR Doc. 04–4258 Filed 2–25–04; 8:45 am] 2. The FAA Regional Office of the departing the runway during Category IIIB region in which the affected airport is autoland operations due to autopilot BILLING CODE 4910–13–P disconnect in low visibility weather located. conditions, and to warn the flightcrew of the By Subscription—Copies of all SIAPs, potential for autopilot disconnect or DEPARTMENT OF TRANSPORTATION mailed once every 2 weeks, are for sale unscheduled speed brake retraction during by the Superintendent of Documents, any landing, which could result in a Federal Aviation Administration U.S. Government Printing Office, departure from the runway; accomplish the Washington, DC 20402. following: 14 CFR Part 97 FOR FURTHER INFORMATION CONTACT: Revision of the Airplane Flight Manual Donald P. Pate, Flight Procedure (AFM) and Installation of a Placard [Docket No. 30405; Amdt. No. 3090 ] Standards Branch (AMCAFS–420), (a) Within 1 day after the effective date of Flight Technologies and Programs this AD, accomplish the actions specified in Standard Instrument Approach Division, Flight Standards Service, paragraphs (a)(1) and (a)(2) of this AD. Procedures; Miscellaneous Federal Aviation Administration, Mike (1) Revise the Limitations Section of the Amendments Monroney Aeronautical Center, 6500 AFM to include the following statement (this South MacArthur Blvd. Oklahoma City, may be accomplished by inserting a copy of AGENCY: Federal Aviation OK 73169 (Mail Address: P.O. Box this AD into the AFM): Administration (FAA), DOT. 25082 Oklahoma City, OK 73125) ‘‘CERTIFICATE LIMITATIONS ACTION: Final rule. telephone: (405) 954–4164. CAT IIIB autoland prohibited. SUMMARY: This amendment establishes, SUPPLEMENTARY INFORMATION: This WARNING amends, suspends, or revokes Standard amendment to part 97 of the Federal The PFCS may revert to direct mode during Instrument Approach Procedures Aviation Regulations (14 CFR part 97) takeoff or landing. If reversion to direct mode (SIAPs) for operations at certain establishes, amends, suspends, or occurs during autoland, the autopilot will revokes Standard Instrument Approach disconnect. In this situation, the flightcrew airports. These regulatory actions are needed because of the adoption of new Procedures (SIAPs). The complete must immediately take control of the airplane regulatory description of each SIAP is and provide manual rollout control. or revised criteria, or because of changes contained in official FAA form WARNING occurring in the National Airspace System, such as the commissioning of documents which are incorporated by If the PFCS reverts to direct mode after the new navigational facilities, addition of reference in this amendment under 5 speed brakes have been deployed during new obstacles, or changes in air traffic U.S.C. 552(a), 1 CFR part 51, and § 97.20 landing rollout, the speed brakes will retract. of the Federal Aviation Regulations If this occurs, the flightcrew must manually requirements. These changes are deploy the speed brakes to preserve stopping designed to provide safe and efficient (FAR). The applicable FAA Forms are performance.’’ use of the navigable airspace and to identified as FAA Forms 8260–3, 8260– (2) Install a warning placard in the flight promote safe flight operations under 4, and 8260–5. Materials incorporated deck in the Captain’s primary field of view instrument flight rules at the affected by reference are available for that reads as follows: airports. examination or purchase as stated ‘‘CAT IIIB AUTOLAND PROHIBITED.’’ above. DATES: This rule is effective February The large number of SIAPs, their Optional Terminating Action 26, 2004. The compliance date for each complex nature, and the need for a (b) Remove all three existing PFCs, having SIAP is specified in the amendatory special format make their verbatim hardware part number (P/N) S251W700–103 provisions. publication in the Federal Register and software P/N 2769–PFC–900–00, and The incorporation by reference of install serviceable PFCs having hardware P/ expensive and impractical. Further, certain publications listed in the airmen do not use the regulatory text of N S251W700–102 and software P/N 2763– regulations is approved by the Director PFC–740–00; in accordance with TASKS 27– the SIAPs, but refer to their graphic 02–01–400–803, 27–02–01–000–801, and 27– of the Federal Register as of February depiction on charts printed by 02–01–400–802 of Chapter 27–02–01 of 26, 2004. publishers of aeronautical materials. Boeing 777 Airplane Maintenance Manual, ADDRESSES: Availability of matters Thus, the advantages of incorporation Document Number D633W101. After incorporated by reference in the by reference are realized and accomplishing the removal and installation, amendment is as follows: publication of the complete description the AFM revision and placard required by For Examination— of each SIAP contained in FAA form paragraph (a) of this AD may be removed. 1. FAA Rules Docket, FAA documents is unnecessary. The Special Flight Permit Headquarters Building, 800 provisions of this amendment state the (c) Special flight permits (14 CFR 21.197 Independence Avenue, SW., affected CFR (and FAR) sections, with and 21.199) are not allowed. Washington, DC 20591; the types and effective dates of the
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SIAPs. This amendment also identifies Issued in Washington, DC on February 13, Minot, ND, Minot Intl, VOR RWY 31, the airport, its location, the procedure 2004. Amdt 11 identification and the amendment James J. Ballough, Minot, ND, Minot Intl, RNAV (GPS) number. Director, Flight Standards Service. RWY 13, Orig Truth or Consequences, NM, Truth or The Rule Adoption of the Amendment Consequences Muni, RNAV (GPS)–A, ■ Orig This amendment to part 97 is effective Accordingly, pursuant to the authority delegated to me, part 97 of the Federal Truth or Consequences, NM, Truth or upon publication of each separate SIAP Consequences Muni, GPS RWY 31, as contained in the transmittal. Some Aviation Regulations (14 CFR part 97) is amended by establishing, amending, Orig–B, CANCELLED SIAP amendments may have been suspending, or revoking Standard Battle Mountain, NV, Battle Mountain, previously issued by the FAA in a Instrument Approach Procedures, VOR–A, Amdt 4 National Flight Data Center (NFDC) effective at 0901 UTC on the dates Battle Mountain, NV, Battle Mountain, Notice to Airmen (NOTAM) as an specified, as follows: VOR/DME RWY 3, Amdt 5 emergency action of immediate flight Battle Mountain, NV, Battle Mountain, safety relating directly to published PART 97—STANDARD INSTRUMENT GPS RWY 3, Orig, CANCELLED aeronautical charts. The circumstances APPROACH PROCEDURES Battle Mountain, NV, Battle Mountain, which created the need for some SIAP RNAV (GPS) RWY 3, Orig ■ amendments may require making them 1. The authority citation for part 97 Glens Falls, NY, Floyd Bennett effective in less than 30 days. For the continues to read as follows: Memorial, RNAV (GPS) RWY 30, remaining SIAPs, an effective date at Authority: 49 U.S.C. 106(g), 40103, 40106, Orig–A least 30 days after publication is 40113, 40114, 40120, 44502, 44514, 44701, Georgetown, OH, Brown County, RNAV provided. 44719, 44721–44722. (GPS) RWY 35, Orig ■ 2. Part 97 is amended to read as Georgetown, OH, Brown County, GPS Further, the SIAPs contained in this follows: RWY 35, Orig, CANCELLED amendment are based on the criteria * * * Effective April 15, 2004 Hamilton, OH, Butler County Regional, contained in the U.S. Standard for LOC RWY 29, Amdt 1, CANCELLED Terminal Instrument Procedures Marina, CA, Marina Muni, VOR RWY Hamilton, OH, Butler County Regional, (TERPS). In developing these SIAPs, the 29, Orig, CANCELLED ILS OR LOC RWY 29, Orig TERPS criteria were applied to the Denver, CO, Denver Intl, RNAV (GPS) Oklahoma City, OK, Will Rogers World, conditions existing or anticipated at the RWY 34L, ORIG–A RNAV (GPS) RWY 17R, Amdt 1A affected airports. Because of the close Denver, CO, Denver Intl, RNAV (GPS) Allentown, PA, Lehigh Valley and immediate relationship between RWY 16R, ORIG–A International, RNAV (GPS) Y RWY 6, these SIAPs and safety in air commerce, Denver, CO, Denver Intl, ILS OR LOC Orig I find that notice and public procedure RWY 16R, ORIG–A Allentown, PA, Lehigh Valley before adopting these SIAPs are Denver, CO, Denver Intl, ILS OR LOC International, RNAV (GPS) Z RWY 6, RWY 34L, ILS RWY 34L (CAT II), ILS impracticable and contrary to the public Orig RWY 34L (CAT III), ORIG–A interest and, where applicable, that Allentown, PA, Lehigh Valley Fort Lauderdale, FL, Fort Lauderdale International, RNAV (GPS) Z RWY 13, good cause exists for making some Executive, RNAV (GPS) RWY 8, Orig SIAPs effective in less than 30 days. Orig Fort Lauderdale, FL, Fort Lauderdale Allentown, PA, Lehigh Valley Conclusion Executive, VOR/DME RNAV OR GPS International, RNAV (GPS) Y RWY 13, RWY 8, Orig Orig The FAA has determined that this Orlando, FL, Orlando Sanford, ILS OR Allentown, PA, Lehigh Valley regulation only involves an established LOC RWY 9L, Amdt 2 International, RNAV (GPS) RWY 24, body of technical regulations for which Tampa, FL, Tampa Intl, RNAV (GPS) Orig frequent and routine amendments are RWY 36L, Orig Allentown, PA, Lehigh Valley necessary to keep them operationally Tampa, FL, Tampa Intl, RNAV (GPS) International, RNAV (GPS) RWY 31, current. It, therefore—(1) is not a RWY 18R, Orig Orig ‘‘significant regulatory action’’ under Tampa, FL, Tampa Intl, RNAV (GPS) Allentown, PA, Lehigh Valley Executive Order 12866; (2) is not a RWY 18L, Orig International, ILS OR LOC RWY 6, ‘‘significant rule’’ under DOT Vidalia, GA, Vidalia Regional, RNAV Amdt 22 Regulatory Policies and Procedures (44 (GPS) RWY 24, Orig Allentown, PA, Lehigh Valley FR 11034; February 26, 1979); and (3) Indianapolis, IN, Indianapolis Intl, International, ILS OR LOC RWY 13, does not warrant preparation of a RADAR–1, Amdt 31A, CANCELLED Amdt 6 Johnson, KS, Stanton County Muni, regulatory evaluation as the anticipated Allentown, PA, Lehigh Valley RNAV (GPS) RWY 17, Orig impact is so minimal. For the same International, NDB RWY 6, Amdt 18 Johnson, KS, Stanton County Muni, Allentown, PA, Lehigh Valley reason, the FAA certifies that this RNAV (GPS) RWY 35, Orig International, GPS RWY 24, Orig, amendment will not have a significant Orange, MA, Orange Muni, GPS RWY CANCELLED economic impact on a substantial 32, Orig–D Galveston, TX, Scholes Intl At number of small entities under the Tupelo, MS, Tupelo Regional, ILS OR Galveston, ILS OR LOC RWY 13, criteria of the Regulatory Flexibility Act. LOC RWY 36, Amdt 7C Amdt 10A List of Subjects in 14 CFR part 97: Minot, ND, Minot Intl, ILS RWY 31, Moab, UT, Canyonlands Field, VOR–A, Amdt 9B Amdt 10 Air traffic control, Airports, Minot, ND, Minot Intl, LOC BC RWY 13, Moab, UT, Canyonlands Field, RNAV Incorporation by reference, and Amdt 7 (GPS) RWY 3, Orig Navigation (Air). Minot, ND, Minot Intl, VOR RWY 13, Moab, UT, Canyonlands Field, GPS Amdt 11 RWY 3, Orig, CANCELLED
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Janesville, WI, Southern Wisconsin FOR FURTHER INFORMATION CONTACT: Mr. schedule is sufficient to assure reliable Regional, VOR RWY 4, Amdt 27 Joe Arca, Project Officer, First Coast operation of the bridge. As a result of Janesville, WI, Southern Wisconsin Guard District, (212) 668–7069. the above, no changes have been made Regional, VOR/DME RWY 22, Amdt 1 SUPPLEMENTARY INFORMATION: to this final rule. Janesville, WI, Southern Wisconsin Regulatory Evaluation Regional, RNAV (GPS) RWY 4, Orig Regulatory Information Janesville, WI, Southern Wisconsin On October 14, 2003, we published a This rule is not a ‘‘significant Regional, RNAV (GPS) RWY 14, Orig notice of proposed rulemaking (NPRM) regulatory action’’ under section 3(f) of Janesville, WI, Southern Wisconsin entitled Drawbridge Operation Executive Order 12866, Regulatory Regional, RNAV (GPS) RWY 22, Orig Regulations; Rahway River, New Jersey, Planning and Review, and does not Janesville, WI, Southern Wisconsin in the Federal Register (68 FR 59143). require an assessment of potential costs Regional, RNAV (GPS) RWY 32, Orig We received one comment letter in and benefits under section 6(a)(3), of Sparta, WI, Sparta/Fort McCoy, NDB response to the notice of proposed that Order. The Office of Management RWY 29, Amdt 3 rulemaking. No public hearing was and Budget has not reviewed it under Sparta, WI, Sparta/Fort McCoy, RNAV requested and none was held. that Order. It is not ‘‘significant’’ under the regulatory policies and procedures (GPS) RWY 11, Orig Background and Purpose Sparta, WI, Sparta/Fort McCoy, RNAV of the Department of Homeland Security (GPS) RWY 29, Orig The Conrail Bridge has a vertical (DHS). Sparta, WI, Sparta/Fort Mc Coy, GPS clearance of 6 feet at mean high water This conclusion is based on the fact RWY 11, Amdt 1A, CANCELLED and 11 feet at mean low water in the that the bridge will continue to open for Sparta, WI, Sparta/Fort Mc Coy, GPS closed position. vessel traffic at all times, except for the RWY 29, Amdt 1A, CANCELLED The existing drawbridge operation passage of rail traffic. [FR Doc. 04–4172 Filed 2–25–04; 8:45 am] regulations listed at 33 CFR 117.743, require the bridge to open on signal Small Entities BILLING CODE 4910–13–P from April 1 through November 30, Under the Regulatory Flexibility Act from 6 a.m. to 10 p.m. At all other times, (5 U.S.C. 601–612), we considered the bridge shall open on signal if at least whether this rule would have a DEPARTMENT OF HOMELAND a four-hour notice is given. significant economic impact on a SECURITY The Conrail Bridge across the Rahway substantial number of small entities. River is navigated predominately by The term ‘‘small entities’’ comprises Coast Guard small recreational vessels April through small businesses, not-for profit November. organizations that are independently 33 CFR Part 117 The owner of the bridge, Consolidated owned and operated and are not Rail Corporation (Conrail), requested a dominant in their fields, and [CGD01–03–096] change to the drawbridge operation governmental jurisdictions with regulations to allow the bridge to be populations less than 50,000. RIN 1625–AA09 operated from a remote location by a bridge/train dispatcher located at the The Coast Guard certifies under 5 Drawbridge Operation Regulations: Conrail Dispatch Office at Mount U.S.C. 605(b), that this rule will not Rahway River, NJ Laurel, New Jersey. The bridge will still have a significant economic impact on a substantial number of small entities. AGENCY: Coast Guard, DHS. operate the same; except, it will be done This conclusion is based on the fact ACTION: Final rule. from a remote location. The on-scene bridge tender will be eliminated by this that the bridge will continue to open for vessel traffic at all times, except for the SUMMARY: The Coast Guard has changed rulemaking. the drawbridge operation regulations It is expected that this final rule will passage of rail traffic. that govern the Conrail Bridge, at mile relieve the bridge owner of the burden Assistance for Small Entities 2.0, across the Rahway River at Linden, of crewing the bridge at all times while Under section 213(a) of the Small New Jersey. This change to the still meeting the reasonable needs of Business Regulatory Enforcement drawbridge operation regulations will navigation. Fairness Act of 1996 (Pub. L. 104–121), allow the bridge to be operated from a Discussion of Comments and Changes we offered to assist small entities in remote location. This action is expected understanding the rule so that they to allow the bridge owner to operate the The Coast Guard received one could better evaluate its effects on them bridge from a remote location while still comment letter in response to the notice and participate in the rulemaking providing for the reasonable needs of of proposed rulemaking. The comment process. navigation. letter was in objection to the proposed rule change stating that not having a Small businesses may send comments DATES: This rule is effective March 29, drawtender in attendance at the bridge on the actions of Federal employees 2004. would not allow for the timely who enforce, or otherwise determine ADDRESSES: Comments and material discovery of any conditions that may compliance with, Federal regulations to received from the public, as well as cause the bridge to become inoperative. the Small Business and Agriculture documents indicated in this preamble as The bridge owner is required under Regulatory Enforcement Ombudsman being available in the docket, are part of 33 CFR 117.7 to keep the bridge in good and the Regional Small Business docket (CGD01–03–096) and are operable condition at all times and to Regulatory Fairness Boards. The available for inspection or copying at test the bridge operation at sufficient Ombudsman evaluates these actions the First Coast Guard District, Bridge intervals to assure satisfactory annually and rates each agency’s Branch Office, One South Street, New operation. The Coast Guard believes that responsiveness to small business. If you York, New York, 10004, between 7 a.m. it is not necessary to keep the bridge wish to comment on actions by and 3 p.m., Monday through Friday, crewed at all times and that the bridge employees of the Coast Guard, call 1– except Federal holidays. owner’s preventative maintenance 888–REG–FAIR (1–888–734–3247).
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Collection of Information responsibilities between the Federal maintenance authorized in accordance Government and Indian tribes. with subpart A of this part. This rule calls for no new collection (b) The draw shall be remotely of information under the Paperwork Energy Effects operated by a bridge/train dispatcher Reduction Act of 1995 (44 U.S.C. 3501– We have analyzed this rule under located at the Conrail Dispatch Office at 3520). Executive Order 13211, Actions Mount Laurel, New Jersey. Federalism Concerning Regulations That (c) A marine traffic light system shall Significantly Affect Energy Supply, be maintained at the bridge and display A rule has implications for federalism Distribution, or Use. We have flashing green lights to indicate that under Executive Order 13132, determined that it is not a ‘‘significant vessels may pass through the bridge, Federalism, if it has a substantial direct energy action’’ under that order because and flashing red lights anytime the effect on State or local governments and it is not a ‘‘significant regulatory action’’ bridge is not in the full open position. would either preempt State law or under Executive Order 12866 and is not (d) An infrared sensor system shall be impose a substantial direct cost of likely to have a significant adverse effect maintained at the bridge to determine compliance on them. We have analyzed on the supply, distribution, or use of that no conflict with vessel traffic exists this rule under that Order and have energy. It has not been designated by the while the bridge is closing. determined that it does not have Administrator of the Office of (e) Before the bridge may be closed implications for federalism. Information and Regulatory Affairs as a from the remote location, an on-site Unfunded Mandates Reform Act significant energy action. Therefore, it train crewmember shall observe the does not require a Statement of Energy waterway for any vessel traffic. All The Unfunded Mandates Reform Act Effects under Executive Order 13211. approaching vessels shall be allowed to of 1995 (2 U.S.C. 1531–1538) requires pass before the bridge may close. The Federal agencies to assess the effects of Environment on-scene train crewmember shall then their discretionary regulatory actions. In We have analyzed this final rule communicate with the bridge/train particular, the Act addresses actions under Commandant Instruction dispatcher at the Conrail Dispatch that may result in the expenditure by M16475.1D, which guides the Coast Office, at Mount Laurel, either by radio State, local, or tribal government, in the Guard in complying with the National or telephone, to request that the bridge aggregate, or by the private sector of Environmental Policy Act of 1969 be closed. $100,000,000 or more in any one year. (NEPA) (42 U.S.C. 4321–4370f), and (f) While the bridge is moving from Though this rule will not result in such have concluded that there are no factors the full open to full closed position, the an expenditure, we do discuss the in this case that would limit the use of bridge/train dispatcher shall maintain effects of this rule elsewhere in this a categorical exclusion under section constant surveillance of the navigational preamble. 2.B.2 of the Instruction. Therefore, this channel at the bridge using the infrared Taking of Private Property rule is categorically excluded, under sensor system. figure 2–1, paragraph (32)(e), of the (g) If the infrared sensors detect a This rule will not effect a taking of Instruction, from further environmental vessel or other obstruction approaching private property or otherwise have documentation. It has been determined or under the bridge before the draw is taking implications under Executive that this final rule does not significantly fully lowered and locked, the closing Order 12630, Governmental Actions and impact the environment. sequence shall be stopped, Interference with Constitutionally automatically, and the draw shall be Protected Property Rights. List of Subjects in 33 CFR Part 117 raised to its full open position until the Civil Justice Reform Bridges. channel is clear. (h) During the downward bridge This rule meets applicable standards Regulations closing movement, the marine traffic in sections 3(a) and 3(b)(2) of Executive ■ For the reasons set out in the preamble, light system located at the bridge will Order 12988, Civil Justice Reform, to the Coast Guard amends 33 CFR part 117 change from flashing green to flashing minimize litigation, eliminate as follows: red, the public address system shall ambiguity, and reduce burden. announce that the bridge shall be Protection of Children PART 117—DRAWBRIDGE closing, and the horn shall sound two OPERATION REGULATIONS times, pause 10 seconds, then repeat We have analyzed this rule under two horn blasts until the bridge is seated ■ 1. The authority citation for part 117 Executive Order 13045, Protection of and fully locked down. Children from Environmental Health continues to read as follows: (i) When all rail traffic has cleared the Risks and Safety Risks. This rule is not Authority: 33 U.S.C. 499; Department of bridge, the bridge/train dispatcher shall an economically significant rule and Homeland Security Delegation No. 0170; 33 sound the horn five-times to signal that does not concern an environmental risk CFR 1.05–1(g); section 117.255 also issued the draw is about to open. to health or risk to safety that may under the authority of Pub. L. 102–587, 106 (j) In the event of a failure, or disproportionately affect children. Stat. 5039. obstruction to the infrared sensor Indian Tribal Governments ■ 2. Section 117.743 is revised to read as system, the bridge shall immediately be follows: returned to the full open position until This final rule does not have tribal the problem is corrected. implications under Executive Order § 117.743 Rahway River. (k) In the event of a loss of 13175, Consultation and Coordination The draw of the Conrail Bridge, mile communication between the on-site with Indian Tribal Governments, 2.0, across the Rahway River, at Linden, personnel and the bridge/train because it does not have substantial New Jersey, shall operate as follows: dispatcher, the bridge shall immediately direct effect on one or more Indian (a) The draw shall remain in the full be returned to the full open position tribes, on the relationship between the open position at all times, and shall until the problem is corrected. Federal Government and Indian tribes, only be closed for the passage of rail (l) Should the draw become or on the distribution of power and traffic or the performance of inoperable from the remote site while
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the bridge is in the closed position, a The work involves the machining of DATES: This deviation is effective from bridge tender, maintenance personnel, damaged trunnion shafts and the February 28, 2004 through March 1, or engineer shall be deployed to be on installation of a new bushing on the east 2004. side lift span of the bridge. To facilitate scene within one hour from the time the FOR FURTHER INFORMATION CONTACT: Joe draw becomes inoperable until the the repairs, the work requires Arca, Project Officer, First Coast Guard immobilizing the east side lift span in bridge can be returned to the full open District, at (212) 668–7069. position. the closed position to vessels while the (m) Trains shall be controlled so that west side lift span will be functional SUPPLEMENTARY INFORMATION: The New any delay in opening of the draw shall beginning 6 a.m. on February 12, 2004, Jersey Transit Rail Operations railroad not exceed ten minutes after a train has through 10 p.m. on March 12, 2004. bridge has a vertical clearance in the crossed the bridge; except, as provided However, the bridge will not open for closed position of 3 feet at mean high in 33 CFR 117.31(b). However, if a train vessels from 10 p.m. to 6 a.m. on water and 8 feet at mean low water. The moving toward the bridge has crossed February 19 and each day from 10 p.m. existing drawbridge operation the home signal for the bridge, the train to 6 a.m. on February 22 through regulations are listed at 33 CFR may continue across the bridge and February 27, to remove and install the 117.709(b). must clear the bridge interlocks before bushing. The Coast Guard has informed New Jersey Transit Rail Operations, stopping. the known users of the waterway of the requested a temporary deviation from the drawbridge operation regulations to Dated: February 13, 2004. full and partial closure periods for the bridge caused by the temporary facilitate repairs to the electrical control J.L. Grenier, deviation. unit at the bridge. The bridge must Captain, U.S. Coast Guard, Acting The District Commander has granted remain in the closed position to perform Commander, First Coast Guard District. temporary deviation from the operating these repairs. [FR Doc. 04–4207 Filed 2–25–04; 8:45 am] requirements listed in 33 CFR 117 Under this temporary deviation the BILLING CODE 4910–15–P Subpart A for the purpose of repair New Jersey Transit Rail Operations completion of the drawbridge. This railroad bridge may remain in the closed temporary deviation allows the S.R. 74 position from 7:30 a.m. on February 28, DEPARTMENT OF HOMELAND Bridge, across the Atlantic Intracoastal 2004 through 7:30 a.m. on March 1, SECURITY Waterway mile 283.1, at Wrightsville 2004. Coast Guard Beach, NC, to operate half-leaf openings This deviation from the operating for vessels from 6 a.m. on February 12, regulations is authorized under 33 CFR 33 CFR Part 117 2004, through 10 p.m. on March 5, 2004, 117.35(a), and will be performed with except from 10 p.m. to 6 a.m. on all due speed in order to return the [CGD05–04–027] February 19 and each day from 10 p.m. bridge to normal operation as soon as RIN 1625–AA09 to 6 a.m. on February 22 through possible. February 27 the bridge will not open. Dated: February 13, 2004. Drawbridge Operation Regulations; Dated: February 13, 2004. John L. Grenier, Atlantic Intracoastal Waterway, Waverly W. Gregory, JR., Captain, U.S. Coast Guard, Acting Wrightsville Beach, NC Chief, Bridge Administration Section, Fifth Commander, First Coast Guard District. AGENCY: Coast Guard, DHS. Coast Guard District. [FR Doc. 04–4211 Filed 2–25–04; 8:45 am] ACTION: Notice of temporary deviation [FR Doc. 04–4208 Filed 2–25–04; 8:45 am] BILLING CODE 4910–15–P from regulations. BILLING CODE 4910–15–P SUMMARY: The Coast Guard has DEPARTMENT OF HOMELAND approved a temporary deviation from DEPARTMENT OF HOMELAND SECURITY the regulations governing the operation SECURITY of the S.R. 74 Bridge across the Atlantic Coast Guard Intracoastal Waterway mile 283.1, at Coast Guard Wrightsville Beach, NC. This deviation 33 CFR Part 117 33 CFR Part 117 allows this double-leaf drawbridge to [CGD01–04–005] provide half-leaf openings for vessels [CGD01–04–009] from 6 a.m. on February 12, 2004, to 10 RIN 1625–AA09 p.m. on March 5, 2004, except from 10 Drawbridge Operation Regulations: p.m. to 6 a.m. on February 19 the bridge Cheesequake Creek, NJ Drawbridge Operation Regulations: will not open, and each day from 10 Providence River, RI AGENCY: Coast Guard, DHS. p.m. to 6 a.m. on February 22 through AGENCY: Coast Guard, DHS. February 27 the bridge will not open. ACTION: Notice of temporary deviation ACTION: Final rule. This closure is necessary to facilitate from regulations. mechanical repairs. SUMMARY: The Commander, First Coast SUMMARY: The Coast Guard is removing DATES: This deviation is effective from Guard District, has issued a temporary the drawbridge operation regulations for 6 a.m. on February 12, 2004 through 10 deviation from the drawbridge operation the US1 (Point Street) Bridge, mile 7.5, p.m. on March 5, 2004. regulations for the New Jersey Transit across the Providence River at SUPPLEMENTARY INFORMATION: The S.R. Rail Operations railroad bridge, mile Providence, Rhode Island. The US1 74 Bridge is owned and operated by the 0.2, across Cheesequake Creek, New (Point Street) Bridge has been rebuilt as North Carolina Department of Jersey. Under this temporary deviation a fixed bridge and its drawbridge Transportation (NCDOT). NCDOT has the bridge may remain closed from 7:30 operation regulations are no longer requested a temporary deviation from a.m. on February 28, 2004 through 7:30 necessary. Notice and public procedure the operating regulations to facilitate a.m. on March 1, 2004, to facilitate have been omitted from this action needed mechanical repairs to the bridge. necessary bridge maintenance. because the bridge the regulations
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formerly governed is fixed and no whether this rule would have a aggregate, or by the private sector of longer opens for navigation. significant economic impact on a $100,000,000 or more in any one year. DATES: This final rule is effective substantial number of small entities. Though this rule will not result in such February 26, 2004. The term ‘‘small entities’’ comprises an expenditure, we do discuss the ADDRESSES: Comments and materials small businesses, not-for profit effects of this rule elsewhere in this received from the public, as well as organizations that are independently preamble. owned and operated and are not documents indicated in this preamble as Taking of Private Property being available in the docket, are part of dominant in their fields, and docket (CGD01–04–005) and are governmental jurisdictions with This rule will not effect a taking of available for inspection or copying at populations less than 50,000. private property or otherwise have the First Coast Guard District Office, 408 The Coast Guard certifies under 5 taking implications under Executive Atlantic Avenue, Boston, U.S.C. 605(b), that this rule will not Order 12630, Governmental Actions and Massachusetts, 02110, 7 a.m. to 3 p.m., have a significant economic impact on Interference with Constitutionally Monday through Friday, except Federal a substantial number of small entities. Protected Property Rights. This conclusion is based on the bridge holidays. The telephone number is (617) Civil Justice Reform 223–8364. no longer opens for vessel traffic; This rule meets applicable standards FOR FURTHER INFORMATION CONTACT: John therefore, the drawbridge operation in sections 3(a) and 3(b)(2) of Executive W. McDonald, Project Officer, First regulations are no longer necessary. Order 12988, Civil Justice Reform, to Coast Guard District, (617) 223–8364. Assistance for Small Entities minimize litigation, eliminate SUPPLEMENTARY INFORMATION: Under section 213(a) of the Small ambiguity, and reduce burden. Business Regulatory Enforcement Regulatory Information Protection of Children We did not publish a notice of Fairness Act of 1996 (Pub. L. 104–121), We have analyzed this rule under proposed rulemaking (NPRM) for this we offered to assist small entities in Executive Order 13045, Protection of regulation. Under 5 U.S.C. 553(b)(B), the understanding the rule so that they Children from Environmental Health Coast Guard finds that good cause exists could better evaluate its effects on them Risks and Safety Risks. This rule is not for not publishing an NPRM. Notice and and participate in the rulemaking an economically significant rule and comment are unnecessary because this process. does not concern an environmental risk action is the removal of drawbridge Small businesses may send comments to health or risk to safety that may operation regulations for a bridge that is on the actions of Federal employees disproportionately affect children. now a fixed bridge that can not open. who enforce, or otherwise determine Under 5 U.S.C. 553(d)(3), the Coast compliance with, Federal regulations to Indian Tribal Governments Guard also finds that good cause exists the Small Business and Agriculture This final rule does not have tribal for making this rule effective less than Regulatory Enforcement Ombudsman implications under Executive Order 30 days after publication in the Federal and the Regional Small Business 13175, Consultation and Coordination Register for the same reason stated Regulatory Fairness Boards. The with Indian Tribal Governments, above. Ombudsman evaluates these actions annually and rates each agency’s because it does not have substantial Background and Purpose responsiveness to small business. If you direct effect on one or more Indian The US1 (Point Street) Bridge has wish to comment on actions by tribes, on the relationship between the been rebuilt as fixed bridge and no employees of the Coast Guard, call 1– Federal Government and Indian tribes, longer opens for the passage of vessel 888–REG–FAIR (1–888–734–3247). or on the distribution of power and traffic. The drawbridge operation responsibilities between the Federal Collection of Information regulations for the US1 (Point Street) Government and Indian tribes. This rule calls for no new collection Bridge; therefore, are unnecessary, and Energy Effects will be removed by this action. of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501– We have analyzed this rule under Regulatory Evaluation 3520). Executive Order 13211, Actions This rule is not a ‘‘significant Concerning Regulations That Federalism regulatory action’’ under section 3(f) of Significantly Affect Energy Supply, Executive Order 12866, Regulatory A rule has implications for federalism Distribution, or Use. We have Planning and Review, and does not under Executive Order 13132, determined that it is not a ‘‘significant require an assessment of potential costs Federalism, if it has a substantial direct energy action’’ under that order because and benefits under section 6(a)(3), of effect on State or local governments and it is not a ‘‘significant regulatory action’’ that Order. The Office of Management would either preempt State law or under Executive Order 12866 and is not and Budget has not reviewed it under impose a substantial direct cost of likely to have a significant adverse effect that Order. It is not ‘‘significant’’ under compliance on them. We have analyzed on the supply, distribution, or use of the regulatory policies and procedures this rule under that Order and have energy. It has not been designated by the of the Department of Homeland Security determined that it does not have Administrator of the Office of (DHS). implications for federalism. Information and Regulatory Affairs as a significant energy action. Therefore, it This conclusion is based on the fact Unfunded Mandates Reform Act that the bridge no longer opens for does not require a Statement of Energy vessel traffic; therefore, the drawbridge The Unfunded Mandates Reform Act Effects under Executive Order 13211. of 1995 (2 U.S.C. 1531–1538) requires operation regulations are no longer Environment necessary. Federal agencies to assess the effects of their discretionary regulatory actions. In We have analyzed this final rule Small Entities particular, the Act addresses actions under Commandant Instruction Under the Regulatory Flexibility Act that may result in the expenditure by M16475.1D, which guides the Coast (5 U.S.C. 601–612), we considered State, local, or tribal government, in the Guard in complying with the National
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Environmental Policy Act of 1969 remain closed to vessel traffic, will be drawbridge operation schedule. This (NEPA) (42 U.S.C. 4321–4370f), and expanded. Additional bridge openings temporary 90-day deviation will expand have concluded that there are no factors will be provided for commercial vessels the two time periods in the morning and in this case that would limit the use of after at least a one-hour advance notice afternoon Monday through Friday when a categorical exclusion under section is given. The purpose of this temporary the bridge may remain closed to vessel 2.B.2 of the Instruction. Therefore, this deviation is to test an alternate traffic. Rail traffic during the morning rule is categorically excluded, under drawbridge operation schedule for 90 and afternoon commuter periods have figure 2–1, paragraph (32)(e), of the days and solicit comment from the increased. Bridge openings during the Instruction, from further environmental public. two commuter time periods have caused documentation. It has been determined DATES: This deviation is effective from delays to rail traffic prompting the that this final rule does not significantly March 1, 2004 through May 29, 2004. bridge owner to request the expansion impact the environment. Comments must reach the Coast Guard of the bridge closure periods week days, Monday through Friday. List of Subjects in 33 CFR Part 117 on or before 30 June 2004. ADDRESSES: You may mail comments to The existing drawbridge operation Bridges. Commander (obr), First Coast Guard regulations allow the bridge to remain Regulations District Bridge Branch, One South closed to vessel traffic, Monday through Street, Battery Park Building, New York, Friday, from 7:20 a.m. to 9:20 a.m. and ■ Under 33 U.S.C. 499; 49 CFR 1.46; 33 New York, 10004, or deliver them to the from 4:30 p.m. to 6:50 p.m., daily. CFR 1.05–1(g), and for the reasons set out same address between 7 a.m. and 3 Under this 90-day temporary in the preamble, the Coast Guard amends p.m., Monday through Friday, except, deviation, effective from March 1, 2004 33 CFR part 117 as follows: Federal holidays. The telephone number through May 29, 2004, the AMTRAK Portal Bridge need not open for vessel PART 117—DRAWBRIDGE is (212) 668–7165. The First Coast Guard District, Bridge Branch, traffic, Monday through Friday, from 6 OPERATION REGULATIONS maintains the public docket for this a.m. to 10 a.m. and from 4 p.m. to 8 ■ 1. The authority citation for part 117 rulemaking. Comments and material p.m., daily. continues to read as follows: received from the public, as well as Additional bridge openings will be documents indicated in this preamble as provided for commercial vessels from 6 Authority: 33 U.S.C. 499; DHS Delegation a.m. to 7:20 a.m., from 9:20 a.m. to 10 No. 0170.1; 33 CFR 1.05–1(g); section being available in the docket, will become part of this docket and will be a.m., from 4 p.m. to 4:30 p.m. and from 117.255 also issued under the authority of 6:50 p.m. to 8 p.m., if at least a one-hour Pub. L. 102–587, 106 Stat. 5039. available for inspection or copying at the First Coast Guard District, Bridge advance notice is given by calling the § 117.907 [Removed] Branch, 7 a.m. to 3 p.m., Monday number posted at the bridge. ■ 2. Remove § 117.907. through Friday, except Federal holidays. This deviation from the operating regulations is authorized under 33 CFR Dated: February 13, 2004. Request for Comments § 117.43. J.L. Grenier, We encourage you to participate in Dated: February 13, 2004. Captain, Coast Guard, Acting Commander, this schedule test by submitting John L. Grenier, First Coast Guard District. comments or related material. If you do Captain, U.S. Coast Guard, Acting [FR Doc. 04–4279 Filed 2–25–04; 8:45 am] so, please include your name and Commander, First Coast Guard District. BILLING CODE 4910–15–P address, identify the docket number for [FR Doc. 04–4280 Filed 2–25–04; 8:45 am] this rulemaking (CGD01–04–012), BILLING CODE 4910–15–P indicate the specific section of this DEPARTMENT OF HOMELAND document to which each comment SECURITY applies, and give the reason for each DEPARTMENT OF HOMELAND Coast Guard comment. Please submit all comments SECURITY and related material in an unbound 1 33 CFR Part 117 format, no larger than 8 ⁄2 by 11 inches, Coast Guard suitable for copying. If you would like [CGD01–04–012] to know if they reached us, please 33 CFR Part 165 enclose a stamped, self-addressed [COTP San Francisco Bay 03–002] Drawbridge Operation Regulations: postcard or envelope. We will consider Hackensack River, NJ all comments and material received RIN 1625–AA00 during the comment period. AGENCY: Coast Guard, DHS. Security Zones; San Francisco Bay, FOR FURTHER INFORMATION CONTACT: Gary ACTION: Notice of temporary deviation California from regulations and request for Kassof, Project Officer, First Coast comment. Guard District, at (212) 668–7165. AGENCY: Coast Guard, DHS. SUPPLEMENTARY INFORMATION: The ACTION: Final rule. SUMMARY: The Commander, First Coast AMTRAK Portal Bridge has a vertical Guard District, has issued a temporary clearance in the closed position of 23 SUMMARY: The Coast Guard is deviation from the drawbridge operation feet at mean high water and 28 feet at establishing moving and fixed security regulations to test an alternate mean low water. The existing zones extending 100 yards around and drawbridge operation regulation for the drawbridge operation regulations are under all High Interest Vessels (HIVs) AMTRAK Portal Bridge, mile 5.0, across listed at 33 CFR 117.723(c). that enter, are moored in, anchored in the Hackensack River at Little Snake The bridge owner, National Railroad or depart from the San Francisco Bay Hill, New Jersey. Under this temporary Passenger Corporation (AMTRAK) and Delta ports, California. These 90-day deviation the two time periods requested a temporary deviation from security zones are necessary security in the morning and afternoon, Monday the drawbridge operation regulations to measures and are intended to protect through Friday, when the bridge may test for a period of 90 days, an alternate the public and ports from potential
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subversive acts. Entry into these 077, which is set to expire at 11:59 p.m. county, municipal, and private agency security zones is prohibited, unless P.s.t. on March 31, 2004. The Captain of to assist in the enforcement of the specifically authorized by the Captain of the Port has determined that the need regulation. the Port San Francisco Bay, or his for continued security regulations exits. Background and Purpose designated representative. Accordingly, this final rule creates a DATES: This rule is effective March 29, permanent regulation for security zones Since the September 11, 2001, 2004. in the same locations covered by the terrorist attacks on the World Trade Center in New York, the Pentagon in ADDRESSES: Comments and material temporary final rule published on Arlington, Virginia, and Flight 93, the received from the public, as well as February 27, 2003 (68 FR 9003), which Federal Bureau of Investigation (FBI) documents indicated in this preamble as was later extended by two other rules has issued several warnings concerning being available in the docket, are part of published in the Federal Register on May 30, 2003 (68 FR 32368), and the potential for additional terrorist docket 03–002 and are available for attacks within the United States. In inspection or copying at the Waterways September 26, 2003 (68 FR 55445). These security zones are activated addition, the ongoing hostilities in Management Branch between 9 a.m. and when any HIV passes shoreward of the Afghanistan and the conflict in Iraq 4 p.m., Monday through Friday, except line drawn between San Francisco Main have made it prudent for U.S. ports to Federal holidays. Ship Channel buoys 7 and 8 (LLNR be on a higher state of alert because Al- FOR FURTHER INFORMATION CONTACT: 4190 & 4195, positions 37 °46.9′ N, Qaeda and other organizations have Lieutenant Doug Ebbers, Waterways 122 °35.4′ W & 37 °46.5′ N, 122 °35.2′ W, declared an ongoing intention to Management Branch, U.S. Coast Guard respectively) and remains in effect conduct armed attacks on U.S. interests Marine Safety Office San Francisco Bay, while the vessel is underway, anchored worldwide. (510) 437–3073. or moored within in the San Francisco The threat of maritime attacks is real SUPPLEMENTARY INFORMATION: Bay and Delta ports. When activated, as evidenced by the attack on the USS Cole and the subsequent attack in Regulatory Information this security zone will encompass all waters, extending from the surface to October 2002 against a tank vessel off On December 31, 2002, we published the sea floor, within 100 yards ahead, the coast of Yemen. These threats a final rule entitled ‘‘Security Zones, astern and extending 100 yards along manifest a continuing threat to U.S. San Francisco Bay, CA’’ in the Federal either side of any HIV in the San assets as described in the President’s Register (67 FR 79854) creating section Francisco Bay and Delta ports. This finding in Executive Order 13273 of 165.1183 of title 33 of the Code of security zone is automatically August 21, 2002 (67 FR 56215, Federal Regulations (CFR), setting forth deactivated when the HIV passes September 3, 2002), that the security of security zones for cruise ships and tank seaward of the line drawn between San the U.S. is endangered by the September vessels. On November 12, 2003, we Francisco Main Ship Channel buoys 7 11, 2001, attacks and that such published a notice of proposed and 8 (LLNR 4190 & 4195, positions aggression continues to endanger the rulemaking (NPRM) entitled ‘‘Security 37 °46.9′ N, 122 °35.4′ W & 37 °46.5′ N, international relations of the United Zones; San Francisco Bay, California’’ in 122 °35.2′ W, respectively) on its States. See also Continuation of the the Federal Register (68 FR 64038), departure from port. Vessels and people National Emergency with Respect to proposing to amend section 165.1183 to may be allowed to enter an established Certain Terrorist Attacks (67 FR 58317, include HIV’s as protected vessels, security zone on a case-by-case basis September 13, 2002), and Continuation along with cruise ships and tank with authorization from the Captain of of the National Emergency with Respect vessels. We received one letter the Port. to Persons Who Commit, Threaten To commenting on the proposed rule. No Vessels or persons violating this rule Commit, or Support Terrorism (67 FR public hearing was requested, and none will be subject to the penalties set forth 59447, September 20, 2002). The U.S. was held. in 33 U.S.C. 1232 and 50 U.S.C. 192. Maritime Administration (MARAD) in On February 27, 2003, we published Pursuant to 33 U.S.C. 1232, any Advisory 02–07 advised U.S. shipping a rule in the Federal Register (68 FR violation of the security zone described interests to maintain a heightened status 9003) creating temporary section herein, is punishable by civil penalties of alert against possible terrorist attacks. 165.T11–077 of title 33 of the Code of (not to exceed $27,500 per violation, MARAD more recently issued Advisory Federal Regulations (CFR). Under where each day of a continuing 03–05 informing operators of maritime temporary section 165.T11–077, which violation is a separate violation), interests of increased threat possibilities expired at 11:59 p.m. P.s.t. on May 31, criminal penalties (imprisonment up to to vessels and facilities and a higher risk 2003, the Coast Guard established 100- 6 years and a maximum fine of of terrorist attack to the transportation yard security zones around all High $250,000), and in rem liability against community in the United States. The Interest Vessels (HIV’s) that entered, the offending vessel. Any person who ongoing foreign hostilities have made it were moored in, anchored in or violates this section, using a dangerous prudent for U.S. ports and waterways to departed from the San Francisco Bay weapon, or who engages in conduct that be on a higher state of alert because the and Delta ports. causes bodily injury or fear of imminent Al-Qaeda organization and other similar On May 30, 2003, a change in bodily injury to any officer authorized organizations have declared and effective period temporary rule was to enforce this regulation, also faces ongoing intention to conduct armed published in the Federal Register (68 imprisonment up to 12 years. Vessels or attacks on U.S. interests worldwide. FR 32368) under the same previous persons violating this section are also In its effort to thwart terrorist activity, temporary section 165.T11–077, which subject to the penalties set forth in 50 the Coast Guard has increased safety expired at 11:59 p.m. P.d.t. on U.S.C. 192: seizure and forfeiture of the and security measures on U.S. ports and September 30, 2003. vessel to the United States, a maximum waterways. As part of the Diplomatic On September 26, 2003, another criminal fine of $10,000, and Security and Antiterrorism Act of 1986 change in effective period temporary imprisonment up to 10 years. (Pub. L. 99–399), Congress amended rule was published in the Federal The Captain of the Port will enforce section 7 of the Ports and Waterways Register (68 FR 55445) under the same these zones and may enlist the aid and Safety Act (PWSA), 33 U.S.C. 1226, to previous temporary section 165.T11– cooperation of any Federal, State, allow the Coast Guard to take actions,
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including the establishment of security Regulatory Planning and Review, and substantial number of small entities for and safety zones, to prevent or respond does not require an assessment of several reasons: Vessel traffic can pass to acts of terrorism against individuals, potential costs and benefits under safely around the area and vessels vessels or public or commercial section 6(a)(3) of that Order. The Office engaged in recreational activities, structures. The Coast Guard also has of Management and Budget has not sightseeing and commercial fishing have authority to establish security zones reviewed it under that Order. It is not ample space outside of the security pursuant to the Act of June 15, 1917, as ‘‘significant’’ under the regulatory zones to engage in these activities. amended by the Magnuson Act of policies and procedures of the When a HIV is at anchor, vessel traffic August 9, 1950 (50 U.S.C. 191 et seq.) Department of Homeland Security has ample room to maneuver around the and implementing regulations (DHS). security zones. Small entities and the promulgated by the President in We expect the economic impact of maritime public will be advised of these subparts 6.01 and 6.04 of part 6 of title this proposed rule to be so minimal that security zones via public notice to 33 of the Code of Federal Regulations. a full Regulatory Evaluation under the mariners. In this particular rulemaking, to regulatory policies and procedures of address the aforementioned security DHS is unnecessary. Although this Assistance for Small Entities concerns, and to take steps to prevent regulation restricts access to the zones, Under section 213(a) of the Small the catastrophic impact that a terrorist the effect of this regulation is not Business Regulatory Enforcement attack against an HIV would have on the significant because: (i) The zones Fairness Act of 1996 (Pub. L. 104–121), public interest, the Coast Guard is encompass only a small portion of the we offered to assist small entities in establishing permanent security zones waterway; (ii) vessels are able to pass understanding the rule so that they around and under HIV’s entering, safely around the zones; (iii) vessels will could better evaluate its effects on them departing, moored or anchored within be allowed to enter these zones on a and participate in the rulemaking the San Francisco Bay and Delta ports. case-by-case basis with permission of process. These security zones help the Coast the Captain of the Port, or his Small businesses may send comments Guard to prevent vessels or persons designated representative; and (iv) on the actions of Federal employees from engaging in terrorist actions vessels are able to safely transit around who enforce, or otherwise determine against HIV’s. Due to these heightened the zones while a vessel is moored or at compliance with, Federal regulations to security concerns, and the catastrophic anchor in the San Francisco Bay and the Small Business and Agriculture impact a terrorist attack on an HIV Delta ports. Regulatory Enforcement Ombudsman would have on the crew and passengers The size of these zones is the and the Regional Small Business on board and surrounding area and minimum necessary to provide adequate Regulatory Fairness Boards. The communities, security zones are protection for HIV’s, their crews and Ombudsman evaluates these actions prudent for these types of vessels. passengers, other vessels operating in the vicinity of HIV’s, their crews and annually and rates each agency’s Discussion of Comments and Changes passengers, adjoining areas, and the responsiveness to small business. If you No public hearing was requested, and public. The entities most likely to be wish to comment on actions by none was held. We received one letter affected are commercial vessels employees of the Coast Guard, call 1– on the proposed rule, which transiting the main ship channel en 888–REG–FAIR (1–888–734–3247). recommended that we establish a route the San Francisco Bay and Delta Collection of Information standardized means for vessels to ports and pleasure craft engaged in transmit the existence of a security zone recreational activities and sightseeing. This rule calls for no new collection using their Automatic Identification The security zones will prohibit any of information under the Paperwork System (AIS). Although AIS may be commercial vessels from meeting or Reduction Act of 1995 (44 U.S.C. 3501– used in the future to include security overtaking an HIV in the main ship 3520). zone information, the system and channels, effectively prohibiting use of Federalism policies on how AIS will be used are the channels. However, the moving still being developed. In addition, a security zones are only effective during A rule has implications for federalism Coast Guard or other law enforcement HIV transits, which last approximately under Executive Order 13132, vessel will normally be present to escort 30 minutes. Federalism, if it has a substantial direct HIVs. In addition to informing nearby effect on State or local governments and vessels of the existence of the security Small Entities would either preempt State law or zone, the escort boat provides a visual Under the Regulatory Flexibility Act impose a substantial direct cost of indication that a security zone is being (5 U.S.C. 601–612), we have considered compliance on them. We have analyzed enforced. Therefore, we did not change whether this rule would have a this rule under that Order and have the final rule based on this comment significant economic impact on a determined that it does not have and will implement the provisions of substantial number of small entities. implications for federalism. the proposed rule as written. The The term ‘‘small entities’’ comprises Unfunded Mandates Reform Act comment received regarding small businesses, not-for-profit incorporation of security zone organizations that are independently The Unfunded Mandates Reform Act information in AIS data will be owned and operated and are not of 1995 (2 U.S.C. 1531–1538) requires forwarded to the appropriate office at dominant in their fields, and Federal agencies to assess the effects of Coast Guard Headquarters for governmental jurisdictions with their discretionary regulatory actions. In consideration in AIS technology populations of less than 50,000. particular, the Act addresses actions development and implementation. The Coast Guard certifies under 5 that may result in the expenditure by a U.S.C. 605(b) that this rule will not have State, local, or tribal government, in the Regulatory Evaluation a significant economic impact on a aggregate, or by the private sector of This proposed rule is not a substantial number of small entities. $100,000,000 or more in any one year. ‘‘significant regulatory action’’ under The security zones will not have a Though this rule will not result in such section 3(f) of Executive Order 12866, significant economic impact on a an expenditure, we do discuss the
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effects of this rule elsewhere in this a categorical exclusion under section the sea floor, within 100 yards ahead, preamble. 2.B.2 of the Instruction. Therefore, this astern and extending 100 yards along rule is categorically excluded, under either side of any cruise ship, tank Taking of Private Property figure 2–1, paragraph (34)(g), of the vessel or HIV that is anchored at a This rule will not effect a taking of Instruction, from further environmental designated anchorage within the San private property or otherwise have documentation because we are Francisco Bay and Delta port areas taking implications under Executive establishing a security zone. An shoreward of the line drawn between Order 12630, Governmental Actions and ‘‘Environmental Analysis Check List’’ San Francisco Main Ship Channel buoys Interference with Constitutionally and a ‘‘Categorical Exclusion 7 and 8 (LLNR 4190 & 4195, positions Protected Property Rights. Determination’’ (CED) are available in 37°46.9′ N, 122°35.4′ W and 37° 46.5′ N, 122° 35.2′ W, respectively); Civil Justice Reform the docket where indicated under ADDRESSES. (2) Zones for moored or mooring This rule meets applicable standards vessels. The shore area and all waters, in sections 3(a) and 3(b)(2) of Executive List of Subjects in 33 CFR Part 165 extending from the surface to the sea Order 12988, Civil Justice Reform, to Harbors, Marine safety, Navigation floor, within 100 yards ahead, astern minimize litigation, eliminate (water), Reporting and recordkeeping and extending 100 yards along either ambiguity, and reduce burden. requirements, Security measures, side of any cruise ship, tank vessel or HIV that is moored, or in the process of Protection of Children Waterways. ■ For the reasons discussed in the mooring, at any berth within the San We have analyzed this rule under preamble, the Coast Guard amends 33 Francisco Bay and Delta port areas Executive Order 13045, Protection of CFR part 165 as follows: shoreward of the line drawn between Children from Environmental Health San Francisco Main Ship Channel buoys Risks and Safety Risks. This rule is not PART 165—REGULATED NAVIGATION 7 and 8 (LLNR 4190 & 4195, positions an economically significant rule and AREAS AND LIMITED ACCESS AREAS 37°46.9′ N, 122°35.4′ W and 37°46.5′ N, does not create an environmental risk to 122°35.2′ W, respectively); and health or risk to safety that may ■ 1. The authority citation for part 165 (3) Zones for vessels underway. All disproportionately affect children. continues to read as follows: waters, extending from the surface to the sea floor, within 100 yards ahead, Indian Tribal Governments Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR astern and extending 100 yards along This rule does not have tribal 1.05–1(g), 6.04–1, 6.04–6, and 160.5; Pub. L. either side of any cruise ship, tank implications under Executive Order 107–295, 116 Stat. 2064; Department of vessel or HIV that is underway 13175, Consultation and Coordination Homeland Security Delegation No. 0170.1. shoreward of the line drawn between with Indian Tribal Governments, ■ 2. Revise § 165.1183 to read as follows: San Francisco Main Ship Channel buoys because it does not have a substantial 7 and 8 (LLNR 4190 & 4195, positions direct effect on one or more Indian § 165.1183 Security Zones; Cruise Ships, 37°46.9′ N, 122°35.4′ W and 37°46.5′ N, tribes, on the relationship between the Tank Vessels and High Interest Vessels, 122°35.2′ W, respectively). Federal Government and Indian tribes, San Francisco Bay and Delta ports, (c) Regulations. (1) In accordance with or on the distribution of power and California. the general regulations in § 165.33 of responsibilities between the Federal (a) Definitions. As used in this this part, entry into or remaining in this Government and Indian tribes. section— zone is prohibited unless authorized by Cruise ship means a passenger vessel, Energy Effects the Coast Guard Captain of the Port, San except for a ferry, over 100 feet in Francisco Bay, or his designated We have analyzed this rule under length, authorized to carry more than 12 representative. Executive Order 13211, Actions passengers for hire; making voyages (2) Persons desiring to transit the area Concerning Regulations That lasting more than 24 hours, any part of of the security zone may contact the Significantly Affect Energy Supply, which is on the high seas; and for which Captain of the Port at telephone number Distribution, or Use. We have passengers are embarked or 415–399–3547 or on VHF–FM channel determined that it is not a ‘‘significant disembarked in the San Francisco Bay 16 (156.8 MHz) to seek permission to energy action’’ under that order because and Delta ports. transit the area. If permission is granted, it is not a ‘‘significant regulatory action’’ High Interest Vessel or HIV means any all persons and vessels must comply under Executive Order 12866 and is not vessel deemed by the Captain of the Port with the instructions of the Captain of likely to have a significant adverse effect or higher authority as a vessel requiring the Port or his or her designated on the supply, distribution, or use of protection based upon risk assessment representative. energy. The Administrator of the Office analysis of the vessel and is therefore (3) When a cruise ship, tank vessel or of Information and Regulatory Affairs escorted by a Coast Guard or other law HIV approaches within 100 yards of a has not designated it as a significant enforcement vessel with an embarked vessel that is moored, or anchored, the energy action. Therefore, it does not Coast Guard commissioned, warrant, or stationary vessel must stay moored or require a Statement of Energy Effects petty officer. anchored while it remains within the under Executive Order 13211. Tank vessel means any self-propelled cruise ship, tank vessel or HIV’s security tank ship that is constructed or adapted zone unless it is either ordered by, or Environment primarily to carry oil or hazardous given permission from, the COTP San We have analyzed this rule under material in bulk as cargo or cargo Francisco Bay to do otherwise. Commandant Instruction M16475.lD, residue in the cargo spaces. The (d) Authority. In addition to 33 U.S.C. which guides the Coast Guard in definition of tank ship does not include 1231, the authority for this section complying with the National tank barges. includes 33 U.S.C. 1226. Environmental Policy Act of 1969 (b) Locations. The following areas are (e) Enforcement. The U.S. Coast (NEPA) (42 U.S.C. 4321–4370f), and security zones: Guard may be assisted in the patrol and have concluded that there are no factors (1) Zones for anchored vessels. All enforcement of the security zone by in this case that would limit the use of waters, extending from the surface to local law enforcement as necessary.
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Dated: January 28, 2004. Copyright GC/I&R, P.O. Box 70400, beta, has been added. These are Gerald M. Swanson, Southwest Station, Washington, DC videocassettes in analog and digital Captain, U.S. Coast Guard, Captain of the 20024–0400. Telephone: (202) 707– formats, respectively, that are now Port, San Francisco Bay, California. 8380. Telefax: (202) 707–8366. widely used in the television industry. [FR Doc. 04–4209 Filed 2–25–04; 8:45 am] SUPPLEMENTARY INFORMATION: Both are better quality than the format BILLING CODE 4910–15–P that is commonly known as ‘‘betacam,’’ I. Background which has been deleted from the list. Sections 407 and 408 of title 17, D–2. D–2 is an obsolete version of the LIBRARY OF CONGRESS United States Code, require that owners D Series. The current version is D–9. of any motion picture that has been However, the format for the D Series has Copyright Office published must deposit a copy of the been entirely eliminated from the list work with the Copyright Office for the because each version rapidly becomes 37 CFR Part 202 use of the Library of Congress. The copy obsolete. submitted must be the ‘‘best edition’’ of [Docket No. RM 2004–1] DVD and Videodisc. DVDs, which are the work, which is ‘‘the edition, 43⁄4 inch disks in digital format for home ‘‘Best Edition’’ of Published Motion published in the United States, at any viewing of films, are replacing Pictures for the Collections of the time before the date of deposit, that the videodiscs on the list, which are 12 inch Library of Congress Library of Congress determines to be disks in analog format. most suitable for its purposes.’’ 17 Three-Quarter Inch Cassette. Three- AGENCY: Copyright Office, Library of U.S.C. 101 (definition of best edition). quarter inch cassette, also commonly Congress. Based on that statutory requirement, the known as ‘‘U-matic,’’ has been removed ACTION: Final rule with request for regulations require that ‘‘when two or from the list because it is a defunct comments. more editions of the same version of a format. work have been published, the one of One-Half Inch VHS Cassette and VHS SUMMARY: Owners of motion pictures the highest quality is generally Cassette. Changing ‘‘one-half inch VHS that have been published must submit considered to be the best edition.’’ 37 cassette’’ to ‘‘VHS cassette’’ is an copies of their movies to the Copyright CFR 202, App. B. The criteria for what editorial change. ‘‘VHS cassette’’ is now Office for the Library of Congress to use constitutes the best edition, for all kinds the commonly used term for this home and include in its collections. This of copyrighted works, are contained in viewing format. mandatory deposit requirement may be Appendix B of 37 CFR 202, which is satisfied at the same time that an entitled ‘‘‘Best Edition’ of Published III. Written Comments application for copyright registration is Copyrighted Works for the Collections The Copyright Office is publishing submitted. In order to obtain copies of of the Library of Congress.’’ Subpart III this amendment as a final rule because superior quality when works are of Appendix B establishes the owners of published motion pictures published in more than one format, the requirements for motion pictures, have already begun complying with Library of Congress established ‘‘best ranking movie formats for commercial these changes to the best edition edition’’ requirements. The purpose of and home viewing in descending order requirements. The Office believes these this rule is to amend the best edition of preference relative to their quality, changes are noncontroversial and will requirements for motion pictures to take beginning with the format that is most elicit no significant adverse comment. into account recent technological suitable for the Library’s purposes. This However, the Office is providing the developments and to make editorial regulation amends subpart III to make public an opportunity to submit written changes that clarify the requirements. changes that take into account recent comments by March 29, 2004. The rule DATES: Effective date: This rule shall technological developments and to will take effect April 26, 2004, unless take effect April 26, 2004. make editorial changes that clarify the the Copyright Office has received Comment Date: Comments are due by requirements. adverse substantive comments and March 29, 2004. II. Changes to Best Edition Rule publishes a notice withdrawing the rule ADDRESSES: An original and ten copies before that date. of any comment shall be sent to the A. Film Formats IV. Regulatory Flexibility Act Statement Copyright Office. If comments are The only change to the requirements mailed, the address is: Copyright Office for film formats is to add 70 millimeter Although the Copyright Office, as a GC/I&R, P.O. Box 70400, Southwest positive print as the most desirable film department of the Library of Congress Station, Washington, DC 20024–0400. If format (apart from preprint material, by and part of the Legislative Branch, is not comments are hand delivered by a special arrangement). The addition of an ‘‘agency’’ subject to the Regulatory commercial, non-government courier or this film format to the regulation Flexibility Act, 5 U.S.C. 601–612, the messenger, comments must be delivered clarifies the Library’s desire to obtain Register of Copyrights has considered to: the Congressional Courier published motion pictures in a superior the effect of the proposed amendment Acceptance Site, located at Second and format. This format is only required on small businesses. The Register has D Streets, NE., between 8:30 a.m. and 4 where the original production negative determined that the amendments would p.m., e.s.t. If hand delivered by a private size is greater than 35 millimeters. not have a significant economic impact party, they must be delivered to the on a substantial number of small Public Information Office, James B. Video Formats business entities that would require a Madison Memorial Building, Room 401, One-Inch Open Reel Tape. One-inch provision of special relief for them. The First and Independence Street, open reel tape has been deleted from proposed amendments are designed to Washington, DC between 8:30 a.m. and subpart III of the best edition list minimize any significant economic 5 p.m., e.s.t. because it is a defunct format. impact on small business entities. FOR FURTHER INFORMATION CONTACT: BetacamSP, Digibeta and Betacam. List of Subjects in 37 CFR Part 202 Marilyn J. Kretsinger, Associate General Betacam SP will continue to be on the Counsel, or Renee Coe, Senior Attorney, list and digibeta, also known as digital Claims, Copyright.
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Proposed Regulations SUMMARY: This document corrects an § 262.2 [Corrected] error contained in the definition section ■ On page 5696, in the first column, in ■ In consideration of the foregoing, the of the final rule published on February paragraph (a), in the tenth line, the Copyright Office amends part 202 of 37 6, 2004, that set rates and terms for the phrase ‘‘If 30 minutes’’ is corrected to CFR in the manner set forth below: public performance of a sound read ‘‘If 3 minutes’’. PART 202—REGISTRATION OF recording made pursuant to a statutory Dated: February 17, 2004. license by means of certain eligible CLAIMS TO COPYRIGHT Marybeth Peters, nonsubscription transmissions and ■ 1. The authority citation for part 202 digital transmissions made by a new Register of Copyrights. continues to read as follows: subscription service. [FR Doc. 04–3957 Filed 2–25–04; 8:45 am] BILLING CODE 1410–33–P Authority: 17 U.S.C. 702. EFFECTIVE DATE: March 8, 2004. ■ 2. In part 202, Appendix. B, ‘‘III. FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or Motion Pictures’’ is revised to read as ENVIRONMENTAL PROTECTION follows: Tanya M. Sandros, Senior Attorney, Copyright Arbitration Royalty Panel AGENCY Appendix B to Part 202—‘‘Best Edition’’ (CARP), P.O. Box 70977, Southwest 40 CFR Part 52 of Published Copyrighted Works for the Station, Washington, DC 20024. Collections of the Library of Congress Telephone: (202) 707–8380; Telefax: [PA 210–4302; FRL–7616–6] (202) 252–3423. * * * * * Approval and Promulgation of Air SUPPLEMENTARY INFORMATION: On May 8, Quality Implementation Plans; III. Motion Pictures 2003, the parties to this rate adjustment Pennsylvania; Revisions To Update the Film medium is considered a better proceeding presented the Librarian of 1-Hour Ozone Maintenance Plan for the quality than any other medium. The Congress with a settlement proposing Reading Area (Berks County) formats under ‘‘film’’ and ‘‘video the rates and terms for the use of sound formats’’ are listed in descending order recordings in eligible nonsubscription AGENCY: Environmental Protection of preference: transmissions and new subscription Agency (EPA). services pursuant to the section 112 and A. Film ACTION: Final rule. section 114 statutory licenses. Section 1. Preprint material, by special 251.63(b) of title 37 of the Code of SUMMARY: EPA is approving State arrangement Federal Regulations allows the Librarian Implementation Plan (SIP) revisions 2. 70 mm positive print, if original to adopt the parties’ proposed rates and submitted by the Commonwealth of production negative is greater than 35 terms without convening a Copyright Pennsylvania. These revisions amend mm Arbitration Royalty Panel (‘‘CARP’’), Pennsylvania’s ten-year plan to 3. 35 mm positive prints provided the proposed rates and terms maintain the 1-hour ozone national 4. 16 mm positive prints are published in the Federal Register ambient air quality standard (NAAQS) B. Video Formats and no interested party with an intent in the Reading area (Berks County). The to participate in the proceeding files an maintenance plan is being amended to 1. Betacam SP objection to the proposed rates and/or revise the attainment year inventories 2. Digital Beta (Digibeta) terms. Accordingly, on May 20, 2003, and motor vehicle emission budgets 3. DVD the Copyright Office published the using MOBILE6. The contingency 4. VHS Cassette proposed regulations for notice and measures portion of the plan is also * * * * * comment. 69 FR 27506 (May 20, 2003). being amended. The intended effect of Dated: February 11, 2004. However, the published document this action is to approve SIP revisions Marybeth Peters, contained an error in § 262.2(a), which that will better enable the Register of Copyrights. defines the term ‘‘Aggregate Tuning Commonwealth of Pennsylvania to Approved by: Hours.’’ The error appeared in the continue to maintain attainment of the example illustrating the calculation of James H. Billington, 1-hour NAAQS for ozone in the Reading Aggregate Tuning Hours and apparently area. This action is being taken under The Librarian of Congress. occurred as the Federal Register the Clean Air Act. [FR Doc. 04–3958 Filed 2–25–04; 8:45 am] conformed the document to its style EFFECTIVE DATE: This final rule is BILLING CODE 1410–30–P requirements. At that time, the Federal effective on March 29, 2004. Register inadvertently changed the ADDRESSES: Copies of the documents phrase ‘‘If three minutes’’ to ‘‘If 30 LIBRARY OF CONGRESS relevant to this action are available for minutes.’’ This error went undetected; public inspection during normal Copyright Office as a result, it also appeared in the final business hours at the Air Protection rule document published on February 6, Division, U.S. Environmental Protection 37 CFR Part 262 2004. This document corrects that error. Agency, Region III, 1650 Arch Street, [Docket Nos. 2002–1 CARP DTRA3 and List of Subjects in 37 CFR Part 262 Philadelphia, Pennsylvania 19103; and 2001–2 CARP DTNSRA] Copyright, Digital audio the Pennsylvania Department of transmissions, Performance right, Sound Environmental Protection, Bureau of Air Digital Performance Right in Sound recordings Quality Control, PO Box 8468, 400 Recordings and Ephemeral Market Street, Harrisburg, Pennsylvania Recordings Correction 17105. ■ FOR FURTHER INFORMATION CONTACT: AGENCY: Copyright Office, Library of In FR Doc. 04–2535 appearing on page Martin Kotsch, (215) 814–3335, or by e- Congress. 5693 in the Federal Register of Friday, February 6, 2004, make the following mail at [email protected]. ACTION: Correction to final rule. correction: SUPPLEMENTARY INFORMATION:
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I. Background procedures for amending its SIP. The II. Summary of the SIP Revisions to the State’s proposed SIP revisions were Reading Area Maintenance Plan On November 19, 2003 (68 FR 65234), submitted to EPA on October 14, 2003 EPA published a notice of proposed A. Revisions to the Motor Vehicle by the Pennsylvania Department of the Emission Budgets (MVEBs) rulemaking (NPR) for the Environmental Protection (PADEP). On Commonwealth of Pennsylvania November 19, 2003, EPA proposed For the Reading area maintenance pertaining to revisions to the ten-year approval of Pennsylvania’s October 14, plan, the MVEBs are the projected on- plan to maintain the 1-hour ozone 2003 submittal. No comments were road mobile source components of the national NAAQS in the Reading area submitted during the public comment 2004 and 2007 maintenance inventories. Berks County. In that NPR, EPA These budgets were developed using the period on EPA’s November 19, 2004 proposed approval of revisions to the latest planning assumptions, including proposal. The PADEP formally attainment year inventories and the 2002 vehicle registration data, vehicle submitted the final SIP revision on 2004 and 2007 motor vehicle emission miles traveled, speeds, fleet mix, and budgets (MVEBs) using MOBILE6. The December 9, 2003. That final submittal SIP control measures. Because PADEP’s MOBILE6 model is an updated version had no substantive changes from the December 9, 2003 submittal satisfies the of the MOBILE model used for proposed version submitted to EPA on conditions outlined in EPA’s MOBILE6 calculating mobile emissions of ozone October 14, 2003. A detailed description Policy guidance, and demonstrates that precursors. In that same NPR published of both Pennsylvania’s submittal and the new levels of motor vehicle on November 19, 2003, EPA also EPA’s rationale for its proposed emissions calculated using MOBILE6 proposed approval of revisions to the approval were provided in the continue to support maintenance of the contingency measures portion of the November 19, 2003 NPR and, therefore, 1-hour ozone NAAQS, EPA is approving maintenance plan. EPA proposed are only briefly summarized here. these budgets. The revised mobile approval of these SIP revisions under a inventories and emissions budgets being procedure called parallel processing, approved for the Reading area are whereby EPA proposes a rulemaking shown below in Tables 1 and 2 action concurrently with a state’s respectively.
TABLE 1.—MOBILE6-BASED MOTOR VEHICLE EMISSIONS INVENTORIES FOR THE READING AREA
1992 Attainment year Maintenance area VOC NOX (tpd) (tpd)
Reading ...... 27.25 35.57 (Berks County)
TABLE 2.—MOBILE6-BASED MVEBSINTHEMAINTENANCE PLAN FOR THE READING AREA
2004 2007 Maintenance Area VOC NOX VOC NOX (tpd) (tpd) (tpd) (tpd)
Reading Area (Berks County)...... 17.02 28.99 13.81 23.06
B. Revisions to the Contingency NAAQS to update the attainment year IV. Statutory and Executive Order Measures motor vehicle emissions inventory and Reviews the 2004 and 2007 MVEBs using In the original maintenance plan for A. General Requirements MOBILE6. The revisions also amend the the Reading area, the Commonwealth’s contingency measures portion of the Under Executive Order 12866 (58 FR motor vehicle inspection and maintenance plan. 51735, October 4, 1993), this action is maintenance (I/M) program was not a ‘‘significant regulatory action’’ and identified as a contingency measure. In accordance with the parallel therefore is not subject to review by the The December 9, 2003 SIP revision processing procedures, EPA has Office of Management and Budget. For moves the I&M program from the evaluated Pennsylvania’s final SIP this reason, this action is also not contingency measures portion of the revisions submitted on December 9, subject to Executive Order 13211, plan and makes it part of the 2003 and finds that no substantial ‘‘Actions Concerning Regulations That maintenance strategy. Improved rule changes were made from the proposed Significantly Affect Energy Supply, effectiveness will remain as a SIP revisions submitted on October 14, Distribution, or Use’’ (66 FR 28355, May contingency measure in the 2003. The revised plan for the Reading 22, 2001). This action merely approves maintenance plan. area continues to demonstrate state law as meeting Federal III. Final Action maintenance of the 1-hour NAAQS for requirements and imposes no additional ozone. requirements beyond those imposed by EPA is approving Pennsylvania’s state law. Accordingly, the December 9, 2003 SIP revisions. These Administrator certifies that this rule revisions amend the Reading area’s will not have a significant economic maintenance plan for the 1-hour impact on a substantial number of small
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entities under the Regulatory Flexibility Fairness Act of 1996, generally provides Reading area to amend the contingency Act (5 U.S.C. 601 et seq.). Because this that before a rule may take effect, the measures and to revise the attainment rule approves pre-existing requirements agency promulgating the rule must year mobile emissions inventories and under state law and does not impose submit a rule report, which includes a the 2004 and 2007 motor vehicle any additional enforceable duty beyond copy of the rule, to each House of the emission budgets to reflect the use of that required by state law, it does not Congress and to the Comptroller General MOBILE6. These revisions were contain any unfunded mandate or of the United States. EPA will submit a submitted by the Commonwealth of significantly or uniquely affect small report containing this rule and other Pennsylvania’s Department of governments, as described in the required information to the U.S. Senate, Environmental Protection to EPA on Unfunded Mandates Reform Act of 1995 the U.S. House of Representatives, and December 9, 2003. (Pub. L. 104–4). This rule also does not the Comptroller General of the United (i) Incorporation by reference. have tribal implications because it will States prior to publication of the rule in (A) Letter of December 9, 2003 from not have a substantial direct effect on the Federal Register. This rule is not a the Secretary of the Pennsylvania one or more Indian tribes, on the ‘‘major rule’’ as defined by 5 U.S.C. Department of Environmental Protection relationship between the Federal 804(2). transmitting revisions to Pennsylvania’s Government and Indian tribes, or on the 1-hour ozone maintenance plan for the distribution of power and C. Petitions for Judicial Review Reading area. responsibilities between the Federal Under section 307(b)(1) of the Clean (B) Document entitled ‘‘Revision to Government and Indian tribes, as Air Act, petitions for judicial review of the State Implementation Plan for the specified by Executive Order 13175 (65 this action must be filed in the United Reading Area (Berks County).’’ This FR 67249, November 9, 2000). This States Court of Appeals for the document, dated November 2003, action also does not have Federalism appropriate circuit by April 26, 2004. establishes the following: implications because it does not have Filing a petition for reconsideration by (1) Revisions to the Reading area’s 1- substantial direct effects on the States, the Administrator of this final rule does hour ozone maintenance plan, on the relationship between the national not affect the finality of this rule for the establishing revised motor vehicle government and the States, or on the purposes of judicial review nor does it emissions budgets of 17.02 tons/day of distribution of power and extend the time within which a petition volatile organic compounds (VOC) and responsibilities among the various for judicial review may be filed, and 28.99 tons/day of oxides of nitrogen levels of government, as specified in shall not postpone the effectiveness of (NOX) for 2004; and motor vehicle Executive Order 13132 (64 FR 43255, such rule or action. This action to emissions budgets of 13.81 tons/day of August 10, 1999). This action merely approve SIP revisions to the 1-hour VOC and 23.06 tons/day of NOX for approves a state rule implementing a ozone maintenance plan for the Reading 2007. Federal standard, and does not alter the area which amend its contingency (2) Revision to the Reading area’s 1- relationship or the distribution of power measures and revise the attainment year hour ozone maintenance plan which and responsibilities established in the motor vehicle emissions inventory and moves the Inspection and Maintenance Clean Air Act. This rule also is not 2004 and 2007 MVEBs using MOBILE6 program from the contingency measures subject to Executive Order 13045 may not be challenged later in portion of the plan and to make it part ‘‘Protection of Children from proceedings to enforce their of the maintenance strategy. Environmental Health Risks and Safety requirements. (See section 307(b)(2)). (ii) Additional Material.—Remainder Risks’’ (62 FR 19885, April 23, 1997), of the State submittal pertaining to the because it is not economically List of Subjects in 40 CFR Part 52 revisions listed in paragraph (c)(222)(i) significant. In reviewing SIP Environmental protection, Air of this section. submissions, EPA’s role is to approve pollution control, Incorporation by [FR Doc. 04–1969 Filed 2–25–04; 8:45 am] state choices, provided that they meet reference, Nitrogen dioxide, Ozone, BILLING CODE 6560–50–P the criteria of the Clean Air Act. In this Reporting and recordkeeping context, in the absence of a prior requirements, Volatile organic existing requirement for the State to use compounds. ENVIRONMENTAL PROTECTION voluntary consensus standards (VCS), Dated: January 22, 2004. AGENCY EPA has no authority to disapprove a Judith Katz, SIP submission for failure to use VCS. 40 CFR Part 147 It would thus be inconsistent with Acting Regional Administrator, Region III. applicable law for EPA, when it reviews ■ 40 CFR part 52 is amended as follows: [FRL–7622–9] a SIP submission, to use VCS in place PART 52—[AMENDED] Revision to the Texas Underground of a SIP submission that otherwise Injection Control Program Approved satisfies the provisions of the Clean Air ■ 1. The authority citation for part 52 Under Section 1422 of the Safe Act. Thus, the requirements of section continues to read as follows: Drinking Water Act and Administered 12(d) of the National Technology by the Railroad Commission of Texas Transfer and Advancement Act of 1995 Authority: 42 U.S.C. 7401 et seq. (15 U.S.C. 272 note) do not apply. This Subpart NN—Pennsylvania AGENCY: Environmental Protection rule does not impose an information Agency. collection burden under the provisions ■ 2. Section 52.2020 is amended by ACTION: Final rule. of the Paperwork Reduction Act of 1995 adding paragraph (c)(222) to read as (44 U.S.C. 3501 et seq.). follows: SUMMARY: Today, EPA is amending the Code of Federal Regulations (CFR) and B. Submission to Congress and the § 52.2020 Identification of plan. incorporating by reference (IBR), the Comptroller General * * * * * revised Underground Injection Control The Congressional Review Act, 5 (c) * * * (UIC) Program for Brine Mining Wells U.S.C. 801 et seq., as added by the Small (222) Revisions to Pennsylvania’s 1- implemented by the Railroad Business Regulatory Enforcement hour ozone maintenance plan for the Commission (RRC) of Texas. EPA
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initially approved that portion of the underground injection activities which the agency currently charged with Texas UIC program which is the subject endanger underground sources of administering the UIC program for Class of this rule on April 23, 1982. Since drinking water (USDWs). Section 1422 I, III, IV, and most Class V wells in then, the State has had primary of SDWA allows States to apply to the Texas. authority to implement the UIC program EPA Administrator for authorization of In addition to TDWR receiving for brine mining wells. Subsequently, primary enforcement and permitting approval to administer the UIC program the State has made changes to the EPA- authority (primacy) over injection wells for Class I, III, IV and V injection wells, approved brine mining wells program within the State. Section 1422(b)(1)(A) RRC received approval to administer the and submitted them to EPA for review. provides that States shall submit to the UIC program for energy related injection Those changes are the subject of this Administrator an application that: (1) activities in the State, effective May 23, rule. EPA, after conducting a thorough Contains a showing satisfactory to the 1982. These wells include Class II review, is hereby approving and Administrator that the State has adopted injection wells related to oil and gas codifying these program revisions. As and will implement an underground exploration and production, and Class V required in the Federal UIC regulations, injection control program which meets geothermal return and in situ coal substantial State UIC program revisions the requirements of regulations in effect combustion wells. In 1985, the 69th must be approved and codified in the under section 1421 of SDWA, and (2) Texas Legislature enacted legislation CFR by a rule signed by the EPA will keep such records and make such that transferred jurisdiction over Class Administrator. The intended effect of reports with respect to its activities III brine mining wells from the Texas this action is to approve, update and under its underground injection control Water Commission, now the Texas codify the revisions to the authorized program as the Administrator may Commission on Environmental Quality, Texas UIC program for brine mining require by regulation. to the RRC. wells and to incorporate by reference To be approved under section 1422, a Section 1422 of SDWA and the relevant portions of the revisions in State must, among other things, show regulations at 40 CFR 145.32 allow for the Code of Federal Regulations. that it will implement an underground revision of approved State UIC programs injection control program that meets the when State statutory or regulatory DATES: This rule is effective on March requirements of the Federal regulations 29, 2004. The Director of the Federal authority is modified or supplemented. in effect under SDWA, section 1421. Register approves the incorporation by In accordance with those requirements, Specifically, all State programs reference contained in this rule as of and in conjunction with a substantial approved under section 1422 must meet March 29, 2004. revision submitted by the TNRCC (now the minimum requirements in title 40 TCEQ) and approved earlier, RRC FOR FURTHER INFORMATION CONTACT: parts 144 to 146 and 148. States need submitted revisions to EPA for approval Mario Salazar, ([email protected]), not implement provisions identical to and codification of that portion of RRC’s Mail code 4606M, Environmental the provisions listed in these parts, but UIC program governing Class III brine Protection Agency, 1200 Pennsylvania they must implement provisions that are mining wells. The RRC program related Avenue, NW., Washington, DC 20460, at least as stringent. Section to Class V geothermal return and in situ voice (202) 564–3894, fax 202 564–3756. 1422(b)(1)(B)(2) requires, after combustion of coal has not been revised For technical and background reasonable opportunity for public and remains in effect. Other Class III information contact Ray Leissner, comment, the Administrator to, by rule, injection wells remain regulated by the ([email protected]) Ground Water/ approve, disapprove, or approve in part, TCEQ. UIC Section (6WQ–SG), Environmental the State UIC program. EPA proposed the program revisions Protection Agency, Region 6, 1445 Ross EPA’s approval of primacy for the to RRC’s Class III brine mining program Avenue, Dallas, TX, 75202–2733, voice State of Texas for underground injection in the Federal Register on November 8, (214) 665–7183, fax (214) 665–2191. into Class I, III, IV, and V wells was 2001 (66 FR 56503–56507) and in five SUPPLEMENTARY INFORMATION: published on January 6, 1982 (47 FR major newspapers within the State. That 618), and became effective February 6, I. Regulated Entities proposal indicated EPA’s intention to 1982. Elements of the State’s primacy approve the revisions to the RRC This action does not impose any application, submitted through the program for Class III brine mining wells, regulation on the public, and in fact Texas Department of Water Resources asked for comments, and offered the there are no entities affected. This (TDWR), a predecessor to the Texas opportunity to request a public meeting. action merely approves, codifies, and Commission on Environmental Quality 1 That notice included a description of incorporates by reference into the Code (TCEQ), were approved and published key issues raised and actions taken to of Federal Regulations the revisions to in title 40 of the Code of Federal achieve issue resolution. The key issues the Texas UIC program previously Regulations, at 40 CFR 147.2200. Since identified and discussed in the proposal adopted by the State. The rules that are that time, authority has been passed related to the following components in the subject of this codification are through to succeeding agencies. The the RRC UIC program: already in effect in Texas under Texas TDWR became the Texas Water • Protection Standard; law. The IBR allows EPA to enforce the Commission (TWC), which was • Fluid Migration; State authorized UIC program, if reorganized in 1993 into the Texas • Plugging and Abandonment; necessary, and to intervene effectively Natural Resource Conservation • Permit Application Requirements; in case of an imminent and substantial Commission (TNRCC) and recently • Monitoring, Compliance Tracking endangerment to public health and/or renamed the Texas Commission on and Enforcement Activities; underground sources of drinking water • Public Participation; Environmental Quality (TCEQ). TCEQ is • (USDWs) in the State. References to State Law. 1 On September 1, 2002, the Texas Natural As indicated above, the proposal gives II. Background Resources Conservation Commission changed its specific steps that were taken to achieve Section 1421 of Safe Drinking Water name to the Texas Commission on Environmental issue resolution. No comments or Quality. The proposal published by EPA on Act (SDWA) requires the Administrator November 8, 2001 (66 FR 56503–56507) referenced requests for hearing were received in to promulgate minimum requirements the prior name, the Texas Natural Resources response to the proposal of November 8, for effective State programs to prevent Conservation Commission (TNRCC). 2001.
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The proposal published in the Burden means the total time, effort, or additional regulatory burden to or Federal Register on November 8, 2001 financial resources expended by persons directly impact small businesses in (66 FR 56503–56507) included changes to generate, maintain, retain, or disclose Texas. to 40 CFR 147.2200 to implement RRC or provide information to or for a D. Unfunded Mandates Reform Act programmatic changes. The changes to Federal agency. This includes the time Part 147 promulgated in today’s rule needed to review instructions; develop, Title II of the Unfunded Mandates differ from the proposed changes only acquire, install, and utilize technology Reform Act of 1995 (UMRA), Pub. L. in formatting and in the addition of a and systems for the purposes of 104–4, establishes requirements for specific list of the types of wells, other collecting, validating, and verifying Federal agencies to assess the effects of than Class II, that are included in the information, processing and their regulatory actions on State, local, RRC program. maintaining information, and disclosing and Tribal governments and the private Today’s action approves, codifies, and and providing information; adjust the sector. Under section 202 of the UMRA, incorporates by reference those existing ways to comply with any EPA generally must prepare a written revisions submitted by the RRC to the previously applicable instructions and statement, including a cost-benefit Class III portion of the State’s UIC requirements; train personnel to be able analysis, for proposed and final rules program for brine mining wells to respond to a collection of with ‘‘Federal mandates’’ that may originally approved under section 1422 information; search data sources; result in expenditures to State, local, of SDWA in 1982. complete and review the collection of and Tribal governments, in the information; and transmit or otherwise aggregate, or to the private sector, of III. Statutory and Executive Order disclose the information. $100 million or more in any one year. Reviews An Agency may not conduct or Before promulgating an EPA rule for A. Executive Order 12866: Regulatory sponsor, and a person is not required to which a written Statement is needed, Planning and Review respond to a collection of information section 205 of the UMRA generally unless it displays a currently valid OMB requires EPA to identify and consider a Under Executive Order 12866 (58 FR control number. The OMB control reasonable number of regulatory 51735, October 4, 1993), the Agency numbers for EPA’s regulations are listed alternatives and adopt the least costly, must determine whether the regulatory in 40 CFR part 9, and 48 CFR chapter most cost-effective or least burdensome action is ‘‘significant’’ and therefore 15. alternative that achieves the objectives subject to OMB review and the of the rule. The provisions of section requirements of the Executive Order. C. Regulatory Flexibility Act 205 do not apply when they are The Order defines ‘‘significant The Regulatory Flexibility Act (RFA) inconsistent with applicable law. regulatory action’’ as one that is likely generally requires an Agency to prepare Moreover, section 205 allows EPA to to result in a rule that may: a regulatory flexibility analysis of any adopt an alternative other than the least (1) Have an annual effect on the rule subject to notice and comment costly, most cost-effective or least economy of $100 million or more or rulemaking requirements under the burdensome alternative if the adversely affect in a material way the Administrative Procedures Act or any Administrator publishes with the final economy, a sector of the economy, other statute unless the Agency certifies rule an explanation why that alternative productivity, competition, jobs, the that the rule will not have a significant was not adopted. environment, public health or safety, or economic impact on a substantial Before EPA establishes any regulatory State, local, or Tribal governments or number of small entities. Small entities requirements that may significantly or communities; include small businesses, small uniquely affect small governments, (2) Create a serious inconsistency or organizations, and small governmental including Tribal governments, it must otherwise interfere with an action taken jurisdictions. have developed under section 203 of the or planned by another agency; For purposes of assessing the impacts UMRA a small government Agency (3) Materially alter the budgetary of today’s rule on small entities, we plan. The plan must provide for impact of entitlements, grants, user fees, defined small entities as (1) a small notifying potentially affected small or loan programs or the rights and business based on Small Business governments, enabling officials of obligations of recipients thereof; or Administration (SBA) size standards; (2) affected small governments to have (4) Raise novel legal or policy issues a small governmental jurisdiction that is meaningful and timely input in the arising out of legal mandates, the a government of a city, county, town, development of EPA regulatory President’s priorities, or the principles school district or special district with a proposals with significant Federal set forth in the Executive Order. population less than 50,000; and (3) a intergovernmental mandates, and It has been determined that this rule small organization that is any not-for- informing, educating, and advising is not a ‘‘significant regulatory action’’ profit enterprise which is independently small governments on compliance with under the terms of Executive Order owned and operated and is not the regulatory requirements. Today’s 12866 and is therefore not subject to dominant in its field. rule contains no Federal mandates OMB review. After considering the economic (under the regulatory provisions of Title impacts of today’s final rule on small II of the UMRA) for State, local, or B. Paperwork Reduction Act entities, I certify that this action will not Tribal governments or the private sector This action does not impose an have a significant economic impact on because the rule imposes no enforceable information collection burden under the a substantial number of small entities. duty on any State, local or Tribal provisions of the Paperwork Reduction This rule merely approves, codifies, and governments or the private sector. This Act, 44 U.S.C. 3501 et seq. It does not incorporates by reference into 40 CFR final rule only approves the State’s UIC impose any information collection, part 147 the revisions to the Texas regulations as revised and in effect in reporting, or record-keeping program regulations already adopted the State of Texas. Thus today’s rule is requirements. It merely approves, and implemented by the State of Texas not subject to the requirements of codifies, and incorporates by reference ensuring the protection of underground sections 202 and 205 of UMRA. For the State revisons to the EPA approved UIC sources of drinking water. Codification same reason, EPA has determined that program. of these revisions does not result in this rule contains no regulatory
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requirements that might significantly or ensure meaningful and timely input by believe may have a disproportionate risk uniquely affect small governments. tribal officials in the development of to children. Thus, today’s rule is not subject to the regulatory policies that have tribal H. Executive Order 13211: Actions That requirements of section 203 of UMRA. implications.’’ ‘‘Policies that have tribal Significantly Affect Energy Supply, implications’’ is defined in the E. Executive Order 13132: Federalism Distribution, or Use Executive Order to include regulations Executive Order 13132, entitled that have ‘‘substantial direct effects on This rule is not subject to Executive ‘‘Federalism’’ (64 FR 43255, August 10, one or more Indian tribes, on the Order 13211, ‘‘Actions Concerning 1999), requires EPA to develop an relationship between the Federal Regulations that Significantly Affect accountable process to ensure government and the Indian tribes, or on Energy Supply, Distribution, or Use’’ (66 ‘‘meaningful and timely input by State the distribution of power and FR 28355, May 22, 2001), because it is and local officials in the development of responsibilities between the Federal not a significant regulatory action under regulatory policies that have federalism government and Indian tribes.’’ Executive Order 12866. implications.’’ ‘‘Policies that have This final rule does not have Tribal federalism implications’’ is defined in I. National Technology Transfer and implications. It will not have substantial Advancement Act the Executive Order to include direct effects on Tribal governments, on Section 12(d) of the National regulations that have ‘‘substantial direct the relationship between the Federal Technology Transfer and Advancement effects on the States, on the relationship government and Indian tribes, or on the Act of 1995 (NTTAA), Pub. L. 104–113, between the national government and distribution of power and the States, or on the distribution of section 12(d), (15 U.S.C. 272 note), responsibilities between the Federal power and responsibilities among the directs EPA to use voluntary consensus government and Indian tribes, as various levels of government.’’ standards in its regulatory activities specified in Executive Order 13175. The This final rule does not have unless to do so would be inconsistent UIC program for Indian lands is separate federalism implications. It will not have with applicable law or otherwise from the State of Texas UIC program. substantial direct effects on the State, on impractical. Voluntary consensus The UIC program for Indian lands in the relationship between the national standards are technical standards (e.g., Texas is administered by EPA and can government and the State, or on the materials specifications, test methods, be found at 40 CFR 147.2205 of the distribution of power and sampling procedures, business Code of Federal Regulations. Thus, responsibilities among the various practices) that are developed or adopted Executive Order 13175 does not apply levels of government, as specified in by voluntary consensus standards to this rule. Nevertheless, in the spirit Executive Order 13132. This rule merely bodies. The NTTAA directs EPA to of Executive Order 13175, and approves and codifies regulations provide to Congress, through the Office consistent with EPA policy to promote already adopted and implemented by of Management and Budget (OMB), communications between EPA and the State of Texas ensuring the explanations when EPA decides not to Tribal governments, EPA specifically protection of underground sources of use available and applicable voluntary solicited comment on the proposed rule drinking water. This codification revises consensus standards. from Tribal officials in its notice the existing federally approved Texas This rulemaking does not involve published in the Federal Register on UIC program, described at 40 CFR technical standards. Therefore, EPA did November 8, 2001 (66 FR 56496–56503), 147.2200, to reflect current statutory, not consider the use of any voluntary and in five major newspapers within the regulatory, and other key programmatic consensus standards. elements of the program. Thus, State. J. Executive Order 12898: Federal Executive Order 13132 does not apply G. Executive Order 13045: Protection of Actions to Address Environmental to this rule. Although Executive Order Children from Environmental Health Justice in Minority Populations or Low- 13132 does not apply to this rule, Risks and Safety Risks extensive consultation between EPA Income Populations and the State of Texas went into Executive Order 13045: ‘‘Protection of Executive Order 12898 establishes a revising the UIC regulations. The Children from Environmental Health Federal policy for incorporating proposal published in the Federal Risks and Safety Risks’’ (62 FR 19885, environmental justice into Federal Register on November 8, 2001 (66 FR April 23, 1997) applies to any rule that: agency missions by directing agencies to 56503–56507) provides a detailed (1) Is determined to be ‘‘economically identify and address disproportionately description of the consultations that significant’’ as defined under E.O. high and adverse human health or took place in preparation of the Texas 12866, and (2) concerns an environmental effects of its programs, UIC regulations which are the subject of environmental health or safety risk that policies, and activities on minority and this codification. In addition, in the EPA has reason to believe may have a low-income populations. This rule does spirit of Executive Order 13132, and disproportionate effect on children. If not affect minority or low income consistent with EPA policy to promote the regulatory action meets both criteria, populations. communications between EPA and State the Agency must evaluate the K. Congressional Review Act and local governments, EPA specifically environmental health or safety effects of solicited comment on the proposed rule the planned rule on children, and The Congressional Review Act, 5 from State and local officials. explain why the planned regulation is U.S.C. 801 et seq., as added by the Small preferable to other potentially effective Business Regulatory Enforcement F. Executive Order 13175: Consultation and reasonably feasible alternatives Fairness Act of 1996, generally provides and Coordination With Indian Tribal considered by the Agency. that before a rule may take effect, the Governments This final rule is not subject to the agency promulgating the rule must Executive Order 13175, entitled Executive Order because it is not submit a rule report, which includes a ‘‘Consultation and Coordination with economically significant as defined in copy of the rule, to each House of the Indian Tribal Governments’’ (65 FR Executive Order 12866. Further, it does Congress and to the Comptroller General 67249, November 6, 2000), requires EPA not concern an environmental health or of the United States. EPA will submit a to develop ‘‘an accountable process to safety risk that EPA has reason to report containing this rule and other
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required information to the U.S. Senate, (iii) General Rules of Practice and that this waste continues to qualify for the U.S. House of Representatives, and Procedure before the Railroad delisting. the Comptroller General of the United Commission of Texas. EFFECTIVE DATE: This rule is effective on States prior to publication of the rule in (c) * * * February 26, 2004. (2) Class III brine mining wells. The the Federal Register. A major rule ADDRESSES: The RCRA regulatory Memorandum of Agreement between cannot take effect until 60 days after it docket for this final rule, number R5– EPA Region VI and the Railroad is published in the Federal Register. MIECOS–01, is located at the U.S. EPA Commission of Texas signed by the EPA This action is not a ‘‘major rule’’ as Region 5, 77 W. Jackson Blvd., Chicago, Regional Administrator on October 23, defined by 5 U.S.C. 804(2). This rule IL 60604, and is available for viewing will be effective on March 29, 2004. 2001. (d) * * * from 8 a.m. to 4 p.m., Monday through List of Subjects in 40 CFR Part 147 (2) Class III brine mining wells. State Friday, excluding Federal holidays. Call of Texas ‘‘Attorney General’s Judy Kleiman at (312) 886–1482 for Environmental protection, appointments. The public may copy Incorporation by reference, Indians- Statement’’ for Class III Brine Mining Injection Wells, signed by the Attorney material from the regulatory docket at lands, Intergovernmental relations, $0.15 per page. Reporting and recordkeeping General of Texas, February 2, 1992 and FOR FURTHER INFORMATION CONTACT: requirements, Water supply. the ‘‘Supplement to Attorney General’s For Statement of February 19, 1992,’’ signed technical information concerning this Dated: February 9, 2004. by the Attorney General of Texas, June document, contact Judy Kleiman at the Michael O. Leavitt, 2, 1998. address above or at (312) 886–1482. Administrator. (e) * * * SUPPLEMENTARY INFORMATION: The ■ For the reasons set out in the preamble, (2) Class III brine mining wells. The information in this section is organized title 40, chapter I of the Code of Federal Program Description and any other as follows: materials submitted as part of the Regulations is amended as follows: I. Background revision application or as supplements A. What is a delisting petition? PART 147—STATE UNDERGROUND thereto. B. What regulations allow a waste to INJECTION CONTROL PROGRAMS [FR Doc. 04–3223 Filed 2–25–04; 8:45 am] be delisted? ■ 1. The authority citation for part 147 BILLING CODE 6560–50–P II. The Expedited Process for Delisting continues to read as follows: A. Why was the expedited process developed for this waste? Authority: 42 U.S.C. 300h; and 42 U.S.C. ENVIRONMENTAL PROTECTION B. What is the expedited process to 6901 et seq. AGENCY delist F019? Subpart SS—Texas III. EPA’s Evaluation of This Petition 40 CFR Part 261 A. What information was submitted in ■ 2. Section 147.2200 is amended by [SW–FRL–7627–2] support of this petition? adding three sentences to the end of the B. How did EPA evaluate the introductory text and by adding Hazardous Waste Management information submitted? paragraphs (a)(2), (b)(2), (c)(2), (d)(2), and System; Identification and Listing of IV. Public Comments Received on the (e)(2) to read as follows: Hazardous Waste Final Exclusion Proposed Expedited Process A. Who submitted comments on the AGENCY: § 147.2200 State-administered program— Environmental Protection proposed rule? Class I, III, IV, and V wells. Agency (EPA). B. Comments received and responses * * * The UIC program for Class III ACTION: Final rule. from EPA V. Final Rule Granting these Petitions brine mining wells in the State of Texas, SUMMARY: The EPA (also, ‘‘the Agency’’ except for those wells on Indian lands, or ‘‘we’’ in this preamble) is granting a A. What decision is EPA finalizing? is the program administered by the petition to exclude (or ‘‘delist’’) B. What are the terms of this Railroad Commission of Texas. A wastewater treatment plant sludge from exclusion? program revision application for Class conversion coating on aluminum C. When is the delisting effective? III brine mining wells was submitted by generated by the DaimlerChrysler D. How does this action affect the Texas and approved by EPA. Notice of Corporation Jefferson North Assembly states? VI. Regulatory Impact that approval was published in the Plant (DCC–JNAP) in Detroit, Michigan Federal Register on February 26, 2004; from the list of hazardous wastes. I. Background the effective date of this program is Today’s action conditionally excludes March 29, 2004. the petitioned waste from the A. What Is a Delisting Petition? (a) * * * requirements of hazardous waste A delisting petition is a request from (2) Texas Statutory and Regulatory regulations under the Resource a generator to exclude waste from the Requirements Applicable to the Conservation and Recovery Act (RCRA) list of hazardous wastes under RCRA Underground Injection Control Program when disposed of in a lined Subtitle D regulations. In a delisting petition, the for Class III Brine Mining Wells, March landfill which is permitted, licensed, or petitioner must show that waste 2002. registered by a State to manage generated at a particular facility does (b) * * * industrial solid waste. The exclusion not meet any of the criteria for which (2) Class III brine mining wells. (i) was proposed on March 7, 2002 as part EPA listed the waste as set forth in Title Vernon’s Texas Codes Annotated, of an expedited process to evaluate this 40 Code of Federal Regulations (40 CFR Natural Resources Code, Chapters 91, waste under a pilot project developed 261.11) and the background document 2001, and 331; with the Michigan Department of for the waste. In addition, a petitioner (ii) Vernon’s Texas Codes Annotated, Environmental Quality (MDEQ). The must demonstrate that the waste does Government Code Title 10, Chapters rule also imposes testing conditions for not exhibit any of the hazardous waste 2001, 552, and 311. waste generated in the future to ensure characteristics (that is, ignitability,
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reactivity, corrosivity, and toxicity) and regulations and protective of human had begun generating F019, although must present sufficient information for health and the environment. production of cars with aluminum was us to decide whether factors other than By removing regulatory controls less than 50 units per day. Therefore, those for which the waste was listed under RCRA, EPA is facilitating the use the demonstration sampling submitted warrant retaining it as a hazardous of aluminum in cars. EPA believes that by DCC–JNAP and the verification waste. (See 40 CFR 260.22, 42 U.S.C. incorporating aluminum in cars will be sampling required in today’s rule 6921(f) and the background documents advantageous to the environment since parallels demonstration and verification for a listed waste.) lighter cars are capable of achieving sampling for facilities already Generators remain obligated under better fuel economy. generating F019. At the time of the RCRA to confirm that their waste demonstration sampling, DCC–JNAP B. What Is the Expedited Process To remains nonhazardous based on the was already incorporating aluminum Delist F019? hazardous waste characteristics even if parts and thus generating F019, but was EPA has ‘‘delisted’’ the wastes and to The expedited process to delist F019 producing less than 50 cars per day with ensure that future generated wastes is an approach developed through a aluminum. Although not required in meet the conditions set. Memorandum of Understanding (MOU) today’s rule, EPA has requested DCC– with MDEQ for gathering and evaluating JNAP to notify the Agency when B. What Regulations Allow a Waste To data in support of multiple petitions production of aluminum containing cars Be Delisted? from automobile assembly plants. The reaches 500 units per day. Under 40 CFR 260.20, 260.22, and 42 expedited delisting process is applicable To support its exclusion U.S.C. 6921(f), facilities may petition to wastes generated by automobile and demonstration, DCC–JNAP collected six the EPA to remove their wastes from light truck assembly plants in the State samples representing waste generated hazardous waste control by excluding of Michigan which use a similar over six weeks. Each sample was them from the lists of hazardous wastes manufacturing process and generate analyzed for: (1) Total analyses of the 70 contained in 40 CFR 261.31 and 261.32. similar F019 waste. constituents of concern; (2) Toxicity Specifically, 40 CFR 260.20 allows any Based on available historical data and Characteristic Leaching Procedure person to petition the Administrator to other information, the expedited process (TCLP), SW–846 Method 1311, analyses modify or revoke any provision of parts identified 70 constituents which might of the 70 constituents of concern; (3) oil 260 through 266, 268, and 273 of 40 be of concern in the waste and provides and grease; (4) leachable metals using CFR. 40 CFR 260.22 provides a that the F019 sludge generated by the Extraction Procedure for Oily generator the opportunity to petition the automobile assembly plants may be Wastes (OWEP), SW–846 Method Administrator to exclude a waste on a delisted if the levels of the 70 1330A, in lieu of Method 1311 if a ‘‘generator specific’’ basis from the constituents do not exceed the sample contained more than 1% oil and hazardous waste lists. allowable levels established for each grease; and (5) total constituent analyses constituent in this rulemaking. The II. The Expedited Process for Delisting for sulfide and cyanide; In addition, the maximum annual quantity of waste pH of each sample was measured and a A. Why Was the Expedited Process generated by any single facility which determination was made that the waste Developed for This Waste? may be covered by an expedited was not ignitable, corrosive or reactive Automobile manufacturers are adding delisting is 3,000 cubic yards, but (see 40 CFR 261.21–261.23). All aluminum to automobiles, which may delisting levels were also proposed for sampling and analysis were done in result in increased fuel economy. smaller quantities of 1,000 and 2,000 accordance with the sampling and However, when aluminum is conversion cubic yards. analysis plan which is an appendix to coated in the automobile assembly III. EPA’s Evaluation of This Petition the MOU and is available in the docket process, the resulting wastewater for this rule. The data submitted treatment sludge must be managed as A. What Information Was Submitted in included the appropriate QA/QC EPA hazardous waste F019. A number Support of This Petition? information as required in the sampling of automotive assembly plants use a DCC–JNAP submitted certification and analysis plan and was validated by similar manufacturing process which that its process was the same as the a third party. generates a similar F019 waste likely to process described in the MOU with A few minor changes in the sampling be nonhazardous. This similarity of MDEQ. See 67 FR 10341, March 7, 2002. approach were made prior to the manufacturing processes and the The facility also submitted an assertion sampling. Instead of sampling from six resultant wastes provides an that its waste does not meet the criteria different roll-off boxes, which would opportunity for the automobile industry for which F019 waste was listed and have required multiple sampling events to be more efficient in submitting there are no other factors which might or long-term storage of full roll-off delisting petitions and EPA in cause the waste to be hazardous. boxes, DCC–JNAP collected evaluating them. Efficiency may be In the proposed rulemaking, EPA set representative amounts of sludge each gained and time saved by using a forth different demonstration and week from February 17, 2003 through standardized approach for gathering, verification sampling depending upon March 30, 2003. The sludge for each submitting and evaluating data. whether or not the facility was already week was placed in a separate drum. On Therefore, EPA, in conjunction with generating F019 (67 FR 10341, March 7, March 31, 2003, composite and grab MDEQ, developed a pilot project to 2002). At the time of the proposed samples were collected from each drum. expedite the delisting process. This delisting, DCC–JNAP was not yet The maximum values of constituents approach to making delisting generating F019 because it was not detected in any sample of the waste determinations for this group of using aluminum in car production. water treatment plant sludge and in a facilities is efficient while still being However, by the time it conducted TCLP extract of that sludge are consistent with current laws and demonstration sampling, DCC–JNAP summarized in the following table.
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Maximum concentration Maximum allowable Maximum observed delisting level allowable Constituent (2,000 cubic yards) groundwater Total TCLP concentration Total TCLP µ (mg/kg) (mg/L) (mg/kg) (mg/L) ( g/L)
acetone ...... <7.5 2.6 NA 228 3,750 ethylbenzene ...... <0.5 0.012 NA 42.6 700 formaldehyde ...... 6.2 0.31 689 84.2 1,380 methyl ethyl ketone ...... <2.5 0.11 NA 200 22,600 methylene chloride ...... <2.5 0.051 NA 0.288 5 n-butyl alcohol ...... <2.5 0.31 NA 228 3,750 toluene ...... 3.8 0.3 NA 60.8 1,000 xylene ...... 1.9 0.057 NA 608 10,000
Semivolatile Organic Compounds
bis(2-ethylhexyl) phthalate ...... 8.3 <0.005 NA 0.0896 1.47 o-cresol ...... <1.5 0.003 J NA 114 1,875 p-cresol ...... <1.5 0.17 NA 11.4 188 di-n-octyl phthalate ...... 2.6 <0.002 NA 0.112 1.3 naphthalene ...... 0.10 J 0.0005 J NA 15 246
Metals
antimony ...... 0.67 <0.05 NA 0.659 6.0 arsenic ...... 0.25 <0.02 8,140 0.3 4.87 barium ...... 527 0.73 NA 100 2,000 cadmium ...... 2.7 <0.022 NA 0.48 5.0 chromium ...... 50 <0.11 NA 4.95 100 cobalt ...... 3.0 <0.028 NA 72.1 2,250 lead ...... 30 J <0.14 NA 5 15 nickel ...... 3,790 38 NA 90.5 750 thallium ...... 0.87 <0.02 NA 0.282 2.0 tin ...... 4,420 58.4 NA 721 22,500 zinc ...... 14,700 3.84 NA 898 11,300
Miscellaneous
corrosivity (pH) ...... 6.81 to 7.30 2 < × < 12.5 NS Oil & grease ...... 43,700 NS NS sulfide ...... 404 NA See 40 CFR 261.23 NS J the numerical value is an estimated quantity < not detected at the specified concentration NS not specified NA not analyzed B constituent detected in method blank at a concentration greater than 10% of the reported value These levels represent the highest constituent concentration found in any one sample and do not necessarily represent the specific levels found in one sample.
B. How Did EPA Evaluate the cancer risk level of 10¥6. For arsenic, IV. Public Comments Received on the Information Submitted? the target cancer risk was set at 10¥4 in Proposed Exclusion EPA compared the analytical results consideration of the MCL and the A. Who Submitted Comments on the submitted by DCC–JNAP to the potential for natural occurrence. The Proposed Rule? maximum allowable levels calculated maximum allowable groundwater by the DRAS and set forth in the concentration and delisting level for The EPA received public comments proposed rule (67 FR 10341, March 7, arsenic correspond to a drinking water on the proposed notice published on 2002). The maximum allowable levels concentration less than one half the March 7, 2002 from Alliance of for constituents detected in the waste or current MCL of 10 µg/L. Automobile Manufacturers, Honda of America Mfg., Inc., Alcoa Inc., and The the waste leachate are summarized in EPA also used the DRAS program to the table above, along with the observed Aluminum Association. All commenters estimate the aggregate cancer risk and levels. All constituents compared were supportive of the proposal, hazard index for constituents detected favorably to the allowable levels. suggesting expanding the project and/or The table also includes the maximum in the waste. The aggregate cancer risk revising the listing. allowable levels in groundwater at a is the cumulative total of all individual constituent cancer risks. The hazard B. Comments Received and Responses potential receptor well, as evaluated by From EPA the Delisting Risk Assessment Software index is a similar cumulative total of (DRAS). These levels are the more non-cancer effects. The target aggregate (1) Comment: EPA should revise the ¥ conservative of either the Safe Drinking cancer risk is 1×10 5 and the target F019 listing to specify that wastewater Water Act Maximum Contaminant Level hazard index is one. The waste water treatment sludge from zinc phosphating (MCL) or the health-based value treatment plant sludge at DCC–JNAP operations is not within the scope of the calculated by DRAS based on the target met both of these criteria. listing. Data gathered as a result of the
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Expedited Delisting Project together EPA Response: Although matrix hazardous wastes in 40 CFR 261.31 and with the available historical data, effects cannot be assessed in advance of accepted public comment on the should provide enough data to fully laboratory analysis, a laboratory should proposed rule (67 FR 10341). EPA characterize this waste and to justify a be able to provide estimated detection considered all comments received, and revision of the listing. levels and reporting levels which are we believe that these wastes should be EPA Response: The Agency is now lower than, or at least equal to, the excluded from hazardous waste control. considering revising the F019 listing. allowable delisting level for each EPA is examining the data collected as constituent. B. What Are the Terms of This a result of this project, as well as past (7) Comment: Since the process Exclusion? data, as a basis for a possible revision to generating the sludge is extremely DCC–JNAP must dispose of the waste the F019 listing. stable, verification sampling should be in a lined Subtitle D landfill which is (2) Comment: EPA should issue an conducted on an annual, instead of permitted, licensed, or registered by a interpretive rule clarifying that zinc quarterly, basis. The requirement that state to manage industrial waste. DCC– phosphating operations are outside the any process change be promptly JNAP must verify on a quarterly basis scope of the F019 listing. reported and the exclusion suspended that the concentrations of the EPA Response: An interpretive rule until EPA gives written approval that presents administrative and technical the delisting can continue is an constituents of concern do not exceed difficulties. A revision to the listing will adequate safeguard justifying the the allowable levels set forth in this require a rulemaking process. See decrease in sample event frequency. exclusion. In addition, the sum of the response to comment (1) above. EPA Response: Verification data hazard quotients for nickel and either (3) Comment: Automobile assembly submitted in conjunction with past thallium or cadmium may not exceed 1 facilities outside of Michigan would like delistings of this waste have shown one. All facilities participating in the to take advantage of the precedent set by significant variation on a quarterly basis expedited delisting project had this expedited delisting project to delist over longer periods of time. Annual significant amounts of nickel in the F019 generated by similar operations in sampling would not detect such leachate, and nickel combines with other states and regions. variations. Once enough verification thallium and with cadmium targeting EPA Response: The Agency believes data are collected to support a statistical the liver and kidneys, respectively. that the expedited delisting procedures analysis, a change in the frequency of DCC–JNAP must obtain and analyze a and requirements set forth in this verification sampling and/or sampling representative sample of the waste proposal are appropriate for similar parameters may be considered. according to the current waste analysis automotive assembly facilities outside (8) Comment: The final Federal plan modified to include the improved the State of Michigan, subject to the Register should make it clear that methodologies discussed in section III. discretion of the regulatory agency assembly plants that manufacture light A. (State or region). trucks are also eligible for the project. (4) Comment: Alternatives to EPA Response: Today’s notice The list of constituents for verification landfilling like recycling should be specifically defines eligible facilities as is a subset of those initially tested for allowed within the petition process. inclusive of manufacturers of light and is based on the occurrence of EPA Response: The Agency does not trucks. constituents at the majority of facilities delist wastes which are recycled (9) Comment: The table of maximum participating in the expedited process to because the model used to estimate risk allowable levels in the March 7, 2002 delist F019 and the concentrations is based only on disposal of waste in a proposed rule contains errors in the relative to the allowable levels. Subtitle D landfill. The risk which columns for vinyl chloride. This exclusion applies only to a might result from any other scenario is EPA Response: The error was caused maximum annual volume of 2,000 cubic not evaluated by the delisting program. by a missing space or tab in the table. yards and is effective only if all However, the Agency encourages safe Although vinyl chloride was not conditions contained in this rule are recycling, and variances and exclusions detected in the waste at DCC–JNAP, the satisfied. from the definition of solid and maximum allowable concentrations hazardous wastes are available for proposed for 1,000 cubic yards of waste C. When Is the Delisting Effective? wastes which are recycled. should have been a total of 178 (5) Comment: Analytical methods This rule is effective [insert date of milligrams per kilogram (mg/kg) and should be specified in the pre-approved publication]. The Hazardous and Solid 0.00384 milligrams per liter (mg/L) in common sampling plan instead of Waste Amendments of 1984 amended the TCLP. For 2,000 cubic yards of requiring each participant to submit a section 3010 of RCRA to allow rules to waste, 115 mg/kg total and 0.00234 mg/ site-specific list of methods. become effective in less than six months EPA Response: Allowing the L TCLP were proposed. For 3,000 cubic when the regulated community does not petitioner to choose an analytical yards of waste, 89.4 mg/kg total and need the six-month period to come into method which meets the data quality 0.00175 mg/L TCLP were proposed. compliance. This rule reduces rather objectives specific to the delisting V. Final Rule Granting These Petitions than increases the existing requirements petition provides flexibility. Data and, therefore, is effective immediately quality objectives will vary depending A. What Decision Is EPA Finalizing? upon publication under the on the allowable levels which are a Today the EPA is finalizing Administrative Procedure Act, pursuant function of the volume of petitioned exclusions to conditionally delist 2,000 to 5 U.S.C. 553(d). waste. The Agency believes that the cubic yards annually of wastewater flexibility of performance-based treatment plant sludge from conversion 1 The proportion of the hazard quotient which methods results in better data. coating on aluminum generated at the may be attributed to a constituent can be (6) Comment: Detection limits should DCC–JNAP. represented by the ratio of the TCLP concentration of that constituent to its allowable delisting level. not be required prior to sampling since On March 7, 2002, EPA proposed to The sum of the hazard quotients for two they cannot be adequately predicted exclude or delist these wastewater constituents may thus be represented by the sum of without a way to estimate matrix effects. treatment sludges from the list of these ratios.
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D. How Does This Action Affect the flexibility provisions of the Regulatory Business Regulatory Enforcement States? Flexibility Act (5 U.S.C. 601 et seq.), or Fairness Act of 1996, generally provides Today’s exclusion is being issued to sections 202, 204, and 205 of the that before a rule may take effect, the under the federal RCRA delisting Unfunded Mandates Reform Act of 1995 agency promulgating the rule must program. Therefore, only states subject (UMRA) (Pub. L. 104–4). Because this submit a rule report, which includes a to federal RCRA delisting provisions rule will affect only a particular facility, copy of the rule, to each House of the would be affected. This exclusion is not it will not significantly or uniquely Congress and to the Comptroller General effective in states which have received affect small governments, as specified in of the United States. Section 804 authorization to make their own section 203 of UMRA, or communities exempts from section 801 the following delisting decisions. Also, the exclusion of tribal governments, as specified in types of rules (1) rules of particular may not be effective in states having a Executive Order 13175 (65 FR 67249, applicability; (2) rules relating to agency dual system that includes federal RCRA November 6, 2000). For the same reason, management or personnel; and (3) rules requirements and their own this rule will not have substantial direct of agency organization, procedure, or requirements. EPA allows states to effects on the States, on the relationship practice that do not substantially affect impose their own regulatory between the national government and the rights or obligations of non-agency requirements that are more stringent the States, or on the distribution of parties. 5 U.S.C. 804(3). EPA is not than EPA’s, under section 3009 of power and responsibilities among the required to submit a rule report RCRA. These more stringent various levels of government, as regarding today’s action under section requirements may include a provision specified in Executive Order 13132 (64 801 because this is a rule of particular that prohibits a federally issued FR 43255, August 10, 1999). This rule applicability. also is not subject to Executive Order exclusion from taking effect in the state. List of Subjects in 40 CFR Part 261 Because a dual system (that is, both 13045 (62 FR 19885, April 23, 1997), federal (RCRA) and state (non-RCRA) because it is not economically Environmental protection, Hazardous programs) may regulate a petitioner’s significant. waste, Recycling, and Reporting and waste, we urge petitioners to contact the This rule does not involve technical recordkeeping requirements. standards; thus, the requirements of state regulatory authority to establish Authority: Sec. 3001(f) RCRA, 42 U.S.C. the status of their wastes under the state section 12(d) of the National 6921(f). law. Technology Transfer and Advancement EPA has also authorized some states Act of 1995 (15 U.S.C. 272 note) do not Dated: February 12, 2004. to administer a delisting program in apply. As required by section 3 of William H. Harris, place of the federal program, that is, to Executive Order 12988 (61 FR 4729, Acting Director, Waste, Pesticides and Toxics make state delisting decisions. February 7, 1996), in issuing this rule, Division. Therefore, this exclusion does not apply EPA has taken the necessary steps to ■ For the reasons set out in the preamble, in those authorized states. If a eliminate drafting errors and ambiguity, 40 CFR part 261 is proposed to be participating facility transports the minimize potential litigation, and amended as follows: petitioned waste to or manages the provide a clear legal standard for waste in any state with delisting affected conduct. This rule does not PART 261—IDENTIFICATION AND authorization, it must obtain a delisting impose an information collection LISTING OF HAZARDOUS WASTE from that state before it can manage the burden under the provisions of the waste as nonhazardous in the state. Paperwork Reduction Act of 1995 (44 ■ 1. The authority citation for part 261 U.S.C. 3501 et seq.). continues to read as follows: VI. Regulatory Impact This rule is not subject to Executive Authority: 42 U.S.C. 6905, 6912(a), 6921, Under Executive Order 12866 (58 FR Order 13211, ‘‘Actions Concerning 6922, and 6938. 51735, October 4, 1993), this rule is not Regulations That Significantly Affect ■ 2. In Table 1 of Appendix IX of Part of general applicability and therefore is Energy Supply, Distribution, or Use’’ (66 261 the following wastestreams are not a regulatory action subject to review FR 28355 (May 22, 2001)) because it is added in alphabetical order by facility to by the Office of Management and not a significant regulatory action under read as follows: Budget. Because this rule is of particular Executive Order 12866. applicability relating to a particular The Congressional Review Act, 5 Appendix IX to Part 261—Wastes facility, it is not subject to the regulatory U.S.C. 801 et seq., as added by the Small Excluded Under §§ 260.20 and 260.22
TABLE 1.—WASTES EXCLUDED FROM NON-SPECIFIC SOURCES
Facility Address Waste description
******* DaimlerChrysler Cor- Jefferson North As- Waste water treatment plant sludge, F019, that is generated by DaimlerChrysler Corporation at poration. sembly Plant, De- the Jefferson North Assembly Plant (DCC–JNAP) at a maximum annual rate of 2,000 cubic troit, Michigan. yards per year. The sludge must be disposed of in a lined landfill with leachate collection, which is licensed, permitted, or otherwise authorized to accept the delisted wastewater treat- ment sludge in accordance with 40 CFR part 258. The exclusion becomes effective as of (in- sert final publication date).
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TABLE 1.—WASTES EXCLUDED FROM NON-SPECIFIC SOURCES—Continued
Facility Address Waste description
1. Delisting Levels: (A) The concentrations in a TCLP extract of the waste measured in any sample may not exceed the following levels (mg/L): Antimony—0.659; Arsenic—0.3; Cad- mium—0.48; Chromium—4.95; Lead—5; Nickel—90.5; Selenium—1; Thallium—0.282; Tin— 721; Zinc—898; Acetone—228; p-Cresol—11.4; Formaldehyde—84.2; and Methylene chlo- ride—0.288. (B) The total concentrations measured in any sample may not exceed the fol- lowing levels (mg/kg): Mercury—8.92; and Formaldehyde—689. (C) The sum of the ratios of the TCLP concentrations to the delisting levels for nickel and either thallium or cadmium shall not exceed 1.0. 2. Quarterly Verification Testing: To verify that the waste does not exceed the specified delisting levels, DCC–JNAP must collect and analyze one representative sample of the waste on a quarterly basis. 3. Changes in Operating Conditions: DCC–JNAP must notify the EPA in writing if the manufac- turing process, the chemicals used in the manufacturing process, the treatment process, or the chemicals used in the treatment process significantly change. DCC–JNAP must handle wastes generated after the process change as hazardous until it has demonstrated that the wastes continue to meet the delisting levels and that no new hazardous constituents listed in appendix VIII of part 261 have been introduced and it has received written approval from EPA. 4. Data Submittals: DCC–JNAP must submit the data obtained through verification testing or as required by other conditions of this rule to both U.S. EPA Region 5, Waste Management Branch (DW–8J), 77 W. Jackson Blvd., Chicago, IL 60604 and MDEQ, Waste Management Division, Hazardous Waste Program Section, at P.O. Box 30241, Lansing, Michigan 48909. The quarterly verification data and certification of proper disposal must be submitted annually upon the anniversary of the effective date of this exclusion. The facility must compile, sum- marize, and maintain on site for a minimum of five years records of operating conditions and analytical data. The facility must make these records available for inspection. All data must be accompanied by a signed copy of the certification statement in 40 CFR 260.22(i)(12). 5. Reopener Language—(a) If, anytime after disposal of the delisted waste, DCC–JNAP pos- sesses or is otherwise made aware of any data (including but not limited to leachate data or groundwater monitoring data) relevant to the delisted waste indicating that any constituent is at a level in the leachate higher than the specified delisting level, or is in the groundwater at a concentration higher than the maximum allowable groundwater concentration in paragraph (e), then DCC–JNAP must report such data, in writing, to the Regional Administrator within 10 days of first possessing or being made aware of that data. (b) Based on the information described in paragraph (a) and any other information received from any source, the Regional Administrator will make a preliminary determination as to whether the reported information requires Agency action to protect human health or the envi- ronment. Further action may include suspending, or revoking the exclusion, or other appro- priate response necessary to protect human health and the environment. (c) If the Regional Administrator determines that the reported information does require Agency action, the Regional Administrator will notify DCC–JNAP in writing of the actions the Regional Administrator believes are necessary to protect human health and the environment. The no- tice shall include a statement of the proposed action and a statement providing DCC–JNAP with an opportunity to present information as to why the proposed Agency action is not nec- essary or to suggest an alternative action. DCC–JNAP shall have 30 days from the date of the Regional Administrator’s notice to present the information. (d) If after 30 days the facility presents no further information, the Regional Administrator will issue a final written determination describing the Agency actions that are necessary to pro- tect human health or the environment. Any required action described in the Regional Admin- istrator’s determination shall become effective immediately, unless the Regional Administrator provides otherwise. (e) Maximum Allowable Groundwater Concentrations (µg/L): Antimony—6; Arsenic—4.87; Cad- mium—5; Chromium—100; Lead—15; Nickel—750; Selenium—50; Thallium—2; Tin—22,500; Zinc—11,300; acetone—3,750; p-Cresol—188; Formaldehyde—1,380; and Methylene chlo- ride—5.
[FR Doc. 04–4252 Filed 2–25–04; 8:45 am] FEDERAL COMMUNICATIONS ACTION: Final rule. BILLING CODE 6560–50–P COMMISSION SUMMARY: The Commission, at the 47 CFR Part 73 request of KB Prime Media and United Television, Inc., substitutes channel 49+ for channel 35+ at Tupelo, Mississippi. [DA 04–373, MB Docket No. 03–221, RM– 10796] See 68 FR 62046, October 31, 2002. TV channel 49+ can be allotted to Tupelo, Television Broadcast Service; Tupelo, Mississippi, in compliance with MS Sections 73.610 and 73.698 at coordinates 33–55–37 N. and 88–33–36 AGENCY: Federal Communications W. With this action, this proceeding is Commission. terminated.
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DATES: Effective April 5, 2004. Fargo, North Dakota, in compliance DEPARTMENT OF TRANSPORTATION FOR FURTHER INFORMATION CONTACT: Pam with the principle community coverage Blumenthal, Media Bureau, (202) 418– requirements of Section 73.625(a) at Federal Railroad Administration 1600. reference coordinates 47–20–32 N. and 49 CFR Part 214 SUPPLEMENTARY INFORMATION: This is a 97–17–20 W., with a power of 414, synopsis of the Commission’s Report HAAT of 543 meters and with a DTV [Docket No. FRA–2000–8156, Notice No. 3] and Order, MB Docket No. 03–221, service population of 313,000. Since the adopted February 12, 2004, and released community of Fargo is located within RIN 2130–AB28 400 kilometers of the U.S.-Canadian February 19, 2004. The full text of this Roadway Maintenance Machine Safety document is available for public border, concurrence from the Canadian inspection and copying during regular government was obtained for this AGENCY: Federal Railroad business hours in the FCC Reference allotment. With this action, this Administration (FRA), Department of Information Center, Portals II, 445 12th proceeding is terminated. Transportation (DOT). Street, SW., Room CY–A257, DATES: Effective April 5, 2004. ACTION: Final rule; response to petitions Washington, DC, 20554. This document for reconsideration. may also be purchased from the FOR FURTHER INFORMATION CONTACT: Pam Commission’s duplicating contractor, Blumenthal, Media Bureau, (202) 418– SUMMARY: This document responds to Qualex International, Portals II, 445 1600. petitions for reconsideration of FRA’s 12th Street, SW., Room CY–B402, July 28, 2003 final rule which Washington, DC, 20554, telephone 202– SUPPLEMENTARY INFORMATION: This is a prescribed safety standards for railroad 863–2893, facsimile 202–863–2898, or synopsis of the Commission’s Report on-track roadway maintenance via e-mail [email protected]. and Order, MB Docket No. 03–234, machines and hi-rail vehicles. This adopted February 12, 2004, and released document amends and clarifies the final List of Subjects in 47 CFR Part 73 February 19, 2004. The full text of this rule. Television broadcasting. document is available for public DATES: Effective Date: The amendments ■ Part 73 of Title 47 of the Code of inspection and copying during regular to the final rule are effective April 26, Federal Regulations is amended as business hours in the FCC Reference 2004. follows: Information Center, Portals II, 445 12th ADDRESSES: Docket: For access to the Street, SW., Room CY–A257, docket to read background documents PART 73—[AMENDED] Washington, DC. This document may or comments and petitions for ■ 1. The authority citation for Part 73 also be purchased from the reconsideration received, go to http:// continues to read as follows: Commission’s duplicating contractor, dms.dot.gov at any time or to Room PL– Qualex International, Portals II, 445 401 on the plaza level of the NASSIF Authority: 47 U.S.C. 154, 303, 334 and 336. 12th Street, SW., CY–B402, Washington, Building, 400 Seventh Street, SW., § 73.606 [Amended] DC 20554, telephone 202–863–2893, Washington, DC, between 9 a.m. and 5 ■ 2. Section 73.606(b), the Table of facsimile 202–863–2898, or via e-mail p.m., Monday through Friday, except Television Allotments under [email protected]. Federal holidays. FOR FURTHER INFORMATION CONTACT: Mississippi, is amended by removing TV List of Subjects in 47 CFR Part 73 channel 35+ and adding TV channel 49+ Allison H. MacDowell, Staff Director, at Tupelo. Digital television broadcasting, Office of Safety Enforcement, Federal Railroad Administration, 1120 Vermont Federal Communications Commission. Television. Avenue, NW., Mail Stop 25, Barbara A. Kreisman, ■ Part 73 of Title 47 of the Code of Washington, DC 20590 (telephone: 202– Chief, Video Division, Media Bureau. Federal Regulations is amended as 493–6236); Allen Ludwig, Track Safety [FR Doc. 04–4261 Filed 2–25–04; 8:45 am] follows: Specialist, Office of Safety Enforcement, BILLING CODE 6712–01–P Federal Railroad Administration, 1120 PART 73—[AMENDED] Vermont Avenue, NW., Mail Stop 25, Washington, DC 20590 (telephone: 202– FEDERAL COMMUNICATIONS ■ 1. The authority citation for Part 73 493–6474); or Daniel L. Alpert, Trial COMMISSION continues to read as follows: Attorney, Office of Chief Counsel, Federal Railroad Administration, 1120 47 CFR Part 73 Authority: 47 U.S.C. 154, 303, 334 and 336. Vermont Avenue, NW., Mail Stop 10, [DA 04–374, MB Docket No. 03–234, RM– § 73.622 [Amended] Washington, DC 20590 (telephone: 202– 10699] 493–6026). ■ 2. Section 73.622(b), the Table of SUPPLEMENTARY INFORMATION: Digital Television Broadcast Service; Digital Television Allotments under Fargo, ND. North Dakota, is amended by removing Introduction DTV channel 58 and adding DTV AGENCY: Federal Communications On July 28, 2003, FRA published a Commission. channel 44 at Fargo. final rule that prescribed safety ACTION: Final rule. Federal Communications Commission. standards for railroad on-track roadway Barbara A. Kreisman, maintenance machines and hi-rail SUMMARY: The Commission, at the vehicles. See 68 FR 44388. The final Chief, Video Division, Media Bureau. request of North Dakota Television rule originated from a 1990 petition for License, Sub., substitutes DTV channel [FR Doc. 04–4262 Filed 2–25–04; 8:45 am] rulemaking by the Brotherhood of 44 for DTV channel 58 at Fargo, North BILLING CODE 6712–01–P Maintenance of Way Employees Dakota. See 68 FR 66394, November 26, (BMWE) and was the product of a 2003. DTV channel 44 can be allotted to rulemaking effort conducted under the
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auspices of FRA’s Railroad Safety that a new set of regulations addressing understanding the requirements of the Advisory Committee (RSAC). the safety of on-track roadway rule. maintenance machines should be RSAC Overview Section-by-Section Analysis developed in a separate rulemaking. As background, RSAC provides a After publication of revisions to the Section 214.507 Required Safety forum for developing consensus Track Safety Standards in 1998, the Equipment for New On-Track Roadway recommendations on rulemaking and Track Working Group appointed a six- Maintenance Machines other safety program issues, and member Task Group to help develop includes representatives from all of regulations addressing the safety of on- This section contains requirements for FRA’s major customer groups, including track roadway maintenance machines safety equipment for all new on-track railroads, labor organizations, suppliers and hi-rail vehicles. The Task Group roadway maintenance machines. In the and manufacturers, and other interested consisted of representatives from FRA, final rule, paragraph (a)(4) provided that parties. When appropriate, FRA assigns Association of American Railroads all new on-track roadway maintenance a task to RSAC, and after consideration (AAR), BMWE, Norfolk Southern machines have windshields made of and debate, RSAC may accept or reject Railway Co., and an equipment safety glass or other material with the task. If accepted, RSAC establishes supplier. The Task Group drafted similar properties, such as Lexan, as a working group that possesses the proposed rule text which the Track well as power windshield wipers. 68 FR appropriate expertise and representation Working Group recommended to the 44409. In cases where traditional of interests to develop recommendations full RSAC for approval. RSAC approved windshield wipers are incompatible to FRA for action on the task. These the recommendations. FRA agreed that with the windshield material, the final recommendations are developed by the recommendations provided a good rule provided that a suitable alternative consensus. The working group may basis for a proposed rule and be available that offers the operator of establish one or more task forces or subsequently published a Notice of the machine an equivalent level of other subgroups to develop facts and Proposed Rulemaking (NPRM) on vision. Id. options on a particular aspect of a given Roadway Maintenance Machine Safety UP filed a petition seeking task. The task force or other subgroup on January 10, 2001. See 66 FR 1930. clarification whether the requirements reports to the working group. If a FRA received comments from five of paragraph (a)(4) excluded those working group comes to unanimous organizations in response to the machines that would either require a consensus on recommendations for windshield to be applied to a void space action, the package is presented to the proposed rule. In February 2002, the Task Group met with most of the or otherwise provide no protection or RSAC for a vote. If the proposal is other value to the operator. UP agreed accepted by a simple majority of RSAC, commenters, as well as other representatives from the industry, to that machines with enclosed cabs the proposal is formally recommended should be equipped with windshields to to FRA. FRA then determines what clarify and further discuss the comments and suggestions provided by protect the operator, but raised the action to take on the recommendation. concern that there are many types of Because FRA staff is actively involved the commenters. The Task Group, by machines that either do not have the at the working group and subgroup unanimous vote, made framework to accommodate a levels in discussing issues and options recommendations to the Track Working windshield or cannot practically be and drafting proposed rule language, Group as to how the final rule should equipped with windshields. UP stated and because the RSAC recommendation respond to each of the comments. The that such machines vary in weight from constitutes the consensus of some of the Track Working Group presented these 10,000 to 30,000 pounds, are used in industry’s leading experts on a given recommendations to the full RSAC, production gang consists, and do not subject, FRA is often favorably inclined which also agreed with them by travel long distances or at high speeds. toward the RSAC recommendation. unanimous vote. FRA considered the However, FRA is in no way bound to comments received on the NPRM and UP submitted to the docket several follow the recommendation, and the the recommendations of RSAC in pictures of an example of such a agency exercises its independent preparing the final rule. FRA largely machine, a rail anchor applicator. judgment on whether the recommended adopted the recommendations of RSAC According to UP, the machine weighs rule achieves the agency’s regulatory in preparing the final rule, as explained approximately 10,000 pounds and, by goal, is soundly supported, and is in in the preamble to the rule. See 68 FR design, does not have an enclosed cab. accordance with policy and legal 44388. UP explained that, while it is possible requirements. Often, FRA varies in some Following publication of the final to install a windshield on one or both respects from the RSAC rule, the AAR and the Union Pacific sides of the operator by building a recommendation in developing the Railroad Company (UP) filed petitions framework for the windshield, such a actual regulatory proposal. If the seeking FRA’s reconsideration and windshield would exist only to comply working group or RSAC is unable to clarification of certain provisions of the with a regulation and would not provide reach consensus on recommendations rule. The specific issues raised by these any protection or other value to the for action, FRA moves ahead to resolve petitioners, and FRA’s response to their operator. UP stated that such a the issue through traditional rulemaking petitions, are discussed in detail in the windshield would be an obstacle to the proceedings. ‘‘Section-by-Section Analysis’’ portion safe operation of the machine because it of the preamble, below. The ‘‘Section- would be constantly in the way when Proceeding to Date by-Section Analysis’’ portion of the loading anchors and operating the In 1996, FRA requested that RSAC preamble addresses each provision of machine. Further, UP stated that address rulemaking revisions to the the final rule which FRA has amended windows on such a machine could not Track Safety Standards, found at 49 CFR or clarified. This will enable the practically be equipped with wipers, part 213. RSAC agreed to the task and regulated community to more readily would be a constant cleaning problem, formed the Track Working Group to compare this document with the and could impair the operator’s vision. help develop the revisions. The Track preamble discussions contained in the In addition to rail anchor applicators, Working Group decided by consensus final rule and will thereby aid in UP cited the following machines as not
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appropriate for being equipped with representation that these machines are In fact, in the preamble discussion of windshields: not designed with windshields, they are § 214.513(a) in the final rule, FRA stated • Anchor spreaders; thereby excluded from the requirements that safe and secure positions include • Anchor squeezers; of this paragraph as long as that seats or foot platforms with handholds • Anchor remover machines; representation remains true. so that the roadway worker can • Multi-screw spiker machines; maintain a stable and balanced position Section 214.513 Retrofitting of Existing • Multi-unscrew spiker machines; on the machine as it is moving down the • On-Track Roadway Maintenance Multi drill/screw spiker machines; track. See 68 FR 44397. • Production clip applicator/remover Machines; General As revised, § 214.513(a) requires that machines; This section specifies a schedule of each existing on-track roadway • Rail heater cars; retrofit items applicable to all existing maintenance machine have a safe and • Rail lifter production plate on-track roadway maintenance secure position with handholds, inserters; machines. Pursuant to § 214.7, an handrails, or a secure seat or bench • Spike driving machines; existing on-track roadway maintenance • position for each roadway worker Spike puller machines; and machine is defined as any on-track • transported on the machine, and each Production profile grinders. roadway maintenance machine other such position shall be protected from UP added that the basic configuration than a new on-track roadway moving parts of the machine. As noted of some of these machines may change maintenance machine. Consequently, an above, FRA believes that this revision to in the future and that, if future design existing on-track roadway maintenance § 214.513(a) and consolidation of the changes result in a need for, or added machine is any on-track roadway rule do not substantively change the value of, a windshield, UP would maintenance machine in existence or rule’s requirements. support the installation of a windshield. ordered on or before December 26, 2003, Having reviewed UP’s petition, FRA or completed on or before September 27, Section 214.517 Retrofitting of Existing makes clear that it did not intend the 2004. On-Track Roadway Maintenance rule to require that windshields be Paragraph (a) of the final rule required Machines Manufactured On or After installed on all new on-track roadway that each roadway worker transported January 1, 1991 maintenance machines. FRA intended on an existing on-track roadway This section specifies requirements to require that when windows are maintenance machine have a safe and for existing on-track roadway installed on new on-track roadway secure position that also provides maintenance machines manufactured on maintenance machines, they are made protection from moving parts of the or after January 1, 1991. Consequently, of safety glass or other material with machine that could entangle clothing or on-track roadway maintenance similar properties. In addition, FRA body extremities. See 68 FR 44409. machines manufactured prior to 1991 intended that all such machines with Following publication of the final rule, are exempt from the requirements windshields have power windshield it became clear to FRA that this contained in this section. Existing on- wipers or suitable alternatives that paragraph should be combined with track roadway maintenance machines provide the operator an equivalent level § 214.517(g) of the final rule. Section that are subject to the requirements of of vision if windshield wipers are § 214.517(g) also contained this section must conform to these incompatible with the windshield requirements for safe and secure requirements after March 28, 2005. material. positions for roadway workers riding on Paragraph (b) of this section in the Clearly, all machines with enclosed existing roadway maintenance final rule provided that an existing on- cabs, which necessarily require a machines. See 68 FR 44410. track roadway maintenance machine windshield for the operator to see Specifically, § 214.517(g), like all of have an operative heater when the through, are subject to the requirements § 214.517, applied to existing on-track ambient temperature is less than 50 of this section. Yet, FRA does not intend roadway maintenance machines degrees Fahrenheit, if the machine were to define the requirements of this manufactured on or after January 1, or had been equipped with a heater. See section expressly in terms of machines 1991, and required such machines to be 68 FR 44409, 44410. In preparing the with enclosed cabs. FRA believes its equipped with handholds, handrails, or final rule, FRA had modified the text of intent is more clearly conveyed by a secure seat or bench position for each the proposed rule which, in part, revising the text to state that the roadway worker transported on the specifically applied to a machine requirements of this paragraph apply machine. Id. ‘‘equipped with a heater by the only to new on-track roadway FRA believes it unnecessary and manufacturer.’’ See 66 FR 1944. FRA’s maintenance machines designed with potentially confusing to have two modification to the text of the proposed windshields. FRA has amended the rule requirements in two separate sections rule made clear that the requirement accordingly. Consequently, if a new on- concerning safe and secure positions for also applied to machines that had track roadway maintenance machine is roadway workers riding on existing on- previously been equipped with heaters designed with a windshield, the track roadway maintenance machines. that had since been removed. In windshield must be made of safety Although the final rule carried forward addition, FRA revised the text that glass, or its equivalent, and be cleaned these same requirements as proposed in limited the application of this section to by power windshield wipers, or a the NPRM, the requirements contained heaters equipped by the manufacturers suitable alternative means as in § 214.513(a) should have been of the on-track roadway maintenance appropriate. combined with those contained in machines. FRA noted that heaters could In regard to the rail anchor applicator § 214.517(g) of the final rule. For a have been installed after the machines and other on-track roadway position to be ‘‘safe and secure’’ for a were manufactured, and it was not maintenance machines cited by UP for roadway worker to ride on an existing evident to FRA why heaters installed exclusion from the requirements of this on-track roadway maintenance machine, after manufacture should not be subject paragraph, such machines are not the position must necessarily have to the requirements of this paragraph. subject to this paragraph’s requirements handholds or handrails, or both, which See 68 FR 44399. as long as they are not designed with the worker may grasp, or a secure seat In petitioning for reconsideration of windshields. Based on UP’s or bench on which the worker may sit. this paragraph’s requirements, the AAR
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stated that FRA should not apply this identify safe and secure positions for without a logical place to apply a stencil paragraph’s requirements to machines workers on machines permitted to or a decal identifying the proper place that are or have previously been transport them, as well as to make for riding on the machine. equipped with unauthorized heaters known the prohibition against riding on Having reconsidered the requirements installed by railroad employees. machines on which workers were not of this section, FRA has to decided to Therefore, the AAR suggested that FRA permitted to ride. Instead, the final rule defer this section’s applicability date. amend paragraph (b) by limiting its requires railroads to provide written As amended, the requirements of this application to heaters ‘‘installed by the notice only on machines permitted to section become applicable on or after manufacturer or the railroad.’’ FRA has transport riders. Nonetheless, the AAR March 1, 2004. FRA understands from adopted the AAR’s suggestion. FRA stated that a deferral of the applicability the AAR’s submission that in the vast recognizes that it did not intend to date is necessary. According to the majority of cases railroads will use include within this paragraph’s AAR, in many cases railroads would be stencils or decals to identify safe and requirements heaters that had not been unable to use stencils or decals to secure riding positions on roadway installed by the manufacturer or the comply with the requirement since they maintenance machines. FRA encourages railroad, and FRA believes that the could not be designed, made, and the use of stencils or decals, or both, to suggested change fully addresses FRA’s applied in such a short time frame. identify safe and secure riding positions concern as stated in the final rule. As Without a deferral of the applicability for workers on roadway maintenance amended, paragraph (b) requires that date, the AAR believed that railroads machines. In addition, FRA recognizes each existing on-track roadway would be forced to use written that a significant number of roadway maintenance machine manufactured on documentation, and noted that written maintenance machines are out of service or after January 1, 1991, have an documentation may be less effective during the months of cold weather. operative heater when the machine is than more permanent indications such Consequently, during this time, operated at an ambient temperature less as stencils and decals. The AAR railroads would have the opportunity to than 50 degrees Fahrenheit and is asserted that a six-month deferral of the stencil or apply decals to out-of-service equipped with, or has been equipped applicability date would give railroads roadway maintenance machines as they with, a heater installed by the sufficient time to implement an effective undergo normal maintenance, thereby manufacturer or the railroad. program to apply stencils and decals. minimizing the cost of compliance. FRA As discussed in the analysis of The AAR added that it would also give believes that deferring the applicability § 214.513(a) above, FRA has removed railroads time to apply these stencils date to March 1, 2004, affords railroads paragraph (g) of § 214.517. Please see and decals while maintenance is sufficient time to stencil or apply decals the above discussion of § 214.513(a) for performed on roadway maintenance to identify safe and secure riding a detailed explanation as to why this machinery that is out of service during positions on those machines they intend paragraph has been removed. the fall and winter months. to so mark. Moreover, FRA expects that for those machines whose safe and Section 214.518 Safe and Secure Following the AAR’s submission, secure riding positions will be Positions for Riders FRA sought clarification as to whether identified on documents kept on the This section contains the the AAR intended exclusively to use machines, and therefore will not requirements for identifying safe and stencils and decals to identify safety and necessitate the work of physically secure positions for roadway workers secure riding positions on roadway marking the positions, extending the riding on on-track roadway maintenance maintenance machines—without the applicability date to March 1, 2004, is machines. The final rule prohibits a need to identify such positions on clearly sufficient. (FRA notes that it roadway worker (other than the documents kept on the machines. The makes no specific finding as to the machine operator) from riding on any AAR stated that it expected stencils and impracticability or impracticality of on-track roadway maintenance machine decals to be used in the vast majority of stencilling or applying decals to the unless a safe and secure position for cases because they are more roadway maintenance machines cited each roadway worker on the machine is ‘‘permanent.’’ Nevertheless, the AAR by the AAR in its clarifying submission, clearly identified by stenciling, marking, believed the option to identify safe and as railroads continue to have the option or other written notice. See 68 FR secure riding positions on documents of using documents kept on the 44410. The final rule also provided that kept on the machines to be essential, machines to identify safe and secure this requirement become applicable as because in some cases stencils or decals riding positions in circumstances as of the effective date of the final rule, are not practical. The AAR cited the they deem appropriate.) September 26, 2003. example of large machines that can hold FRA makes clear that, even though it The AAR petitioned for many people, such as the P–811 tie is extending the time to identify safe reconsideration of this section’s laying machine, for which stencils or and secure positions for workers riding applicability date. The AAR pointed out decals would not be sufficient to on roadway maintenance machines, it is that the proposed rule would have given identify safe and secure positions for not extending the time to provide the railroads one year to implement the riders. The AAR stated that written safe and secure positions themselves for requirement to identify safe and secure instructions would be more effective to workers riding on these machines. For positions for roadway workers riding on communicate where to ride on this type instance, pursuant to § 214.513, each on-track roadway maintenance of machine, as well as on large and ‘‘existing’’ on-track roadway machines. See 66 FR 1944. The AAR complex machines such as big tampers, maintenance machine must have a safe noted that FRA decided not to defer liners, and undercutters. In addition, the and secure position with handholds, implementation of the requirement in AAR noted that there will be machines handrails, or a secure seat or bench the final rule for one year because FRA on which stencils and decals cannot be position for each roadway worker found it less burdensome than the readily applied to identify safe and transported on the machine, as noted proposed requirement. See 68 FR 44400. secure riding positions. In this regard, above. Each position must also be The proposed rule would have required the AAR cited the example of a safe protected from moving parts of the railroads to provide written notice on all riding location consisting of a grated machine. Since an ‘‘existing’’ on-track roadway maintenance machines—to floor and a pole for a rider to hold, but roadway maintenance machine is any
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on-track roadway maintenance machine with existing policies and procedures Environmental Impact in existence or ordered on or before and was considered to be non- FRA has evaluated this response to December 26, 2003, or completed on or significant under both Executive Order the petitions for reconsideration of the before September 27, 2004, the 12866 and DOT policies and procedures final rule in accordance with its regulation will continue to require that (see 44 FR 11034, February 26, 1979). procedures for ensuring full every worker riding a roadway (For a more detailed discussion, see 68 consideration of the environmental FR 44405.) This response to the maintenance machine be provided a impact of FRA actions, as required by petitions for reconsideration of the final safe and secure position. FRA is the National Environmental Policy Act rule is likewise considered to be non- extending only the compliance date to (42 U.S.C. 4321 et seq.), other significant under both Executive Order identify such positions on the machines. environmental statutes, Executive 12866 and DOT policies and Orders, and DOT Order 5610.1c. This Section 214.521 Flagging Equipment procedures. This regulatory action regulatory action meets the criteria that for On-Track Roadway Maintenance generally clarifies the requirements establish this as a non-major action for Machines and Hi-rail Vehicles contained in the rule or allows for environmental purposes. This section requires that flagging kits greater flexibility in complying with the be available when on-track roadway rule. In particular, deferring the Federalism Implications applicability date of § 214.518 will maintenance machines and hi-rail FRA has analyzed this response to the reduce the cost of complying with the vehicles are operated over trackage petitions for reconsideration of the final rule. However, the actual cost reduction subject to a railroad operating rule rule in accordance with the principles has not been calculated. Nevertheless, requiring flagging. Flagging kits must and criteria contained in Executive this regulatory action will have a comply with the requirements specified Order 13132 issued on August 4, 1999, minimal net effect on FRA’s original in the operating rules of the railroad which directs Federal agencies to analysis of the benefits and costs over which the equipment is operated. exercise great care in establishing associated with the final rule. This requirement applies to each on- policies that have federalism track roadway maintenance machine Regulatory Flexibility Act and Executive implications. See 64 FR 43255. In the and hi-rail vehicle that is operated alone Order 13272 NPRM, FRA acknowledged that the rule or as the leading or trailing piece of as proposed could have federalism equipment in a roadway work group The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and Executive implications. The governance of safety operating under the same occupancy of hi-rail vehicles could have an authority. Flagging kits are not required Order 13272 require a review of rules to assess their impact on small entities. unintended effect on State laws for roadway maintenance machines and addressing the safety of these vehicles hi-rail vehicles that are operated in the Prior to issuing the July 28, 2003 final rule, FRA prepared and placed in the as they are operated over roads and middle of a single roadway work group. highways, even though the rule is meant However, the vehicles must be under docket a Regulatory Flexibility Assessment (RFA) which assessed the to cover the safety of hi-rail vehicles the same occupancy authority to be only while they are operated on railroad considered part of a single group. small entity impact by the rule. FRA certified that the final rule is not tracks. Although the requirements for Following publication of the final hi-rail vehicles are not intended to rule, FRA recognized that this section expected to have a ‘‘significant’’ economic impact on a ‘‘substantial’’ preempt any State laws addressing could state more clearly which number of small entities under the motor vehicles, FRA requested comment equipment is subject to the Regulatory Flexibility Act and Executive concerning what State laws, if any, requirements. Accordingly, FRA has Order 13272. (For a more detailed could be impacted by this rule. FRA slightly revised the rule text and discussion, see 68 FR 44405, 44406.) received no comment in response to the changed the section’s format to make This response to the petitions for request. the requirements clearer. However, FRA reconsideration of the final rule The RSAC, which recommended the has made no substantive change to the generally clarifies the requirements proposed rule, has as permanent requirements of this section. FRA has contained in the rule or allows for members two organizations representing simply restated the requirements in a greater flexibility in complying with the State and local interests: the American different way to make them more rule. Consequently, FRA certifies that Association of State Highway and comprehensible. this regulatory action is not expected to Transportation Officials and the Appendix A to Part 214—Schedule of have a ‘‘significant’’ economic impact Association of State Rail Safety Civil Penalties on a ‘‘substantial’’ number of small Managers. The RSAC regularly provides recommendations to the FRA Appendix A to this part contains the entities under the Regulatory Flexibility Administrator for solutions to regulatory schedule of civil penalties associated Act and Executive Order 13272. FRA issues that reflect significant input from with violations of the regulations under concludes that there are no substantial its State members. In light of the above, subpart D to part 214. FRA is making economic impacts on small units of FRA concludes that this response to the one change to this schedule in government, business, or other petitions for reconsideration of the final conformance with a change to § 214.517, organizations arising from this rule has no federalism implications. which is discussed above. regulatory action. Unfunded Mandates Reform Act of 1995 Regulatory Impact/Notices Paperwork Reduction Act This response to the petitions for Pursuant to the Unfunded Mandates Executive Order 12866 and DOT reconsideration of the final rule changes Reform Act of 1995 (Pub. L. 104–4) each Regulatory Policies and Procedures none of the information collection Federal agency ‘‘shall, unless otherwise Prior to issuing the July 28, 2003 final requirements contained in the final rule. prohibited by law, assess the effects of rule, FRA prepared and placed in the It changes neither any individual Federal regulatory actions on State, docket a regulatory analysis addressing requirement’s burden nor the total local, and tribal governments, and the the economic impact of the final rule. burden for this collection of private sector (other than to the extent The rule was evaluated in accordance information. that such regulations incorporate
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requirements specifically set forth in published on April 11, 2000 (Volume been equipped with, a heater installed law.’’ (See Section 201). Section 202 of 65, Number 70; Pages 19477–78) or by by the manufacturer or the railroad. the Act further requires that ‘‘before visiting http://dms.dot.gov. * * * * * promulgating any general notice of List of Subjects in 49 CFR Part 214 ■ 5. Section 214.518 is amended by proposed rulemaking that is likely to revising it to read as follows: result in promulgation of any rule that Bridges, Occupational safety and includes any Federal mandate that may health, Penalties, Railroad safety, § 214.518 Safe and secure positions for result in the expenditure by State, local, Reporting and record keeping riders. and tribal governments, in the aggregate, requirements. On or after March 1, 2004, a roadway or by the private sector, of $100,000,000 The Final Rule worker, other than the machine or more (adjusted annually for inflation) operator, is prohibited from riding on in any one year, and before ■ In consideration of the foregoing, any on-track roadway maintenance promulgating any final rule for which a chapter II, subtitle B of title 49, Code of machine unless a safe and secure general notice of proposed rulemaking Federal Regulations is amended as position for each roadway worker on the was published, the agency shall prepare follows: machine is clearly identified by a written statement * * *’’ detailing the stenciling, marking, or other written effect on State, local and tribal PART 214—[AMENDED] notice. governments and the private sector. ■ 1. The authority citation for part 214 ■ 6. Section 214.521 is amended by This response to the petitions for revising it to read as follows: reconsideration of the final rule will not continues to read as follows: result in the expenditure, in the Authority: 49 U.S.C. 20103, 20107 and 49 § 214.521 Flagging equipment for on-track aggregate, of $100,000,000 or more in CFR 1.49. roadway maintenance machines and hi-rail any one year, and thus preparation of a vehicles. ■ 2. Section 214.507 is amended by statement is not required. Each on-track roadway maintenance revising paragraph (a)(4) to read as machine and hi-rail vehicle shall have Energy Impact follows: on board a flagging kit that complies Executive Order 13211 requires § 214.507 Required safety equipment for with the operating rules of the railroad Federal agencies to prepare a Statement new on-track roadway maintenance if: of Energy Effects for any ‘‘significant machines. (a) The equipment is operated over energy action.’’ See 66 FR 28355; May (a) * * * trackage subject to a railroad operating 22, 2001. Under the Executive Order a (4) A windshield with safety glass, or rule requiring flagging; and ‘‘significant energy action’’ is defined as other material with similar properties, if (b)(1) The equipment is not part of a any action by an agency that the machine is designed with a roadway work group; or promulgates or is expected to lead to the windshield. Each new on-track roadway (2) The equipment is the lead or promulgation of a final rule or maintenance machine designed with a trailing piece of equipment in a roadway regulation, including notices of inquiry, windshield shall also have power work group operating under the same advance notices of proposed windshield wipers or suitable occupancy authority. rulemaking, and notices of proposed alternatives that provide the machine ■ 7. Appendix A to part 214 is amended rulemaking: (1)(i) that is a significant operator an equivalent level of vision if by removing the entry for section regulatory action under Executive Order windshield wipers are incompatible 214.517(g). 12866 or any successor order, and (ii) is likely to have a significant adverse effect with the windshield material; Issued in Washington, DC on February 9, on the supply, distribution, or use of * * * * * 2004. energy; or (2) that is designated by the ■ 3. Section 214.513 is amended by Allan Rutter, Administrator of the Office of revising paragraph (a) to read as follows: Federal Railroad Administrator. Information and Regulatory Affairs as a [FR Doc. 04–4251 Filed 2–25–04; 8:45 am] significant energy action. FRA has § 214.513 Retrofitting of existing on-track roadway maintenance machines; general. BILLING CODE 4910–06–P evaluated this response to the petitions for reconsideration of the final rule in (a) Each existing on-track roadway maintenance machine shall have a safe accordance with Executive Order 13211. DEPARTMENT OF THE INTERIOR FRA has determined that this regulatory and secure position with handholds, action is not likely to have a significant handrails, or a secure seat or bench Fish and Wildlife Service adverse effect on the supply, position for each roadway worker distribution, or use of energy. transported on the machine. Each 50 CFR Part 17 Consequently, FRA has determined that position shall be protected from moving RIN 1018–AT57 this regulatory action is not a parts of the machine. ‘‘significant energy action’’ within the * * * * * Endangered and Threatened Wildlife meaning of the Executive Order. ■ 4. Section 214.517 is amended by and Plants; Final Rule To Designate Privacy Act revising paragraph (b) as follows and Critical Habitat for the Santa Ana removing paragraph (g): Sucker (Catostomus santaanae) Anyone is able to search the electronic form of all public § 214.517 Retrofitting of existing on-track AGENCY: Fish and Wildlife Service, submissions to any of our dockets by the roadway maintenance machines Interior. manufactured on or after January 1, 1991. name of the individual making the ACTION: Final rule. submission (or signing the submission, * * * * * if made on behalf of an association, (b) An operative heater, when the SUMMARY: We, the U.S. Fish and business, labor union, etc.). You may machine is operated at an ambient Wildlife Service (Service), designate review DOT’s complete Privacy Act temperature less than 50 degrees critical habitat for the Santa Ana sucker Statement in the Federal Register Fahrenheit and is equipped with, or has (Catostomus santaanae) pursuant to the
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Endangered Species Act of 1973, as exceptionally high for a small sucker in the Federal Register. The bases for amended (Act). This threatened species species (Moyle 1976). Total fecundity of our ‘‘good cause’’ findings are is now restricted to three noncontiguous six females varying in size from 78 mm summarized below. populations in three different stream (3.1 in) to 158 mm (6.2 in) ranged from The Service is required by court order systems in southern California: The 4,423 to 16,151 eggs, respectively to designate critical habitat for the Santa lower and middle Santa Ana River in (Greenfield et al. 1970). The Ana sucker by February 21, 2004. We San Bernardino, Riverside, and Orange combination of early sexual maturity, have determined that we do not have counties; the East, West, and North protracted spawning period, and high sufficient time or budgetary resources to Forks of the San Gabriel River in Los fecundity should allow the Santa Ana promulgate this rule under the standard Angeles County; and lower Big Tujunga sucker to quickly repopulate streams notice-and-comment procedures Creek in Los Angeles County (Moyle et following periodic flood events that can mandated by the APA at 5 U.S.C. 533 al. 1995, Swift et al. 1993). decimate populations (Moyle 1976). and still meet the court’s deadline. On DATES: This rule becomes effective on The Santa Ana sucker appears to be February 26, 2003, the United States February 26, 2004. native to the larger streams of the Los District Court for the Northern District Angeles Basin; the Los Angeles, San of California held that the Service had ADDRESSES: The supporting information Gabriel, and Santa Ana River drainage failed to designate critical habitat for the used in this rulemaking is available for systems in Los Angeles, Orange, listed populations of Santa Ana sucker inspection, by appointment, during Riverside, and San Bernardino counties within the statutory timeframe and normal business hours at the U.S. Fish (Smith 1966). Although historic records ordered the Service to complete a final and Wildlife Service, Carlsbad Fish and are scarce, Santa Ana suckers critical habitat designation for the Santa Wildlife Office, 6010 Hidden Valley presumably ranged from near the Pacific Ana sucker by February 21, 2004 Road, Carlsbad, California 92009. Ocean to the uplands of the Los Angeles (California Trout v. DOI, No. 97–3779 FOR FURTHER INFORMATION CONTACT: Jim and San Gabriel river systems, and to at (N.D.Cal.)). However, due to lack of Bartel at the address listed above least Pump House #1 (near the San funding, the Service was unable to begin (telephone 760/431–9440 or facsimile Bernardino National Forest boundary) work on the critical habitat designation 760/431–9618). in the Santa Ana River (Swift et al. in Fiscal Year (FY) 2003. Complying SUPPLEMENTARY INFORMATION: 1993). The species has experienced with numerous court orders and court- Background declines throughout most of its range approved settlement agreements caused (Moyle et al. 1995; Swift et al. 1993), the Service to exhaust essentially its The Santa Ana sucker inhabits and is now restricted to three entire FY 2003 budget for critical habitat streams that are generally small and noncontiguous populations: (1) Lower designations by the end of July, well shallow, with currents ranging from and middle Santa Ana River; (2) East, before the end of the fiscal year. swift (in canyons) to slow (in the West, and North Forks of the San Anticipating this result, the Service bottomlands). All the streams are Gabriel River; and (3) lower Big Tujunga suspended work on a number of subject to periodic severe flooding Creek. designations that were required by court (Moyle 1976). Santa Ana suckers appear orders or settlement agreements until Reasons for Dispensing With Notice and to be most abundant where the water is additional funding became available. ° Comment Procedures and Making the cool (less than 22 Celsius [C]) (72 This included the designation of critical ° Rule Immediately Effective Fahrenheit), unpolluted and clear, habitat for the Santa Ana sucker. although they can tolerate and survive The Administrative Procedure Act The Service initiated work on the in seasonally turbid water (Moyle 1976, (APA) generally requires that an agency proposed designation for the Santa Ana Moyle and Yoshiyama 1992, Saiki provide public notice of and an sucker on October 1, 2003, the 2000). Santa Ana suckers feed mostly on opportunity for public comment on all beginning of FY 2004, even though we algae, which they scrape off of rocks and proposed rulemakings (5 U.S.C. 553). had not yet received a final other hard substrates, with aquatic However, section 553(b)(B) recognizes appropriation for this fiscal year. As insects making up a very small an exception to those requirements soon as we received a final component of their diet. Larger fish when for good cause an agency finds appropriation, we requested more time generally feed more on insects than do (and incorporates the finding and a brief from the district court to complete a smaller fish (Greenfield et al. 1970, statement of the reasons therefore into proposed and final designation. In our Moyle 1976). the rule) that notice and public request we documented for the court the Santa Ana suckers generally live no procedure thereon are ‘‘impracticable, numerous steps that must be completed more than 3 years (Greenfield et al. unnecessary or contrary to the public in order to promulgate a final critical 1970). Spawning generally occurs from interest.’’ Similarly, section 553(d) of habitat rule and time required to early April to early July. A peak in the APA allows publication of a final complete those steps and produce a spawning activity occurs in late May rule to take effect immediately upon legally defensible rule. We projected and June (Greenfield et al. 1970, Moyle publication if the agency for good cause that a period of 24 months beginning on 1976). However, the spawning period so provides in the final rule. The October 1, 2003, would be required to may be variable and protracted. Recent Service finds good cause exists with comply with applicable statutory field surveys on the East Fork of the San regard to this final rule designating requirements, including the mandated Gabriel River found evidence of an critical habitat for the Santa Ana sucker public review process. However, the extended spawning period. These to forgo the standard notice and court declined to grant our motion for surveys found small juveniles (less than comment procedure provided by the additional time in her January 30, 2004, 30 millimeters [mm] standard length APA because compliance with that ruling from the bench, thereby keeping (1.2 inch [in]) in December 1998, and procedure would be impracticable and in effect the order that the Service March of 1999 at the San Gabriel River contrary to the public interest within complete a final critical habitat site (Saiki 2000). These data indicate the meaning of 5 U.S.C. 553(b)(B). The designation by February 21, 2004. that spawning may be very protracted in Service further finds good cause under Compliance with the APA-required this stream, and begin as early as 5 U.S.C. 553(d) to make this final rule notice-and-public comment procedure November. Fecundity appears to be effective immediately upon publication in promulgating a final critical habitat
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designation for the Santa Ana sucker is jeopardy, the proscription on implementation on the Santa Ana impracticable given the Service’s consultation eliminates our ability to sucker and least Bell’s vireo. The inability to work on the rule in FY 2003 identify reasonable and prudent biological opinion was due to be issued due to inadequate budgetary resources measures to minimize the impacts of on March 29, 2003. and the inadequate 4.5-month time take on the sucker resulting from the The replacement of the River Road period available in FY 2004 to publish proposed project. We are currently bridge is necessary because the existing a proposed rule, allow for public precluded from consulting with bridge is at high risk of being damaged comment, complete an economic agencies even after the emergency has by high flows in the Santa Ana River. analysis of the proposed designation, passed to evaluate the impacts of the The River Road bridge is particularly respond to public comment, and finalize emergency actions on the Santa Ana sensitive to high flows because of its the critical habitat designation. sucker and provide measures to the low clearance above the existing Therefore, we find good cause for and agencies to minimize the effects of any riverbed. During high flows, large invoke the exception under section take on the species. Our current amounts of sediment and debris are 553(b)(B) of the APA to publish this inability to complete section 7 deposited adjacent to the bridge causing final rule without following the consultations constitutes an emergency floodwaters to overtop the bridge. Under standard public notice and comment posing a significant risk to the well- these flood conditions, the high flows procedure. being of Santa Ana sucker because of will eventually push the bridge off its In its 2003 order, the court also our inability to evaluate and minimize pilings and cause a catastrophic loss of enjoined the Service from consulting or eliminate threats to the species from the bridge. Riverside County estimates under section 7(a)(2) of the Act until we proposed Federal actions that are also that if two or more 2-year storm events publish a final rule designating critical necessary to protect public health and were to occur consecutively, the bridge habitat for the Santa Ana sucker. Under safety. may be shifted off its pilings and section 7, each Federal agency is In addition, the injunction has had portions of the bridge could be required to consult with us to ensure the immediate effect of significantly destroyed. In the last 10 years, the that any action authorized, funded, or delaying the orderly, expeditious, and existing bridge and approach roadways carried out by such agency is not likely timely completion of projects that are were closed to traffic four times because to jeopardize the continued existence of currently being planned and are needed the bridge had been shifted off its any listed species or result in the to protect human life and safety. pilings as a result of floodwaters. adverse modification of the designated Examples of projects that would affect Although a sand mining operation has critical habitat, if any, of the species. the sucker that have been delayed as a been implemented as a temporary Consultation ensures that impacts to result of the Court’s injunction include measure to provide additional freeboard listed species are fully considered by the replacement of the Van Buren for flood flows, this measure will not be the Federal action agency before it Boulevard Bridge to meet seismic safety sufficient to protect the River Road proceeds with the proposed action; standards and the replacement of the bridge if multiple and consecutive consultation also ensures that the action River Road Bridge due to flooding. storms affect this watershed. Therefore, does not go forward if it is likely to The Van Buren Boulevard bridge the replacement of the existing River jeopardize the continued existence of replacement project in Riverside County Road bridge with a new bridge that the species. In addition, where we would replace the existing bridge with provides a greater clearance above the conclude that the proposed Federal a new longer span that would have no existing riverbed is needed. action is not likely to jeopardize the support pilings within the stream Replacement of the River Road bridge species, section 7 requires us to channel and increase the width of the had been anticipated to be completed in prescribe reasonable and prudent bridge from two lanes to four lanes. The 2006 and requires funding from the measures, and specific terms and bridge is being replaced because of the Federal Highway Administration. conditions to implement those need to meet updated seismic safety Because replacement of the bridge ‘‘may measures, which the action agency, and requirements. This bridge provides the affect’’ the Santa Ana sucker, a section its applicant, if any, must carry out to only crossing of the Santa Ana River for 7 consultation with Federal Highway minimize the impacts of any take of a a 9-mile radius. In the next 40 years, Administration will be required. In listed animal species likely to result there is an 80 percent chance for an addition to providing traffic circulation from the proposed Federal action (16 earthquake to occur that can damage or to residents, the existing River Road U.S.C. 1536(b)(4)). destroy the existing bridge. This bridge bridge is the only emergency vehicle As a consequence of the injunction on provides for local traffic between City of access route across the Santa Ana River consulting on any proposed Federal Riverside and the communities of within a 7-mile radius for the cities of action that may affect the Santa Ana Pedley, Glen Avon, Mira Loma, and Norco and Corona and unincorporated sucker, Federal action agencies and the Jurupa. Average daily traffic at this Riverside County. If the River Road Service are unable to meet our Santa Ana River bridge crossing in 2001 bridge is damaged by storms and cannot respective responsibilities pursuant to was 54,300 vehicles. The 2005 traffic be used, then driving distance for section 7(a)(2) of the Act. In the case of projection at this location is 57,500 emergency response vehicles will be emergencies involving imminent risks average daily vehicles. An earthquake of increased by at least seven miles. to human health and safety (e.g., this magnitude would eliminate an As described by the above examples, replacement of bridges threatened by important bridge crossing of the Santa the injunction has resulted in delays for floods), Federal agencies may be forced Ana River for local use and emergency projects that are needed to protect to undertake the projects absent vehicles. The driving distance would human life and safety. The injunction consultation with us and thus without increase by as much as nine miles for and ensuing delays may very well be the benefit of our determination regarding emergency response vehicles. The root cause of future emergencies that potential jeopardy and identification of Federal Highway Administration involve imminent risks to human health reasonable and prudent alternatives to requested initiation of formal and safety because the Federal action the proposed action that would avoid consultation on this project with the agency was unable to complete their jeopardy. In addition, where such Service on November 14, 2002, to projects in an orderly, expeditious, and projects are not likely to result in address effects of project timely manner. For example, the delay
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in completing the bridge replacement the levees. The diversion of the low- sucker in the Santa Ana River. The projects significantly increases the risk flow channel away from the levees was removal of barriers to fish passage of catastrophic losses of these bridges an action that was anticipated to be should return the population to a from seismic and flooding events and addressed in the SAS Programmatic contiguous breeding population. In significant delays in providing Consultation. If this action had been addition, the maintenance and emergency response services. addressed as part of a completed improvement of water quality standards As is the nature of rivers and weather, consultation, the need for an emergency are essential to a species that inhabits flood events can happen swiftly and permit would have been eliminated and the highly urbanized Santa Ana River unpredictably with dire consequences the risk to human life and property watershed, and depends on tertiary- to human health and safety and loss of would have been significantly reduced. treated wastewater for much of its property. Structures and property along The injunction against section 7 spawning habitat. the Santa Ana River are at risk from consultations is also preventing the Until a final critical habitat rule is emergency flood events. Apart from the Service from completing consultations published for the Santa Ana sucker, the specific projects identified above, other on major habitat restoration projects in injunction will remain in place and emergency conditions along the Santa the Santa Ana River designed to prevent completion of section 7 Ana River may be avoided by the improve the status of the sucker and its consultations on important projects orderly, expeditious, and timely habitat; this also constitutes an necessary to protect public health and completion of the draft Programmatic emergency posing a significant risk to safety while also protecting the sucker, the well-being of the Santa Ana sucker. or on projects specifically designed to Consultation on the Santa Ana Sucker The SAS Conservation Program is a benefit the sucker. We therefore find Conservation Program and Associated multi-agency partnership of Federal and that good cause exists under 5 U.S.C. Maintenance and Operation Activities local government agencies and the 553(b)(B) to exempt this final rule from of Existing Water Facilities on the Santa private sector that encourages a river- APA notice and comment procedures. Ana River (SAS Programmatic wide approach to conservation of the In the unusual circumstances presented Consultation). For example, Riverside Santa Ana sucker within the Santa Ana here, compliance with those procedures County Flood Control and Water River and its tributaries; increases the would be contrary to the public interest. Conservation District (RCFCD) could knowledge base to implement recovery We also find that good cause exists receive authorization from the U.S. strategies for the sucker in the Santa under 5 U.S.C. 553(d) to make this final Army Corps of Engineers to maintain Ana River; ensures that each rule effective immediately for the the structural integrity of levees and participating agency minimizes, to the reasons stated above with regard to groins that protect industrial, extent possible, effects of routine section 553(b)(B). The immediate commercial, and residential property activities on the sucker; and develops designation of critical habitat is along the Santa Ana River as a result of habitat restoration and enhancement necessary for the following reasons: (1) the SAS Programmatic Consultation. techniques for degraded habitat. The To comply with the district court’s The RCFCD has predicted that the loss SAS Conservation Program has already order; (2) to conduct section 7 of the levee could result in the benefited the Santa Ana sucker by consultations and prepare written introduction of pollutants from improving our recommended avoidance concurrences regarding projects funded, residential, commercial, and industrial and minimization measures for ongoing permitted, or carried out by Federal properties into the Santa Ana River as activities. For example, research funded agencies that may affect the Santa Ana well as the loss of up to 3,000 acres of by the SAS Conservation Program has sucker or its essential habitat; (3) to developed floodplain. The introduction resulted in a detailed description of ensure those activities will not of pollutants would significantly spawning and nursery habitat. In jeopardize the continued existence of degrade the water quality and habitat of addition, appropriate habitat restoration the species; and (4) to ensure Federal the Santa Ana River, as well as result in techniques are being developed that will agencies can comply with the mortality of suckers. In addition, the be essential to maintain the sucker requirements of the Act, including loss of the levees could result in a loss population in the Santa Ana River. section 9. of life and property. On September 23, Finally, the current injunction has Previous Federal Action 2003, the RCFCD notified the Service prevented the Service from completing and the Corps that a portion of the internal consultation on the Western Please see the final listing rule for the northwestern levee along the Santa Ana Riverside Multiple Species Habitat Santa Ana sucker for a description of River was being undermined by the low- Conservation Plan (MSHCP) because the Federal actions through April 2000 (65 flow channel. The RCFCD proposed to Santa Ana sucker is included as a FR 19686; April 12, 2000). On July 9, divert the low-flow channel away from ‘‘covered species adequately conserved’’ 2001, California Trout, Inc., the the levee to prevent the destruction of in the proposed plan and will otherwise California-Nevada Chapter of the the levee. The Corps declared the be affected by the plan. The Western American Fisheries Society, the Center proposed diversion an emergency Riverside MSHCP will conserve over 94 for Biological Diversity, and the Friends action, and requested that the Service percent of the modeled habitat within of the River (plaintiffs) filed a 60-day provide them with avoidance and western Riverside County and all of the notice of intent to sue over our failure minimization measures for the Santa known and potential refugia and to designate critical habitat for the Santa Ana sucker. Because of the injunction spawning areas within the MSHCP Ana sucker. The plaintiffs filed a second we were unable to complete an conservation area. In addition, the amended complaint for declaratory emergency section 7 consultation with Western Riverside MSHCP will assess judgment and injunctive relief on March the Corps, but we did recommend and implement measures to improve 19, 2002, with the U.S. District Court for measures to avoid and minimize water quality, remove nonnative the Northern District of California. On impacts to the sucker. The Corps issued competitor and predator species, and February 26, 2003, the district court an emergency Regional General Permit eliminate barriers to fish passage within ordered the Service to designate a final No. 63 permit that incorporated our the Santa Ana River. The removal of critical habitat for the Santa Ana sucker recommended measures and RCFCD nonnative predatory species should by no later than February 21, 2004, and completed the diversion and repair of improve and secure the survival of the enjoined the Service from issuing any
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section 7 concurrence or biological Methods functioning hydrological system should opinion on a proposed Federal action We mapped critical habitat based on experience peaks and ebbs in the water that ‘‘may affect’’ the Santa Ana sucker the known distribution and habitat volume throughout the year. The until such time as the final critical requirements of the Santa Ana sucker hydrological regime should also habitat for the Santa Ana sucker is using published literature and available maintain a mosaic of sand, gravel, designated. reports. We delineated essential habitat cobble, and boulder substrates in a series of sandy stream margins, riffles, Critical Habitat on aerial and satellite imagery on a GIS system along each stream reach. runs, and pools. Adult suckers spawn in gravel beds while larvae and juveniles Critical habitat is defined in section Essential habitat is the stream and the are generally associated with shallow, associated riparian habitat. 3(5)(A) of the Act as the specific areas sandy margins during their within the geographical area occupied Primary Constituent Elements development (Haglund et al. 2003). by the species at the time it is listed on In accordance with sections 3(5)(A)(i) Gravel and cobble substrate, often which are found those physical or associated with riffles, provide habitat biological features essential to the of the Act and regulations at 50 CFR 424.12, in determining which areas are for algae and macroinvertebrates, the conservation of the species and which primary prey of adult suckers. Pools may require special management critical habitat, we are required to consider those physical and biological provide food for adult suckers and considerations or protection and those features (primary constituent elements) refuge from warm water (Allen 2003). specific areas outside the geographic Sufficient water volume, described in that are essential to the conservation of area occupied by the species at the time velocity and depth, is an important the species and that may require special it is listed upon a determination by the element of habitat essential for the management considerations or conservation of the Santa Ana sucker. Service that such areas are essential for protection. These include, but are not Water volume may vary between the conservation of the species. Under limited to: Space for individual and section 4(a)(3) and (b)(2) of the Act we seasons, but enough water should be population growth and for normal present during the spawning season are required to designate critical habitat behavior; food, water, air, light, to the maximum extent prudent and (March 1–June 30) to support minerals, or other nutritional or reproduction and larval development. determinable on the basis of the best physiological requirements; cover or scientific data available and after taking For the remainder of the year, water shelter; sites for breeding, reproduction, volume must be sufficient to support into account the economic impact of rearing (or development) of offspring; specifying any particular area as critical prey of the sucker and the development and habitats that are protected from and growth of the sucker. In the San habitat. disturbance or are representative of the Gabriel River, Haglund and Baskin In the final listing rule (65 FR 19686), historic geographical and ecological (2002) found that adult and juvenile we indicated that designation of critical distributions of a species. suckers were present in bottom habitat was not determinable because The primary constituent elements for velocities between 0.17 and 0.68 feet per the ‘‘knowledge and understanding of the Santa Ana sucker were determined second, while mid-column velocities the biological needs and environmental by reviewing studies that examined the reached 1.95 feet per second. Haglund et limitations of the Santa Ana sucker and habitat requirements and ecology of the al. (2003) reported spawning in bottom the primary constituent elements of its sucker in the Santa Ana River (Allen velocities of 0.65 and 0.77 feet per habitat are insufficient to determine 2003; Baskin and Haglund 2001; second. critical habitat for the fish.’’ We also Haglund et al. 2003; Saiki 2000; Swift Depth is also an important descriptor 2001), the San Gabriel River (Saiki 2000; indicated that the Orange County Water of water volume. Saiki (2000) showed Haglund and Baskin 2002), and the District, County of Orange, Los Angeles that suckers were fairly equally Santa Clara River (Greenfield et al. County Department of Public Works, distributed among depths of 1 to 39 cm 1970). Primary constituent elements National Fish and Wildlife Foundation, in the Santa Ana River and among essential for the conservation of the and the Biological Resources Division of depths of 1 to 69 cm in the San Gabriel sucker are found in an ecosystem that the U.S. Geological Survey were funding River. In the Santa Ana River, Swift includes a functioning hydrological (2001) reported detecting suckers in and implementing research on the system that experiences peaks and ebbs environmental limitations of the Santa depths as great as 150 cm. Suckers were in water volume and maintains a sand, present in pools as deep as 200 to 300 Ana sucker. This research has been gravel, and cobble substrate in a mosaic cm (Brandt Allen, University of completed and a final report has been of sandy stream margins, deep water California at Davis, pers. comm. 2004). published (Saiki 2000). Based on the pools, riffles (i.e., well-oxygenated, Suckers likely prefer various water available information on the biology of shallow water over rough substrate), and depths depending on their life history the Santa Ana sucker, we now believe runs (i.e., shallow water over generally stage and activity. Larval and early that critical habitat for the Santa Ana smooth substrate); sufficient water juvenile suckers prefer shallow margins sucker is determinable. We also find volume and quality; and complex, of 5 to 10 cm in depth (Haglund et al. that there is no basis for a not prudent native floral and faunal associations. 2003) while adult suckers prefer deep finding because we do not believe that The Santa Ana sucker evolved in a pools of 40 cm or greater (Haglund and the designation of critical habitat will typical southern Californian Baskin 2002). Adult suckers prefer deep result in an increase in the degree of hydrological regime that included pools for feeding and refuge, riffles of threat from activities prohibited under periodic flooding (Greenfield et al. varying depths for spawning, and riffles section 9 of the Act. We are not aware 1970). Life history characteristics, such and runs of varying depths for of any apparent habitat destruction that as prolonged breeding periods and short movement between pools. has occurred since the listing of the hatching times, have allowed the sucker Water quality must support sucker Santa Ana sucker. Therefore, we find to survive in dynamic hydrological reproduction, diet, and development. that designation of critical habitat for systems. Periodic floods may also Saiki (2000) reported sucker abundance the Santa Ana sucker is prudent and remove exotic predators and was negatively correlated with turbidity. determinable. competitors (Swift 2001). Therefore, a Saiki (2000) found that suckers were
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more abundant at a site in the San reported suckers from the Santa Clara (3) Water depths greater than 3 cm Gabriel River, where turbidity averaged River in water that was 10 to 26 °C. and water bottom velocities greater than 5.5 Nephelometric turbidity units Suitable sucker habitat must contain 0.03 meters per second; (NTUs) and ranged from 0.1 to 165.0 algae, aquatic emergent vegetation, (4) Non-turbid conditions or only NTUs than at a site in the Santa Ana macroinvertebrates, and riparian seasonally turbid conditions; River, where turbidity averaged 21.7 vegetation. Suckers feed by scraping (5) Water temperatures less than 30 NTUs and ranged from 0.6 to 405.0 algae, insects, and detritus from gravel °C; and NTUs. Suckers were not detected at a and cobble substrate (Greenfield et al. (6) Stream habitat that includes algae, different site in the Santa Ana River, 1970; Saiki 2000). In addition, riparian aquatic emergent vegetation, where turbidity averaged 57.4 NTUs and vegetation and emergent aquatic macroinvertebrates, and riparian ranged from 1.9 to 214.0 NTUs (Saiki vegetation moderate stream temperature vegetation. 2000). However, in 2000, Baskin and (Allen 2003), and provide additional Critical Habitat Designation Haglund (2001) captured 10 suckers sources of detritus and insects (Diana immediately upstream of this site in 1995). Riparian and aquatic emergent The designated critical habitat water that was between 85 and 112 vegetation can also provide refuge from encompasses Santa Ana sucker habitat NTUs. Therefore, a high turbidity level predators. Therefore, complex native throughout the range of the listed does not necessarily eliminate suckers floral and faunal associations are species in the United States (Los from using habitat. Saiki (2000) required for sucker survival. Angeles and San Bernardino Counties, determined that suckers likely avoid California). Essential habitat for the The primary constituent elements for continuously turbid conditions but Santa Ana sucker in San Bernardino, the sucker are the following: could survive in seasonally turbid Riverside County and Orange County conditions. In addition to turbidity, (1) A functioning hydrological system has been excluded under section 4(b)(2) temperature appears to be a limiting that experiences peaks and ebbs in the of the Act. Areas designated as critical factor in sucker distribution. Suckers water volume throughout the year; habitat are under Federal and private were found in waters between 15 and 28 (2) A mosaic of sand, gravel, cobble, ownership. The approximate area of °C in the Santa Ana River and suckers and boulder substrates in a series of designated critical habitat by county likely avoid water over 30 °C (Swift riffles, runs, pools and shallow sandy and land ownership is shown in Table 2001). Similarly, Greenfield et al. (1970) stream margins; 1.
TABLE 1.—APPROXIMATE DESIGNATED CRITICAL HABITAT AREA (AC (HA)) BY COUNTY AND LAND OWNERSHIP [Estimates reflect the total area within critical habitat unit boundaries.]
County Federal* Local/State Private Total
Los Angeles ...... 6,483 ac ...... 0 ac ...... 2,937 ac ...... 9,420 ac (2,624 ha) ...... (1,189 ha) ...... (3,812 ha) San Bernardino ...... 3,582 ac ...... 0 ac ...... 8,127 ac ...... 11,709 ac (1,450 ha) ...... (3,289 ha) ...... (4,738 ha)
Total ...... 10,065 ac ...... 0 ac ...... 11,064 ac ...... 21,129 ac (4,074 ha) ...... (4,478 ha) ...... (8,551 ha) * Federal lands include National Forest lands.
We have designated three critical biological features essential for the Basin) and the occupied essential habitat units based on the geographical conservation of that population and may habitat downstream from Unit 1B (Santa location of the three existing, listed require special management Ana Wash) has been excluded under populations of Santa Ana sucker. Major considerations or protection, or are section 4(b)(2). The Santa Ana River tributaries that are important for their outside of the geographic area occupied supports one of three listed populations role in contributing water, sediment, by the species but are nevertheless of the Santa Ana sucker. Approximately and improved water quality essential for the conservation of the 60 percent of the total remaining range (components of the primary constituent sucker. Descriptions of each unit and of the listed Santa Ana sucker is in the elements) for the species are included. the reasons for designating them as Santa Ana River (65 FR 19686). Each of these few remaining disjunct critical habitat are presented below. Our designation excludes essential populations is essential to maintain occupied habitat along portions of the Map Unit 1: Santa Ana River Critical genetic diversity, decrease the Santa Ana River that are within the draft Habitat Unit (Unit 1A, Northern Prado likelihood of the species becoming Western Riverside Multiple Species Basin and Unit 1B, Santa Ana Wash), extinct due to small numbers, and Habitat Conservation Plan (Riverside San Bernardino County, California decrease the likelihood of species County) or the SAS Conservation (11,709 ac (4,738 ha)) extinction due to stochastic events (e.g., Program (Orange, Riverside, and San floods) (Lande 1988, Saccheri et al. The Santa Ana River Unit consists of Bernardino counties). The bases for 1998). The fragmented and disjunct Unit 1A, Northern Prado Basin and Unit those exclusions are summarized below distribution of the species prevents any 1B, Santa Ana Wash and the essential under ‘‘Section 4(b)(2) Exclusions.’’ possibility that an extirpated population habitat along portions of the mainstem We are designating Northern Prado would recover. The areas being of the Santa Ana River and the Basin (Unit 1A) and Santa Ana Wash designated are either within the following tributaries: City Creek, Mill (Unit 1B) because these essential habitat geographical area occupied by one of Creek, Chino Creek, and Cucamonga areas are not covered by the draft the three populations of Santa Ana Creek. The occupied essential habitat Western Riverside County Multiple sucker, contain those physical and adjacent to Unit 1A (Northern Prado Species Habitat Conservation Plan or
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the SAS Conservation Program. While Unit 1A and Unit 1B are essential to Angeles National Forest (65 FR 19686). Units 1A and 1B are not known to be the conservation of the sucker because This river has the least developed occupied, they are essential for the they maintain a relatively natural watershed of the three critical habitat conservation of the Santa Ana sucker hydrograph. The Santa Ana sucker units. Data gathered during sampling because they provide and transport evolved in the naturally dynamic indicated that the San Gabriel River may sediment necessary to maintain the hydrological systems of southern contain the largest population of Santa preferred substrates utilized by this fish California. Therefore, as a larger intact Ana suckers (R. Ally, in litt. 1996; Mike (Dr. Thomas Haglund, pers. comm. river system has greater potential to Gusiti, CDFG, in litt. 1996; M. Wickman, 2004; Dr. Jonathan Baskin, Professor provide a more natural hydrograph, in litt., 1996; Juan Hernandez, CDFG, in Emeritus, California State Polytechnic Unit 1A and Unit 1B are essential to litt. 1997; M. Saiki, pers. comm. 1999). University, Pomona, pers. comm. 2004; maintain the natural hydrograph of the The San Gabriel River Unit is NOAA 2003); convey stream flows and Santa Ana River and ensure the essential to the conservation of the flood waters necessary to maintain continued existence of the sucker in the sucker because the San Gabriel River habitat conditions for the Santa Ana Santa Ana River (Dr. Thomas Haglund, drainage system supports one of only sucker; and support riparian habitats pers. comm. 2004). The importance of a three extant populations of this listed that protect water quality in the natural hydrograph for native fishes has species which has a highly fragmented downstream portions of the Santa Ana been demonstrated for many systems and limited distribution. In addition, River occupied by the sucker. Moreover, (Moyle and Light 1996). For example, the San Gabriel River Unit provides the the Northern Prado Basin Unit is nonnative fishes can more easily invade best remaining habitat capable of contiguous with occupied habitat and systems where the natural hydrograph sustaining the Santa Ana sucker. Moyle may support the Santa Ana sucker. City has been disrupted by dams and and Yoshiyama (1992) consider the Creek, a tributary of the Santa Ana reservoirs and these nonnative fishes population of suckers in the San Gabriel River, was documented as containing can contribute to the decline of native River drainage to be the only viable Santa Ana suckers as recently as 1982, fishes through predation and population of the Santa Ana sucker but has not been recently surveyed. competition (Moyle et al. 1986). within the species’ native range (65 FR Protection of these unoccupied areas is Unit 1A and Unit 1B are also essential 19686). This population is found in the essential to provide the downstream because they maintain habitat for the relatively undisturbed watershed of the habitat conditions necessary to maintain southernmost extent of the existing Angeles National Forest, unlike the the Santa Ana River population of the distribution of the Santa Ana sucker. population within the Santa Ana River sucker (Dr. Thomas Haglund, pers. Consequently, these units enhance the which is within a highly urbanized comm. 2004; Dr. Jonathan Baskin, long-term sustainability of the sucker by watershed that receives urban and Professor Emeritus, California State maintaining its genetic adaptive agricultural run-off and other Polytechnic University, Pomona, pers. potential and a well-distributed environmental contaminants. Thus, this comm. 2004). geographical range to buffer the sucker’s unit supports a population that occurs particular vulnerability to within a relatively intact watershed that Unit 1B is essential because it environmental fluctuations and provides good water quality and provides the source for preferred catastrophes because of its limited thereby, ensures the conservation of the spawning and feeding substrate of the number of populations. only extant population of listed suckers Santa Ana sucker. Although portions of that will likely avoid the potential for Map Unit 2: San Gabriel River Critical Unit 1B (Santa Ana Wash) are generally chronic exposure to water quality Habitat Unit, Los Angeles County, dry during the summer, this portion of degraded by urban run-off or tertiary- California (5,765 ac (2,333 ha)) the river has a higher gradient and a treated wastewater discharges. greater percentage of gravel and cobble The San Gabriel River Unit consists of substrate than the occupied areas that the West, North, and East Forks of the Map Unit 3: Big Tujunga Creek Critical are downstream (Dr. Jonathan Baskin, San Gabriel River and the following Habitat Unit, Los Angeles County, Professor Emeritus, California State tributaries: Cattle Canyon Creek, Bear California (3,655 ac (1,479 ha)) Polytechnic University, Pomona, pers. Creek, and Big Mermaids Canyon Creek. The Big Tujunga Creek Unit consists comm. 2004). Suckers spawn over The San Gabriel River portion of the of the stretch of Big Tujunga Creek gravel substrates where their eggs can unit extends from the Cogswell Dam on between the Big Tujunga Dam and adhere to gravel before hatching into the West Fork to the Bridge-of-No Hansen Dam and the following larvae. Winter flows from upstream Return on the East Fork, and portions of tributaries: Stone Canyon Creek, Delta areas annually replenish this substrate the North Fork. Santa Ana sucker Canyon Creek, Gold Canyon Creek, and and clean sand from it (Dr. Jonathan occupies the West, North, and East Little Tujunga Creek. The Santa Ana Baskin, Professor Emeritus, California Forks of the San Gabriel River. Suckers sucker occupies the Big Tujunga Creek State Polytechnic University, Pomona, occupy the West Fork from the Cogswell between Big Tujunga Dam and Hansen pers. comm. 2004; Dr. Thomas Haglund, Dam to the San Gabriel Reservoir. The Dam. pers. comm. 2004; NOAA 2003). In North Fork and East Fork are occupied Approximately 25 percent of the total addition, suckers feed by scraping algae, by suckers upstream from the San remaining range of the Santa Ana sucker insects, and detritus from gravel and Gabriel Reservoir. Suckers also occupy is within the Big Tujunga Creek (65 FR cobble. Therefore, the upstream source the following tributaries: Cattle Canyon 19686). In the Big Tujunga Creek, of spawning and feeding substrates Creek, Bear Creek, and Big Mermaids approximately 60 percent of the current (gravel and cobble) are essential to the Canyon Creek. range of the Santa Ana sucker occurs on reproductive ability and development of Approximately 15 percent of the total private lands. The remaining 40 percent the sucker in the downstream occupied remaining range of the listed Santa Ana of the range occurs on Angeles National reaches (Dr. Jonathan Baskin, Professor sucker is in the San Gabriel River (65 FR Forest lands managed by the U.S. Forest Emeritus, California State Polytechnic 19686). Approximately 15 percent of its Service. University, Pomona, pers. comm. 2004; distribution in the San Gabriel River The Big Tujunga Creek Unit is Dr. Thomas Haglund, pers. comm. Basin occurs on private lands, and the essential to the conservation of the 2004). remaining 85 percent occurs in the sucker because this stream segment
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supports one of only three extant boundaries of the Western Riverside removal program, maintaining or populations of this listed species which MSHCP and essential habitat within the improving water quality standards, and has a highly fragmented and limited area covered by SAS Conservation removing or modifying barriers to fish distribution. In addition, the upstream Program outweigh the benefits of passage within the Santa Ana River to portion of this population is largely including these areas as critical habitat. address the long-term conservation of contained within the Angeles National Exclusion of these areas will not result the Santa Ana sucker. Although the Forest and therefore is not exposed to in the extinction of the sucker. Western Riverside MSHCP is not yet the effects of urban run-off and tertiary approved by the Service, significant treated wastewater discharge. This unit Exclusion of Critical Habitat Within the progress has been achieved in the is also essential because it maintains Draft Western Riverside Multiple development of this HCP, including the habitat for the northernmost extent of Species Habitat Conservation Plan and preparation of the EIS/EIR, the the existing distribution of the Santa the SAS Conservation Program solicitation of public review and Ana sucker. Consequently, the unit Draft Western Riverside Multiple comment, and the initiation of a enhances the long-term sustainability of Species Habitat Conservation Plan consultation with us on the issuance of the sucker by maintaining its genetic incidental take permits for those species The Western Riverside MSHCP has adaptive potential and a well- identified for coverage in the draft plan. been in development for several years. distributed geographical range to buffer Participants in the Western Riverside Santa Ana Sucker Conservation Program the sucker’s particular vulnerability to MSHCP include 14 cities; the County of and Associated Maintenance and environmental fluctuations and Riverside (including the Riverside Operation Activities of Existing Water catastrophes. The tributaries to the Big Tujunga County Flood Control and Water Facilities on the Santa Ana River Creek that are within the unit (Stone Conservation District, Riverside County The Santa Ana Sucker (SAS) Canyon Creek, Delta Canyon Creek, Transportation Commission, Riverside Conservation Program is a multi-agency Gold Canyon Creek, and Little Tujunga County Parks and Open Space District, partnership of Federal, and local Creek) are not known to be occupied, and Riverside County Waste government agencies and the private but are essential to the conservation of Department); the California Department sector that encourages a river-wide the sucker because they provide and of Parks and Recreation; and the approach to conservation of the Santa transport sediment necessary to California Department of Ana sucker within the Santa Ana River maintain the preferred substrates Transportation. The Western Riverside and its tributaries. This partnership also utilized by this fish; convey stream MSHCP is also being proposed as a increases the knowledge base to flows and flood waters necessary to subregional plan under the State’s implement recovery strategies for the maintain habitat conditions for the Natural Community Conservation sucker in the Santa Ana River; ensures Santa Ana sucker; and support riparian Program (NCCP) and is being developed that each participating agency habitats that protect water quality in the in cooperation with the California minimizes, to the extent possible, effects occupied portions of the Big Tujunga Department of Fish and Game. Within from routine activities to the sucker; and Creek. Similar to the Santa Ana River, the 1.26 million-acre (510,000 ha) develops restoration techniques for these tributaries are essential to the Big planning area of the Western Riverside degraded habitat. Partners in the SAS Tujunga Creek sucker population MSHCP, approximately 153,000 ac Conservation Program include the Santa because it they provide renewal of (62,000 ha) of diverse habitats are Ana Watershed Project Authority, the spawning and feeding substrates and proposed for conservation. The Army Corps of Engineers (Corps), the peaks and ebbs in water volumes. These proposed conservation of 153,000 ac Fish and Wildlife Service, and the tributaries are particularly essential to (62,000 ha) will complement other, following participating agencies: Orange the conservation of the sucker since the existing natural and open space areas County Water District, Orange County Big Tujunga Dam has reduced the that are already conserved through other Resources and Development transfer of sediment downstream and means (e.g., State Parks, Forest Service, Department, Riverside County Flood altered the natural flow in the upper Big and county park lands). Control and Water Conservation Tujunga Creek. The sucker has been The County of Riverside and the District, Riverside County able to maintain its population in the participating jurisdictions have signaled Transportation Department, City of Big Tujunga Creek despite the their sustained support for the Western Riverside Regional Water Quality fragmented habitat and presence of Riverside MSHCP as evidenced by the Control Plant, San Bernardino County nonnative species. Most likely, the November 5, 2002, passage of a local Flood Control District, and the City of sucker population has survived because bond measure to fund the acquisition of San Bernardino Municipal Water of the presence of the relatively land in support of the MSHCP. On Department Rapid Infiltration and undisturbed condition of the tributaries November 14, 2002, a notice of Extraction Facility. to Big Tujunga Creek. availability of a draft environmental The partnership was initially formed impact report (EIS/EIR) and receipt of in the spring of 1999, when an informal Exclusions Under Section 4(b)(2) and application for an incidental take group of concerned local, regional, Section 4(b)(2) of the Act allows the permit was accepted and published in State, and Federal agencies formed the Secretary to exclude any area from the Federal Register. We accepted Ad-Hoc Santa Ana Sucker Discussion critical habitat if she determines the public comment on these documents Team (Discussion Team) to assist in benefits of such exclusion outweigh the until January 14, 2003. Subsequently, on reconciling economic activities with the benefits of specifying such area as part June 17, 2003, the County of Riverside conservation of the sucker and to of critical habitat, unless, based on the Board of Supervisors voted identify and implement conservation best scientific and commercial data unanimously to support the completion measures that would contribute to the available, she determines that failure to of the Western Riverside MSHCP. survival and recovery of the sucker, designate the area as critical habitat will The Western Riverside MSHCP primarily within the Santa Ana River result in the extinction of the species. incorporates conservation actions watershed. Research priorities and We have determined that the benefits of within the planning area, such as funding sources were identified, and a excluding essential habitat within the implementing a nonnative species three-phase, coordinated effort was
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initiated and completed during 1999 small. HCPs generally include Conservation Program is a and 2000. These initial scientific studies management measures and protections comprehensive conservation program concentrated on physiochemical designed to protect, restore, monitor, for the sucker that includes measures to variables, migration patterns, predatory manage, and enhance the habitat to minimize the impacts of routine water fish relationships, and tributary benefit the conservation of the species. management activities on the sucker analysis. As an outgrowth of these The draft Western Riverside MSHCP and restore degraded river habitat to studies, the Discussion Team proposed seeks to accomplish these goals for the improve the species’ prospects for the SAS Conservation Program, for an Santa Ana sucker through the survival and recovery. Because the SAS initial term of 5 years. implementation of specific conservation Conservation Program is specifically The purpose of the draft measures. The principal benefit of designed to benefit the sucker and its Programmatic Consultation on the SAS designating critical habitat is that essential habitat within the Santa Ana Conservation Program is to promote the federally authorized or funded activities River habitat and the Programmatic conservation (i.e., survival and that may affect a species’ critical habitat Consultation on the SAS Conservation recovery) of the sucker, while providing would require consultation with us Program will analyze the effects of the the necessary authorization, pursuant to under section 7 of the Act. Under SAS Conservation Program on the the ESA, to allow for the incidental take section 7, proposed actions that would sucker and its habitat, the designation of of a limited number of suckers that is adversely modify or destroy designated critical habitat within the boundaries of anticipated to occur when the critical habitat cannot go forward, the SAS Conservation Program would participating agencies implement their unless they are altered to eliminate the provide little or no additional benefits covered activities. Covered activities adverse modification or destruction of to this species. include operation, maintenance, repair, critical habitat. and reconstruction of (e.g., rebuilding An important objective of the Western (2) Benefits of Exclusion existing levees for water conservation, Riverside MSHCP is to implement Excluding from critical habitat lands constructed wetlands, and flood control) measures, including monitoring and within the Western Riverside MSHCP or existing projects and facilities and the management, necessary to conserve within the area covered by the SAS continuation of existing programs for important habitat for the Santa Ana Conservation Program will provide flood control, water conservation, water sucker within the plan’s boundaries. several benefits. Exclusion of the lands treatment and discharge, protection of Thus, the purposes of the Western from the final designation will allow us transportation routes, and wildlife Riverside MSHCP are consistent with to continue working with the conservation. Impact minimization the purpose served by undergoing participants in a spirit of cooperation measures for the Santa Ana sucker are consultation under section 7 which is to and partnership. In the past, HCP integral to the SAS Conservation ensure that critical habitat of the sucker applicants and participants in voluntary Program and are identified for each of is not adversely modified by a proposed conservation programs have generally the agencies’ covered activities. Federal action. Because issuance of an viewed the designation of critical The SAS Conservation Program has incidental take permit (ITP) under habitat as having a potential negative funded research efforts to define habitat section 10 is a Federal action, prior to regulatory effect that discourages affinities for various life history stages approving the Western Riverside voluntary, cooperative and proactive of the sucker, investigate reproductive MSHCP we must complete an internal efforts to conserve listed species and patterns of the sucker, develop a section 7 consultation for every species, their habitats by non-Federal parties. population trend database, examine including the Santa Ana sucker, They generally view designation of aspects of sucker migration in the Santa proposed to be covered under the critical habitat as an indication by the Ana River, and examine effects on the proposed plan and permit. The Federal government that their proactive sucker of temporary shutdowns of consultation will require us to analyze actions to protect the species and its tertiary-treated wastewater discharge the impacts of the proposed ITP and habitat are inadequate. Excluding these water to the Santa Ana River. Planned HCP on the Santa Ana sucker and its areas from the perceived negative research projects of the SAS essential habitat within the plan consequences of critical habitat, will Conservation Program in 2004 include boundaries, whether or not that habitat likely encourage other jurisdictions, the development of habitat restoration has been officially designated as critical private landowners, and other entities to methods, characterize the movement habitat. Therefore, including that work cooperatively with us to develop and diet of various life history stages of portion of the Santa Ana River basin HCPs and conservation plans, which suckers, and investigate the effects of that is within the boundaries of the will provide the basis for future non-native adult fish on larval and proposed Western Riverside MSHCP as opportunities to conserve species and juvenile suckers. Again, funding for all critical habitat would provide little their essential habitat. of these research efforts will be benefit to the Santa Ana sucker because (3) Benefits of Exclusion Outweigh the provided by the participating agencies. the potential impacts to the species’ We are excluding from critical habitat essential habitat within the MSHCP area Benefits of Inclusion designation areas along the Santa Ana are already addressed under the plan We have reviewed and evaluated the River because they are either within the and will be analyzed in our internal nearly finished draft Western Riverside planning area boundary for the draft section 7 consultation on the proposed MSHCP and SAS Conservation Program Western Riverside MSHCP or the SAS ITP. and find that the benefits of exclusion Conservation Program. Our justification The SAS Conservation Program outweigh the benefits of designating the for excluding these areas is outlined includes measures to restore, monitor, areas covered by the MSHCP and SAS below. and enhance habitat for the Santa Ana Conservation Program as critical habitat. sucker in the Santa Ana River. Similar The exclusion of these areas from (1) Benefits of Inclusion to the Western Riverside MSHCP, the critical habitat will help preserve the The benefits of designating critical SAS Conservation Program is partnerships that we have developed habitat on lands within the boundaries specifically designed to benefit the with the local jurisdictions and agencies of HCPs that cover the species for which sucker and its essential habitat within in the development of the draft Western critical habitat is being designated are the Santa Ana River. The SAS Riverside MSHCP and SAS
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Conservation Program. The only further evaluate the role of the Santa Section 7(a)(4) requires Federal potential benefit of designating critical Clara River population in the recovery agencies to confer with us on any action habitat within these areas would be of the species. If the Santa Clara River that is likely to jeopardize the continued educational: informing the public of population is determined to be crucial existence of a proposed species or result areas that are essential for the long-term to the recovery of the species, we may in destruction or adverse modification survival and conservation of the species. re-evaluate the status of this population, of proposed critical habitat. Conference However, this information has already threats to its conservation, and the reports provide conservation largely been provided to the public status of the population under the Act. recommendations to assist the agency in through the material provided on our eliminating conflicts that may be caused Web site and through the ample Effects of Critical Habitat Designation by the proposed action. The opportunity for public participation Section 7 Consultation conservation recommendations in a provided throughout the development The regulatory effects of a critical conference report are advisory. We may issue a formal conference of the Western Riverside MSHCP. The habitat designation under the Act are report, if requested by the Federal action Corps of Engineers is also likely to issue triggered through the provisions of agency. Formal conference reports a public notice and solicit public section 7, which applies only to include an opinion that is prepared comment on the issuance of a permit for activities conducted, authorized, or according to 50 CFR 402.14, as if critical activities related to the maintenance and funded by a Federal agency (Federal habitat were designated. We may adopt operation of existing water facilities on actions). Regulations implementing this the Santa Ana River in association with the formal conference report as the interagency cooperation provision of the the SAS Conservation Program further biological opinion when critical habitat Act are codified at 50 CFR part 402. increasing the public’s knowledge of the is designated, if no substantial new Individuals, organizations, States, local importance of the Santa Ana River to information or changes in the action governments, and other non-Federal the sucker. For these reasons, we believe alter the content of the opinion (see 50 entities are not affected by the that designating critical habitat has little CFR 402.10(d)). designation of critical habitat unless benefit in areas covered by the draft If a species is listed or critical habitat their actions occur on Federal lands, Western Riverside MSHCP and SAS is designated, section 7(a)(2) requires require Federal authorization, or involve Conservation Program. Exclusion of Federal agencies to ensure that activities Federal funding. these areas will not result in the they authorize, fund, or carry out are not Section 7(a)(2) of the Act requires extinction of the species because the likely to jeopardize the continued Federal agencies, including us, to Western Riverside MSHCP and SAS existence of the species or to destroy or ensure that their actions are not likely Conservation Program are designed to adversely modify its critical habitat. If a to jeopardize the continued existence of ensure that activities authorized within Federal action may affect a listed a listed species or result in the these areas include measures to protect species or its critical habitat, the destruction or adverse modification of the Santa Ana Sucker and its habitat. responsible Federal agency (action Based on our evaluation of our past designated critical habitat. This agency) must enter into consultation consultation history on the Santa Ana requirement is met through section 7 with us. Through this consultation, the Sucker and the analysis conducted for consultation under the Act. Our action agency would ensure that the those consultations, the Western regulations define ‘‘jeopardize the permitted actions do not destroy or Riverside MSHCP, and the SAS continued existence’’ as to engage in an adversely modify critical habitat. Conservation Program, we believe that action that reasonably would be If we issue a biological opinion we have a general understanding of expected, directly or indirectly, to concluding that a project is likely to potential impacts, including those reduce appreciably the likelihood of result in the destruction or adverse related to economics, of this both the survival and recovery of a modification of critical habitat, we designation. We have considered these listed species in the wild by reducing would also provide reasonable and potential impacts in the development of the reproduction, numbers, or prudent alternatives to the project, if this designation and do not believe, at distribution of that species (50 CFR any are identifiable. Reasonable and this time, that additional exclusion, 402.02). ‘‘Destruction or adverse prudent alternatives are defined at 50 including those based on economics, modification of designated critical CFR 402.02 as alternative actions pursuant to section 4(b)(2) of the Act are habitat’’ is defined as a direct or indirect identified during consultation that can warranted. alteration that appreciably diminishes be implemented in a manner consistent the value of the critical habitat for both with the intended purpose of the action, Santa Clara River the survival and recovery of the species that are consistent with the scope of the We listed as threatened only those (50 CFR 402.02). Such alterations Federal agency’s legal authority and Santa Ana sucker populations thought include, but are not limited to, adverse jurisdiction, that are economically and to occur within the native range of the changes to the physical or biological technologically feasible, and that the species. The native range of the Santa features, i.e., the primary constituent Service’s Regional Director believes Ana sucker is considered to be the elements, that were the basis for would avoid the destruction or adverse streams of the Los Angeles, San Gabriel, determining the habitat to be critical. modification of critical habitat. and Santa Ana River basins. The Santa However, in a March 15, 2001, decision Reasonable and prudent alternatives can Clara River population is presumed to of the United States Court of Appeals for vary from slight project modifications to be an introduced population, although the Fifth Circuit (Sierra Club v. U.S. extensive redesign or relocation of the this presumption is based entirely on Fish and Wildlife Service et al., 245 F.3d project. Costs associated with negative data, and not on a documented 434), the Court found our definition of implementing a reasonable and prudent record of introduction (Hubbs et al. destruction or adverse modification to alternative are similarly variable. 1943, Miller 1968, Moyle 1976, Bell be invalid. In response to this decision, Regulations at 50 CFR 402.16 require 1978). The Santa Clara population was we are reviewing the regulatory Federal agencies to reinitiate not listed; thus critical habitat cannot be definition of adverse modification in consultation on previously reviewed designated for this population. As we relation to the conservation of the actions in instances where critical stated in the final listing rule, we will species. habitat is subsequently designated and
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the Federal agency has retained not limited to, discharge of fill into RFA section 4 requires agencies to discretionary involvement or control waters of the United States and conduct a final regulatory flexibility over the action or such discretionary promulgation of water quality standards analysis (FRFA) with each final rule, but involvement or control is authorized by within designated critical habitat; only when ‘‘an agency promulgates a law. Consequently, some Federal (4) Sale or exchange of Federal lands final rule under section 553 of this title, agencies may request reinitiation of by a Federal agency to a non-Federal after being required by that section or consultation or conference with us on entity within designated critical habitat; any other law to publish a general actions for which formal consultation (5) Construction, licensing, re- notice of proposed rulemaking * * *’’ has been completed, if those actions licensing, and operation of dams or (5 U.S.C. 604(a)). Therefore, for a critical may affect designated critical habitat or other water impoundments by the habitat final rulemaking conducted adversely modify or destroy proposed Bureau of Reclamation (BOR), Corps, or under the APA’s 553(b)(B) good cause critical habitat. Federal Energy Regulatory Commission exemption, the RFA does not require the Federal activities that may affect the (FERC) within designated critical Service to create an IFRA or a FRFA and Santa Ana sucker and designated habitat; contains no other provisions requiring critical habitat will require consultation (6) Licensing of construction of compliance in such situations. The under section 7. On private, State, or communication sites by the Federal certification procedures in RFA section county lands, or lands under local Communications Commission; 5 are not relevant because they are only jurisdictions, activities requiring a (7) Funding of construction or triggered if an IRFA or FRFA is permit from a Federal agency, such as development activities by the U.S. otherwise required. Federal Highway Administration or Department of Housing and Urban Federal Emergency Management Act Development; and Small Business Regulatory Enforcement funding, or a permit from the Corps (8) Promulgation and implementation Fairness Act (5 U.S.C. 801 et seq.) under section 404 of the Clean Water of a land use plan by a Federal agency Under the Small Business Regulatory Act, will continue to be subject to the such as the U.S. Forest Service that may Enforcement Fairness Act (5 U.S.C. 801 section 7 consultation process. Federal alter management practices for critical et seq.), this rule is not a major rule. As actions not affecting listed species or habitat. previously discussed, we have excluded critical habitat, and actions on non- If you have questions regarding critical habitat from private lands Federal lands that are not federally whether specific activities may within the draft Western Riverside funded, authorized, or permitted do not constitute adverse modification of MSHCP and the SAS Conservation require section 7 consultation. critical habitat in California, contact the Section 4(b)(8) of the Act requires us Program under section 4(b)(2) of the Field Supervisor, Carlsbad Fish and Act. The exclusion of these private to evaluate briefly and describe, in any Wildlife Office (see ADDRESSES section). proposed or final regulation that lands and the activities associated with Requests for copies of the regulations on the draft Western Riverside MSHCP and designates critical habitat, those listed plants and wildlife, and inquiries activities involving a Federal action that SAS Conservation Program eliminates about prohibitions and permits may be the potential for critical habitat in these may adversely modify such habitat or addressed to the U.S. Fish and Wildlife that may be affected by such excluded areas to have any effect on the Service, Branch of Endangered Species, increase in cost or prices for consumers designation. We note that such activities 911 NE. 11th Ave, Portland, OR 97232 may also jeopardize the continued or any significant adverse effects on (telephone 503/231–2063; facsimile competition, employment, investment, existence of the species. Activities that, 503/231–6243). when carried out, funded, or authorized productivity, innovation or the ability of by a Federal agency may affect or Required Determinations U.S.-based enterprises to compete with destroy or adversely modify critical foreign-based enterprises. Moreover, Regulatory Planning and Review habitat for Santa Ana sucker include, approximately 48 percent of the but are not limited to: The Office of Management and Budget designated critical habitat is on Forest (1) Any activity, including the (OMB) has not reviewed this final Service lands that are not intensively regulation of activities by the Corps of critical habitat designation in used for commercial or business Engineers under section 404 of the accordance with Executive Order 12866. purposes and we anticipate that the Clean Water Act or activities carried out In order to comply with the critical designation will have little to no effect by or licensed by the Environmental habitat designation deadline established on cost or prices for consumers or any Protection Agency (EPA), that could by the district court, there was other significant commercial or business alter the watershed, water quality, and insufficient time for OMB to formally related activities. The remaining 52 natural hydrologic function to an extent review this proposal. percent of designated critical habitat that water quality and/or water quantity that occurs on private lands is Regulatory Flexibility Act (5 U.S.C. 601 becomes unsuitable to support the Santa constrained by other existing et seq.) Ana sucker within designated critical conditions, such as being within habitat; The Service is not required to comply wetlands regulated by the U.S. Army (2) Roads, highways, and rights-of- with the requirements of the Regulatory Corps of Engineers, floodplains way construction and maintenance or Flexibility Act (RFA) (5 U.S.C. 601 et identified by FEMA, or by the presence any activity funded or carried out by the seq.) when promulgating a final rule of listed species or other designated Department of Transportation or other under the good cause exemption of the critical habitat. Therefore, we believe Federal agencies that results in Administrative Procedure Act (APA). that this critical habitat designation will discharge of dredged or fill material or RFA section 3 requires the preparation not have an effect on the economy of excavation within designated critical of an initial regulatory flexibility $100 million or more, will not cause a habitat; or analysis (IRFA) ‘‘whenever an agency is major increase in costs or prices for (3) Activities regulated by the Corps, required by section 553 of this title, or consumers, and will not have significant EPA, or Natural Resources Conservation any other law, to publish general notice adverse effects on competition, Service under the Clean Water Act and of proposed rulemaking for any employment, investment, productivity, other acts or regulations, including but proposed rule * * *’’ (5 U.S.C. 603(a)). innovation, or the ability of U.S.-based
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enterprises to compete with foreign- does not pose significant takings approval by OMB under the Paperwork based enterprises. implications. Reduction Act. This rule will not impose recordkeeping or reporting Executive Order 13211 Federalism requirements on State or local On May 18, 2001, the President issued In accordance with Executive Order governments, individuals, businesses, or Executive Order 13211, on regulations 13132, this final rule does not have organizations. An agency may not that significantly affect energy supply, federalism implications or impose conduct or sponsor, and a person is not distribution, and use. Executive Order substantial direct compliance costs on required to respond to, a collection of 13211 requires agencies to prepare State and local governments. This information unless it displays a Statements of Energy Effects when designation requires Federal agencies to currently valid OMB control number. ensure that their actions do not undertaking certain actions. This rule is National Environmental Policy Act not a significant regulatory action under adversely modify critical habitat; it does Executive Order 12866, and is not not impose direct obligations on State or We do not need to prepare an expected to significantly affect energy local governments. A federalism Environmental Assessment and/or an production supply and distribution assessment is not required. Environmental Impact Statement as The designations may have some facilities because no energy production, defined by the National Environmental benefit to the State of California and supply, and distribution facilities are Policy Act of 1969 in connection with local government, in that the areas included within designated critical regulations adopted pursuant to section essential to the conservation of the habitat. Further, we do not believe the 4(a) of the Act. We published a notice Santa Ana sucker are more clearly designation of critical habitat for the outlining our reason for this defined, and the primary constituent determination in the Federal Register Santa Ana sucker will affect future elements of the habitat necessary to on October 25, 1983 (48 FR 49244). This energy production. Therefore, this their survival are specifically identified. rule does not constitute a major Federal action is not a significant energy action While this definition and identification action significantly affecting the quality and no Statement of Energy Effects is do not alter where and what federally of the human environment. required. sponsored activities may occur, they Unfunded Mandates Reform Act (2 may assist these local governments in References Cited U.S.C. 1501 et seq.) long-range planning, rather than causing them to wait for case-by-case section 7 A complete list of all references cited In accordance with the Unfunded consultation to occur. in this rulemaking is available upon Mandates Reform Act (2 U.S.C. 1501 et request from the Field Supervisor, seq.): Civil Justice Reform Carlsbad Fish and Wildlife Office (see (a) This rule will not produce a In accordance with Executive Order ADDRESSES section). Federal mandate on State or local 12988, the Department of the Interior’s Author governments or the private sector of Office of the Solicitor has determined $100 million or greater in any year, that that this rule does not unduly burden The primary author of this document is, it is not a ‘‘significant regulatory the judicial system and does meet the is the Carlsbad Fish and Wildlife Office action’’ under the Unfunded Mandates requirements of sections 3(a) and 3(b)(2) (see ADDRESSES section). of the Order. We have designated Reform Act. The designation of critical List of Subjects in 50 CFR Part 17 habitat imposes no direct obligations on critical habitat in accordance with the State or local governments. provisions of the Endangered Species Endangered and threatened species, (b) This rule will not ‘‘significantly or Act. The rule uses standard property Exports, Imports, Reporting and uniquely’’ affect small governments so a descriptions and identifies the primary recordkeeping requirements, Small Government Agency Plan is not constituent elements within the Transportation. designated areas to assist the public in required. Small governments will not be Regulation Promulgation affected unless they propose an action understanding the habitat needs of the requiring Federal funds, permits, or Santa Ana sucker. ■ For the reasons given in the preamble, other authorizations. Any such activities Government-to-Government we amend part 17, subchapter B of will require that the Federal agency Relationship With Tribes chapter I, title 50 of the Code of Federal ensure that the action will not adversely In accordance with the President’s Regulations, as follows: modify or destroy designated critical memorandum of April 29, 1994, PART 17—[AMENDED] habitat. ‘‘Government-to-Government Relations Takings with Native American Tribal ■ 1. The authority citation for part 17 Governments’’ (59 FR 22951, E.O. continues to read as follows: In accordance with Executive Order 13175, and the Department of the Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 12630 (‘‘Government Actions and Interior’s manual at 512 DM 2, we have Interference with Constitutionally 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– evaluated the potential effects on 625, 100 Stat. 3500, unless otherwise noted. Protected Private Property Rights’’), we federally recognized Indian tribes and have analyzed the potential takings have determined that there are no ■ 2. Amend § 17.11(h), by revising the implications of designating critical potential effects. entry for ‘‘Sucker, Santa Ana’’ under habitat for the Santa Ana sucker in a ‘‘FISHES’’ to read as follows: takings implications assessment. The Paperwork Reduction Act of 1995 (44 takings implications assessment U.S.C. 3501 et seq.) 17.11 Endangered and threatened wildlife. concludes that this final designation of This rule does not contain any new * * * * * critical habitat for the Santa Ana sucker collections of information that require (h) * * *
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Species Vertebrate popu- lation where en- Historic range dangered or Status When listed Critical habitat Special rules Common name Scientific name threatened
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FISHES
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Sucker, Santa Ana (Catostomus U.S.A. (CA) ...... Los Angeles River T 694 17.95(e) ...... N/A santaanae). basin, San Ga- briel River basin, Santa Ana River basin.
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■ 3. Amend § 17.95(e) by adding critical macroinvertebrates, and riparian 438400, 3757700; 438400, 3757500; habitat for the Santa Ana sucker vegetation. 438300, 3757500; 438300, 3757400; (Catostomus santaanae) in the same (3) The textual unit descriptions 438200, 3757400; 438200, 3757300; alphabetical order as this species occurs below are the definitive source for 438300, 3757300; 438300, 3757200; in 17.11(h). determining critical habitat boundaries. 438200, 3757200; 438200, 3757000; General location maps by unit are 438300, 3757000; 438300, 3756900; § 17.95 Critical habitat—fish and wildlife. provided at the end of each unit 438400, 3756900; 438400, 3756800; * * * * * description and are provided for general 438500, 3756800; 438500, 3756700; (e) Fishes. * * * guidance purposes only, and not as a 438600, 3756700; 438600, 3756600; Santa Ana Sucker (Catostomus definitive source for determining critical 438700, 3756600; 438700, 3756500; santaanae) habitat boundaries. 438600, 3756500; 438600, 3756400; (4) Unit 1: Santa Ana River system in 438700, 3756400; 438700, 3756300; (1) Critical habitat units are depicted San Bernardino County, California 439000, 3756300; 439000, 3756200; for Los Angeles and San Bernardino (i) Unit 1 includes two subunits: Unit 439100, 3756200; 439100, 3756100; Counties, California, on the maps and as 1A, Northern Prado Basin and Unit 1B, 439200, 3756100; 439200, 3756200; described below. Santa Ana Wash. Unit 1A, Northern 439600, 3756200; 439600, 3755800; (2) Primary constituent elements Prado Basin includes Chino Creek and 439700, 3755800; 439700, 3756100; essential for the conservation of the Cucamonga Creek. Unit 1B, Santa Ana 439800, 3756100; 439800, 3756200; Santa Ana sucker are found in an Wash includes portions of the mainstem 440000, 3756200; 440000, 3756400; ecosystem that includes a functioning of the Santa Ana River from La Cadena 440100, 3756400; 440100, 3756500; hydrological system that experiences Avenue Bridge to the downstream edge 440300, 3756500; 440300, 3756400; peaks and ebbs in water volume and of Seven Oaks Dam and the tributaries 440200, 3756400; 440200, 3756200; maintains a sand, gravel, and cobble of City Creek and Mill Creek. The lateral 440300, 3756200; 440300, 3755900; substrate in a mosaic of sandy stream extent of Unit 1 is defined by the UTM 440400, 3755900; 440400, 3756100; margins, deep water pools, riffles (i.e., coordinates described in the legal 440600, 3756100; 440600, 3756000; well-oxygenated, shallow water over description. 440700, 3756000; 440700, 3755900; rough substrate), and runs (i.e., shallow Unit 1: Santa Ana River, San 440800, 3755900; 440800, 3755600; water over generally smooth substrate); Bernardino County, California. 440700, 3755600; 440700, 3755500; sufficient water volume and quality; and Unit 1A: Northern Prado Basin. From 440800, 3755500; 440800, 3755400; complex, native floral and faunal USGS 1:24,000 quadrangle maps Corona 441000, 3755400; 441000, 3755500; associations. The primary constituent North and Prado Dam, California, land 441500, 3755500; 441500, 3755800; elements for the sucker are the bounded by the following UTM 11 NAD 442500, 3755800; 442500, 3755900; following: (i) A functioning hydrological system 27 coordinates (E, N): 436200, 3759600; 442700, 3755900; 442700, 3756200; that experiences peaks and ebbs in the 436300, 3759600; 436300, 3759500; 442900, 3756200; 442900, 3756300; water volume throughout the year; 436400, 3759500; 436400, 3759400; 443000, 3756300; 443000, 3756400; (ii) A mosaic of sand, gravel, cobble, 436500, 3759400; 436500, 3759300; 443500, 3756400; 443500, 3756500; and boulder substrates in a series of 436600, 3759300; 436600, 3759200; thence east to the San Bernardino/ riffles, runs, pools and shallow sandy 436700, 3759200; 436700, 3759100; Riverside County boundary at y- stream margins; 436800, 3759100; 436800, 3759000; coordinate 3756500; thence south along (iii) Water depths greater than 3 cm 436900, 3759000; 436900, 3758800; the San Bernardino/Riverside County and bottom water velocities greater than 437000, 3758800; 437000, 3758700; boundary to y-coordinate 3756200; 0.03 meter per second; 437100, 3758700; 437100, 3758600; thence west following coordinates: (iv) Non-turbid conditions or only 437200, 3758600; 437200, 3758400; 443500, 3756200; 443500, 3756100; seasonally turbid conditions; 437300, 3758400; 437300, 3758300; 443300, 3756100; 443300, 3756000; (v) Water temperatures less than 30 437600, 3758300; 437600, 3758200; 443200, 3756000; 443200, 3755800; °C; and 437700, 3758200; 437700, 3758000; 443100, 3755800; 443100, 3755700; (vi) Stream habitat that includes algae, 437800, 3758000; 437800, 3757900; 443000, 3755700; 443000, 3755600; aquatic emergent vegetation, 437900, 3757900; 437900, 3757700; 442900, 3755600; 442900, 3755500;
VerDate jul<14>2003 17:34 Feb 25, 2004 Jkt 203001 PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 E:\FR\FM\26FER1.SGM 26FER1 8852 Federal Register / Vol. 69, No. 38 / Thursday, February 26, 2004 / Rules and Regulations
442800, 3755500; 442800, 3755400; 436300, 3759400; 436200, 3759400; 3772300; 489900, 3772300; 489900, 442900, 3755400; 442900, 3755100; returning to 436200, 3759600. 3772200; 489800, 3772200; 489800, 443000, 3755100; 443000, 3755000; Unit 1B: Santa Ana Wash. From USGS 3772000; 489700, 3772000; 489700, 442900, 3755000; 442900, 3754800; 1:24,000 quadrangle maps Forest Falls, 3771600; 489800, 3771600; 489800, 442800, 3754800; 442800, 3754600; Harrison Mountain, Redlands, San 3771500; 489900, 3771500; 489900, 443100, 3754600; 443100, 3754900; Bernardino South, and Yucaipa, 3771400; 490000, 3771400; 490000, 443200, 3754900; 443200, 3755000; California, land bounded by the 3771300; 490200, 3771300; 490200, 443600, 3755000; 443600, 3755300; following UTM 11 NAD 27 coordinates 3771200; 490300, 3771200; 490300, thence east to the San Bernardino/ (E, N): 482700, 3783600; 482700, 3771100; 490500, 3771100; 490500, Riverside County boundary at y- 3783500; 482900, 3783500; 482900, 3771000; 490700, 3771000; 490700, coordinate 3755300; thence south along 3783400; 483100, 3783400; 483100, 3770900; 490900, 3770900; 490900, the San Bernardino/Riverside County 3783300; 483300, 3783300; 483300, 3770800; 491000, 3770800; 491000, boundary to y-coordinate 3754500; 3783200; 483400, 3783200; 483400, 3770700; 491100, 3770700; 491100, thence west following coordinates: 3782700; 483100, 3782700; 483100, 3770600; 493200, 3770600; 493200, 443300, 3754500; 443300, 3754400; 3782600; 483200, 3782600; 483200, 3770700; 493400, 3770700; 493400, 442900, 3754400; 442900, 3754300; 3782500; 483100, 3782500; 483100, 3770800; 493500, 3770800; 493500, 442800, 3754300; 442800, 3754000; 3782100; 483200, 3782100; 483200, 3770900; 493800, 3770900; 493800, 442700, 3754000; 442700, 3753900; 3782000; 483600, 3782000; 483600, 3771000; 494200, 3771000; 494200, 442600, 3753900; 442600, 3754000; 3781800; 483400, 3781800; 483400, 3771100; 494500, 3771100; 494500, 442500, 3754000; 442500, 3753800; 3781200; 483500, 3781200; 483500, 3771200; 494600, 3771200; 494600, 442400, 3753800; thence south to the 3781000; 483600, 3781000; 483600, 3771300; 494700, 3771300; 494700, San Bernardino/Riverside County 3780900; 483500, 3780900; 483500, 3771400; 494900, 3771400; 494900, boundary at x-coordinate 442400; 3780600; 483400, 3780600; 483400, 3771500; 495000, 3771500; 495000, thence west and south along the San 3780500; 483500, 3780500; 483500, 3771600; 495200, 3771600; 495200, Bernardino/Riverside County boundary 3780200; 483400, 3780200; 483400, 3771700; 495500, 3771700; 495500, to y-coordinate 3753600; thence west 3780000; 483300, 3780000; 483300, 3771800; 495800, 3771800; 495800, following coordinates: 439500, 3753600; 3779800; 483400, 3779800; 483400, 3771900; 496200, 3771900; 496200, 439500, 3753800; 439400, 3753800; 3779600; 483300, 3779600; 483300, 3772000; 496400, 3772000; 496400, 439400, 3754000; 439300, 3754000; 3779000; 483100, 3779000; 483100, 3772100; 496700, 3772100; 496700, 439300, 3754200; 439200, 3754200; 3778900; 483000, 3778900; 483000, 3772200; 496800, 3772200; 496800, 439200, 3754400; 439100, 3754400; 3778700; 482900, 3778700; 482900, 3772300; 496900, 3772300; 496900, 439100, 3754500; 439000, 3754500; 3778000; 482800, 3778000; 482800, 3772500; 497000, 3772500; 497000, 439000, 3754700; 438900, 3754700; 3777800; 482900, 3777800; 482900, 3772600; 497100, 3772600; 497100, 3777600; 482800, 3777600; 482800, 3772700; 497400, 3772700; 497400, 438900, 3754800; 438800, 3754800; 3777400; 482700, 3777400; 482700, 3772800; 497500, 3772800; 497500, 438800, 3754900; 438700, 3754900; 3777000; 482600, 3777000; 482600, 3773000; 497600, 3773000; 497600, 438700, 3755100; 438600, 3755100; 3776500; 482700, 3776500; 482700, 3773100; 497700, 3773100; 497700, 438600, 3755200; 438500, 3755200; 3775500; 482600, 3775500; 482600, 3773200; 497900, 3773200; 497900, 438500, 3755300; 438400, 3755300; 3775300; 482500, 3775300; 482500, 3773300; 498200, 3773300; 498200, 438400, 3755400; 438300, 3755400; 3774800; 482600, 3774800; 482600, 3773400; 498400, 3773400; 498400, 438300, 3755600; 438200, 3755600; 3774600; 482700, 3774600; 482700, 3773500; 498700, 3773500; 498700, 438200, 3755700; 438100, 3755700; 3774500; 482800, 3774500; 482800, 3773600; 498800, 3773600; 498800, 438100, 3755800; 438000, 3755800; 3774300; 482900, 3774300; 482900, 3773500; 499300, 3773500; 499300, 438000, 3756000; 437900, 3756000; 3774200; 483000, 3774200; 483000, 3773300; 499500, 3773300; 499500, 437900, 3756100; 437800, 3756100; 3774100; 483100, 3774100; 483100, 3773200; 499900, 3773200; 499900, 437800, 3756300; 437700, 3756300; 3773900; 483200, 3773900; 483200, 3773100; 500200, 3773100; 500200, 437700, 3756500; 437600, 3756500; 3773800; 484700, 3773800; 484700, 3773000; 501000, 3773000; 501000, 437600, 3756700; 437500, 3756700; 3774200; 486300, 3774200; 486300, 3773100; 501200, 3773100; 501200, 437500, 3756800; 437400, 3756800; 3774300; 486600, 3774300; 486600, 3773000; 501600, 3773000; 501600, 437400, 3757000; 437300, 3757000; 3774400; 486800, 3774400; 486800, 3772900; 502400, 3772900; 502400, 437300, 3757200; 437200, 3757200; 3774500; 487100, 3774500; 487100, 3772800; 503100, 3772800; 503100, 437200, 3757300; 437100, 3757300; 3774600; 487200, 3774600; 487200, 3772700; 503700, 3772700; 503700, 437100, 3757500; 437400, 3757500; 3774400; 487100, 3774400; 487100, 3772600; 504100, 3772600; 504100, 437400, 3757400; 437500, 3757400; 3774000; 487200, 3774000; 487200, 3772700; 504600, 3772700; 504600, 437500, 3757500; 437600, 3757500; 3773900; 487300, 3773900; 487300, 3772600; 505100, 3772600; 505100, 437600, 3757600; 437500, 3757600; 3772700; 488100, 3772700; 488100, 3772500; 505400, 3772500; 505400, 437500, 3757800; 437400, 3757800; 3772600; 488200, 3772600; 488200, 3772400; 505500, 3772400; 505500, 437400, 3757900; 437300, 3757900; 3772700; 488500, 3772700; 488500, 3772300; 505700, 3772300; 505700, 437300, 3758000; 437200, 3758000; 3772500; 489000, 3772500; 489000, 3772200; 505800, 3772200; 505800, 437200, 3758100; 437100, 3758100; 3772700; 489100, 3772700; 489100, 3772100; 505900, 3772100; 505900, 437100, 3758200; 437000, 3758200; 3772800; 489200, 3772800; 489200, 3771900; 505500, 3771900; 505500, 437000, 3758400; 436900, 3758400; 3773000; 489400, 3773000; 489400, 3772000; 505300, 3772000; 505300, 436900, 3758500; 436800, 3758500; 3773100; 489800, 3773100; 489800, 3772100; 505100, 3772100; 505100, 436800, 3758700; 436700, 3758700; 3773200; 490400, 3773200; 490400, 3772200; 504800, 3772200; 504800, 436700, 3758800; 436600, 3758800; 3773000; 490300, 3773000; 490300, 3772300; 504000, 3772300; 504000, 436600, 3758900; 436500, 3758900; 3772800; 490200, 3772800; 490200, 3772400; 503800, 3772400; 503800, 436500, 3759100; 436400, 3759100; 3772700; 490100, 3772700; 490100, 3772300; 503700, 3772300; 503700, 436400, 3759200; 436300, 3759200; 3772500; 490000, 3772500; 490000, 3772400; 503500, 3772400; 503500,
VerDate jul<14>2003 17:34 Feb 25, 2004 Jkt 203001 PO 00000 Frm 00056 Fmt 4700 Sfmt 4700 E:\FR\FM\26FER1.SGM 26FER1 Federal Register / Vol. 69, No. 38 / Thursday, February 26, 2004 / Rules and Regulations 8853
3772300; 503300, 3772300; 503300, 3771300; 483500, 3771300; 483500, 3768200; 470900, 3768200; 470900, 3772200; 502600, 3772200; 502600, 3771400; 483300, 3771400; 483300, 3768300; 471000, 3768300; 471000, 3772300; 502300, 3772300; 502300, 3771500; 483000, 3771500; 483000, 3768400; 471100, 3768400; 471100, 3772400; 501400, 3772400; 501400, 3771700; 482500, 3771700; 482500, 3768500; 471200, 3768500; 471200, 3772500; 501200, 3772500; 501200, 3771800; 482400, 3771800; 482400, 3768600; 471300, 3768600; 471300, 3772600; 500800, 3772600; 500800, 3771900; 482300, 3771900; 482300, 3768700; 471400, 3768700; 471400, 3772700; 500500, 3772700; 500500, 3772100; 481900, 3772100; 481900, 3768800; 471500, 3768800; 471500, 3772800; 500000, 3772800; 500000, 3772000; 481600, 3772000; 481600, 3768900; 471600, 3768900; 471600, 3772900; 499400, 3772900; 499400, 3772200; 480900, 3772200; 480900, 3769000; 471800, 3769000; 471800, 3773000; 499200, 3773000; 499200, 3772000; 480700, 3772000; 480700, 3769100; 471900, 3769100; 471900, 3773100; 499100, 3773100; 499100, 3772100; 479700, 3772100; 479700, 3769200; 472000, 3769200; 472000, 3773200; 498700, 3773200; 498700, 3772000; 479300, 3772000; 479300, 3769300; 472100, 3769300; 472100, 3773300; 498500, 3773300; 498500, 3771900; 479000, 3771900; 479000, 3769400; 472200, 3769400; 472200, 3773200; 498300, 3773200; 498300, 3771800; 478700, 3771800; 478700, 3769500; 472500, 3769500; 472500, 3773100; 498000, 3773100; 498000, 3771700; 478500, 3771700; 478500, 3769600; 472900, 3769600; 472900, 3773000; 497900, 3773000; 497900, 3771600; 478400, 3771600; 478400, 3769700; 473100, 3769700; 473100, 3772900; 497800, 3772900; 497800, 3771500; 478200, 3771500; 478200, 3769800; 473300, 3769800; 473300, 3772800; 497700, 3772800; 497700, 3771400; 478100, 3771400; 478100, 3769900; 473400, 3769900; 473400, 3772700; 497600, 3772700; 497600, 3771300; 477900, 3771300; 477900, 3770000; 473600, 3770000; 473600, 3772600; 497500, 3772600; 497500, 3771200; 477600, 3771200; 477600, 3769900; 473900, 3769900; 473900, 3772500; 497200, 3772500; 497200, 3771100; 476700, 3771100; 476700, 3770000; 474300, 3770000; 474300, 3772300; 497100, 3772300; 497100, 3771000; 476300, 3771000; 476300, 3770100; 474500, 3770100; 474500, 3772100; 497000, 3772100; 497000, 3770900; 476100, 3770900; 476100, 3770200; 474700, 3770200; 474700, 3772000; 496700, 3772000; 496700, 3770800; 475900, 3770800; 475900, 3770300; 474900, 3770300; 474900, 3771900; 496600, 3771900; 496600, 3770700; 475700, 3770700; 475700, 3770400; 475000, 3770400; 475000, 3771800; 496500, 3771800; 496500, 3770600; 475600, 3770600; 475600, 3770500; 475100, 3770500; 475100, 3771700; 496400, 3771700; 496400, 3770500; 475500, 3770500; 475500, 3770600; 475200, 3770600; 475200, 3771600; 496300, 3771600; 496300, 3770400; 475300, 3770400; 475300, 3770700; 475300, 3770700; 475300, 3771500; 496200, 3771500; 496200, 3770300; 475200, 3770300; 475200, 3770800; 475400, 3770800; 475400, 3771100; 496100, 3771100; 496100, 3770100; 475000, 3770100; 475000, 3770900; 475500, 3770900; 475500, 3771000; 496000, 3771000; 496000, 3770000; 474900, 3770000; 474900, 3771000; 475700, 3771000; 475700, 3770900; 495900, 3770900; 495900, 3769900; 474800, 3769900; 474800, 3771100; 475900, 3771100; 475900, 3770800; 495800, 3770800; 495800, 3769800; 474600, 3769800; 474600, 3771200; 476100, 3771200; 476100, 3770700; 495700, 3770700; 495700, 3769700; 473900, 3769700; 473900, 3771300; 476700, 3771300; 476700, 3770600; 495600, 3770600; 495600, 3769600; 473500, 3769600; 473500, 3771400; 477500, 3771400; 477500, 3770500; 495300, 3770500; 495300, 3769500; 473200, 3769500; 473200, 3771500; 477700, 3771500; 477700, 3770400; 494900, 3770400; 494900, 3769400; 472900, 3769400; 472900, 3771600; 477800, 3771600; 477800, 3770300; 494600, 3770300; 494600, 3769300; 472500, 3769300; 472500, 3771700; 477900, 3771700; 477900, 3770400; 494100, 3770400; 494100, 3769200; 472400, 3769200; 472400, 3771800; 478100, 3771800; 478100, 3770300; 493800, 3770300; 493800, 3769100; 472200, 3769100; 472200, 3771900; 478200, 3771900; 478200, 3770200; 493200, 3770200; 493200, 3769000; 472100, 3769000; 472100, 3772000; 478300, 3772000; 478300, 3770100; 493100, 3770100; 493100, 3768900; 472000, 3768900; 472000, 3772100; 478400, 3772100; 478400, 3770200; 492400, 3770200; 492400, 3768800; 471900, 3768800; 471900, 3772200; 478500, 3772200; 478500, 3770300; 490700, 3770300; 490700, 3768700; 471800, 3768700; 471800, 3772300; 478700, 3772300; 478700, 3770400; 490500, 3770400; 490500, 3768600; 471700, 3768600; 471700, 3772400; 479000, 3772400; 479000, 3770500; 490400, 3770500; 490400, 3768500; 471600, 3768500; 471600, 3772500; 479200, 3772500; 479200, 3770600; 490200, 3770600; 490200, 3768400; 471500, 3768400; 471500, 3772600; 479500, 3772600; 479500, 3770700; 490100, 3770700; 490100, 3768300; 471400, 3768300; 471400, 3772700; 479800, 3772700; 479800, 3770800; 490000, 3770800; 490000, 3768200; 471300, 3768200; 471300, 3772800; 480000, 3772800; 480000, 3770900; 489900, 3770900; 489900, 3768000; 471200, 3768000; 471200, 3772900; 480200, 3772900; 480200, 3771000; 489800, 3771000; 489800, 3767900; 471100, 3767900; 471100, 3773000; 480300, 3773000; 480300, 3771100; 489600, 3771100; 489600, 3767700; 471000, 3767700; 471000, 3773100; 480400, 3773100; 480400, 3771200; 489500, 3771200; 489500, 3767500; 470900, 3767500; 470900, 3773200; 480500, 3773200; 480500, 3771300; 489400, 3771300; 489400, 3767300; 470800, 3767300; 470800, 3773300; 480600, 3773300; 480600, 3771400; 489200, 3771400; 489200, 3767200; 470700, 3767200; 470700, 3773400; 480800, 3773400; 480800, 3771500; 489000, 3771500; 489000, 3767100; 470600, 3767100; 470600, 3773500; 480900, 3773500; 480900, 3771300; 488100, 3771300; 488100, 3767000; 470400, 3767000; 470400, 3773600; 481000, 3773600; 481000, 3770800; 487900, 3770800; 487900, 3766900; 470100, 3766900; 470100, 3773700; 481100, 3773700; 481100, 3770900; 487800, 3770900; 487800, 3766800; 469800, 3766800; 469800, 3773800; 481200, 3773800; 481200, 3771100; 487900, 3771100; 487900, 3766900; 469500, 3766900; 469500, 3773900; 481300, 3773900; 481300, 3771300; 487800, 3771300; 487800, 3767000; 469600, 3767000; 469600, 3774100; 481400, 3774100; 481400, 3771400; 487600, 3771400; 487600, 3767200; 470100, 3767200; 470100, 3774200; 481500, 3774200; 481500, 3771300; 487300, 3771300; 487300, 3767300; 470300, 3767300; 470300, 3774300; 481600, 3774300; 481600, 3771400; 485700, 3771400; 485700, 3767400; 470400, 3767400; 470400, 3774400; 481700, 3774400; 481700, 3771300; 485500, 3771300; 485500, 3767500; 470500, 3767500; 470500, 3774600; 481800, 3774600; 481800, 3771200; 484800, 3771200; 484800, 3767600; 470600, 3767600; 470600, 3774700; 481900, 3774700; 481900, 3771300; 484500, 3771300; 484500, 3767800; 470700, 3767800; 470700, 3774900; 482000, 3774900; 482000, 3771200; 484300, 3771200; 484300, 3768000; 470800, 3768000; 470800, 3775200; 482100, 3775200; 482100,
VerDate jul<14>2003 17:34 Feb 25, 2004 Jkt 203001 PO 00000 Frm 00057 Fmt 4700 Sfmt 4700 E:\FR\FM\26FER1.SGM 26FER1 8854 Federal Register / Vol. 69, No. 38 / Thursday, February 26, 2004 / Rules and Regulations
3775500; 482200, 3775500; 482200, 3782600; 482900, 3782600; 482900, 3773300; 485100, 3773200; 485300, 3775700; 482300, 3775700; 482300, 3782800; 483000, 3782800; 483000, 3773200; 485300, 3773100; 485400, 3776000; 482400, 3776000; 482400, 3783000; 482900, 3783000; 482900, 3773100; 485400, 3773000; 485500, 3776700; 482300, 3776700; 482300, 3783100; 482700, 3783100; 482700, 3773000; 485500, 3772800; 485600, 3776900; 482400, 3776900; 482400, 3783200; 482600, 3783200; 482600, 3772800; 485600, 3772600; 485000, 3777500; 482500, 3777500; 482500, 3783300; 482300, 3783300; 482300, 3772600; 485000, 3772800; 485100, 3777900; 482600, 3777900; 482600, 3783500; 482600, 3783500; 482600, 3772800; 485100, 3773000; 484600, 3778900; 482700, 3778900; 482700, 3783600; returning to 482700, 3783600; 3773000; 484400, 3772900; 484300, 3779000; 482800, 3779000; 482800, excluding land bounded by: 482700, 3772900; 484300, 3773000; 484400, 3779100; 482900, 3779100; 482900, 3773600; 482800, 3773600; 482800, 3773000; 484600, 3773100; 484700, 3779200; 483000, 3779200; 483000, 3773400; 482900, 3773400; 482900, 3773100; 484700, 3773200; 484900, 3779700; 483200, 3779700; 483200, 3773100; 482800, 3773100; 482800, 3773200; returning to 484900, 3773300; 3779800; 483100, 3779800; 483100, 3772900; 482700, 3772900; 482700, 3780100; 483200, 3780100; 483200, 3772700; 482500, 3772700; 482500, and excluding land bounded by: 3780300; 483300, 3780300; 483300, 3772800; 482300, 3772800; 482300, 483300, 3772900; 484300, 3772900; 3780400; 483200, 3780400; 483200, 3772600; 482200, 3772600; 482200, 484300, 3772700; 484400, 3772700; 3780900; 483100, 3780900; 483100, 3772700; 481900, 3772700; 481900, 484400, 3772500; 484800, 3772500; 3781000; 482800, 3781000; 482800, 3773000; 481100, 3773000; 481100, 484800, 3772000; 484400, 3772000; 3781500; 482700, 3781500; 482700, 3772900; 480900, 3772900; 480900, 484400, 3772100; 484300, 3772100; 3781700; 482800, 3781700; 482800, 3773300; 481000, 3773300; 481000, 484300, 3772200; 484200, 3772200; 3781800; 482700, 3781800; 482700, 3773400; 481400, 3773400; 481400, 484200, 3772400; 484100, 3772400; 3782000; 482800, 3782000; 482800, 3773500; 482700, 3773500; returning to 484100, 3772600; 483300, 3772600; 3782200; 482900, 3782200; 482900, 482700, 3773600; and excluding land returning to 483300, 3772900. 3782300; 482800, 3782300; 482800, bounded by: 484900, 3773300; 485100, BILLING CODE 4310–55–P
VerDate jul<14>2003 17:34 Feb 25, 2004 Jkt 203001 PO 00000 Frm 00058 Fmt 4700 Sfmt 4700 E:\FR\FM\26FER1.SGM 26FER1 Federal Register / Vol. 69, No. 38 / Thursday, February 26, 2004 / Rules and Regulations 8855
(ii) Maps of Unit 1 follow:
VerDate jul<14>2003 17:34 Feb 25, 2004 Jkt 203001 PO 00000 Frm 00059 Fmt 4700 Sfmt 4725 E:\FR\FM\26FER1.SGM 26FER1 ER26FE04.072 8856 Federal Register / Vol. 69, No. 38 / Thursday, February 26, 2004 / Rules and Regulations
BILLING CODE 4310–55–C 3794400; 423300, 3794300; 423200, 3791100; 422400, 3791000; 421700, (5) Unit 2: San Gabriel River system 3794300; 423200, 3794200; 423100, 3791000; 421700, 3790900; 421600, in Los Angeles County, California. 3794200; 423100, 3794000; 423000, 3790900; 421600, 3790800; 421500, (i) Unit 2 includes the West, North 3794000; 423000, 3793400; 422900, 3790800; 421500, 3790700; 421400, and East Forks of the San Gabriel River 3793400; 422900, 3793300; 422800, 3790700; 421400, 3790600; 421300, and the following tributaries from 3793300; 422800, 3793200; 422700, 3790600; 421300, 3790200; 421200, source to confluence: Cattle Canyon 3793200; 422700, 3793100; 422600, 3790200; 421200, 3790100; 421100, Creek, Bear Creek, and Big Mermaids 3793100; 422600, 3792900; 422500, 3790100; 421100, 3789900; 420800, Canyon Creek. The San Gabriel River 3792900; 422500, 3792800; 422400, 3789900; 420800, 3789800; 420700, portion of the unit extends from the 3792800; 422400, 3792100; 422500, 3789800; 420700, 3789700; 420600, Cogswell Dam on the West Fork to the 3792100; 422500, 3791800; 422700, 3789700; 420600, 3789600; 420500, Bridge-of-No Return on the East Fork, 3791800; 422700, 3791900; 422900, 3789600; 420500, 3789500; 420700, and portions of the North Fork. The 3791900; 422900, 3792000; 423100, 3789500; 420700, 3789400; 420800, lateral extent of Unit 2 is defined by the 3792000; 423100, 3792100; 423800, 3789400; 420800, 3789000; 420900, UTM coordinates described in the legal 3792100; 423800, 3792200; 424500, 3789000; 420900, 3789100; 421100, description. 3792200; 424500, 3791900; 424300, 3789100; 421100, 3789200; 421200, Unit 2: San Gabriel River. Los Angeles 3791900; 424300, 3791800; 424000, 3789200; 421200, 3789300; 421700, County, California. From USGS 1:24,000 3791800; 424000, 3791700; 423900, 3789300; 421700, 3789200; 421800, quadrangle maps Azusa, Crystal Lake, 3791700; 423900, 3791600; 423400, 3789200; 421800, 3789100; 421900, Glendora, Mount Baldy, Mount San 3791600; 423400, 3791700; 423200, 3789100; 421900, 3788900; 422000, Antonio, and Waterman Mountain, 3791700; 423200, 3791600; 423000, 3788900; 422000, 3788800; 422200, California, land bounded by the 3791600; 423000, 3791500; 422900, 3788800; 422200, 3788700; 422400, following UTM 11 NAD 27 coordinates 3791500; 422900, 3791400; 422700, 3788700; 422400, 3788500; 422500, (E, N): 422700, 3795100; 423300, 3791400; 422700, 3791300; 422600, 3788500; 422500, 3788600; 422600, 3795100; 423300, 3795000; 423400, 3791300; 422600, 3791200; 422500, 3788600; 422600, 3788700; 422500, 3795000; 423400, 3794400; 423300, 3791200; 422500, 3791100; 422400, 3788700; 422500, 3789400; 422600,
VerDate jul<14>2003 17:34 Feb 25, 2004 Jkt 203001 PO 00000 Frm 00060 Fmt 4700 Sfmt 4700 E:\FR\FM\26FER1.SGM 26FER1 ER26FE04.073 Federal Register / Vol. 69, No. 38 / Thursday, February 26, 2004 / Rules and Regulations 8857
3789400; 422600, 3789600; 422800, 3792100; 431500, 3791700; 431400, 3787800; 433100, 3787900; 433000, 3789600; 422800, 3789400; 422900, 3791700; 431400, 3791500; 431500, 3787900; 433000, 3788000; 432600, 3789400; 422900, 3789300; 422800, 3791500; 431500, 3791200; 431400, 3788000; 432600, 3788100; 432400, 3789300; 422800, 3789200; 422700, 3791200; 431400, 3791100; 431500, 3788100; 432400, 3788200; 432300, 3789200; 422700, 3788800; 422800, 3791100; 431500, 3790800; 431400, 3788200; 432300, 3788300; 432200, 3788800; 422800, 3788700; 422900, 3790800; 431400, 3790700; 431300, 3788300; 432200, 3788400; 432100, 3788700; 422900, 3788800; 423100, 3790700; 431300, 3790600; 430700, 3788400; 432100, 3788500; 432000, 3788800; 423100, 3788900; 423300, 3790600; 430700, 3790500; 430600, 3788500; 432000, 3788400; 431900, 3788900; 423300, 3788800; 424000, 3790500; 430600, 3790600; 430500, 3788400; 431900, 3788300; 431600, 3788800; 424000, 3788900; 424100, 3790600; 430500, 3790500; 430300, 3788300; 431600, 3788200; 431500, 3788900; 424100, 3789000; 424600, 3790500; 430300, 3789800; 430200, 3788200; 431500, 3788100; 431400, 3789000; 424600, 3788900; 424700, 3789800; 430200, 3789200; 430100, 3788100; 431400, 3788000; 431300, 3788900; 424700, 3788700; 424800, 3789200; 430100, 3788900; 430000, 3788000; 431300, 3787800; 431200, 3788700; 424800, 3788600; 425000, 3788900; 430000, 3788700; 429800, 3787800; 431200, 3787700; 431100, 3788600; 425000, 3788700; 425500, 3788700; 429800, 3788500; 429700, 3787700; 431100, 3787600; 430700, 3788700; 425500, 3788600; 425800, 3788500; 429700, 3788200; 429600, 3787600; 430700, 3787500; 430000, 3788600; 425800, 3788500; 426100, 3788200; 429600, 3788100; 429500, 3787500; 430000, 3787600; 429900, 3788500; 426100, 3788300; 426400, 3788100; 429500, 3788000; 429400, 3787600; 429900, 3787500; 429800, 3788300; 426400, 3788200; 426800, 3788000; 429400, 3787800; 429600, 3787500; 429800, 3787300; 429600, 3788200; 426800, 3788300; 427000, 3787800; 429600, 3787700; 429700, 3787300; 429600, 3787400; 429400, 3788300; 427000, 3788200; 427200, 3787700; 429700, 3787800; 429800, 3787400; 429400, 3787500; 428900, 3788200; 427200, 3788300; 427600, 3787800; 429800, 3787900; 430400, 3787500; 428900, 3787600; 428800, 3788300; 427600, 3788200; 427700, 3787900; 430400, 3787800; 430700, 3787600; 428800, 3787700; 428700, 3788200; 427700, 3788100; 427800, 3787800; 430700, 3787900; 430900, 3787700; 428700, 3787600; 428000, 3788100; 427800, 3788000; 428900, 3787900; 430900, 3788000; 431000, 3787600; 428000, 3787700; 427400, 3788000; 428900, 3787900; 429000, 3788000; 431000, 3788100; 431100, 3787700; 427400, 3787800; 427100, 3787900; 429000, 3788000; 429100, 3788100; 431100, 3788300; 431200, 3787800; 427100, 3787900; 426900, 3788000; 429100, 3788200; 429200, 3788300; 431200, 3788400; 431300, 3787900; 426900, 3787800; 426300, 3788200; 429200, 3788300; 429300, 3788400; 431300, 3788500; 431400, 3787800; 426300, 3787900; 426200, 3788300; 429300, 3788700; 429400, 3788500; 431400, 3788600; 431700, 3787900; 426200, 3788000; 425900, 3788700; 429400, 3788800; 429500, 3788600; 431700, 3788700; 431900, 3788000; 425900, 3788100; 425600, 3788800; 429500, 3789000; 429600, 3788700; 431900, 3788800; 432300, 3788100; 425600, 3788200; 425400, 3789000; 429600, 3789100; 429800, 3788800; 432300, 3788700; 432400, 3788200; 425400, 3788300; 424500, 3789100; 429800, 3789300; 429900, 3788700; 432400, 3788600; 432500, 3788300; 424500, 3788500; 424200, 3789300; 429900, 3789800; 430000, 3788600; 432500, 3788500; 432600, 3788500; 424200, 3788400; 423800, 3789800; 430000, 3790400; 429900, 3788500; 432600, 3788400; 432800, 3788400; 423800, 3788300; 423500, 3790400; 429900, 3790500; 429800, 3788400; 432800, 3788300; 433200, 3788300; 423500, 3788400; 423100, 3790500; 429800, 3790400; 429500, 3788300; 433200, 3788200; 433400, 3788400; 423100, 3788300; 423000, 3790400; 429500, 3790500; 429400, 3788200; 433400, 3788100; 433500, 3788300; 423000, 3788100; 422900, 3790500; 429400, 3790400; 428900, 3788100; 433500, 3787900; 433700, 3788100; 422900, 3788000; 422200, 3790400; 428900, 3790500; 428800, 3787900; 433700, 3788000; 434300, 3788000; 422200, 3788100; 422100, 3790500; 428800, 3790600; 428900, 3788000; 434300, 3788100; 434500, 3788100; 422100, 3788200; 422000, 3790600; 428900, 3790700; 429000, 3788100; 434500, 3788200; 434600, 3788200; 422000, 3788300; 421700, 3790700; 429000, 3790800; 429100, 3788200; 434600, 3788400; 434700, 3788300; 421700, 3788400; 421600, 3790800; 429100, 3790900; 429000, 3788400; 434700, 3788600; 434800, 3788400; 421600, 3788800; 421200, 3790900; 429000, 3791300; 429300, 3788600; 434800, 3789000; 434900, 3788800; 421200, 3788700; 421100, 3791300; 429300, 3791100; 429500, 3789000; 434900, 3789100; 435000, 3788700; 421100, 3788600; 421000, 3791100; 429500, 3791000; 429600, 3789100; 435000, 3789200; 435200, 3788600; 421000, 3788500; 420700, 3791000; 429600, 3790900; 429700, 3789200; 435200, 3789300; 435500, 3788500; 420700, 3788600; 420500, 3790900; 429700, 3790800; 430100, 3789300; 435500, 3789200; 435600, 3788600; 420500, 3788800; 420400, 3790800; 430100, 3790700; 430200, 3789200; 435600, 3789400; 435700, 3788800; 420400, 3788900; 419800, 3790700; 430200, 3790800; 430300, 3789400; 435700, 3789500; 435900, 3788900; 419800, 3789000; 419700, 3790800; 430300, 3790900; 430400, 3789500; 435900, 3789000; 435800, 3789000; 419700, 3789100; 419400, 3790900; 430400, 3791000; 430600, 3789000; 435800, 3788900; 435200, 3789100; 419400, 3789000; 419100, 3791000; 430600, 3790900; 430700, 3788900; 435200, 3788700; 435100, 3789000; 419100, 3788900; 419000, 3790900; 430700, 3791000; 431100, 3788700; 435100, 3788400; 435000, 3788900; 419000, 3788800; 418600, 3791000; 431100, 3791100; 431000, 3788400; 435000, 3788200; 434900, 3788800; 418600, 3788700; 418300, 3791100; 431000, 3791300; 431100, 3788200; 434900, 3788000; 434800, 3788700; 418300, 3788800; 417500, 3791300; 431100, 3791800; 431200, 3788000; 434800, 3787800; 434600, 3788800; 417500, 3788900; 417400, 3791800; 431200, 3791900; 431100, 3787800; 434600, 3787700; 434500, 3788900; 417400, 3789100; 417300, 3791900; 431100, 3792400; 431000, 3787700; 434500, 3787600; 434600, 3789100; 417300, 3789400; 417100, 3792400; 431000, 3792500; 430900, 3787600; 434600, 3787300; 434100, 3789400; 417100, 3789500; 416700, 3792500; 430900, 3792800; 431100, 3787300; 434100, 3787200; 434000, 3789500; 416700, 3789400; 416500, 3792800; 431100, 3792700; 431300, 3787200; 434000, 3787300; 433800, 3789400; 416500, 3789300; 416400, 3792700; 431300, 3792600; 431400, 3787300; 433800, 3787400; 433600, 3789300; 416400, 3789200; 416300, 3792600; 431400, 3792400; 431500, 3787400; 433600, 3787500; 433400, 3789200; 416300, 3789100; 416000, 3792400; 431500, 3792200; 431400, 3787500; 433400, 3787600; 433200, 3789100; 416000, 3789000; 415800, 3792200; 431400, 3792100; 431500, 3787600; 433200, 3787800; 433100, 3789000; 415800, 3788900; 415700,
VerDate jul<14>2003 17:34 Feb 25, 2004 Jkt 203001 PO 00000 Frm 00061 Fmt 4700 Sfmt 4700 E:\FR\FM\26FER1.SGM 26FER1 8858 Federal Register / Vol. 69, No. 38 / Thursday, February 26, 2004 / Rules and Regulations
3788900; 415700, 3789000; 415400, 3790600; 417100, 3790700; 416900, 3793300; 418300, 3793200; 418400, 3789000; 415400, 3789100; 415100, 3790700; 416900, 3790900; 416800, 3793200; 418400, 3792500; 418300, 3789100; 415100, 3789300; 414700, 3790900; 416800, 3791000; 416500, 3792500; 418300, 3792200; 418200, 3789300; 414700, 3789100; 414600, 3791000; 416500, 3791100; 416200, 3792200; 418200, 3792000; 418100, 3789100; 414600, 3789000; 414500, 3791100; 416200, 3791200; 415900, 3792000; 418100, 3791700; 418200, 3789000; 414500, 3788900; 414400, 3791200; 415900, 3791300; 415700, 3791700; 418200, 3791600; 418400, 3788900; 414400, 3788800; 414300, 3791300; 415700, 3791500; 415600, 3791600; 418400, 3791400; 418500, 3788800; 414300, 3788700; 414100, 3791500; 415600, 3791700; 415500, 3791400; 418500, 3791300; 418600, 3788700; 414100, 3788600; 413500, 3791700; 415500, 3791800; 415400, 3791300; 418600, 3791200; 418800, 3788600; 413500, 3788700; 413400, 3791800; 415400, 3791900; 415200, 3791200; 418800, 3791100; 418900, 3788700; 413400, 3788900; 413300, 3791900; 415200, 3792000; 414700, 3791100; 418900, 3791000; 419000, 3788900; 413300, 3789000; 413200, 3792000; 414700, 3792100; 414600, 3791000; 419000, 3790600; 419100, 3789000; 413200, 3789100; 413100, 3792100; 414600, 3792300; 415500, 3790600; 419100, 3790300; 419000, 3789100; 413100, 3789200; 413000, 3792300; 415500, 3792200; 415700, 3790300; 419000, 3790200; 418900, 3789200; 413000, 3789300; 412900, 3792200; 415700, 3792000; 415900, 3790200; 418900, 3789700; 418800, 3789300; 412900, 3789200; 412800, 3792000; 415900, 3791900; 416000, 3789700; 418800, 3789600; 418700, 3789200; 412800, 3789100; 412700, 3791900; 416000, 3791700; 416200, 3789600; 418700, 3789500; 418600, 3789100; 412700, 3789000; 412600, 3791700; 416200, 3791600; 416400, 3789500; 418600, 3789200; 418800, 3789000; 412600, 3788900; 412300, 3791600; 416400, 3791500; 416700, 3789200; 418800, 3789300; 419100, 3788900; 412300, 3789200; 411900, 3791500; 416700, 3791400; 416800, 3789300; 419100, 3789400; 419900, 3789200; 411900, 3789300; 411300, 3791400; 416800, 3791300; 417100, 3789400; 419900, 3789500; 420000, 3789300; 411300, 3789500; 411200, 3791300; 417100, 3791100; 417200, 3789500; 420000, 3789600; 420100, 3789500; 411200, 3789700; 411500, 3791100; 417200, 3791000; 417500, 3789600; 420100, 3789700; 420200, 3789700; 411500, 3789800; 411700, 3791000; 417500, 3790600; 417400, 3789700; 420200, 3789900; 420300, 3789800; 411700, 3789700; 411900, 3790600; 417400, 3789800; 417300, 3789900; 420300, 3790000; 420500, 3789700; 411900, 3789600; 412200, 3789800; 417300, 3789700; 417500, 3790000; 420500, 3790100; 420700, 3789600; 412200, 3789700; 412300, 3789700; 417500, 3789600; 417600, 3790100; 420700, 3790200; 420800, 3789700; 412300, 3789600; 412600, 3789600; 417600, 3789500; 417700, 3790200; 420800, 3790300; 420900, 3789600; 412600, 3789500; 412700, 3789500; 417700, 3789200; 418200, 3790300; 420900, 3790500; 421000, 3789500; 412700, 3789600; 412800, 3789200; 418200, 3789800; 418300, 3790500; 421000, 3790900; 421100, 3789600; 412800, 3789800; 413100, 3789800; 418300, 3789900; 418400, 3790900; 421100, 3791000; 421200, 3789800; 413100, 3789700; 413200, 3789900; 418400, 3790100; 418500, 3791000; 421200, 3791100; 421300, 3789700; 413200, 3789500; 413300, 3790100; 418500, 3790400; 418600, 3791100; 421300, 3791200; 421400, 3789500; 413300, 3789400; 413500, 3790400; 418600, 3790800; 418500, 3791200; 421400, 3791300; 421500, 3789400; 413500, 3789300; 413700, 3790800; 418500, 3790900; 418200, 3791300; 421500, 3791400; 422200, 3789300; 413700, 3789200; 413800, 3790900; 418200, 3791000; 418100, 3791400; 422200, 3791500; 422300, 3789200; 413800, 3789300; 414000, 3791000; 418100, 3791200; 418000, 3791500; 422300, 3791700; 422200, 3789300; 414000, 3789400; 414400, 3791200; 418000, 3791300; 417800, 3791700; 422200, 3791900; 422100, 3789400; 414400, 3789500; 414500, 3791300; 417800, 3791400; 417700, 3791900; 422100, 3792200; 422000, 3789500; 414500, 3789600; 415300, 3791400; 417700, 3791600; 417600, 3792200; 422000, 3793100; 422100, 3789600; 415300, 3789400; 415600, 3791600; 417600, 3791700; 417500, 3793100; 422100, 3793200; 422200, 3789400; 415600, 3789300; 415800, 3791700; 417500, 3792200; 417900, 3793200; 422200, 3793400; 422400, 3789300; 415800, 3789400; 416100, 3792200; 417900, 3792300; 417400, 3793400; 422400, 3793500; 422500, 3789400; 416100, 3789500; 416200, 3792300; 417400, 3792400; 417300, 3793500; 422500, 3794200; 422600, 3789500; 416200, 3789600; 416300, 3792400; 417300, 3792600; 417200, 3794200; 422600, 3794400; 422500, 3789600; 416300, 3789700; 416400, 3792600; 417200, 3792700; 417600, 3794400; 422500, 3794600; 422600, 3789700; 416400, 3789800; 416900, 3792700; 417600, 3792600; 418100, 3794600; 422600, 3795000; 422700, 3789800; 416900, 3789900; 417000, 3792600; 418100, 3792900; 418200, 3795000; returning to 422700, 3795100. 3789900; 417000, 3790600; 417100, 3792900; 418200, 3793300; 418300, BILLING CODE 4310–55–P
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(ii) The map of Unit 2 follows:
BILLING CODE 4310–55–C 3797100; 383100, 3797100; 383100, 3794800; 386900, 3794800; 386900, (6) Unit 3: Big Tujunga Creek system 3797000; 383300, 3797000; 383300, 3794700; 387000, 3794700; 387000, in Los Angeles County, California 3796500; 383400, 3796500; 383400, 3794600; 387100, 3794600; 387100, (i) Unit 3 includes the stretch of Big 3796300; 383300, 3796300; 383300, 3794500; 387200, 3794500; 387200, Tujunga Creek between the Big Tujunga Dam and Hansen Dam and the following 3796200; 383200, 3796200; 383200, 3794400; 387600, 3794400; 387600, tributaries: Stone Canyon Creek, Delta 3796100; 383600, 3796100; 383600, 3794300; 387700, 3794300; 387700, Canyon Creek, Gold Canyon Creek, and 3796300; 383700, 3796300; 383700, 3794200; 387800, 3794200; 387800, Little Tujunga Creek. The lateral extent 3796500; 384300, 3796500; 384300, 3793800; 387900, 3793800; 387900, of Unit 3 is defined by the UTM 3796400; 384400, 3796400; 384400, 3793900; 388000, 3793900; 388000, coordinates described in the legal 3796300; 384600, 3796300; 384600, 3793800; 388100, 3793800; 388100, description. 3796200; 384900, 3796200; 384900, 3793600; 388600, 3793600; 388600, Unit 3: Big Tujunga Creek. Los 3796100; 385000, 3796100; 385000, 3793700; 388800, 3793700; 388800, Angeles County, California. From USGS 3796000; 385100, 3796000; 385100, 3793800; 389100, 3793800; 389100, 1:24,000 quagrangle maps Condor Peak, 3795900; 385200, 3795900; 385200, 3793700; 389300, 3793700; 389300, San Fernando, and Sunland, California, 3795800; 385300, 3795800; 385300, 3793800; 389400, 3793800; 389400, land bounded by the following UTM 11 3795700; 385900, 3795700; 385900, 3793900; 389600, 3793900; 389600, NAD 27 coordinates (E, N): 381800, 3795600; 386100, 3795600; 386100, 3794000; 389700, 3794000; 389700, 3797700; 382100, 3797700; 382100, 3795500; 386200, 3795500; 386200, 3794100; 389800, 3794100; 389800, 3797600; 382300, 3797600; 382300, 3795400; 386300, 3795400; 386300, 3794200; 389900, 3794200; 389900, 3797500; 382400, 3797500; 382400, 3795300; 386500, 3795300; 386500, 3794300; 390000, 3794300; 390000, 3797400; 382700, 3797400; 382700, 3795200; 386600, 3795200; 386600, 3794700; 390100, 3794700; 390100, 3797300; 382800, 3797300; 382800, 3795100; 386700, 3795100; 386700, 3794900; 390200, 3794900; 390200, 3797200; 383000, 3797200; 383000, 3794900; 386800, 3794900; 386800, 3795000; 390400, 3795000; 390400,
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3795100; 390500, 3795100; 390500, 3795700; 383600, 3795700; 383600, 3795200; 374600, 3795200; 374600, 3795200; 390700, 3795200; 390700, 3795800; 383400, 3795800; 383400, 3795300; 374800, 3795300; 374800, 3795300; 390800, 3795300; 390800, 3795900; 383100, 3795900; 383100, 3795400; 375000, 3795400; 375000, 3795200; 390900, 3795200; 390900, 3795800; 382900, 3795800; 382900, 3795500; 375100, 3795500; 375100, 3795100; 390800, 3795100; 390800, 3795700; 382800, 3795700; 382800, 3795600; 375200, 3795600; 375200, 3795000; 390700, 3795000; 390700, 3795800; 382500, 3795800; 382500, 3795700; 375700, 3795700; 375700, 3794800; 390600, 3794800; 390600, 3795700; 382400, 3795700; 382400, 3795800; 375800, 3795800; 375800, 3794700; 390400, 3794700; 390400, 3795600; 382200, 3795600; 382200, 3796100; 375900, 3796100; 375900, 3794600; 390300, 3794600; 390300, 3795500; 382100, 3795500; 382100, 3796400; 376000, 3796400; 376000, 3794300; 390200, 3794300; 390200, 3795400; 382000, 3795400; 382000, 3796500; 376100, 3796500; 376100, 3794200; 390100, 3794200; 390100, 3795200; 381900, 3795200; 381900, 3796800; 376400, 3796800; 376400, 3794100; 390000, 3794100; 390000, 3795100; 381800, 3795100; 381800, 3796400; 376200, 3796400; 376200, 3793900; 389900, 3793900; 389900, 3795000; 381600, 3795000; 381600, 3796000; 376100, 3796000; 376100, 3793800; 389800, 3793800; 389800, 3794900; 381500, 3794900; 381500, 3795800; 376000, 3795800; 376000, 3793700; 389600, 3793700; 389600, 3794800; 381400, 3794800; 381400, 3795600; 375900, 3795600; 375900, 3793600; 389500, 3793600; 389500, 3794600; 381300, 3794600; 381300, 3795500; 375700, 3795500; 375700, 3793500; 389400, 3793500; 389400, 3794300; 381200, 3794300; 381200, 3795400; 375500, 3795400; 375500, 3793400; 389200, 3793400; 389200, 3794000; 381000, 3794000; 381000, 3795300; 375300, 3795300; 375300, 3793300; 389000, 3793300; 389000, 3793900; 380900, 3793900; 380900, 3795200; 375100, 3795200; 375100, 3793500; 388900, 3793500; 388900, 3793800; 380800, 3793800; 380800, 3795100; 374900, 3795100; 374900, 3793400; 388800, 3793400; 388800, 3793600; 380700, 3793600; 380700, 3795000; 374800, 3795000; 374800, 3793300; 388700, 3793300; 388700, 3793400; 380500, 3793400; 380500, 3794900; 374700, 3794900; 374700, 3793200; 388300, 3793200; 388300, 3793300; 380100, 3793300; 380100, 3794800; 374600, 3794800; 374600, 3793100; 388000, 3793100; 388000, 3793400; 379800, 3793400; 379800, 3794700; 374500, 3794700; 374500, 3793200; 387900, 3793200; 387900, 3793300; 379500, 3793300; 379500, 3794600; 374300, 3794600; 374300, 3793500; 387800, 3793500; 387800, 3793200; 379400, 3793200; 379400, 3794500; 374200, 3794500; 374200, 3793400; 387600, 3793400; 387600, 3793100; 379300, 3793100; 379300, 3794400; 374100, 3794400; 374100, 3793700; 387500, 3793700; 387500, 3793000; 379200, 3793000; 379200, 3794100; 374000, 3794100; 374000, 3794000; 387200, 3794000; 387200, 3792900; 379000, 3792900; 379000, 3793700; 373900, 3793700; 373900, 3794100; 387100, 3794100; 387100, 3792700; 378800, 3792700; 378800, 3793300; 373800, 3793300; 373800, 3794200; 387000, 3794200; 387000, 3792500; 378400, 3792500; 378400, 3792800; 373700, 3792800; 373700, 3794300; 386800, 3794300; 386800, 3792400; 378300, 3792400; 378300, 3792700; 374300, 3792700; 374300, 3794500; 386500, 3794500; 386500, 3792300; 378000, 3792300; 378000, 3792900; 374200, 3792900; 374200, 3794600; 386400, 3794600; 386400, 3792200; 377900, 3792200; 377900, 3793000; 374100, 3793000; 374100, 3794800; 386300, 3794800; 386300, 3792100; 377300, 3792100; 377300, 3793200; 374600, 3793200; 374600, 3794700; 386200, 3794700; 386200, 3792200; 376900, 3792200; 376900, 3793100; 374800, 3793100; 374800, 3794400; 386100, 3794400; 386100, 3792100; 375900, 3792100; 375900, 3793000; 374900, 3793000; 374900, 3794300; 385900, 3794300; 385900, 3792200; 375300, 3792200; 375300, 3792900; 375100, 3792900; 375100, 3794200; 385800, 3794200; 385800, 3792300; 374200, 3792300; 374200, 3793000; 375700, 3793000; 375700, 3794000; 385600, 3794000; 385600, 3792200; 373800, 3792200; 373800, 3792900; 376400, 3792900; 376400, 3794300; 385700, 3794300; 385700, 3792100; 373700, 3792100; 373700, 3793000; 376800, 3793000; 376800, 3794400; 385800, 3794400; 385800, 3792000; 373800, 3792000; 373800, 3793100; 377100, 3793100; 377100, 3794500; 386000, 3794500; 386000, 3791800; 373700, 3791800; 373700, 3793200; 377500, 3793200; 377500, 3795000; 385800, 3795000; 385800, 3791700; 373400, 3791700; 373400, 3793300; 377800, 3793300; 377800, 3795100; 385700, 3795100; 385700, 3791600; 372700, 3791600; 372700, 3793200; 378300, 3793200; 378300, 3795200; 385600, 3795200; 385600, 3791700; 372500, 3791700; 372500, 3793100; 378800, 3793100; 378800, 3795300; 385500, 3795300; 385500, 3791800; 372200, 3791800; 372200, 3793200; 379000, 3793200; 379000, 3795500; 385100, 3795500; 385100, 3791900; 372000, 3791900; 372000, 3793400; 379200, 3793400; 379200, 3795600; 385000, 3795600; 385000, 3792000; 371800, 3792000; 371800, 3793500; 379300, 3793500; 379300, 3795700; 384800, 3795700; 384800, 3792100; 371600, 3792100; 371600, 3793600; 379600, 3793600; 379600, 3795800; 384700, 3795800; 384700, 3792300; 371700, 3792300; 371700, 3793700; 379700, 3793700; 379700, 3795900; 384600, 3795900; 384600, 3792700; 372000, 3792700; 372000, 3793800; 380100, 3793800; 380100, 3796000; 384200, 3796000; 384200, 3792800; 372300, 3792800; 372300, 3793900; 380300, 3793900; 380300, 3795900; 384300, 3795900; 384300, 3792900; 372700, 3792900; 372700, 3794000; 380500, 3794000; 380500, 3795800; 384400, 3795800; 384400, 3792800; 373200, 3792800; 373200, 3794100; 380600, 3794100; 380600, 3795600; 384600, 3795600; 384600, 3792700; 373400, 3792700; 373400, 3794200; 380700, 3794200; 380700, 3795000; 384500, 3795000; 384500, 3792900; 373500, 3792900; 373500, 3794300; 380900, 3794300; 380900, 3794900; 384400, 3794900; 384400, 3793100; 373600, 3793100; 373600, 3794600; 381000, 3794600; 381000, 3794800; 384300, 3794800; 384300, 3793400; 373700, 3793400; 373700, 3794800; 381100, 3794800; 381100, 3794700; 384100, 3794700; 384100, 3793800; 373800, 3793800; 373800, 3794900; 381200, 3794900; 381200, 3794900; 384200, 3794900; 384200, 3793900; 373700, 3793900; 373700, 3795000; 381300, 3795000; 381300, 3795000; 384400, 3795000; 384400, 3794100; 373800, 3794100; 373800, 3795100; 381500, 3795100; 381500, 3795300; 384500, 3795300; 384500, 3794200; 373900, 3794200; 373900, 3795400; 381800, 3795400; 381800, 3795400; 384300, 3795400; 384300, 3794600; 374000, 3794600; 374000, 3795600; 381900, 3795600; 381900, 3795500; 384200, 3795500; 384200, 3794700; 374100, 3794700; 374100, 3795800; 382000, 3795800; 382000, 3795700; 384100, 3795700; 384100, 3794800; 374200, 3794800; 374200, 3795900; 382200, 3795900; 382200, 3795800; 384000, 3795800; 384000, 3795000; 374400, 3795000; 374400, 3796000; 382300, 3796000; 382300, 3795600; 383700, 3795600; 383700, 3795100; 374500, 3795100; 374500, 3796100; 382900, 3796100; 382900,
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3796300; 383000, 3796300; 383000, 3797100; 382500, 3797100; 382500, 3797500; 381800, 3797500; returning to 3796400; 383100, 3796400; 383100, 3797200; 382200, 3797200; 382200, 381800, 3797700. 3796800; 383000, 3796800; 383000, 3797300; 382100, 3797300; 382100, (ii) The map of Unit 3 follows: 3796900; 382900, 3796900; 382900, 3797400; 381900, 3797400; 381900, BILLING CODE 4310–55–P 3797000; 382700, 3797000; 382700,
(7) Lands located within the exterior DEPARTMENT OF COMMERCE ACTION: Final rule. boundaries of the critical habitat designation that are not considered National Oceanic and Atmospheric SUMMARY: NMFS issues this final rule to critical habitat and are therefore Administration implement Amendment 16–1 to the excluded by definition include: existing Pacific Coast Groundfish Fishery paved roads; bridges; parking lots; 50 CFR Part 660 Management Plan (FMP). Amendment railroad tracks; railroad trestles; and 16–1 sets a process for and standards by residential, commercial, and industrial [Docket No. 030821210–4052–02; which the Council will specify I.D.081103A] developments. rebuilding plans for groundfish stocks * * * * * declared overfished by the Secretary of RIN 0648–AR36 Commerce. Amendment 16–1 is Dated: February 20, 2004. Fisheries Off West Coast States and in intended to ensure that Pacific Coast Craig Manson, the Western Pacific; Pacific Coast groundfish overfished species Assistant Secretary for Fish and Wildlife and Groundfish Fishery; Amendment 16–1 rebuilding plans meet the requirements Parks. of the Magnuson-Stevens Fishery [FR Doc. 04–4225 Filed 2–25–04; 8:45 am] AGENCY: National Marine Fisheries Conservation and Management Act BILLING CODE 4310–55–C Service (NMFS), National Oceanic and (Magnuson-Stevens Act), in particular Atmospheric Administration (NOAA), national standard 1 on overfishing Commerce. which addresses rebuilding overfished
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fisheries. Amendment 16–1 is also NMFS approved Amendment 16–1 on report schedule, clarifying that the intended to partially respond to a Court November 14, 2003. Amendment 16–1 Federal observer program is mandatory, order in which NMFS was ordered to requires that Pacific Coast groundfish and reorganizing outdated sections of provide Pacific Coast groundfish overfished species rebuilding plans be the FMP. added into the FMP via FMP rebuilding plans as FMPs, FMP Comments and Responses amendments, or regulations, per the amendment, and then implemented Magnuson-Stevens Act. through Federal regulations. For each NMFS received four letters of comment on the proposed rule to DATES: Effective March 29, 2004. approved overfished species rebuilding plan, the following parameters will be implement Amendment 16–1: two ADDRESSES: Copies of Amendment 16– specified in the FMP: estimates of letters were received from 1 and the environmental assessment/ unfished biomass (B0) and target environmental advocacy organizations, initial regulatory impact review (EA/ biomass (BMSY, the year the stock would one letter was received from the U.S. RIR/IRFA)) are available from Donald be rebuilt in the absence of fishing Department of the Interior, and one McIsaac, Executive Director, Pacific (TMIN), the year the stock would be letter was received from the U.S. Coast Fishery Management Council, 7700 NE rebuilt if the maximum time period Guard. Their comments are addressed Ambassador Place, Portland, OR 97220, permissible under national standard here: phone: 503–820–2280. Copies of the guidelines were applied (TMAX), the Comment 1: We recommend that the final regulatory flexibility analysis estimated probability that the stock FMP specify for each overfished species (FRFA) are available from D. Robert would be rebuilt by this date under the a virgin biomass (B0 or BUNFISHED)that is Lohn, Administrator, Northwest Region adopted rebuilding plan based on the the product of that stock’s spawning (Regional Administrator), NMFS, 7600 application of stock rebuilding potential ratio in an unfished state and Sand Point Way N.E., Bldg. 1, Seattle, measures, the year in which the stock the average recruitment during the early WA 98115–0070. would be rebuilt under the adopted years of the fishery, or the standard used FOR FURTHER INFORMATION CONTACT: rebuilding plan based on the application by NMFS for stock assessments. We also Yvonne deReynier (Northwest Region, of stock rebuilding measures (TTARGET), recommend that this value be specified NMFS), phone: 206–526–6150; fax: 206– and a harvest control rule. These in Federal regulations. 526–6736 and; e-mail: estimated values will serve as Response: According to the Council’s [email protected]. management benchmarks in the FMP. Scientific and Statistical Committee’s The FMP will not be amended if, as is (SSC’s) Terms of Reference for SUPPLEMENTARY INFORMATION: likely to happen, the values for these Groundfish Rebuilding Analyses (April Electronic Access parameters change as a result of new 2001), analysts typically estimate B0 stock assessments. Other relevant values by reviewing recruitment from a The proposed rule also is accessible information listed in Amendment 16–1 sequence of years in which recruitment via the Internet at the Office of the will also be included in the FMP. is believed to be reasonably Federal Register’s website at http:// The two rebuilding parameters that representative of that of an unfished www/gpoaccess/gpv/fr/index.html. control the establishment of the annual stock. This practice typically translates Background information and documents or biennial optimum yield (OY) of each into a reliance on stock size estimates are available at the NMFS Northwest overfished species will be codified in from the earliest years for which Region website at http://www/ the Code of Federal Regulations (CFR): recruitment information is available. nwr.noaa.gov/1sustfsh/gdfsh/ the target year for rebuilding and the Incorporating new data on stock size gdfsh01.htm and at the Council’s harvest control rule to be used to and recruitment levels into a stock website at http://www.pcouncil.org. rebuild the stock. If, after a new stock assessment would likely result in the revision of B for that species. For Background assessment, the Council and NMFS 0 conclude that these should be revised, example, the June 2002 canary rockfish A Notice of Availability for the revision will be done through a rebuilding analysis completed for Amendment 16–1 to the FMP was rulemaking, and the updated values Amendment 16–2 revised an earlier published on August 18, 2003 (68 FR codified in the CFR. estimate of B0 by incorporating older 49415). NMFS requested comments on In addition to specifying how historical information (back to 1940) on the amendment under the Magnuson- rebuilding plans and their parameters canary rockfish recruitment. Both the Stevens Act FMP amendment review will be handled in the FMP and in canary rockfish and darkblotched provisions for a 60–day comment Federal regulations, Amendment 16–1 rockfish B0 values provided in period, ending October 17, 2003. A will: set schedules and standards for Amendment 16–2 were calculated in the proposed rule to implement reviewing rebuilding plans; specify that manner suggested by the commenter. Amendment 16–1 was published on the rebuilding plan for each species will For Pacific ocean perch (POP), September 5, 2003 (68 FR 52732). NMFS set a species-specific standard for assessment authors reviewed this requested comment on the proposed determining the adequacy of rebuilding traditional approach and modified it rule through October 6, 2003. During the progress for the particular species somewhat because POP recruitment is comment periods on the amendment toward that goal; give Endangered highly variable and recruitment levels and proposed rule, NMFS received four Species Act (ESA) jeopardy standards in the earlier years of the POP letters of comment, which are addressed and/or recovery plans precedence over assessment period were unusually high. later in the preamble to this final rule. rebuilding plans if they establish higher Assessment authors found that The preamble to the proposed rule for recovery standards than those already recruitment values earlier than and later this action provides additional set in the rebuilding plans, and; make than the assessment period were background on the fishery and on this minor housekeeping amendments to the substantially smaller than the values for rule. Further detail on Amendment 16– FMP text, such as correcting mis-spelled the years at the start of the assessment 1 also appears in the EA/RIR/IRFA species names, revising definitions to period. For lingcod, which tends to have prepared by the Pacific Fishery better comport with the national more constant recruitment rates than Management Council (Council) for this standard guidelines, revising the Stock rockfish species, stock assessment action. Assessment and Fishery Evaluation authors looked at recruitment rates for
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the entire time series available for default precautionary threshold will be international organizations may result lingcod (1973–1995). 40 percent of the estimated unfished in the setting of a TTARGET year that is In raising this issue, the commenter biomass level. The Council may different from the midpoint between the addresses a basic conundrum in fish recommend different precautionary minimum time for rebuilding and the stock assessment. West Coast fisheries thresholds for any species or species maximum time for rebuilding. and atmospheric scientists acknowledge group based on the best scientific Many of the overfished groundfish that West Coast waters experience information about that species or stocks tend to be thoroughly mixed with periodic warming and cooling cycles species group. It is expected that the other, more abundant stocks. that seem to affect recruitment success threshold will be between 25 percent Historically, NMFS and the Council for some West Coast species. If the and 50 percent of the estimated have interpreted the needs of the fishing earliest data available on a particular unfished biomass level.’’ communities to primarily include the stock were from years when ocean The BMSY levels set for each of the need to have some fishing occurring for conditions for that stock’s recruitment four overfished species in Amendment those more abundant stocks. Some levels were good, an assessment author 16–2 are set at B40. As the FMP makes overfished species, such as canary could use those data and overestimate clear, B40 is the default BMSY proxy for rockfish, co-occur with more abundant the long-term average size of B0. In this all stocks that have received fish stocks to such a great degree that circumstance the earlier B0 could not be quantitative assessments, including setting a TTARGET year at the midpoint maintained by the stock under the overfished species. However, the FMP is between the minimum time for subsequent poorer ocean conditions, also clear in stating that BMSY for a rebuilding and the maximum time for even in the absence of fishing. particular stock may be modified from rebuilding would result in the closure of Conversely, if the ocean conditions were B40 if the best available scientific one or more fishing sectors, resulting in not favorable to recruitment during the information on that stock warrants the severe impacts on participants in these early years of a particular stock’s revision. fisheries. assessment period, an assessment For each overfished species, NMFS Canary rockfish rebuilding parameters author could use those data and intends to include only the target year in Amendment 16–2 provide an underestimate the size of B0. These for rebuilding (TTARGET) and the harvest example of the effects of managing to possibilities are particularly evident for control rule in Federal regulations different TTARGET years in a multi- rockfish, which seem to have highly because these parameters would control species fishery. The Council’s preferred variable rates of recruitment. Thus, the establishment of OY for these alternative is a canary rockfish TTARGET while NMFS recognizes that the species. Other rebuilding parameters of 2074, with a TMIN of 2057 and a TMAX commenter’s B0 estimation method has such as B0 will be included in the FMP. of 2076. The Amendment 16–2 Draft merit and should be considered in the Comment 3: The commenter Environmental Impact Statement (DEIS) development of rebuilding analyses, the recommended that the FMP specify a analyzes canary rockfish rebuilding for agency continues to support the SSC’s target time for rebuilding (TTARGET) that a range of alternatives that include recommendations that the is the midpoint between the minimum maximum conservation by managing to determination of B0 be attuned to the time for rebuilding (TMIN) and the TMIN and maximum harvest by behavior of and information about each maximum time for rebuilding (TMAX). managing to TMAX. At TMIN, no directed particular stock being assessed. The commenter also recommended that or incidental take of canary rockfish For each overfished species, NMFS this value be specified in Federal would be permitted (Table 2.0–1, 16–2 intends to include only the target year regulations. DEIS). Table 3.1–1 of the DEIS shows for rebuilding (TTARGET) and the harvest Response: According to the national the known latitudinal and depth control rule in Federal regulations standard guidelines at 50 CFR distributions of FMP groundfish, with because these parameters would control 600.310(e)(4)(ii)(B)(3), if TMIN is 10 years canary rockfish listed as a coastwide the establishment of OY for these or greater, ‘‘then the specified time stock with a depth distribution of 50– species. Other rebuilding parameters period for rebuilding [TTARGET] may be 150 fm (91–274 m). To fully avoid such as B0 will be included in the FMP. adjusted upward to the extent warranted canary rockfish, recreational fisheries Comment 2: The commenter by the needs of fishing communities and for groundfish would have to close recommended that the FMP specify for recommendations by international entirely because of their canary rockfish each overfished species a proxy for organizations in which the United interceptions. A broad range of biomass at MSY (BMSY) that is forty States participates, except that no such commercial fisheries ranging from percent of BUNFISHED. The commenter upward adjustment can exceed the groundfish trawl to halibut longline also recommended that this value be rebuilding period calculated in the would similarly need to be closed in specified in Federal regulations. absence of fishing mortality, plus one order to avoid canary rockfish altogether Response: The FMP, as amended by mean generation time or equivalent (Table 4.4–11, 16–2 DEIS). Even at the Amendment 16–1, specifies in its period based on the species’ life-history Council’s preferred TTARGET of 2074, definition of ‘‘MSY stock size’’ that the characteristics [TMAX].’’ management measures to protect canary proxy for BMSY ‘‘typically used in this The Council has not recommended for rockfish in 2004 include: a Rockfish fishery management plan is 40 percent the 16–2 species a TTARGET value that Conservation Area (RCA) in which of the estimated unfished biomass, exceeds TMAX. For some species, it groundfish bottom trawling is although other values based on the best would be appropriate to set a TTARGET prohibited between the 75 fm (137 m) scientific information are also that is the midpoint between TMIN and and 200 fm (366 m) depths, trawl authorized.’’ This proxy is again TMAX. Amendment 16–2, for example, footrope gear restrictions to make trawl specified in the FMP at Section 4.4.1, includes Council-preferred alternatives gear less effective in canary rockfish which establishes a BMSY precautionary for darkblotched rockfish and POP habitat, an RCA in which fishing for threshold for stocks that have received TTARGET levels that are set at the groundfish with non-trawl gear is quantitative assessments. Species with midpoints between their respective TMIN prohibited between the 30–fm (55–m) stock sizes below their BMSY are to be and TMAX levels. However, there are and 100–fm (183–m) depths, state- managed at more precautionary harvest cases where the needs of fishing management requirements that shrimp levels. Section 4.4.1 reads in part, ‘‘The communities or recommendations of and prawn trawlers carry finfish
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excluder devices, and prohibiting and by the stock’s mean generation of such programs on fishing canary rockfish retention in the time. The probability of rebuilding to communities. recreational fisheries coastwide. In BMSY by TMAX is a function of the Comment 5: The EA states that the summary, due to socioeconomic fishing mortality rate, not the calculated methods of calculating the rebuilding considerations and the constraints on TMAX; the fishing mortality rate also parameters TMAX and TMIN are set at a fishing communities associated with determines TTARGET. In order to ensure national level. What is the relationship rebuilding measures for overfished that it had illustrated the range of effects between the Magnuson-Stevens Act’s species, the agency does not expect to on the environment of different national standards and the national set a single TTARGET guideline for all rebuilding probabilities for the standard guidelines? species that would be the midpoint Amendment 16–2 species, the Response: At Section 301(a), the between TMIN and TMAX. While the Amendment 16–2 Environmental Magnuson-Stevens Act sets 10 national Technical Guidance on the Use of the Impact Statement (EIS) includes a standards for fishery management. Precautionary Approaches to ‘‘maximum conservation’’ alternative, in These standards were created, amended, Implementing National Standard 1 of which the fishing mortality rate is set to and updated through the series of the Magnuson-Stevens Fishery 0, TTARGET is equal to TMIN, and the legislative actions that created and have Conservation and Management Act probability of rebuilding to BMSY within since amended the law first known as (Technical Guidance) at page 38 TMAX equals or approaches 100 percent. the 1976 Fishery Conservation and suggests that TTARGET be set no higher The commenter also differentiates Management Act and now known as the than the midpoint between TMIN and between those stock assessments that Magnuson-Stevens Act. Section 301(b) TMAX, adopting that as a binding contain uncertainty and those that do directs the Secretary of Commerce to criterion in all cases would not be not contain uncertainty. Stock ‘‘establish advisory guidelines (which consistent with the Magnuson-Stevens assessments are mathematical shall not have the force and effect of Act. It would not be consistent with the descriptions of what the data on a law), based on the national standards, to Magnuson-Stevens Act because it would particular stock lead us to believe about assist in the development of fishery not allow the criteria in the Act at the relative health and status of that management plans.’’ This authority section 304(e)(4) and the national stock. ‘‘Uncertainty’’ is a measure of the under the Magnuson-Stevens Act has standard guidelines at 600.310(e)(4)(ii) range around the best scientific been delegated to NMFS. NMFS has had to be taken into account. The Technical estimates that come from the stock national standard guidelines in effect for Guidance is not a binding regulation assessment. Uncertainty is not a lack of many years. The Magnuson-Stevens Act that must be followed. The Technical knowledge. Results that are close to the was amended in 1996 by the Guidance itself acknowledges that it assessment’s best estimate are likely to Sustainable Fisheries Act, which deals with biological issues, and not be close to the true situation, and other strengthened the overfishing with socioeconomic issues, which results are possible but unlikely. There prohibitions of the Magnuson Act and fishery management councils must are several factors that contribute to enacted the rebuilding provisions under consider, per the Magnuson-Stevens Act uncertainty in the stock assessment, which NMFS currently operates. After (Technical Guidance at 1, 28). including variability in the catch and two public comment periods on a NMFS intends to include a value for survey data that go into the model, proposed rule, NMFS promulgated the TTARGET for each overfished species in incompletely known factors about the final rule implementing the current Federal regulations at 50 CFR 660.370, biology of the fish, necessary national standard guidelines on May 1, as shown in the proposed rule to simplifications in the assessment model 1998 (63 FR 24212). Those guidelines implement Amendment 16–2 (December itself, and changes in the actual provide an interpretation of the national 5, 2003, 68 FR 67998.) productivity of the fish stock. Continued standards and are codified in Federal Comment 4: We recommend that the research helps us reduce each of these regulations at 50 CFR 600.310 through FMP specify a TMAX that is associated sources of uncertainty. However, given 600.355. The specific sections that relate with a ninety percent probability (P90%) current research technology, it is to TMIN and TMAX are found in 50 CFR of rebuilding to BMSY for those species unlikely that a stock assessment 600.310(e)(4)(ii)(A) and (B). These with a stock assessment containing scientist working on wild fish stocks national standard guidelines apply to all uncertainty and with an eighty percent will have the opportunity to conduct a fisheries, nation-wide, that are managed probability (P80%) of rebuilding to BMSY stock assessment with no uncertainty. under the aegis of the Magnuson- for those species with stock assessments Explaining this disconnect between a Stevens Act. containing no uncertainty. This mathematician’s definition of Comment 6: For those rebuilding plan rebuilding time would serve as an outer ‘‘uncertainty’’ and the public belief that parameters that are to be specified in bound for rebuilding analyses. ‘‘uncertainty’’ means ‘‘lack of Federal regulations, we recommend full Response: The definition for TMAX knowledge’’ is a regular communication notice and comment rulemaking when was provided above in the response to challenge for stock assessment these specific numeric criteria are Comment 3 and is repeated here, in scientists. changed via a stock assessment or other part: ‘‘the specified time period for To the extent that the comment is similar process. rebuilding [TTARGET] may be adjusted intended to advocate a consistently Response: As discussed earlier in the upward . . . except that no such upward conservative approach to establishing responses to several comments, above, adjustment can exceed the rebuilding rebuilding parameters, the agency does NMFS plans to codify for each period calculated in the absence of employ a precautionary approach. overfished species a value for TTARGET fishing mortality, plus one mean However, as explained in the response and a harvest control rule in Federal generation time or equivalent period to Comment 3, above, the Magnuson- regulations at 50 CFR 660.370. Any based on the species’ life-history Stevens Act and the national standard future revisions to these parameters characteristics [TMAX]’’ guidelines require that the Council and would be made via notice-and-comment (600.310(e)(4)(ii)(B)(3)). Thus, TMAX is NMFS create overfished species rulemaking. Because NMFS expects that an outer boundary for the rebuilding rebuilding programs that both rebuild revisions to rebuilding parameters time that is defined by a stock’s overfished species within TMAX and would occur as a result of a change in recruitment in the absence of fishing minimize the adverse economic impacts a stock assessment for an overfished
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species, the notice-and-comment consistent with national standard 1 and The OY for each species or species rulemaking for revisions to rebuilding with the Technical Guidance to group is set according to a series of rules parameters would generally occur implement the biological aspects of that vary depending upon the relative simultaneously with a notice-and- national standard 1. The Council abundance of the stock and upon the comment rulemaking on harvest addressed Magnuson-Stevens Act quantity and quality of scientific specifications and management guidance on setting acceptable assessment on the stock. For stocks with measures. biological catch (ABCs) and OYs with stock assessments that indicate those Comment 7: We urge NMFS to ensure its 1998 Amendment 11 to the FMP. The stocks are above B , harvest that the groundfish FMP establish OY MSY FMP at Section 4.3 identifies three specifications may be set such that OY levels for groundfish species consistent categories of stocks: Category 1 is stocks = ABC, unless reductions in available with the Magnuson-Stevens Act and with quantitative assessments, Category harvest need to be made to account for: NMFS Technical Guidance. National 2 is stocks with nonquantitative standard 1 of the Magnuson-Stevens Act assessments, and Category 3 is stocks for high degree of uncertainty about the requires that ‘‘conservation and which there is not enough information biomass estimate and other parameters, management measures shall prevent to set ABC values. anticipated bycatch mortality of that overfishing while achieving, on a Category 1 Stocks: Under the FMP at species, past OY levels resulted in continuing basis, the optimum yield Section 4.3, ABCs for Category 1 species overfishing occurring on that species, or from each fishery for the United States are to be set at the MSY harvest level. international fishery management Fishing Industry’’ (16 U.S.C. 1851(a)(1)). The ABC for a species or species group agreements regarding that species (FMP For species that are not overfished, the is generally derived by multiplying the at 4.6.1). Regardless of where the OY is Council and NMFS must ensure that harvest rate proxy by the current set for a stock above BMSY, the fisheries management measures are aimed at estimated biomass. In 2001, the will likely not be permitted to achieve achieving an OY value, by reducing Council’s SSC conducted a harvest rate that OY if that species co-occurs with an harvest levels such that OYs are below workshop that resulted in the Council overfished species and fishing the more the MSY level. For species that are developing new default harvest rate abundant stock must be constrained to overfished, the OY and management proxies. These harvest rate proxies have protect the overfished stock. measures should be designed to achieve been in use since the 2002 fishing year: Those stocks with stock assessments rebuilding goals. Further, NMFS should F40% for flatfish, F50% for rockfish that indicate a population level between ensure that the FMP consider proxies (including thornyheads), and F45% for for OY in the case of data poor other groundfish such as sablefish and B40% and B25% are considered to be in a ‘‘precautionary zone.’’ Under the FMP situations. We urge consideration of lingcod. A rate of F40% can be explained proxies found in the Technical as that which reduces spawning at Section 4.5.1 and 4.6.1, OYs for Guidance for these species in the 2004 potential per female to 40 percent of stocks in the precautionary zone will specifications environmental impact what it would have been under natural generally be reduced from ABC on a statement. conditions (if there were no mortality scale known as the ‘‘40–10’’ policy, Response: FMP policies on the setting due to fishing), and is, therefore, a more demonstrated by the following figure: of ABCs and OYs are generally aggressive rate than F45% or F50%. BILLING CODE 3510–22–S
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BILLING CODE 3510–22–C FMP through Amendment 11. As calculated from average historic As is shown in this figure, harvest discussed earlier in this document, landings levels and then set by reducing level parameters for stocks in the Amendment 16–1 sets a process for and the resultant average by 25 percent. precautionary zone are increasingly standards by which overfished species Thus, an ABC for a Category 2 species conservative as they are applied to rebuilding plans will be developed. is set at 75 percent of its average historic stocks of lower abundance within the Amendment 16–2 (available for public landings level. OY levels for Category 2 precautionary zone. NMFS and the comment on November 7, 2003, 68 FR species are further reduced from their Council have applied the 40–10 policy 63053), Amendment 16–3 (under ABCs by 2 percent if they are species to stocks with biomasses estimated to be Council development), and Amendment with less rigorous stock assessment, or within the precautionary zone since 16–4 (to follow the 2004 whiting stock by 50 percent if they are species with Amendment 11 was implemented in assessment) will establish rules by nonquantitative stock assessments. Thus 1999. These stocks in the precautionary which OYS for each of the nine an OY for a Category 2 species with a zone are proposed to be managed at overfished species will be set under less rigorous stock assessment is set by harvest levels reduced from OY by the their respective rebuilding plans. multiplying the historic average 40–10 policy in 2004: sablefish, Dover Category 2 Stocks: For stocks with landings level by 0.75, and then by sole, and shortspine thornyhead. The nonquantitative stock assessments, the multiplying that result by 0.75, 40–10 policy is more precautionary than ABC is generally set based on the ultimately resulting in an OY that is the Technical Guidance’s average of historic landings levels (FMP 56.25 percent of the historic average recommendations for stocks below at 4.3.2). The FMP recognizes that an landings level. An OY for a Category 2 BMSY. The Technical Guidance does not ABC based on average historical recommend reducing fishing mortality landings cannot be the upper harvest species with a nonquantitative assessment is set by multiplying the below FMSY until the stock is at 75 level for a species if historical landings historic average landings level by 0.75, percent of BMSY (Technical Guidance at have been unsustainable. Section 4.6.2 35–37). of the FMP governs the setting of OYS and then by multiplying that result by Stocks with stock assessments that for Category 2 species. Under the OY 0.5, ultimately resulting in an OY that is 37.5 percent of the historic average indicate the biomass is below B25% are policy for Category 2 species, considered overfished. Overfished precautionary downward adjustments landings level. These policies, which species OYS are not set with a are made to the OY from the ABC if were recommended by the Council’s universally applicable policy. Each there is a perception that the stock is SSC, are consistent with but more species’ OY is set by a harvest rate below its MSY or if there is a high precautionary than those described in intended to achieve the rebuilding goals degree of uncertainty about the the Technical Guidance for creating for that species. Amendment 16–1 and condition of the stock. This guidance is proxies in data poor situations. To see its companion amendments, (16–2, 16– carried out through more specific these policies in practice, refer to Table 3, and 16–4) further develop harvest Council policies for setting annual 1 in the 2004 specifications and conservation principles explored in the harvest values. ABC values are first management measures (69 FR 1380,
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January 8, 2004), footnotes for minor whether to apply its policies for maximum rebuilding period, TMAX, rockfish. ‘‘remaining rockfish’’ and ‘‘other should be 10 years, unless TMIN is Category 3 Species: When the Council rockfish’’ to the ‘‘other flatfish’’ and greater than 10 years, when TMAX first developed the groundfish FMP in ‘‘other fish’’ species categories, to should be equal to TMIN plus one mean the early 1980’s, it swept a wide variety provide a precautionary adjustment for generation time.’’ This is the definition of species under the authority of the these Category 3 species. To see these of TMAX provided by the national groundfish FMP. At the time, West policies in practice, refer to Table 1 in standard guidelines at section Coast salmon fisheries were of the 2004 specifications and management 600.310(e)(4)(ii)(B)(3) and is the method paramount importance, thus the measures (69 FR 1380, January 8, 2004), that NMFS and the Council use to groundfish FMP served as the footnotes for ‘‘other flatfish’’ and ‘‘other calcluate TMAX for overfished management vehicle for many species fish.’’ groundfish species. other than salmon. There is generally Comment 8: The harvest control rule Second, the Technical Guidance little known about Category 3 species, established in the FMP to rebuild each suggests that ‘‘the target rebuilding time perhaps because they have historically overfished species should be consistent period, TTARGET, should be as short as low catch rates or abundance relative to with the Technical Guidance. possible and lower than TMAX (although Response: Harvest control rules for other more widespread stocks, or it could be adjusted upward to TMAX overfished species are used to set because they are not vulnerable to under the circumstances described in annual OYs for those species. As survey sampling gear. These species Section 600.310(e)(4) of the national discussed above in the response to may not appear on fish tickets because standard guidelines.) We suggest that Comment 7, OYs for overfished species T not exceed the midpoint they are not taken in the fisheries or TARGET are species-specific and are intended to between T and T .’’ T set because they are not commercially MIN MAX TARGETs achieve the rebuilding goals for a for overfished groundfish species do not desirable. If a fishery were to develop particular species. The FMP contains exceed T . We addressed the for a Category 3 species, then more MAX default harvest control rules for stocks suggestion that T not exceed the information on that species would TARGET above BMSY, depleted stocks below BMSY midpoint between T and T become available, possibly allowing it to MIN MAX but above the overfished threshold and, earlier in this document, in the response be re-categorized as Category 1 or 2. For through Amendment 16–2, species- to Comment 3. example, a new stock assessment is specific harvest control rules for Finally, the Technical Guidance under development for cabezon, a lingcod, canary rockfish, darkblotched suggests that ‘‘if the stock is well below Category 3 species that has become rockfish, and POP. The default harvest the minimum stock size threshold more common in the nearshore control rule was described earlier in the (MSST) (e.g. B ≤ 1⁄2MSST), it may be recreational and commercial fisheries in response to Comment 7. As discussed necessary to set the fishing mortality recent years. This stock assessment earlier, the 40–10 harvest control rule is rate as close to zero as possible (i.e., to covers waters off California, where generally consistent with the Technical that associated with unavoidable levels cabezon are most frequently found. Guidance because harvest rates set by of bycatch) for a number of years. Since Once the assessment is complete, that rule are always less than or equal 2000, NMFS and the Council have cabezon off California will be to the MSY control rule (which is the pursued a policy of restricting or considered a Category 1 stock. Category overfishing level) and rates decline at eliminating opportunities for fishers to 3 species currently include: cabezon low stock biomass levels. Species- directly target overfished stocks. In and greenling; some of the flatfish specific control rules for the remaining order to reduce unavoidable bycatch, species that are either not often overfished species will be added to the directed harvest of more abundant commercially valuable or which are too FMP through Amendments 16–3 and/or stocks that co-occur with overfished small to be regularly caught in legal 16–4. species has also been curtailed. In 1998, groundfish trawl nets, such as butter, The Technical Guidance at section 3.4 prior to the declaration of any curlfin, flathead, rex, and sand soles, provides suggestions for calculating groundfish as overfished, the total pacific sanddab, and starry flounder; the mean generation time for overfished commercial groundfish landings by FMP’s six elasmobranch species (big, species, default rebuilding plans in the weight were 274,690 mt. Total California, and longnose skates, leopard absence of species-specific rebuilding commercial groundfish landings by and soupfin sharks, spiny dogfish); as plans, and on addressing the role of weight in 2003 were 168,589 mt, an well as, finescale codling, Pacific rattail, uncertainty in rebuilding plans. approximate 39–percent reduction in and ratfish. In the harvest specifications Methods used by stock assessment commercial harvest. These reductions and management measures, these scientists to determine mean generation reflect measures to reduce overfished species are grouped into either the time vary by species and according to species take to unavoidable bycatch ‘‘other flatfish’’ or ‘‘other fish’’ quantity and quality of data available on levels and to reduce opportunities for categories, as appropriate, and have that species’ life history. For incidental harvest by also reducing species group ABCs for each West Coast Amendment 16–2 species with TMINs directed fishing opportunities for more management area based on historical greater than 10 years (canary rockfish, abundant species. The suite of landings for those species groups. This darkblotched rockfish, POP,) mean management measures NMFS has policy is consistent with the Technical generation times were calculated with implemented to limit overfished species Guidance for those species that are the approach recommended in the take to unavoidable bycatch is described believed to be above BMSY for creating Technical Guidance. later in this document in the response proxies in data poor situations. In We have already addressed the to Comment 13. general, there is not enough information Council’s default rebuilding policy in On page 38, the Technical Guidance about these species to determine the response to Comment 7. For species- suggests addressing uncertainty with the whether they are above or below BMSY, specific rebuilding plans, the Technical guideline that ‘‘rebuilding plans be a pre-condition for using the data-poor Guidance offers three suggestions for designed to possess a 50–percent or proxy creation guidance in the setting the rebuilding plan parameters higher chance of achieving BMSY within Technical Guidance. For 2005 and and harvest control rule. First, the TTARGET years, and a 90–percent or beyond, the Council is considering Technical Guidance suggests that, ‘‘The higher chance of achieving BMSY within
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TMAX years.’’ Rebuilding plans for the schedule for reviewing overfished organizations in which the United overfished species in Amendment 16–2 species rebuilding plans, the Secretary States participates,’’ although TTARGET have been designed with a 50–percent of Commerce, through NMFS, is may not exceed TMAX. Section 4.5.3.4 of chance of achieving BMSY within required to review the progress of the FMP, as added by Amendment 16– TTARGET years, although not with a 90– overfished species rebuilding plans 1, provides examples of when percent chance of achieving BMSY toward rebuilding goals every two years, rebuilding plan parameters might be within TMAX years. Rebuilding plans in per the Magnuson-Stevens Act at 16 changed, but does not limit triggers for Amendment 16–2 provide a 60–percent U.S.C. 304(e)(7).’’ This statement is those changes: ’’...Since the target year chance for canary rockfish and lingcod, added to the FMP for the sake of clarity [TTARGET] is a key rebuilding parameter, a 70–percent chance for POP, and an and in no way changes the intent or it should only be changed after careful 80–percent chance for darkblotched effect of either the FMP or Amendment deliberation. For example, the Council rockfish to achieve their respective BMSY 16–1. might recommend that the target year be levels within TMAX years. As mentioned Comment 10: We recommend that changed if, based on new information, in the Preface to the Technical Guidance Amendment 16–1 be expanded to they determine that the existing target itself, it provides guidance on ‘‘those include a discussion of the procedures year is later than the recomputed aspects of scientific fishery management that would be used to revise rebuilding maximum rebuilding time (TMAX) or if advice that have biological plans. Rebuilding parameters specified a recomputed harvest control rule underpinnings’’ and it recognizes that in the FMP should be changed only would result in such a low optimum there are other important factors for when new scientific information is yield as to cause substantial fisheries management, such as the social available that would warrant socioeconomic impacts. These examples and economic goals of the Magnuson- modification of these parameters. are not definitive: the Council may elect Stevens Act. Probabilities of achieving Changes to specifications for TMIN, to change the target year because of BMSY within TMAX years that are less TMAX, and TTARGET should only occur in other circumstances. However, any than 90 percent have been established response to a resolution of scientific change to the target year or harvest in order to meet varying needs of West uncertainty. These values should not be control rule must be supported by Coast fishing communities, as discussed revised to accommodate greater direct or commensurate analysis.’’ If updated earlier in this document. indirect harvest of overfished species. scientific information in a new stock Comment 9: One commenter stated Response: As described above in the assessment for a particular species that the Magnuson-Stevens Act requires responses to Comments 3 and 4, TMIN is warrants a change to that species’ TMIN the Secretary of Commerce to review the minimum time that it would take to and TMAX, the Council may also rebuilding plans for overfished species rebuild the stock in the absence of consider changing the TTARGET for that every 2 years to ensure adequate fishing. An estimate of a stock’s species. In particular, TTARGET might be progress toward rebuilding goals (16 rebuilding time in the absence of fishing revised if that revision would prevent U.S.C. 304(e)(7).) The Council has depends upon the estimate of that the complete closure of one or more recommended reviewing rebuilding stock’s growth rate. A stock’s growth sectors of the fishery. plans every 2–5 years, with progress rate is affected by recruitment as Comment 11: The Council’s preferred toward rebuilding to MSY only to be reduced by natural mortality. Our alternative for the setting of standards reviewed when new stock assessments understanding of recruitment rates used to determine whether rebuilding are provided for the species in question. tends to change with each new stock progress has been adequate to achieve This commenter expected that, assessment, as new data are added to rebuilding goals is that each rebuilding regardless of the review process that the the assessment and as new year classes plan would have its own set of Council has recommended through enter the fishery. Thus, as stock standards specific to the overfished Amendment 16–1, the Department of assessments are updated for each stock in question. We ask that the Commerce will meet its duty to review overfished species with the best Council’s SSC or some other scientific the rebuilding plans every 2 years. available science, the TMIN estimate for body be convened to develop standards A second commenter assumed that those species will likely also be for measuring progress of rebuilding the Council’s rebuilding plan review updated. TMIN is calculated from T0 (the plans so as to meet the obligations of the process was intended to be a substitute year the species was declared Council’s preferred alternative and to for a Secretarial review process. This overfished) and that rebuilding start ensure that rebuilding time frames are commenter read Amendment 16–1 as date would not change. not modified in the future based solely authorizing NMFS and the Council to TMAX is TMIN plus one mean on fisheries management’s failure to avoid the Magnuson-Stevens Act generation time. Thus, a species’ achieve fishing mortality related requirement to review the adequacy of estimated TMAX could change if that restrictions. rebuilding progress for overfished species’ estimated TMIN changes. TMAX Response: NMFS agrees with the species managed under rebuilding plans could also change if the best available commenter’s suggestion to ask the every 2 years. scientific information on a species’ Council’s SSC to review and develop Response: The first commenter is mean generation time changes, which standards for measuring the progress of correct. The FMP describes the would be characterized as reduced rebuilding plans. NMFS made this Council’s responsibilities. The Council’s uncertainty about the mean generation request to the Council and SSC at the intended rebuilding plan review time parameter. Council’s November 2003 meeting. schedule is in Amendment 16–1. This Unlike TMIN and TMAX, TTARGET is not NMFS also made this request to the schedule does not relieve NMFS of its set based solely on scientific Council in its letter of approval for duty to review, every two years, information about a particular stock’s Amendment 16–1. In that letter, NMFS overfished species rebuilding plans for recruitment or life history recommended that setting standards for progress toward rebuilding goals. In characteristics. TTARGET is TMIN, plus a measuring the progress of rebuilding addition, NMFS has worked with the time period that ‘‘may be adjusted plans be included in the SSC’s Terms of Council staff to add a sentence to the upward to the extent warranted by the Reference for the Stock Assessment FMP at the end of Section 4.5.3.6 to needs of fishing communities and Review (STAR) processes. NMFS review read, ‘‘Regardless of the Council’s recommendations by international of the adequacy of progress of
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rebuilding plans will be primarily with the Council to make inseason have some effect on at least one of the informed by stock assessment updates. adjustments to management measures to overfished species. The FMP addresses By including the setting of rebuilding prevent the fisheries from regularly how the fisheries as a whole are to be plan progress standards in the STAR exceeding OY target levels. managed, whereas rebuilding plans are processes for overfished species, the The Technical Guidance at Section species-specific and define the NMFS/Council process for developing 3.4 suggests that ’’...[S]tock rebuilding parameters that govern the rebuilding of and reviewing stock assessments would should be monitored closely so that a particular species. The harvest continue the link between stock adjustments can be made when specifications and management assessments and rebuilding plans for rebuilding milestones are not being met measures, on an annual or biennial overfished species. for whatever reason. For example, if basis, address the fisheries as a whole. Comment 12: As the Council and its target rebuilding Fs (fishing mortality Regulations implemented through the SSC work to develop standards for rates set for overfished species harvest specifications and management measuring the progress of rebuilding management) are exceeded due to quota measures are intended to address all of plans, we recommend adopting a over-runs, subsequent target Fs should the fisheries that take groundfish and, in standard such that if the probability of typically be adjusted downwards to put large part, to minimize total catch of achieving TTARGET falls below 50 the stock back on the rebuilding time overfished species. Management percent, then progress will be table.’’ For West Coast groundfish, measures in these regulatory packages considered inadequate and the harvest NMFS and the Council monitor stock are based on the most recently available control rule must be adjusted to increase rebuilding progress through regular scientific information on the status of the probability of rebuilding within stock assessments. Stock assessments the various groundfish stocks and TTARGET to at least 50 percent. We take harvest overages and underages fisheries. In managing a multi-species further recommend that, on an annual into account in evaluating the status of fishery, it is not necessary or practical basis, NMFS and/or the Council a stock and whether rebuilding to include all of the management compare annual total mortality levels milestones are being met. F rates set measures that will be used to rebuild a with specified OY values to determine subsequent to each new stock particular overfished species in that if overages have occurred. If overages assessment will be set to keep the stock species’ rebuilding plan. It is important have occurred, an inseason adjustment on its rebuilding trajectory. for the FMP as a whole to provide the to harvest mortality rates should be Comment 13: As we read Amendment structure to implement a variety of made to compensate for these overages. 16–1, it does not require the Council different management measures to Response: Section 4.5.3.6 of the FMP, and NMFS to include in a rebuilding rebuild overfished stocks, and to as inserted by Amendment 16–1, plan those measures that are necessary manage the fisheries as a whole in includes examples of standards that to rebuild the overfished species in accordance with the Magnuson-Stevens might be used to review rebuilding plan question. We are particularly concerned Act. Relying on the whole FMP to progress. The standard provided by the that Amendment 16–1 fails to mandate protect overfished stocks within a multi- commenter is included in that section of that the Council and NMFS include in species fishery does not violate the the FMP and would be reviewed for use rebuilding plans the bycatch Magnuson-Stevens Act. with particular overfished stocks in the minimization and habitat protection process described in the response to measures necessary to rebuild The FMP and its rebuilding plans are Comment 11. overfished groundfish species. The sufficient ‘‘to end overfishing in the NMFS is required to annually report Magnuson-Stevens Act requires that fishery and to rebuild affected stocks of to Congress on whether ABC values each FMP minimize adverse effects [of fish’’ (16 U.S.C. 1854(e)(3)(A). They are have been exceeded, as exceeding an fishing activities] on essential fish neither vague nor meaningless. This ABC set at FMSY would be considered habitat, identify actions to protect Amendment 16–1 sets out the required overfishing. In looking at whether ABC essential fish habitat, and include all elements for a rebuilding plan. The FMP values have been exceeded, NMFS also practicable measures to minimize states in section 4.6.1.5. that ‘‘OY notes whether OY values have been bycatch and bycatch mortality. Further, recommendations will be consistent exceeded and works with the Council to Amendment 16–1 violates the with established rebuilding plans and revise management measures so that Magnuson-Stevens Act’s requirement achievement of their goals and OYs for the same species for subsequent that rebuilding plans be sufficient ‘‘to objectives. . . . (b) In cases where a stock years are not exceeded. Under the end overfishing in the fishery and to or stock complex is overfished, Council Technical Guidance at Section 1.3, OYs rebuild affected stocks of fish’’ (16 action will specify OY in a manner that are target levels that, so long as they are U.S.C. 1854(e)(3)(A)) because it suggests complies with rebuilding plans less than or equal to MSY, should not that rebuilding plans could use ‘‘flexible developed in accordance with Section be exceeded more than 50 percent of the specifications’’ that would be 4.5.2. The Plan further states at 5.1.4 time, nor on average. None of the West implemented through the annual or ‘‘For any stock the Secretary has Coast groundfish OYs are knowingly set biennial harvest specifications and declared overfished or approaching the higher than MSY. Management management measures process. These overfished condition, or for any stock measures are intended to achieve OYs types of specifications are so vague as to the Council determines is in need of without exceeding them, unless the be meaningless and offer no protection rebuilding, the Council will implement achievement of a particular species’ OY to overfished species. such periodic management measures as would negatively affect the rebuilding of Response: West Coast groundfish are necessary to rebuild the stock by a co-occurring overfished species. In fisheries are multi-species fisheries and controlling harvest mortality, habitat such a case, management measures the FMP covers over 80 species of fish. impacts, or other effects of fishing would be designed to keep the harvest The nine overfished species managed activities that are subject to regulation under the OY of the healthy stock in under the FMP co-occur with many under the biennial process. These order to rebuild the overfished stock. other, more abundant stocks. Because of management measures will be Thus, NMFS will continue to monitor this commingling of overfished and consistent with any approved rebuilding whether the fisheries have exceeded more abundant stocks, the varied plan.’’ Most management measures used ABCs or OYs and will continue to work fisheries that take groundfish all tend to in the fishery are described in section 6
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of the FMP. The existing emergency rule EFH and to inform management decisionmaking because four specific for groundfish for January and February measures intended to rebuild those bycatch reduction measures (fleet size 2004, (69 FR 13222; January 8, 2004), species. For example, the EFH appendix reduction, marine reserves, vessel implements the first four rebuilding to Amendment 11 (online at http:// incentives, and discard caps) were plans, and the interim rebuilding www.nwr.noaa.gov/1sustfsh/ rejected without consideration on their strategies for the remaining overfished efhappendix/page1.html) provides merits. With respect to NEPA, the species for January and February. The descriptions of the habitats used by the environmental assessment prepared for proposed rule for groundfish for 2004 80+ species in the FMP, including the Amendment 13 failed to address (69 FR 1380; January 8, 2004), proposes ocean depths where those species are adequately the ten criteria for an ABCs/OYs and management measures commonly found. The Council used action’s significance set forth in the that implement the rebuilding plans. these habitat descriptions in the Council on Environmental Quality The management of overfished species development of its Rockfish (CEQ) regulations at 40 CFR 1508.27(b), for 2004 is summarized at 69 FR 1380. Conservation Areas (RCAs), which are and also failed to analyze reasonable The Magnuson-Stevens Act at section intended to protect the suite of alternatives, particularly the immediate 303(a) describes the required provisions continental shelf and slope overfished implementation of an adequate at-sea of any Federal fishery management species in waters where they are observer program and bycatch reduction plan. Sub-paragraph 303(a)(7) requires commonly found. RCAs are primarily measures. that the FMP describe and identify intended to protect overfished stocks NMFS is drafting an EIS to address essential fish habitat (EFH) and from being incidentally harvested by the court’s requirement for a new NEPA ‘‘minimize to the extent practicable vessels targeting more abundant species. analysis on bycatch in the groundfish adverse effects on such habitat caused Closure of these areas, however, also fisheries and is scheduled to release the by fishing...’’ Sub-paragraph 303(a)(11) protects habitat within the RCAs from draft EIS for public review through the requires that the FMP ‘‘establish a the effects of groundfish fishing gear. Environmental Protection Agency in standardized reporting methodology to NMFS anticipates that the new EFH EIS early 2004. Further information on this assess the amount and type of bycatch will allow the Council to incorporate EIS is available at: http:// occurring in the fishery, and include more data-rich descriptions of the EFH www.nwr.noaa.gov/1sustfsh/groundfish/ conservation and management measures of individual groundfish species into its eislefh/pseis/. NMFS has implemented that, to the extent practicable and in the groundfish fishery management numerous bycatch reduction measures following priority: (A) minimize planning. bycatch; and (B) minimize the mortality Section 303(a) of the Magnuson- since the Council’s approval of of bycatch which cannot be avoided.’’ Stevens Act requires that the FMP as a Amendment 13 in 2000. The agency has Amendment 11 to the FMP provided whole include a description of EFH and supported full retention or full a description within the FMP of EFH for EFH protection measures. It does not utilization Exempted Fishing Permit West Coast groundfish. Amendment 11 require that each amendment to the (EFP) programs for the Washington was challenged in American Oceans FMP describe EFH and provide EFH arrowtooth flounder trawl, yellowtail Campaign v. Daley 183 F. Supp. 2d1 protection measures. The commenter is rockfish trawl and longline dogfish (D.C.C. 2000,) along with challenges to correct in stating that Amendment 16– fisheries, and for the California flatfish fisheries managed by the Caribbean, 1 does not require overfished species trawl fishery. Shorter-than-year-round Gulf of Mexico, New England, and rebuilding plans to include EFH fishing seasons have been set for various North Pacific fishery management protection measures. However, the species and sectors of the groundfish councils. For West Coast groundfish, the commenter is incorrect in then fleet in order to protect different Court found that NMFS had not concluding that overfished species are overfished groundfish species. conducted an adequate National not adequately protected by the FMP. Amendment 14 to the FMP Environmental Policy Act (NEPA) Amendment 13 to the FMP addressed implemented a permit stacking program analysis on the effects of fishing on bycatch in the West Coast groundfish for the limited entry fixed gear fleet that groundfish EFH. NMFS is drafting an fisheries and was also challenged in reduced the number of vessels environmental impact statement (draft Court, Pacific Marine Conservation participating in the primary sablefish EIS) on groundfish EFH and is Council, Inc. v. Evans, 200 F. Supp. fishery by about 40 percent. In 2003, scheduled to release the draft EIS for 2d1194 (N.D. Calif. 2002). The Court NMFS implemented a buyback of public review through the held that Amendment 13 failed to limited entry trawl vessels and their Environmental Protection Agency in establish an adequate bycatch reporting permits, reducing the groundfish trawl February 2005. Further information on methodology, did not comply with the fleet by about one-third. NMFS has this EIS is available at: http:// duty to minimize bycatch and bycatch implemented gear modification www.nwr.noaa.gov/1sustfsh/groundfish/ mortality, and violated NEPA because requirements that restrict the use of eislefh/efh/. NMFS did not take ‘‘hard look’’ at the trawl gear in rockier habitat and Amendment 11 described EFH for environmental consequences of constrain the catching capacity of West Coast groundfish based on Amendment 13, and failed to consider recreational fishing gear. Higher information that was available in 1998, a reasonable range of alternatives and groundfish landings limits have been when the amendment was completed. their environmental consequences. In made available for trawl vessels using Since that time, there have been notable particular, the Court concluded that gear or operating in areas where increases in funding for EFH research Amendment 13 failed to establish a overfished species are less likely to be and improvements in ocean habitat standardized reporting methodology taken. Species-to-species landings limit mapping technologies. These research because it failed to establish either a ratios have been thoroughly re- and mapping improvements are mandatory or an adequate observer examined in a groundfish bycatch informing the drafting of the new EFH program. Further, it failed to minimize model first introduced in 2002 and DEIS. Until the completion of that DEIS, bycatch and bycatch mortality because modified each intervening year as new Amendment 11’s descriptions of EFH it failed to include all practicable observer program data become available. for each of the overfished species must management measures in the FMP itself. The development and use of this serve to characterize species-specific The Court also found a lack of reasoned bycatch model and the implementation
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of the NMFS West Coast Groundfish standardized reporting methodology to incorporated observer program data on Observer Program (WCGOP) in August assess the amount and type of bycatch the bycatch of overfished species into 2001 serve to address the court’s order occurring in the fishery...’’ Amendment the bycatch model. The Council began that NMFS implement an adequate 16–1 revises the FMP so that it states at to use observer data to inform inseason bycatch assessment methodology. The section 6.5.1.2, ‘‘The [NMFS] Regional groundfish management at its April RCAs described earlier in this document Administrator will implement an 2003 meeting. For the 2004 fishing year, and implemented through 50 CFR observer program through a Council- NMFS has further revised the bycatch 660.304 and the harvest specifications approved Federal regulatory framework. model to incorporate discard rates on and management measures are large Details of how observer coverage will be both overfished and targeted species, as time/area closures that affect the entire distributed across the West Coast generated by observer data. Because the West Coast and are specifically designed groundfish fleet will be described in an second year of the WCGOP increased to reduce the incidental catch of observer coverage plan. NMFS will coverage of the limited entry nontrawl overfished groundfish species in publish an announcement of the fleet, NMFS plans to further modify the fisheries targeting more abundant authorization of the observer program 2004 bycatch model to incorporate stocks. and description of the observer coverage nontrawl data once it has compiled and The FMP, as amended by Amendment plan in the Federal Register.’’ released that second year’s data. The 16–1, complies with the Magnuson- NMFS first implemented an observer agency expects that data from the Stevens Act at section 303(a)(11). NMFS program for the West Coast groundfish second year of the WCGOP will be has had the WCGOP, which uses a fisheries using a standardized bycatch incorporated into inseason groundfish standardized reporting methodology, in reporting methodology in August 2001. fisheries management by the April 2004 place since August 2001. Data from this The WCGOP observer coverage plan is Council meeting, and will be used in the observer program, from historic observer available via the internet at: http:// development of 2005–2006 management programs, and from fishery-dependent www.nwfsc.noaa.gov/research/divisons/ measures. data inform the bycatch model for West fram/Observer. NMFS published its With Amendment 16–1, the FMP Coast groundfish fisheries. These data announcement of the authorization of mandates an observer program for the sources together with their use in the the observer program and description of groundfish fishery, which NMFS has bycatch model, which is used to analyze the observer coverage plan on January implemented. The commenter also where and when different sectors of the 10, 2002 (67 FR 1329). In the first year wishes the FMP to discuss the scope groundfish fleet have targeted and may of the WCGOP (August 2001–August and adequacy of an observer program, target groundfish, comprise an adequate 2002), NMFS focused observer coverage whereas the FMP defers the design of reporting methodology on the amount largely on the non-whiting groundfish the observer program to NMFS. and type of bycatch occurring in the trawl fleet, with some pilot effort in the Over the past year, NMFS has been fishery. NMFS has implemented nontrawl limited entry and open access reviewing the agency’s approach to numerous management programs and fleets. Observer coverage for the standardized bycatch monitoring measures to reduce bycatch in the nontrawl fleet, particularly for limited programs for all federally managed groundfish fisheries. The upcoming entry vessels with sablefish fisheries. The report, ‘‘Evaluating draft EIS on bycatch in the groundfish endorsements expanded during the Bycatch: A National Approach to fisheries will provide information on second year of the observer program Standardized Bycatch Monitoring how NMFS might further improve its (September 2002–August 2003). In Programs,’’ is available on the internet bycatch reduction program for West September 2003, NMFS reported to the at: http://www.nmfs.noaa.gov/ Coast groundfish fisheries. Council on bycatch modeling and bycatch.htm. Also available at that Comment 14: Amendment 16–1 fails observer data developments. WCGOP website is the ‘‘NOAA Fisheries to mandate an adequate observer has focused its coverage on the limited Objectives, Protocol, and Recommended program for the Pacific Coast groundfish entry trawl fleet because that fleet Precision Goals for Standardized fishery. While Amendment 16–1 does annually makes greater than 95 percent Bycatch Reporting Methodologies.’’ This require NMFS to ‘‘implement an (by weight) of commercial West Coast latter report addresses the question of observer program through a Council- groundfish landings coastwide (PacFIN, the adequacy of an observer program or approved regulatory framework,’’ (FMP 1999–2003). Under the WCGOP other standardized reporting Section 6.1.5.2) it does not contain any coverage plan, the program has a goal of methodology by setting ‘‘precision requirements for the scope or adequacy 10–percent coverage of trawl landings in goals’’ for monitoring programs. of this observer program. The any one year. With its 30–40 observers According to this report, the levels of Magnuson-Stevens Act requires that available each year, the WCGOP has precision NMFS strives to achieve for NMFS establish in the FMP a bycatch been able to select each trawl fleet fishery resources, excluding species assessment methodology that is participant for coverage for at least one protected under the ESA or MMPA, sufficient to show ‘‘the amount and type cumulative limit period in each year. caught as bycatch in a fishery as ‘‘a 20– of bycatch occurring in the fishery.’’ 16 Observer coverage levels are dependent 30 percent CV [coefficient of variation] U.S.C. 1853(a)(11). The court in PMCC upon the number of vessels actively for estimates of total discards v. Evans, supra, rejected Amendment 13 participating in the fishery and on (aggregated over all species) for the in part because it failed to establish a available program funding. Data from fishery; or if total catch cannot be mandatory and adequate observer the first year of the observer program are divided into discards and retained catch program in the FMP. Because available on the WCGOP site, then the recommended goal for Amendment 16–1 does not mandate an mentioned earlier in this paragraph. estimates of total catch is a CV of 20– adequate observer program in the FMP, NMFS is evaluating data from the 30 percent.’’ In setting these precision it violates the Magnuson-Stevens Act second year of observer coverage and goals, NMFS recognizes that ‘‘(1) there and fails to cure Amendment 13’s plans to release a data report on the are intermediate steps in increasing failure under PMCC v. Evans. WCGOP activities over September precision which may not immediately Response: At 16 U.S.C. 1853(a)(11), 2002–August 2003 in January 2004. achieve the goals; (2) there are the Magnuson-Stevens Act requires that Following the release of the first year circumstances in which higher levels of FMPs, among other things, ‘‘establish a of WCGOP data in January 2003, NMFS precision may be desired, particularly
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when management is needed on fine to the U.S. and on the practicality of paragraph containing this sentence is spatial or temporal scales; (3) there are addressing these problems.’’ The essentially narrative and the referenced circumstances under which meeting the Council has used data from WCGOP to sentence not only does not comport precision goal would not be an efficient re-shape its landings limits and time/ with the Magnuson-Stevens Act, but use of public resources; and (4) there area closures. The Council has also used also does not comport with FMP may be significant logistical constraints WCGOP data to evaluate species-to- policies for setting harvest rates. NMFS to achieving the goal.’’ species landings limit ratios, as well as and Council staff believe that leaving The ‘‘Evaluating Bycatch’’ report species-to species catch ratios in the this sentence in the FMP was an characterizes the WCGOP as a bycatch model. NMFS expects that the editorial oversight and removing it now ‘‘developing’’ observer program, WCGOP will continue to meet the in no way changes the intent or effect meaning that it is a program ‘‘in which Council’s need to identify and prioritize of either the FMP or Amendment 16–1. an established stratification design has bycatch problems in the groundfish Comment 17: Amendment 16–1 adds been implemented and alternative fishery, and that WCGOP data will a new sentence to the FMP that reads in allocation schemes [for observer continue to directly inform both annual reference to the decline of overfished coverage] are being evaluated to and inseason management measures. stock abundance, ‘‘Further declines optimize sample allocations by strata to Comment 15: On the issue of what below the overfished levels in the 1990s achieve the recommended goals of legal obligations apply if a groundfish were due mostly to much lower than precision of bycatch estimates for the species is listed under the ESA. expected recruitment.’’ While major species of concern.’’ The next step Amendment 16–1 must make absolutely recruitment is a big part of the current beyond a developing observer program clear that NMFS and the Council must plight of groundfish, many other factors is a ‘‘mature’’ program ‘‘in which some comply with all obligations imposed by contributed to the condition of these form of an optimal sampling allocation both the Magnuson-Stevens Act and the species. Improper accounting of bycatch scheme has been implemented. The ESA. in the 1980s and 1990s and the failure program is flexible enough to achieve Response: Amendment 16–1 to heed scientific advice were the recommended goals of precision of establishes a new section 4.5.3.7 in the contributing factors to the decline of bycatch estimates for the major species FMP. This section provides guidance on groundfish stocks. Amendment 16–1 of concern considering changes in the how the Council and NMFS would also proposes to delete language fishery over time.’’ address the mandates of the Magnuson- regarding a historical account of the As discussed above, NMFS has Stevens Act and the ESA if a groundfish Council’s use of fishing mortality rates released the second year of observer species were to be listed as either based on scientific information. We urge data in January 2004 (http:// threatened or endangered under the NMFS to keep these discussions in the www.nwfsc.noaa.gov/research/ ESA at some future time. Section 4.5.3.7 FMP to better document the genesis of divisions/fram/Observer). Because states that ‘‘measures under a[n ESA] current fishing mortality rates. observer coverage in the WCGOP has recovery plan or ’no jeopardy’ standards Response: NMFS has worked with been largely focused on the trawl in a biological opinion will supercede Council staff to retain the historical fishery, NMFS expects that it will have [Magnuson-Stevens Act] rebuilding plan discussion of how the Council and its achieved the NMFS precision goals of measures and targets if they will result SSC have reviewed and revised 20–30 percent CV for estimates of total in the stock rebuilding to its target groundfish harvest policies over time. discards in the trawl fishery and of 20– biomass by an earlier date than the This historical information provides a 30 percent CV for estimates of species- target year identified in the current more accurate characterization of specific discards of those overfished rebuilding plan.’’ This section is groundfish overharvest in the 1990s. As species that are commonly taken in the intended to guide the Council and discussed in the FMP, groundfish trawl fishery. For overfished species NMFS to ensure that, if a species is science in the 1990s was characterized that are either not commonly taken in listed under the ESA, rebuilding and in part by increasing evidence that the trawl fishery, such as yelloweye recovery will follow the mandates of groundfish recruitment rates were lower rockfish, or species that are unavailable both the Magnuson-Stevens Act and the than had been thought. A 2000 review to the fisheries because of large area ESA, while also rebuilding the stock at of groundfish harvest rates by the closures, such as cowcod, NMFS the most rapid rate required by law. Council’s SSC showed that then-current expects that the current trawl-focused Amendment 16–1 does not imply, nor scientific information indicated both sampling program will not achieve the does it have the effect of providing lower than historically estimated 20–30 percent CV precision goal. As it NMFS and/or the Council with an recruitment levels for West Coast works toward becoming a mature avenue to fail to comply with either the groundfish and a corresponding need observer program, the WCGOP will Magnuson-Stevens Act or the ESA for for lower than historically used harvest likely have to increase observer any species that may be managed under rates. Since 2000, NMFS and the coverage of nontrawl vessels in order to both of these laws. Council have set ABCs for groundfish get a more precise estimate of yelloweye Comment 16: In our review of the species at the following rates: F40% for rockfish bycatch. For cowcod, a rare amendatory language for the FMP, we flatfish, F50% for rockfish (including event species with large portions of its noted that Section 4.2 of the FMP thornyheads), and F45% for other habitat closed to fishing, evaluation of (Determination of MSY or MSY Proxy groundfish such as sablefish and annual mortality may have to take some and BMSY) contains some outdated lingcod. Upon reviewing this historical form other than a fishery observation language, ‘‘...management should avoid language, NMFS and Council staff program. fishing rates that hold biomass below agreed that the sentence discussed by At section 6.3.3, the FMP identifies BMSY for long periods.’’ This language the commenter should be changed to the management need for an observer does not comport with the Magnuson- read, ‘‘Further declines below the program or other bycatch measurement Stevens Act and should be removed overfished levels in the 1990s were due program as an aid for the Council to from the FMP. in large part to harvest rate policies that ‘‘better identify and prioritize the Response: NMFS has worked with were later discovered to not be bycatch problems in the groundfish Council staff to ensure that this sentence sustainable. More recent stock fishery, based on the expected benefits is removed from the FMP. The assessments indicate that West Coast
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groundfish stocks likely have lower it is being considered, and the legal regulations. The Council did not adopt levels of productivity than other similar basis for this action are contained in the the status quo alternative because it had species worldwide. Based on this SUMMARY and BACKGROUND of the already been disapproved by the Court. retrospective information, harvest rate preamble to the proposed rule for this The second alternative would have policies in the 1990s were too high to action and at the beginning of this final implemented rebuilding plans as FMP maintain stocks at BMSY. The Council rule. There are no recordkeeping, amendments, with rebuilding revised its harvest rate policies for lower reporting, or other compliance issues parameters specified in the FMP. This levels of production, described [later in forthcoming from this proposed rule. second alternative was not adopted by the FMP].’’ This section of the FMP is This action does not duplicate, overlap, the Council because it would have essentially narrative in nature and this or conflict with other Federal rules. created a burdensome process for revision would in no way change the None of the comments received on the reviewing and revising rebuilding plan intent or effect of either the FMP or proposed rule addressed the economic parameters and goals, possibly slowing Amendment 16–1. impacts of the rule. the inclusion of the most recently A fish-harvesting business is available science into rebuilding plans. Federal Regulations under Amendment considered a ‘‘small’’ business by the The third alternative would have 16–1 Small Business Administration (SBA) if implemented rebuilding plans entirely Regulations to implement it has annual receipts not in excess of as Federal regulations, with TTARGET Amendment 16–1 establish a new $3.5 million. Approximately 1,560 and a harvest control rule for each section of the Federal groundfish vessels participate in the West Coast overfished species specified in regulations at 50 CFR 660.370, groundfish fisheries. Of those, about 410 regulations. This third alternative was ‘‘Overfished Species Rebuilding Plans.’’ vessels are registered to limited entry not adopted by the Council because it Because Amendment 16–1 provides a permits issued for either trawl, longline, would have separated rebuilding plan framework for future rebuilding plans, or pot gear. About 1,150 vessels land parameters and goals from rest of the the regulations implemented through groundfish against open access limits Council’s policies on groundfish harvest this action similarly provide a while either directly targeting rates, which are found within the FMP. framework within Federal groundfish groundfish or taking groundfish The final and preferred alternative regulations for future species-specific incidentally in fisheries directed at non- specifies TTARGET and the harvest rebuilding plans. On November 7, 2003 groundfish species. All but 10–20 of control for each overfished species in (68 FR 63053), NMFS published a those vessels are considered small Federal regulations, and places the Notice of Availability for Amendment businesses by the SBA. This final rule formulas and methodology for 16–2 to the FMP, which would set the is not expected to yield disproportionate determining rebuilding parameters in first four overfished species rebuilding economic impacts between those small the FMP. The preferred alternative was plans (canary rockfish, darkblotched and large entities. In the 2001 chosen because it requires a clear record rockfish, lingcod, POP) in the FMP and recreational fisheries, there were 106 in the FMP of the rebuilding plan implement those rebuilding plans Washington charter vessels engaged in standards that were in place at the start within 50 CFR 660.370. Public scoping salt water fishing outside of Puget of each rebuilding plan, while also for Amendment 16–3, which would Sound, 232 charter vessels active on the maintaining a current record in Federal cover the next four rebuilding plans Oregon coast and 415 charter vessels regulations of the rebuilding plan (bocaccio, cowcod, widow rockfish and active on the California coast. parameters that directly govern the yelloweye rockfish), was held at the This final rule is administrative in setting of annual or biennial harvest Council’s November 2003 meeting. The nature and affects only the levels. Council is scheduled to finalize administrative process by which While there will be no direct impact Amendment 16–3 at its April 2004 individual species rebuilding plans are on small entities as a result of adopting meeting, after which it will submit the formulated, and so does not have any particular process for formulating amendment to NMFS for review. The significant adverse economic effects on rebuilding plans, the implementation of final rebuilding plan for Pacific whiting, consumers, producers or processors of specific rebuilding plans for overfished will be Amendment 16–4, is scheduled groundfish. The Council considered the species may entail substantial economic for Council consideration and NMFS form (FMP amendments, regulations, a impacts for groundfish processors, implementation in 2004. combination thereof) and required commercial harvesters and recreational elements of a rebuilding plan. The charter vessels. These type of impacts Classification remaining issues are concerned with are specific to particular stocks or The Administrator, Northwest Region, setting internal Council standards for species and so will be addressed in the NMFS, has determined that Amendment periodic review and modification of individual rebuilding plans themselves. 16–1 is necessary for the conservation rebuilding plans, and defining the While there may be slight differences and management of the Pacific Coast interaction of a rebuilding plan with between the alternatives in the amount groundfish fishery and that it is recovery plans for a rebuilding species of administrative capacity required to consistent with the Magnuson-Stevens that is subsequently listed under the formulate and implement individual Act and other applicable laws. ESA. species rebuilding strategies, these This final rule has been determined to For the main issue considered in this differences are not quantifiable and will be not significant for purposes of action, the form of rebuilding plans, the depend more on the variability of Executive Order 12866. Council considered 4 alternatives. The periodic stock assessments once a The Council prepared a FRFA first alternative, the status quo particular rebuilding plan is adopted describing the impact of this action on alternative, would have maintained than on the effects of these proposed small entities. The FRFA incorporates rebuilding plan formatting standards actions or the subsequent adoption of the IRFA which was summarized in the from Amendment 12. These status quo individual rebuilding plans. proposed rule on September 5, 2003 (68 formatting standards were disapproved FR 52732). by the Court because they did not set List of Subjects in 50 CFR Part 660 The following is a summary of the rebuilding plans in the form of an FMP, Administrative practice and FRFA. A description of the action, why an FMP amendment, or Federal procedure, American Samoa, Fisheries,
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Fishing, Guam, Hawaiian Natives, ACTION: Closure. setting aside the remaining 120 mt as Indians, Northern Mariana Islands, bycatch to support other anticipated Reporting and recordkeeping SUMMARY: NMFS is prohibiting directed groundfish fisheries. In accordance with requirements. fishing for Pacific cod by vessels § 679.20(d)(1)(iii), the Regional catching Pacific cod for processing by Dated: February 19, 2004. Administrator finds that this directed the inshore component in the Western fishing allowance will soon be reached. Rebecca Lent, Regulatory Area of the Gulf of Alaska Deputy Assistant Administrator for Consequently, NMFS is prohibiting (GOA). This action is necessary to directed fishing for Pacific cod by Regulatory Programs, National Marine prevent exceeding the interim 2004 total Fisheries Service. vessels catching Pacific cod for allowable catch (TAC) of Pacific cod processing by the inshore component in ■ For the reasons set out in the preamble, apportioned to vessels catching Pacific 50 CFR part 660 is amended as follows: the Western Regulatory Area of the cod for processing by the inshore GOA. component of the Western Regulatory PART 660—FISHERIES OFF WEST Area of the GOA. Classification COAST STATES AND IN THE DATES: WESTERN PACIFIC Effective 1200 hrs, Alaska local This action responds to the best time (A.l.t.), February 24, 2004, until available information recently obtained ■ l. The authority citation for part 660 superseded by the notice of Final 2004 continues to read as follows: from the fishery. The Assistant Harvest Specifications of Groundfish for Administrator for Fisheries, NOAA, Authority: 16 U.S.C. 1801 et seq. the GOA, which will be published in (AA), finds good cause to waive the ■ 2. Section 660.370 is added to read as the Federal Register. requirement to provide prior notice and follows: FOR FURTHER INFORMATION CONTACT: Josh opportunity for public comment Keaton, 907–586–7228. § 660.370 Overfished Species Rebuilding pursuant to the authority set forth at 5 Plans. SUPPLEMENTARY INFORMATION: NMFS U.S.C. 553(b)(B) as such requirement is manages the groundfish fishery in the For each overfished groundfish stock impracticable and contrary to the public GOA exclusive economic zone with an approved rebuilding plan, this interest. This requirement is according to the Fishery Management section contains the standards to be impracticable and contrary to the public Plan for Groundfish of the Gulf of used to establish annual or biennial interest as it would prevent the Agency Alaska (FMP) prepared by the North OYS, specifically the target date for from responding to the most recent Pacific Fishery Management Council rebuilding the stock to its MSY level fisheries data in a timely fashion and under authority of the Magnuson- and the harvest control rule to be used would delay the closure of the fishery Stevens Fishery Conservation and to rebuild the stock. under the interim 2004 TAC of Pacific Management Act. Regulations governing cod apportioned to vessels catching [FR Doc. 04–4286 Filed 2–25–04; 8:45 am] fishing by U.S. vessels in accordance Pacific cod for processing by the inshore BILLING CODE 3510–22–S with the FMP appear at subpart H of 50 component of the Western Regulatory CFR part 600 and 50 CFR part 679. Area of the GOA. The interim 2004 TAC of Pacific cod DEPARTMENT OF COMMERCE The AA also finds good cause to apportioned to vessels catching Pacific waive the 30-day delay in the effective cod for processing by the inshore National Oceanic and Atmospheric date of this action under 5 U.S.C. component in the Western Regulatory Administration 553(d)(3). This finding is based upon Area is 7,553 metric tons (mt) as the reasons provided above for waiver of established by the interim 2004 harvest 50 CFR Part 679 prior notice and opportunity for public specifications of groundfish for the GOA comment. [Docket No. 031126297–3297–01; I.D. (68 FR 67964, December 5, 2003). 022304C] In accordance with § 679.20(d)(1)(i), This action is required by section the Administrator, Alaska Region, 679.20 and is exempt from review under Fisheries of the Exclusive Economic Executive Order 12866. Zone Off Alaska; Vessels Catching NMFS (Regional Administrator), has Pacific Cod for Processing by the determined that the interim 2004 TAC Authority: 16 U.S.C. 1801 et seq. of Pacific cod apportioned to vessels Inshore Component in the Western Dated: February 23, 2004. Regulatory Area of the Gulf of Alaska catching Pacific cod for processing by the inshore component of the Western Bruce C. Morehead, AGENCY: National Marine Fisheries Regulatory Area of the GOA will be Acting Director, Office of Sustainable Service (NMFS), National Oceanic and reached. Therefore, the Regional Fisheries, National Marine Fisheries Service. Atmospheric Administration (NOAA), Administrator is establishing a directed [FR Doc. 04–4265 Filed 2–23–04; 4:23 pm] Commerce. fishing allowance of 7,433 mt, and is BILLING CODE 3510–22–S
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Proposed Rules Federal Register Vol. 69, No. 38
Thursday, February 26, 2004
This section of the FEDERAL REGISTER Evendale, OH 45215, telephone (513) P/N 5001T20P01, have high-peak contains notices to the public of the proposed 552–3272; fax (513) 552–3329, email stresses. GE has identified the affected issuance of rules and regulations. The [email protected]. stage 1 compressor disks by SN. An purpose of these notices is to give interested You may examine the AD docket, by investigation by GE revealed that the persons an opportunity to participate in the appointment, at the FAA, New England tangential positioning of the blade rule making prior to the adoption of the final Region, Office of the Regional Counsel, rules. dovetail slot resulted in the high-peak 12 New England Executive Park, stresses. This proposed AD would Burlington, MA. require removing those stage 1 DEPARTMENT OF TRANSPORTATION FOR FURTHER INFORMATION CONTACT: compressor disks, PN 5001T20P01, from Norman Brown, Senior Engineer, Engine service before reaching a reduced LCF Federal Aviation Administration Certification Office, FAA, Engine and life limit of 2,100 hours time-since-new Propeller Directorate, 12 New England (TSN) or by December 31, 2008, 14 CFR Part 39 Executive Park; telephone (781) 238– whichever occurs first. This condition, 7181; fax (781) 238–7199. [Docket No. 2003–NE–59–AD] if not corrected, could result in LCF SUPPLEMENTARY INFORMATION: cracking and failure of the stage 1 RIN 2120–AA64 compressor disk, an uncontained engine Comments Invited failure, and damage to the helicopter. Airworthiness Directives; General We invite you to submit any written Electric Company CT58 and T58 Series relevant data, views, or arguments Relevant Service Information Turboshaft Engines regarding this proposal. Send your We have reviewed and approved the technical contents of GE Alert Service AGENCY: Federal Aviation comments to an address listed under Administration (FAA), DOT. ADDRESSES. Include ‘‘AD Docket No. Bulletin (ASB) No. CT58 S/B 72–A0196, 2003–NE–59–AD’’ in the subject line of dated July 24, 2003, that describes the ACTION: Notice of proposed rulemaking your comments. If you want us to procedures for replacing the stage 1 (NPRM). acknowledge receipt of your mailed compressor disk. comments, send us a self-addressed, SUMMARY: The FAA proposes to adopt a FAA’s Determination and Requirements stamped postcard with the docket new airworthiness directive (AD) for of the Proposed AD General Electric Company (GE) CT58– number written on it; we will date- 140–1, CT58–140–2, and T58–GE–5, stamp your postcard and mail it back to We have evaluated all pertinent –10, –100, and –402 series turboshaft you. We specifically invite comments information and identified an unsafe engines with certain serial numbers on the overall regulatory, economic, condition that is likely to exist or (SNs) of stage 1 compressor disks, part environmental, and energy aspects of develop on other products of this same number (P/N) 5001T20P01, installed. the proposed AD. If a person contacts us type design. Therefore, we are This proposed AD would require verbally, and that contact relates to a proposing this AD which would require removing certain stage 1 compressor substantive part of this proposed AD, removing certain stage 1 compressor disks from service before reaching a we will summarize the contact and disks from service at or before reaching reduced low-cycle-fatigue (LCF) life place the summary in the docket. We a reduced LCF life limit of 2,100 hours limit. This proposed AD results from will consider all comments received by TSN or by December 31, 2008, two reports of low blade tip clearances the closing date and may amend the whichever occurs first. in the compressor. We are proposing proposed AD in light of those Changes to 14 CFR Part 39—Effect on comments. this AD to prevent LCF cracking and the Proposed AD We are reviewing the writing style we failure of the stage 1 compressor disk, currently use in regulatory documents. On July 10, 2002, we issued a new an uncontained engine failure, and We are interested in your comments on version of 14 CFR part 39 (67 FR 47998, damage to the helicopter. whether the style of this document is July 22, 2002), which governs the FAA’s DATES: We must receive any comments clear, and your suggestions to improve AD system. This regulation now on this proposed AD by April 26, 2004. the clarity of our communications that includes material that relates to altered ADDRESSES: Use one of the following affect you. You can get more products, special flight permits, and addresses to submit comments on this information about plain language at alternative methods of compliance. This proposed AD: http://www.faa.gov/language and http:// material previously was included in • By mail: Federal Aviation www.plainlanguage.gov. each individual AD. Since this material Administration (FAA), New England is included in 14 CFR part 39, we will Examining the AD Docket Region, Office of the Regional Counsel, not include it in future AD actions. Attention: Rules Docket No. 2003–NE– You may examine the AD Docket 59–AD, 12 New England Executive Park, (including any comments and service Interim Action Burlington, MA 01803–5299. information), by appointment, between These actions are interim actions and • By fax: (781) 238–7055. 8 a.m. and 4:30 p.m., Monday through we may take further rulemaking actions • By e-mail: 9-ane- Friday, except Federal holidays. See in the future. [email protected] ADDRESSES for the location. You can get the service information Costs of Compliance identified in this proposed AD from GE Discussion There are about 320 GE CT58–140–1, Aircraft Engines Customer Support On May 1, 2003, GE informed the CT58–140–2, and T58–GE–5, –10, –100, Center, M/D 285, 1 Neumann Way, FAA that 320 stage 1 compressor disks, and –402 series turboshaft engines of
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the affected design in the worldwide Comments Due Date TABLE 1.—STAGE 1 COMPRESSOR fleet. We estimate that 45 engines (a) The Federal Aviation Administration DISK SNS AFFECTED BY THIS AD— installed on helicopters of U.S. registry (FAA) must receive comments on this Continued would be affected by this proposed AD. airworthiness directive (AD) action by April The proposed action does not impose 26, 2004. GATH53GE any additional labor costs. A new disk Affected ADs GATH7K4P GATH7PRC would cost about $7,965 per engine. We (b) None. estimate that the prorated cost of the life GATH8A5P Applicability GATH8K19 reduction would be about $4,181 per GATH53GF engine. Based on these figures, we (c) This AD applies to General Electric GATH7K4R estimate the total cost of the proposed Company (GE) CT58–140–1, CT58–140–2, GATH7PRD AD to U.S. operators to be $188,172. and T58–GE–5, –10, –100, and –402 series GATH8A5T turboshaft engines with stage 1 compressor GATH8W7H Regulatory Findings disks, part number (P/N) 5001T20P01, that GATH53GH have a serial number (SN) listed in the GATH7K4T We have determined that this following Table 1: proposed AD would not have federalism GATH7PRE GATH8A5W implications under Executive Order TABLE 1.—STAGE 1 COMPRESSOR GATH8W7J 13132. This proposed AD would not DISK SNS AFFECTED BY THIS AD GATH53GJ have a substantial direct effect on the GATH7K5G States, on the relationship between the GATD0PD2 GATH7PRF national Government and the States, or GATH6RWW GATH8A60 on the distribution of power and GATH7PR0 GATH8W7L responsibilities among the various GATH86K2 GATH53GK levels of government. GATH8K0P GATH7KGH GATD0PD3 GATH7PRG For the reasons discussed above, I GATH6T00 GATH8A61 certify that the proposed regulation: GATH7PR1 GATH8W7M 1. Is not a ‘‘significant regulatory GATH86K3 GATH5T70 action’’ under Executive Order 12866; GATH8K0R GATH7KGK 2. Is not a ‘‘significant rule’’ under the GATD0PD5 GATH7PRH DOT Regulatory Policies and Procedures GATH6T01 GATH8A62 GATH7PR2 GATH8W7N (44 FR 11034, February 26, 1979); and GATH86K4 GATH5T71 3. Would not have a significant GATH8K0T GATH7KGL economic impact, positive or negative, GATD0PD6 GATH7PRJ on a substantial number of small entities GATH6T02 GATH8A63 under the criteria of the Regulatory GATH7PR3 GATH8W7P Flexibility Act. GATH86K5 GATH5T72 GATH8K0W We prepared a summary of the costs GATH7KGM GATD0PD7 GATH7PRK to comply with this proposal and placed GATH6T03 GATH8A64 it in the AD Docket. You may get a copy GATH7PR4 GATH8W7R of this summary by sending a request to GATH8A5G GATH5T73 us at the address listed under GATH8K12 GATH7KGN ADDRESSES. Include ‘‘AD Docket No. GATD0PD8 GATH7PRL 2003–NE–59–AD’’ in your request. GATH6T04 GATH8A66 GATH7PR5 GATH8W7T List of Subjects in 14 CFR Part 39 GATH8A5H GATH5T74 GATH8K13 GATH7KGP Air transportation, Aircraft, Aviation GATD0PD9 GATH7PRM safety, Safety. GATH6T05 GATH8A67 The Proposed Amendment GATH7PR6 GATH8WD4 GATH8A5J GATH5T75 Accordingly, under the authority GATH8K14 GATH7KGR delegated to me by the Administrator, GATD0PDA GATH7PRN the Federal Aviation Administration GATH7K4K GATH8A68 proposes to amend 14 CFR part 39 as GATH7PR7 GATH8WD5 GATH8A5K GATH5T76 follows: GATH8K15 GATH7KGT GATD0PDC PART 39—AIRWORTHINESS GATH7PRP GATH7K4L GATH8GRG DIRECTIVES GATH7PR8 GATH8WD6 GATH8A5L GATH5T77 1. The authority citation for part 39 GATH8K16 GATH7KGW continues to read as follows: GATH53GC GATH7PRR Authority: 49 U.S.C. 106(g), 40113, 44701. GATH7K4M GATH8GRH GATH7PR9 GATH8WD7 § 39.13 [Amended] GATH8A5M GATH5T78 2. The FAA amends § 39.13 by adding GATH8K17 GATH7KH0 GATH53GD the following new airworthiness GATH7PRT GATH7K4N GATH8GRK directive: GATH7PRA GATH8WD8 General Electric Company: Docket No. 2003– GATH8A5N GATH5T79 NE–59–AD. GATH8K18 GATH7KH1
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TABLE 1.—STAGE 1 COMPRESSOR TABLE 1.—STAGE 1 COMPRESSOR TABLE 1.—STAGE 1 COMPRESSOR DISK SNS AFFECTED BY THIS AD— DISK SNS AFFECTED BY THIS AD— DISK SNS AFFECTED BY THIS AD— Continued Continued Continued
GATH7PRW GATH94R7 GATH7MLP GATH8GRL GATH6CE1 GATH86JJ GATH8WD9 GATH7LC6 GATH8HH4 GATH5T7A GATH82RL GATH96HF GATH7KH2 GATH8HGH GATH6RH9 GATH7PT0 GATH94R8 GATH7MLR GATH8GRM GATH6CE2 GATH86JK GATH8WDA GATH7LC7 GATH8HH5 GATH5T7C GATH82RM GATH96HG GATH7LAL GATH8HGJ GATH6RHC GATH7RTP GATH94R9 GATH7MLT GATH8GRN GATH6CE3 GATH8WDC GATH7LC8 GATH86JL GATH5T7D GATH82RN GATH8HH6 GATH7LAM GATH8HGK GATH96HK GATH7RTR GATH94RA GATH6RHD GATH8GRP GATH6CE4 GATH7MLW GATH8WDD GATH7M8G GATH86JM GATH5T7E GATH82RP GATH8HH7 GATH7LAN GATH8HGL GATH96HL GATH7RTT GATH94RC GATH6RHE GATH8GRR GATH6CE5 GATH7MM0 GATH8WDE GATH7M8H GATH86JN GATH5T7F GATH82RR GATH8K0H GATH7LAP GATH8HGM GATH96HM GATH82R8 GATH94RD GATH6RHF GATH8GRT GATH6CE6 GATH7MM1 GATH8WDF GATH7M8J GATH86JP GATH5T7G GATH82RT GATH8K0J GATH7LAR GATH8HGN GATH96HN GATH82R9 GATH94RE GATH6RHG GATH8GRW GATH6CE7 GATH7MM2 GATH8WDG GATH7M8K GATH86JR GATH5T7H GATH82RW GATH8K0K GATH7LAT GATH8HGP GATH82RA GATH94RF GATH96HR GATH8GT0 GATH6CE8 GATH6RHH GATH8WDH GATH7M8L GATH7MM3 GATH6CDL GATH82T0 GATH86JT GATH7LAW GATH8HGR GATH8K0L GATH82RD GATH94RG GATH96HT GATH8GT1 GATH6CE9 GATH6RHJ GATH8WDJ GATH7M8M GATH7PPT GATH6CDM GATH82T1 GATH86JW GATH7LC0 GATH8HGT GATH8K0M GATH82RE GATH94RJ GATH96HW GATH8GT3 GATH6CEA GATH6RWT GATH8WDK GATH7M8N GATH7PPW GATH6CDN GATH86JD GATH86K0 GATH7LC1 GATH8HGW GATH8K0N GATH82RF GATH94RK GATH96J0 GATH8GT5 GATH6CEC GATH8WDL GATH7MLK These engines are installed on, but not GATH6CDP GATH86JE limited to Agusta S.p.A AS–61N, AS–61N1, GATH7LC2 GATH8HH0 Sikorsky S–61L, S–61N, S–61R, and S–61NM GATH82RG GATH94RN helicopters, and the following surplus GATH8GT7 GATH6CED GATH94R3 GATH7MLL military helicopters that have been certified GATH6CDR GATH86JF in accordance with sections 21.25 or 21.27 of GATH7LC3 GATH8HH1 the Federal Aviation Regulations (14 CFR GATH82RH GATH94RP 21.25 or 21.27): Sikorsky S–61D and S–61V, GATH8GT8 GATH6CEE Glacier CH–3E, Siller CH–3E and SH–3A, GATH94R4 GATH7MLM and Robinson Crane CH–3C, CH–3E, HH–3C, GATH6CDT GATH86JG HH–3E, and Carson S–61L helicopters. GATH7LC4 GATH8HH2 Unsafe Condition GATH82RJ GATH94RR GATH8HGF GATH6CEF (d) This AD results from two reports of low GATH94R6 GATH7MLN blade tip clearances in the compressor. We GATH6CE0 GATH86JH are issuing this AD to prevent low-cycle- GATH7LC5 GATH8HH3 fatigue (LCF) cracking and failure of the stage GATH82RK GATH94RT 1 compressor disk, an uncontained engine GATH8HGG GATH6RH8 failure, and damage to the helicopter.
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Compliance of tolerance limits, and replacement of Submit comments using the following (e) You are responsible for having the MOV modules and TAZ diodes with format: actions required by this AD performed within new parts, if necessary. This action is • Organize comments issue-by-issue. the compliance times specified unless the necessary to prevent the failure of For example, discuss a request to actions have already been done. critical ice protection systems following change the compliance time and a Replacement of Stage 1 Compressor Disks a lightning strike, which could result in request to change the service bulletin reduced controllability and degraded reference as two separate issues. (f) If you have a stage 1 compressor disk, • P/N 5001T20P01, with a SN listed in Table performance of the airplane in the event For each issue, state what specific 1 of this AD, replace that stage 1 compressor of an encounter with icing conditions. change to the proposed AD is being disk at or before reaching a reduced LCF life This action is intended to address the requested. • limit of 2,100 hours time-since-new (TSN) or identified unsafe condition. Include justification (e.g., reasons or by December 31, 2008, whichever occurs data) for each request. DATES: Comments must be received by first. GE Alert Service Bulletin (ASB) No. Comments are specifically invited on CT58 S/B 72–A0196, dated July 24, 2003, March 29, 2004. the overall regulatory, economic, contains information on replacing the stage 1 ADDRESSES: Submit comments in environmental, and energy aspects of compressor disk. triplicate to the Federal Aviation the proposed rule. All comments (g) After the effective date of this AD, do Administration (FAA), Transport submitted will be available, both before not install any stage 1 compressor disk, P/N Airplane Directorate, ANM–114, and after the closing date for comments, 5001T20P01, that has a SN listed in Table 1 Attention: Rules Docket No. 2002–NM– of this AD and has 2,100 hours TSN or more, in the Rules Docket for examination by into any engine. 310–AD, 1601 Lind Avenue, SW., interested persons. A report Renton, Washington 98055–4056. summarizing each FAA-public contact Alternative Methods of Compliance Comments may be inspected at this concerned with the substance of this (h) The Manager, Engine Certification location between 9 a.m. and 3 p.m., proposal will be filed in the Rules Office, has the authority to approve Monday through Friday, except Federal Docket. alternative methods of compliance for this holidays. Comments may be submitted Commenters wishing the FAA to AD if requested using the procedures found via fax to (425) 227–1232. Comments acknowledge receipt of their comments in 14 CFR 39.19. may also be sent via the Internet using submitted in response to this action Material Incorporated by Reference the following address: 9-anm- must submit a self-addressed, stamped (i) None. [email protected]. Comments sent postcard on which the following via fax or the Internet must contain statement is made: ‘‘Comments to Related Information ‘‘Docket No. 2002–NM–310–AD’’ in the Docket Number 2002–NM–310–AD.’’ (j) GE Alert Service Bulletin (ASB) No. subject line and need not be submitted The postcard will be date stamped and CT58 S/B 72–A0196, dated July 24, 2003, in triplicate. Comments sent via the returned to the commenter. pertains to the subject of this AD. Internet as attached electronic files must Issued in Burlington, Massachusetts, on be formatted in Microsoft Word 97 or Availability of NPRMs February 17, 2004. 2000 or ASCII text. Any person may obtain a copy of this Francis A. Favara, The service information referenced in NPRM by submitting a request to the Acting Manager, Engine and Propeller the proposed rule may be obtained from FAA, Transport Airplane Directorate, Directorate, Aircraft Certification Service. AvCraft Aerospace GmbH, P.O. Box ANM–114, Attention: Rules Docket No. [FR Doc. 04–4101 Filed 2–25–04; 8:45 am] 1103, D–82230 Wessling, Germany. This 2002–NM–310–AD, 1601 Lind Avenue, BILLING CODE 4910–13–U information may be examined at the SW., Renton, Washington 98055–4056. FAA, Transport Airplane Directorate, Discussion 1601 Lind Avenue, SW., Renton, DEPARTMENT OF TRANSPORTATION Washington. The Luftfahrt-Bundesamt (LBA), which is the airworthiness authority for Federal Aviation Administration FOR FURTHER INFORMATION CONTACT: Germany, notified the FAA that an Thomas Groves, Aerospace Engineer, unsafe condition may exist on certain 14 CFR Part 39 International Branch, ANM–116, FAA, Dornier Model 328–100 and –300 series Transport Airplane Directorate, 1601 airplanes. The metal oxide varistor [Docket No. 2002–NM–310–AD] Lind Avenue, SW., Renton, Washington (MOV) modules protect the propeller RIN 2120–AA64 98055–4056; telephone (425) 227–1503; deice system from the effects of fax (425) 227–1149. lightning strikes. The transient Airworthiness Directives; Dornier SUPPLEMENTARY INFORMATION: absorption zener (TAZ) diodes protect Model 328–100 and -300 Series other ice protection functions from the Airplanes Comments Invited effects of lightning strikes. The LBA AGENCY: Federal Aviation Interested persons are invited to advises that 37% of the inspected fleet Administration, DOT. participate in the making of the has been found with TAZ diodes and ACTION: Notice of proposed rulemaking proposed rule by submitting such MOV modules that are out of tolerance. (NPRM). written data, views, or arguments as Further investigation revealed that the they may desire. Communications shall airplane maintenance manual (AMM) SUMMARY: This document proposes the identify the Rules Docket number and does not include a check of this adoption of a new airworthiness be submitted in triplicate to the address equipment following a lightning strike. directive (AD) that is applicable to specified above. All communications The out of tolerance condition, if not certain Dornier Model 328–100 and received on or before the closing date corrected, could result in the failure of –300 series airplanes. This proposal for comments, specified above, will be critical ice protection systems following would require inspection of the metal considered before taking action on the a lightning strike, which could result in oxide varistor (MOV) modules and proposed rule. The proposals contained reduced controllability and degraded transient absorption zener (TAZ) diodes in this action may be changed in light performance of the airplane in the event to determine if those parts are outside of the comments received. of an encounter with icing conditions.
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Explanation of Relevant Service 328–300 series airplanes of U.S. registry List of Subjects in 14 CFR Part 39 Information would be affected by this proposed AD. Air transportation, Aircraft, Aviation Dornier has issued Service Bulletins For Model 328–100 airplanes, it safety, Safety. SB–328–30–417, dated January 24, 2002 would take approximately 6 work hours The Proposed Amendment (for Model 328–100 series airplanes), per airplane to accomplish the proposed and SB–328J–30–150, dated January 24, inspection, at an average labor rate of Accordingly, pursuant to the 2002 (for Model 328–300 series $65 per work hour. Based on these authority delegated to me by the airplanes). The service bulletins figures, the cost impact of the proposed Administrator, the Federal Aviation describe procedures for inspection of AD on U.S. operators of these airplanes Administration proposes to amend part the MOV modules and TAZ diodes to is estimated to be $20,670, or $390 per 39 of the Federal Aviation Regulations determine if those parts are out of airplane. (14 CFR part 39) as follows: tolerance, and replacement of any MOV module or TAZ diode with a new part For Model 328–300 airplanes, it PART 39—AIRWORTHINESS if found out of tolerance. would take approximately 3 work hours DIRECTIVES Accomplishment of the actions per airplane to accomplish the proposed inspection, at an average labor rate of 1. The authority citation for part 39 specified in the service bulletins is continues to read as follows: intended to adequately address the $65 per work hour. Based on these identified unsafe condition. The LBA figures, the cost impact of the proposed Authority: 49 U.S.C. 106(g), 40113, 44701. AD on U.S. operators of these airplanes classified these service bulletins as § 39.13 [Amended] mandatory and issued German is estimated to be $9,360, or $195 per airworthiness directives 2002–262 and airplane. 2. Section 39.13 is amended by adding the following new airworthiness 2002–263, both dated September 19, The cost impact figures discussed directive: 2002, to assure the continued above are based on assumptions that no airworthiness of these airplanes in operator has yet accomplished any of Fairchild Dornier GmbH (Formerly Dornier Germany. the proposed requirements of this AD Luftfahrt GmbH): Docket 2002–NM– 310–AD. FAA’s Conclusions action, and that no operator would accomplish those actions in the future if Applicability: Model 328–100 series These airplane models are this proposed AD were not adopted. The airplanes, serial numbers 3005 through 3119 inclusive; and Model 328–300 series manufactured in Germany and are type cost impact figures discussed in AD certificated for operation in the United airplanes, serial numbers 3105 through 3207 rulemaking actions represent only the inclusive, except serial numbers 3199, 3200, States under the provisions of section time necessary to perform the specific 21.29 of the Federal Aviation 3203, and 3204; certificated in any category. actions actually required by the AD. Compliance: Required as indicated, unless Regulations (14 CFR 21.29) and the These figures typically do not include accomplished previously. applicable bilateral airworthiness incidental costs, such as the time To prevent the failure of critical ice agreement. Pursuant to this bilateral required to gain access and close up, protection systems following a lightning airworthiness agreement, the LBA has planning time, or time necessitated by strike, which could result in reduced kept the FAA informed of the situation controllability and degraded performance in other administrative actions. described above. The FAA has the event of an encounter with icing examined the findings of the LBA, Regulatory Impact conditions, accomplish the following: reviewed all available information, and Inspection and Replacement determined that AD action is necessary The regulations proposed herein would not have a substantial direct (a) Within 90 days after the effective date for products of this type design that are of this AD, inspect transient absorption zener certificated for operation in the United effect on the States, on the relationship (TAZ) diodes and metal oxide varistor (MOV) States. between the national Government and modules to determine if those parts are the States, or on the distribution of outside of tolerance limits, in accordance Explanation of Requirements of power and responsibilities among the with the Accomplishment Instructions of Proposed Rule various levels of government. Therefore, Dornier Service Bulletins SB–328–30–417, Since an unsafe condition has been it is determined that this proposal dated January 24, 2002 (for Model 328–100 identified that is likely to exist or would not have federalism implications series airplanes); or SB–328J–30–150, dated develop on other airplanes of the same under Executive Order 13132. January 24, 2002 (for Model 328–300 series type design registered in the United airplanes); as applicable. If any TAZ diode or For the reasons discussed above, I MOV module is found to be outside of States, the proposed AD would require certify that this proposed regulation (1) tolerance, before further flight, replace the accomplishment of the actions specified is not a ‘‘significant regulatory action’’ faulty part with a new part in accordance in the service bulletins described under Executive Order 12866; (2) is not with the Accomplishment Instructions of the previously, except as discussed below. a ‘‘significant rule’’ under the DOT applicable service bulletin. Difference Between Proposed Rule and Regulatory Policies and Procedures (44 Reporting Difference Referenced Service Bulletin FR 11034, February 26, 1979); and (3) if (b) Although the service bulletins Operators should note that, although promulgated, will not have a significant referenced in this AD specify to submit the Accomplishment Instructions of the economic impact, positive or negative, certain information to the manufacturer, this referenced service bulletins describe on a substantial number of small entities AD does not include such a requirement. procedures for submitting a test report, under the criteria of the Regulatory Alternative Methods of Compliance Flexibility Act. A copy of the draft this proposed AD would not require that (c) In accordance with 14 CFR 39.19, the action. The FAA does not need this regulatory evaluation prepared for this Manager, International Branch, ANM–116, information from operators. action is contained in the Rules Docket. Transport Airplane Directive, FAA, is A copy of it may be obtained by authorized to approve alternative methods of Cost Impact contacting the Rules Docket at the compliance (AMOCs) for this AD. The FAA estimates that 53 Model location provided under the caption Note 1: The subject of this AD is addressed 328–100 series airplanes and 48 Model ADDRESSES. in German airworthiness directives 2002–262
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and 2002–263, both dated September 19, the following address: 9-anm- Commenters wishing the FAA to 2002. [email protected]. Comments sent acknowledge receipt of their comments Issued in Renton, Washington, on February via fax or the Internet must contain submitted in response to this action 20, 2004. ‘‘Docket No. 2003–NM–216–AD’’ in the must submit a self-addressed, stamped Ali Bahrami, subject line and need not be submitted postcard on which the following Acting Manager, Transport Airplane in triplicate. Comments sent via the statement is made: ‘‘Comments to Directorate, Aircraft Certification Service. Internet as attached electronic files must Docket Number 2003–NM–216–AD.’’ [FR Doc. 04–4255 Filed 2–25–04; 8:45 am] be formatted in Microsoft Word 97 or The postcard will be dated stamped and BILLING CODE 4910–13–P 2000 or ASCII text. returned to the commenter. The service information referenced in the proposed rule may be obtained from Availability of NPRMs DEPARTMENT OF TRANSPORTATION Raytheon Aircraft Company, Any person may obtain a copy of this Department 62, P.O. Box 85, Wichita, NPRM by submitting a request to the Federal Aviation Administration Kansas 67201–0085. This information FAA, Transport Airplane Directorate, may be examined at the FAA, Transport ANM–114, Attention: Rules Docket No. 14 CFR Part 39 Airplane Directorate, 1601 Lind 2003–NM–216–AD, 1601 Lind Avenue, [Docket No. 2003–NM–216–AD] Avenue, SW., Renton, Washington; or at SW., Renton, Washington 98055–4056. the FAA, Wichita Aircraft Certification RIN 2120–AA64 Office, 1801 Airport Road, Room 100, Discussion Mid-Continent Airport, Wichita, Kansas. The FAA has received two reports of Airworthiness Directives; Raytheon FOR FURTHER INFORMATION CONTACT: Jeff incorrectly wired engine fire Model BAe.125 series 800A (including Pretz, Aerospace Engineer, Airframe and extinguisher bottles on Raytheon Model C–29A and U–125 Variant) and 800B Propulsion Branch, ACE–118W, FAA, Hawker 800XP airplanes. Investigation Airplanes; and Model Hawker 800 Wichita Aircraft Certification Office, revealed that the wire connectors of the (including U–125A Variant), and 800XP 1801 Airport Road, Room 100, Mid- fire extinguisher are neither specifically Airplanes Continent Airport, Wichita, Kansas designed to prevent the wiring from AGENCY: Federal Aviation 67209; telephone (316) 946–4153; fax being installed incorrectly nor clearly Administration, DOT. (316) 946–4107. identified for installation. The configuration allows for potential mis- ACTION: Notice of proposed rulemaking SUPPLEMENTARY INFORMATION: wiring of the left and right discharge (NPRM). Comments Invited signal of the fire extinguisher from the SUMMARY: This document proposes the Interested persons are invited to cockpit to the fire extinguisher bottles adoption of a new airworthiness participate in the making of the during both production and directive (AD) that is applicable to proposed rule by submitting such maintenance activities. This condition, certain Model BAe.125 series 800A written data, views, or arguments as if not corrected, could result in one or (including C–29A and U–125 Variant) they may desire. Communications shall both fire extinguisher bottles being and 800B airplanes; and Model Hawker identify the Rules Docket number and discharged into the wrong engine 800 (including U–125A Variant) and be submitted in triplicate to the address nacelle. 800XP airplanes. This proposal would specified above. All communications The wire connectors of the fire require a functional test of the engine received on or before the closing date extinguishers on certain Raytheon fire extinguishing wiring for the for comments, specified above, will be Model BAe.125 series 800A (including appropriate installation; verification of considered before taking action on the C–29A and U–125 variant) and 800B the correct wiring connector proposed rule. The proposals contained airplanes and Model Hawker 800 installation; correction of wiring if in this action may be changed in light (including U–125 Variant) airplanes are necessary; and installation of new of the comments received. identical to those on the affected Model marker bands. This action is necessary Submit comments using the following Hawker 800XP airplanes. Therefore, all to prevent incorrect wiring of the engine format: of these models may be subject to the • fire extinguisher bottles, which could Organize comments issue-by-issue. same unsafe condition. result in one or both fire extinguisher For example, discuss a request to change the compliance time and a Explanation of Relevant Service bottles being discharged into the wrong Information engine nacelle. This action is intended request to change the service bulletin reference as two separate issues. The FAA has reviewed and approved to address the identified unsafe • condition. For each issue, state what specific Raytheon Service Bulletin 26–3610, change to the proposed AD is being Revision 1, dated September 2003. The DATES: Comments must be received by requested. service bulletin describes procedures for April 12, 2004. • Include justification (e.g., reasons or a functional test of the engine fire ADDRESSES: Submit comments in data) for each request. extinguishing circuit for the approriate triplicate to the Federal Aviation Comments are specifically invited on installation; verification of the correct Administration (FAA), Transport the overall regulatory, economic, wiring connector installation; correction Airplane Directorate, ANM–114, environmental, and energy aspects of of wiring if necessary; and installation Attention: Rules Docket No. 2003–NM– the proposed rule. All comments of new marker bands. Accomplishment 216–AD, 1601 Lind Avenue, SW., submitted will be available, both before of the actions specified in the service Renton, Washington 98055–4056. and after the closing date for comments, bulletin is intended to adequately Comments may be inspected at this in the Rules Docket for examination by address the identified unsafe condition. location between 9 a.m. and 3 p.m., interested persons. A report Monday through Friday, except Federal summarizing each FAA-public contact Explanation of Requirements of holidays. Comments may be submitted concerned with the substance of this Proposed Rule via fax to (425) 227–1232. Comments proposal will be filed in the Rules Since an unsafe condition has been may also be sent via the Internet using Docket. identified that is likely to exist or
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develop on other products of this same would not have federalism implications installation, and verify the correct wiring type design, the proposed AD would under Executive Order 13132. connector installation. If any connector is require accomplishment of the actions For the reasons discussed above, I wired incorrectly, prior to further flight, specified in the service bulletin certify that this proposed regulation (1) correct the wiring. (2) Install the new marker bands. described previously, except as is not a ‘‘significant regulatory action’’ discussed below. under Executive Order 12866; (2) is not Exception to Service Bulletin a ‘‘significant rule’’ under the DOT Difference Between Proposed Rule and (b) Although the service bulletin Regulatory Policies and Procedures (44 referenced in this AD specifies to submit Referenced Service Bulletin FR 11034, February 26, 1979); and (3) if certain information to the manufacturer, this Operators should note that, although promulgated, will not have a significant AD does not include such a requirement. the Accomplishment Instructions of the economic impact, positive or negative, Alternative Methods of Compliance on a substantial number of small entities referenced service bulletin describe (c) In accordance with 14 CFR 39.19, the procedures for completing a sheet under the criteria of the Regulatory Manager, Wichita Aircraft Certification recording compliance with the service Flexibility Act. A copy of the draft Office, FAA, is authorized to approve bulletin, this proposed AD would not regulatory evaluation prepared for this alternative methods of compliance for this require those actions. The FAA does not action is contained in the Rules Docket. AD. need this information from operators. A copy of it may be obtained by Issued in Renton, Washington, on February contacting the Rules Docket at the Cost Impact 20, 2004. location provided under the caption Ali Bahrami, ADDRESSES. There are approximately 615 Acting Manager, Transport Airplane airplanes of the affected design in the List of Subjects in 14 CFR Part 39 Directorate, Aircraft Certification Service. worldwide fleet. The FAA estimates that [FR Doc. 04–4256 Filed 2–25–04; 8:45 am] 430 airplanes of U.S. registry would be Air transportation, Aircraft, Aviation BILLING CODE 4910–13–M affected by this proposed AD, that it safety, Safety. would take approximately 2 work hours The Proposed Amendment per airplane to accomplish the proposed Accordingly, pursuant to the DEPARTMENT OF TRANSPORTATION actions, and the average labor rate is $65 authority delegated to me by the per work hour. Required parts would Administrator, the Federal Aviation Federal Aviation Administration cost approximately $20 per airplane. Administration proposes to amend part Based on these figures, the cost impact 39 of the Federal Aviation Regulations 14 CFR Part 39 of the proposed AD on U.S. operators is (14 CFR part 39) as follows: estimated to be $64,500, or $150 per [Docket No. 2002–NM–156–AD] airplane. PART 39—AIRWORTHINESS RIN 2120–AA64 The cost impact figure discussed DIRECTIVES above is based on assumptions that no 1. The authority citation for part 39 Airworthiness Directives; Dornier operator has yet accomplished any of Model 328–300 Series Airplanes the proposed requirements of this AD continues to read as follows: action, and that no operator would Authority: 49 U.S.C. 106(g), 40113, 44701. AGENCY: Federal Aviation accomplish those actions in the future if Administration, DOT. § 39.13 [Amended] this proposed AD were not adopted. The ACTION: Notice of proposed rulemaking 2. Section 39.13 is amended by cost impact figures discussed in AD (NPRM). rulemaking actions represent only the adding the following new airworthiness time necessary to perform the specific directive: SUMMARY: This document proposes the actions actually required by the AD. Raytheon Aircraft Company: Docket 2003– supersedure of an existing airworthiness These figures typically do not include NM–216–AD. directive (AD), applicable to certain incidental costs, such as the time Applicability: Model BAe.125 series 800A Dornier Model 328–300 series airplanes, required to gain access and close up, (including C–29A and U–125 variant) and that currently requires repetitive planning time, or time necessitated by 800B airplanes; and Model Hawker 800 inspections of motive flow check valves (including U–125A variant) and 800XP other administrative actions. The and adjacent parts for fuel leaks, and airplanes; as listed in Raytheon Service replacement of the valves if leaks are manufacturer may cover the cost of Bulletin 26–3610, Revision 1, dated replacement parts associated with this September 2003; certificated in any category. detected. This action would require new proposed AD, subject to warranty Compliance: Required as indicated, unless repetitive engine operational tests. This conditions. Manufacturer warranty accomplished previously. action would also require replacement remedies may also be available for labor To prevent incorrect wiring of the engine of the motive flow check valves with costs associated with this proposed AD. fire extinguisher bottles, which could result new parts, which would constitute As a result, the costs attributable to the in one or both fire extinguisher bottles being terminating action for the repetitive discharged into the wrong engine nacelle, inspections and engine operational proposed AD may be less than stated accomplish the following: above. tests. The actions specified by the Function Test, Verification, Installation, and proposed AD are intended to prevent Regulatory Impact Corrective Action leakage of fuel from the motive flow The regulations proposed herein, (a) Within 70 flight hours or 30 days after check valves, which could result in fuel would not have a substantial direct the effective date of this AD, whichever vapors coming into contact with fuel effect on the States, on the relationship occurs first, do the actions specified in ignition sources and consequent fuel between the National Government and paragraphs (a)(1) and (a)(2) of this AD per the tank explosion and fire. This action is Accomplishment Instructions of Raytheon intended to address the identified the States, or on the distribution of Service Bulletin 26–3610, Revision 1, dated power and responsibilities among the September 2003. unsafe condition. various levels of government. Therefore, (1) Perform a functional test of the engine DATES: Comments must be received by it is determined that this proposal fire extinguishing wiring for appropriate March 29 2004.
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ADDRESSES: Submit comments in environmental, and energy aspects of 106–0007–02. The Luftfahrt-Bundesamt triplicate to the Federal Aviation the proposed rule. All comments (LBA), which is the airworthiness Administration (FAA), Transport submitted will be available, both before authority for Germany, classified this Airplane Directorate, ANM–114, and after the closing date for comments, service bulletin as mandatory and Attention: Rules Docket No. 2002-NM– in the Rules Docket for examination by issued German airworthiness directive 156-AD, 1601 Lind Avenue, SW., interested persons. A report 2001–058/2, dated June 27, 2002, to Renton, Washington 98055–4056. summarizing each FAA-public contact ensure the continued airworthiness of Comments may be inspected at this concerned with the substance of this these airplanes in Germany. location between 9 a.m. and 3 p.m., proposal will be filed in the Rules FAA’s Conclusions Monday through Friday, except Federal Docket. holidays. Comments may be submitted Commenters wishing the FAA to This airplane model is manufactured via fax to (425) 227–1232. Comments acknowledge receipt of their comments in Germany and is type certificated for may also be sent via the Internet using submitted in response to this action operation in the United States under the the following address: 9–anm– must submit a self-addressed, stamped provisions of section 21.29 of the [email protected]. Comments sent postcard on which the following Federal Aviation Regulations (14 CFR via fax or the Internet must contain statement is made: ‘‘Comments to 21.29) and the applicable bilateral ‘‘Docket No. 2002–NM–156–AD’’ in the Docket Number 2002–NM–156–AD.’’ airworthiness agreement. Pursuant to subject line and need not be submitted The postcard will be date stamped and this bilateral airworthiness agreement, in triplicate. Comments sent via the returned to the commenter. the LBA has kept us informed of the situation described above. We have Internet as attached electronic files must Availability of NPRMs be formatted in Microsoft Word 97 or examined the findings of the LBA, 2000 or ASCII text. Any person may obtain a copy of this reviewed all available information, and The service information referenced in NPRM by submitting a request to the determined that AD action is necessary the proposed rule may be obtained from FAA, Transport Airplane Directorate, for products of this type design that are AvCraft Aerospace GmbH, P.O. Box ANM–114, Attention: Rules Docket No. certificated for operation in the United 1103, D–82230 Wessling, Germany. This 2002–NM–156–AD, 1601 Lind Avenue, States. SW., Renton, Washington 98055–4056. information may be examined at the Explanation of Requirements of FAA, Transport Airplane Directorate, Discussion Proposed AD 1601 Lind Avenue, SW., Renton, Washington. On April 23, 2001, the FAA issued Since an unsafe condition has been AD 2001–09–04, amendment 39–12209 identified that is likely to exist or FOR FURTHER INFORMATION CONTACT: Dan (66 FR 21276, April 30, 2001), develop on other airplanes of the same Rodina, Aerospace Engineer, applicable to certain Dornier Model type design registered in the United International Branch, ANM–116, FAA, 328–300 series airplanes, to require States, the proposed AD would Transport Airplane Directorate, 1601 repetitive inspections of motive flow supersede AD 2001–09–04 to continue Lind Avenue, SW., Renton, Washington check valves and adjacent parts for fuel to require repetitive inspections of 98055–4056; telephone (425) 227–2125; leaks, and replacement of the valves if motive flow check valves and adjacent fax (425) 227–1149. leaks are detected. That action was parts for fuel leaks, and replacement of SUPPLEMENTARY INFORMATION: prompted by reports of cracks on the the valves if leaks are detected. The Comments Invited motive flow check valves, which proposed AD also would require resulted in fuel leaks. The requirements repetitive engine operational tests and Interested persons are invited to of that AD are intended to prevent eventual replacement of the motive flow participate in the making of the leakage of fuel from the motive flow check valves with new parts having a proposed rule by submitting such check valves, which could result in fuel different part number. Replacement of written data, views, or arguments as vapors coming into contact with fuel the parts would constitute terminating they may desire. Communications shall ignition sources. action for the repetitive inspections. The identify the Rules Docket number and actions would be required to be Actions Since Issuance of Previous Rule be submitted in triplicate to the address accomplished in accordance with the specified above. All communications The preamble to AD 2001–09–04 service bulletins described previously. received on or before the closing date explains that we considered the for comments, specified above, will be requirements ‘‘interim action’’ until a Clarification of Compliance Time considered before taking action on the final action was identified, at which The service bulletin and the German proposed rule. The proposals contained time we may consider further airworthiness directive recommend in this action may be changed in light rulemaking. The manufacturer has accomplishing the part replacement ‘‘at of the comments received. developed a final action, replacement of the next suitable planned maintenance.’’ Submit comments using the following the motive flow check valves with new Because maintenance schedules vary format: check valves, and we have determined among operators, this proposed AD • Organize comments issue-by-issue. that further rulemaking is necessary. would require accomplishment of the For example, discuss a request to This proposed AD follows from that part replacement within 12 months after change the compliance time and a determination. the effective date of this AD. request to change the service bulletin reference as two separate issues. Explanation of Relevant Service Explanation of Repetitive Test • For each issue, state what specific Information Requirement change to the proposed AD is being Dornier has issued Service Bulletin This proposed AD includes a requested. SB–328J–28–047, dated May 18, 2001, requirement for repetitive engine • Include justification (e.g., reasons or which describes procedures for operational tests. The repetitive tests data) for each request. replacement of the existing check valve begin after a new motive flow fuel valve Comments are specifically invited on having part number (P/N) 106–0007–01 installed on the airplane has the overall regulatory, economic, with a new check valve having P/N accumulated 800 flight cycles. This
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requirement was inadvertently omitted contacting the Rules Docket at the level of inspection is made under normally from AD 2001–09–04. location provided under the caption available lighting conditions such as ADDRESSES. daylight, hangar lighting, flashlight, or drop- Cost Impact light, and may require removal or opening of There are approximately 28 airplanes List of Subjects in 14 CFR Part 39 access panels or doors. Stands, ladders, or of U.S. registry that would be affected Air transportation, Aircraft, Aviation platforms may be required to gain proximity to the area being checked.’’ by this proposed AD. safety, Safety. The repetitive inspections that are Repetitive Inspections currently required by AD 2001–09–04 The Proposed Amendment take approximately 1 work hour per (b) Within 15 days or 60 flight hours after Accordingly, pursuant to the May 15, 2001, whichever occurs first: airplane to accomplish, at an average authority delegated to me by the Perform a general visual inspection of the labor rate of $65 per work hour. Based Administrator, the Federal Aviation motive flow check valve to detect fuel leaks, on these figures, the cost impact of the Administration proposes to amend part in accordance with paragraph 2.C of the currently required actions on U.S. 39 of the Federal Aviation Regulations Accomplishment Instructions of Dornier operators is estimated to be $1,820, or (14 CFR part 39) as follows: Alert Service Bulletin ASB 328J–28–007, $65 per airplane, per inspection cycle. dated September 20, 2000. The new actions that are proposed in PART 39—AIRWORTHINESS (1) If no fuel leak is detected, repeat the this AD would take approximately 4 DIRECTIVES general visual inspection of the motive flow work hours per airplane to accomplish, check valve at least every 15 days or 60 flight at an average labor rate of $65 per work 1. The authority citation for part 39 hours, whichever occurs first, until hour. Required parts would be provided continues to read as follows: paragraph (b)(2) or paragraph (e) of this AD by the manufacturer at no charge. Based Authority: 49 U.S.C. 106(g), 40113, 44701. is accomplished. on these figures, the cost impact of the (2) If any fuel leak is detected, prior to § 39.13 [Amended] further flight, replace the motive flow fuel proposed requirements of this AD on valve with a new valve, in accordance with U.S. operators is estimated to be $7,280, 2. Section 39.13 is amended by removing amendment 39–12209 (66 FR the alert service bulletin. After the new valve or $260 per airplane. has accumulated 800 flight cycles, do the 21276, April 30, 2001), and by adding The cost impact figures discussed general visual inspection of the valve above are based on assumptions that no a new airworthiness directive (AD), to required by paragraph (b) of this AD, operator has yet accomplished any of read as follows: including the repetitive inspection, at least the current or proposed requirements of Fairchild Dornier GmbH (formerly Dornier every 15 days or 60 flight hours, whichever this AD action, and that no operator Luftfahrt GmbH): Docket 2002–NM– occurs first, until paragraph (e) of this AD is would accomplish those actions in the 156–AD. Supersedes AD 2001–09–04, accomplished. future if this AD were not adopted. The Amendment 39–12209. (c) Within 400 flight hours after May 15, cost impact figures discussed in AD Applicability: Model 328–300 series 2001: Perform an engine operational test and rulemaking actions represent only the airplanes, certificated in any category, a general visual inspection of the motive flow time necessary to perform the specific equipped with a motive flow check valve check valve to detect a fuel leak, in accordance with paragraphs 2.C and 2.D of actions actually required by the AD. having part number (P/N) 106–0007–01. Compliance: Required as indicated, unless the Accomplishment Instructions of Dornier These figures typically do not include accomplished previously. Alert Service Bulletin ASB 328J–28–007, incidental costs, such as the time To prevent leakage of fuel from the motive dated September 20, 2000. required to gain access and close up, flow check valves, which could result in fuel (1) If no fuel leak is detected, repeat the planning time, or time necessitated by vapors coming into contact with fuel ignition engine operational test and the general visual other administrative actions. sources and consequent fuel tank explosion inspection of the motive flow check valve at and fire, accomplish the following: least every 400 flight hours, until paragraph Regulatory Impact (c)(2) or paragraph (e) of this AD is Restatement of Requirements of AD 2001– accomplished. The regulations proposed herein 09–04 would not have a substantial direct (2) If any fuel leak is detected, prior to effect on the States, on the relationship Initial Inspection further flight, replace the motive flow fuel valve with a new valve, in accordance with between the national government and (a) Prior to the accumulation of 800 total the alert service bulletin. After the new valve flight cycles on the motive flow check valve the States, or on the distribution of has accumulated 800 flight cycles, do the power and responsibilities among the P/N 106–0007–01, or within 3 days after May 15, 2001 (the effective date of AD 2001–09– general visual inspection of the valve various levels of government. Therefore, required by paragraph (c) of this AD, it is determined that this proposal 04, amendment 39–12209), whichever occurs later: Perform a general visual inspection of including the repetitive inspections, at least would not have federalism implications the lower inboard leading edge/pylon area every 400 flight hours. under Executive Order 13132. and the pylon drain tube to detect fuel New Requirements of This AD For the reasons discussed above, I droplets or fuel staining, in accordance with certify that this proposed regulation (1) paragraph 2.B of the Accomplishment Repetitive Tests is not a ‘‘significant regulatory action’’ Instructions of Dornier Alert Service Bulletin (d) If any motive flow fuel valve is replaced under Executive Order 12866; (2) is not ASB 328J–28–007, dated September 20, 2000. per the requirements of paragraph (c)(2) of a ‘‘significant rule’’ under the DOT If any fuel droplet or fuel staining is detected, this AD: At the later of the times specified Regulatory Policies and Procedures (44 prior to further flight, perform an additional in paragraphs (d)(1) and (d)(2) of this AD, do FR 11034, February 26, 1979); and (3) if inspection and operational test, in the engine operational test required by promulgated, will not have a significant accordance with paragraphs 2.C and 2.D of paragraph (c) of this AD. Thereafter, repeat the Accomplishment Instructions of Dornier the engine operational test at intervals not to economic impact, positive or negative, Alert Service Bulletin ASB 328J–28–007, on a substantial number of small entities exceed 400 flight hours, until paragraph (e) dated September 20, 2000. of this AD is accomplished. under the criteria of the Regulatory Note 1: For the purposes of this AD, a (1) Within 800 flight cycles after the Flexibility Act. A copy of the draft general visual inspection is defined as: ‘‘A replacement of any motive flow fuel valve. regulatory evaluation prepared for this visual examination of an interior or exterior (2) Within 30 days or 90 flight hours after action is contained in the Rules Docket. area, installation, or assembly to detect the effective date of this AD, whichever is A copy of it may be obtained by obvious damage, failure, or irregularity. This first.
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Terminating Action for Repetitive Inspections System, U.S. Department of contact with FAA personnel concerned and Tests Transportation, Room Plaza 401, 400 with this rulemaking will be filed in the (e) Within 12 months after the effective Seventh Street, SW., Washington, DC docket. date of this AD: Remove any motive flow 20590–0001. You must identify both Availability of NPRM’s check valve having P/N 106–0007–01 and docket numbers FAA–2003–15976/ replace it with a motive flow check valve Airspace Docket No. 03–AWA–5 at the An electronic copy of this document having P/N 106–0007–02 in accordance with beginning of your comments. You may may be downloaded through the the Accomplishment Instructions of Dornier Internet at http://dms.dot.gov. Recently Service Bulletin SB–328J–28–047, dated May also submit comments through the Internet to http://dms.dot.gov. published rulemaking documents can 18, 2001. Accomplishment of the also be accessed through the FAA’s web replacement is terminating action for the FOR FURTHER INFORMATION CONTACT: Paul page at http://www.faa.gov or the repetitive inspections and engine operational Gallant, Airspace and Rules Division, Federal Register’s Web page at http:// tests required by paragraphs (b), (c) and (d) ATA–400, Office of Air Traffic Airspace of this AD. www.access.gpo.gov/nara. Management, Federal Aviation You may review the public docket Parts Installation Administration, 800 Independence containing the proposal; any comments (f) As of the effective date of this AD, no Avenue, SW., Washington, DC 20591; received; and any final disposition in person may install a motive flow check valve, telephone: (202) 267–8783. person in the Dockets Office (see P/N 106–0007–01, on any airplane. SUPPLEMENTARY INFORMATION: ADDRESSES section for address and Alternative Methods of Compliance Comments Invited phone number) between 9 a.m. and 5 (g) In accordance with 14 CFR 39.19, the p.m., Monday through Friday, except Interested parties are invited to Federal holidays. An informal docket Manager, International Branch, ANM–116, participate in this proposed rulemaking FAA, Transport Airplane Directorate, is may also be examined during normal authorized to approve alternative methods of by submitting such written data, views, business hours at the office of the compliance for this AD. or arguments as they may desire. Regional Air Traffic Division, Federal Note 2: The subject of this AD is addressed Comments that provide the factual basis Aviation Administration, 1701 in German airworthiness directive 2001–058/ supporting the views and suggestions Columbia Avenue, College Park, GA 2, dated June 27, 2002. presented are particularly helpful in 30337. developing reasoned regulatory Persons interested in being placed on Issued in Renton, Washington, on February decisions on the proposal. Comments 20, 2004. a mailing list for future NPRM’s should are specifically invited on the overall call the FAA’s Office of Rulemaking, Ali Bahrami, regulatory, aeronautical, economic, (202) 267–9677, to request a copy of Acting Manager, Transport Airplane environmental, and energy-related Advisory Circular No. 11–2A, Notice of Directorate, Aircraft Certification Service. aspects of the proposal. Proposed Rulemaking Distribution [FR Doc. 04–4257 Filed 2–25–04; 8:45 am] Communications should identify both System, which describes the application BILLING CODE 4910–13–P docket numbers (FAA Docket No. FAA– procedure. 2003–15976 and Airspace Docket No. 03–AWA–5) and be submitted in Discussion/Background DEPARTMENT OF TRANSPORTATION triplicate to the Docket Management On September 11, 2001, the United System (see ADDRESSES section for States (U.S.) suffered catastrophic Federal Aviation Administration address and phone number). You may terrorist attacks involving four hijacked also submit comments through the U.S. commercial aircraft. In response to 14 CFR Part 73 Internet at http://dms.dot.gov. these attacks, the FAA took action to [Docket No. FAA–2003–15976; Airspace Commenters wishing the FAA to temporarily shut down the National Docket No. 03–AWA–5] acknowledge receipt of their comments Airspace System, except for certain RIN 2120–AA66 on this notice must submit with those military, law enforcement, and comments a self-addressed, stamped emergency aircraft flight operations. Proposed Establishment of Prohibited postcard on which the following Additionally, to hinder the potential for Area P–50; Kings Bay, GA statement is made: ‘‘Comments to further airborne attacks and to Docket No. FAA–2003–15976/Airspace specifically respond to security AGENCY: Federal Aviation Docket No. 03–AWA–5.’’ The postcard concerns, the FAA issued numerous Administration (FAA), DOT. will be date/time stamped and returned TFRs, via the U.S. Notice to Airmen ACTION: Notice of proposed rulemaking to the commenter. Send comments on (NOTAM) System, to limit or prohibit (NPRM). environmental and land use aspects to: aircraft flight operations in the vicinity Lt. Len Schilling, Naval Submarine of critical military, government, and SUMMARY: This action proposes to Base, Kings Bay, FEA, Building 2015, national infrastructure locations across establish a prohibited area over the U.S. 1063 USS Tennessee Ave, Kings Bay, the country. One such location was the Naval Submarine Base, Kings Bay, GA. GA 31547; Telephone: 912–673–2001, U.S. Naval Submarine Base at Kings The proposed prohibited area would ext. 4611. Bay, GA. Beginning on September 13, replace a Temporary Flight Restriction All communications received on or 2001, the FAA issued a series of TFRs (TFR) that is currently in effect. The before the specified closing date for to prohibit aircraft flight operations in new prohibited area would be named P– comments will be considered before the vicinity of the Kings Bay base. The 50, Kings Bay, GA. The FAA is taking action on the proposed rule. The first NOTAM, 1/9866, prohibited proposing this action to enhance the proposal contained in this notice may aircraft operations at and below 10,000 security of the Naval Submarine Base, at be changed in light of comments feet above ground level (AGL) within a Kings Bay, GA. received. All comments submitted will 10-nautical-mile (NM) radius of the DATES: Comments must be received on be available for examination in the base. The dimensions of this TFR or before April 12, 2004. public docket both before and after the encompassed the St. Marys Airport ADDRESSES: Send comments on this closing date for comments. A report (4J6), St. Marys, GA, resulting in the proposal to the Docket Management summarizing each substantive public temporary closure of the airport.
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NOTAM 1/9866 was replaced on consistent with national security.’’ Such Order 1050.1D, Policies and Procedures September 14, 2001, by NOTAM 1/9948 provisions may include establishing for Considering Environmental Impacts. that amended the TFR by reducing the airspace areas the Administrator decides This airspace action is not expected to restriction to that airspace at and below are necessary in the interest of national cause any potentially significant 5,000 feet AGL within a 5-NM radius of defense; and by regulation or order, environmental impacts, and no the base. On September 17, 2001, restrict or prohibit flight of civil aircraft extraordinary circumstances exist that NOTAM 1/9948 was replaced by that the Administrator cannot identify, warrant preparation on an NOTAM 1/0063. NOTAM 1/0063 did locate and control with available environmental assessment. not alter the dimensions of the TFR, but facilities in those areas. changed the facility in charge from the List of Subjects in 14 CFR Part 73 The Proposal Kings Bay Naval Base, to the FAA, Airspace, Navigation (air). Jacksonville Terminal Radar Approach In response to the U.S. Navy request, The Proposed Amendment Control (TRACON). This NOTAM the FAA is proposing an amendment to remained in effect until September 19, Title 14 Code of Federal Regulations (14 In consideration of the foregoing, the 2001, when NOTAM 1/0189 was issued. CFR) part 73 (part 73) to designate a Federal Aviation Administration NOTAM 1/0189 retained the 5-NM prohibited area over the U.S. Naval proposes to amend 14 CFR part 73 as radius, but amended the upper altitude Submarine Base, Kings Bay, GA. The follows: of the TFR from 5,000 feet MSL to 4,999 proposed prohibited area, designated P– feet MSL. The 5-NM radius of these 50, would consist of that airspace, from PART 73—SPECIAL USE AIRSPACE the surface to but not including 3,000 latter three TFRs continued to prevent 1. The authority citation for part 73 feet MSL, within a 2–NM radius of lat. aircraft operations at the St. Marys continues to read as follows: Airport. On December 3, 2001, the FAA 30°48′00″ N., long. 81°31′00″ W. In issued NOTAM 1/2887 which further accordance with 14 CFR 73.83, no Authority: 49 U.S.C. 106(g), 40103, 40113, amended the TFR by reducing its person may operate an aircraft within a 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 1963 Comp., p. 389. dimensions to that airspace within a 2- prohibited area unless authorization has NM radius of a point on the base, from been granted by the using agency. The * * * * * proposed prohibited area dimensions the surface up to but not including § 73.92 [New] 3,000 feet MSL. This change removed are identical to those contained in the 2. § 73.92 is added as follows: the St. Marys Airport from the TFR TFR now in effect over the Kings Bay airspace and enabled aircraft operations base. If implemented, Prohibited Area * * * * * to resume at the airport. On December P–50 would replace the TFR at Kings P–50 Kings Bay, GA [New] 1, 2003, the FAA cancelled NOTAM 1/ Bay, GA, currently contained in NOTAM number 3/1400. Boundaries: That airspace within a 2– 2887 and issued NOTAM 3/1400 as a ° ′ ″ replacement. NOTAM 3/1400 was Prohibited areas in 14 CFR part 73 are NM radius of lat. 30 48 00 N., long. ° ′ ″ identical to 1/2887 except that the republished in subpart C of FAA Order 81 31 00 W. navigation aid reference was changed 7400.8L, dated September 2, 2003, and Designated altitudes: Surface to but from the Craig, FL, VORTAC to the effective September 16, 2003. The not including 3,000 feet MSL. Brunswick, GA, VORTAC. NOTAM 3/ prohibited area listed in this document Time of designation: Continuous. 1400 remains in effect as of the date of would be published subsequently in the Using agency: Administrator, FAA, this notice. Order. Washington, DC. The FAA has determined that this * * * * * U.S. Navy Request regulation only involves an established Issued in Washington, DC on February 18, Due to the current world situation and body of technical regulations for which 2004. continued security concerns at this frequent and routine amendments are Reginald C. Matthews, facility, the U.S. Navy has requested necessary to keep them operationally Manager, Airspace and Rules Division. that the FAA designate a prohibited area current. Therefore this proposed at Kings Bay, GA, to enhance Navy regulation: (1) Is not a ‘‘significant [FR Doc. 04–4290 Filed 2–25–04; 8:45 am] security efforts at the base. This regulatory action’’ under Executive BILLING CODE 4910–13–U proposal responds to that request. Order 12866; (2) is not a ‘‘significant rule’’ under Department of Statutory Authority Transportation (DOT) Regulatory DEPARTMENT OF THE TREASURY The FAA Administrator has broad Policies and Procedures (44 FR 11034; authority to regulate the safe and February 26, 1979); and (3) does not Internal Revenue Service efficient use of the navigable airspace warrant preparation of a regulatory (49 U.S.C. 40103(a)). The Administrator evaluation as the anticipated impact is 26 CFR Part 1 is also authorized to issue air traffic so minimal. Since this is a routine [REG–110896–98] rules and regulations to govern the flight matter that will only affect air traffic RIN 1545–AW35 of aircraft, the navigation, protection, procedures and air navigation, it is and identification of aircraft for the certified that this rule, when Charitable Remainder Trusts; protection of persons and property on promulgated, will not have a significant Application of Ordering Rule; Hearing the ground, and for the efficient use of economic impact on a substantial Cancellation the navigable airspace. Additionally, number of small entities under the pursuant to 49 U.S.C. section criteria of the Regulatory Flexibility Act. AGENCY: Internal Revenue Service (IRS), 40103(b)(3) the Administrator has the Treasury. Environmental Review authority, in consultation with the ACTION: Cancellation of notice of public Secretary of Defense, to ‘‘establish The FAA has determined that this hearing on proposed rulemaking. security provisions that will encourage action qualifies for categorical exclusion and allow maximum use of the under the National Environmental SUMMARY: This document provides navigable airspace by civil aircraft Policy Act in accordance with FAA notice of cancellation of a public
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hearing on the ordering of rules of an NPC. These regulations will affect The accuracy of the estimated burden section 664(b) for characterizing taxpayers that enter into NPCs. This associated with the proposed collection distributions from charitable remainder document also provides a notice of a of information (see below); trusts. public hearing on these proposed How the quality, utility, and clarity of DATES: The public hearing originally regulations. the information to be collected may be enhanced; scheduled for March 9, 2004, at 10 a.m., DATES: Written or electronically is cancelled. How the burden of complying with transmitted comments and requests to the proposed collection of information FOR FURTHER INFORMATION CONTACT: speak (with outlines of oral comments may be minimized, including through Robin R. Jones of the Publications and to be discussed) at the public hearing the application of automated collection Regulations Branch, Legal Processing scheduled for May 25, 2004, at 10 a.m., techniques or other forms of information Division at (202) 622–7180 (not a toll- must be received by May 4, 2004. technology; and free number). Comments on the collection of Estimates of capital or start-up costs SUPPLEMENTARY INFORMATION: A notice information should be received by April and costs of operation, maintenance, of proposed rulemaking and notice of 26, 2004. and purchase of services to provide public hearing that appeared in the ADDRESSES: Send submissions to information. Federal Register on Thursday, CC:PA:LPD:PR (REG–166012–02), room The collection of information in these November 20, 2003 (68 FR 65419), 5203, Internal Revenue Service, POB proposed regulations is in § 1.446– announced that a public hearing was 7604, Ben Franklin Station, Washington, 3(g)(6)(vii). This information is required scheduled for March 9, 2004, at 10 a.m., DC 20044. Submissions may be hand- by the IRS to verify compliance with in the auditorium. The subject of the delivered Monday through Friday section 446 and the method of public hearing is proposed regulations between the hours of 8 a.m. and 4 p.m. accounting described in § 1.446–3(g)(6). under section 664 of the Internal to CC:PA:LPD:PR (REG–166012–02), This information will be used to Revenue Code. The public comment Courier’s Desk, Internal Revenue determine whether the amount of tax period for these regulations expired on Service, 1111 Constitution Avenue, has been calculated correctly. The February 17, 2004. NW., Washington, DC. Alternatively, collection of information is required to The notice of proposed rulemaking taxpayers may submit electronic properly determine the amount of and notice of public hearing, instructed comments directly to the IRS Internet income or deduction to be taken into those interested in testifying at the site at: http://www.irs.gov/regs. The account. The respondents are public hearing to submit an outline of public hearing will be held in the IRS sophisticated investors that enter into the topics to be addressed. As of Auditorium, Seventh Floor, Internal notional principal contracts with Wednesday, February 18, 2004, no one Revenue Service, 1111 Constitution contingent nonperiodic payments. has requested to speak. Therefore, the Avenue, NW., Washington, DC. Estimated total annual recordkeeping public hearing scheduled for March 9, FOR FURTHER INFORMATION CONTACT: burden: 25,500 hours. 2004, is cancelled. Concerning submissions of comments, Estimated average annual burden per the hearing, or to be placed on the recordkeeper: 6 hours. Cynthia E. Grigsby, Estimated number of recordkeepers: Acting Chief, Publications and Regulations building access list to attend the hearing, Sonya Cruse, (202) 622–7180; 4,250. Branch, Legal Processing Division, Associate An agency may not conduct or Chief Counsel (Procedure and concerning the regulations, Kate Sleeth, sponsor, and a person is not required to Administration). (202) 622–3920 (not toll-free numbers). respond to, a collection of information [FR Doc. 04–4289 Filed 2–25–04; 8:45 am] SUPPLEMENTARY INFORMATION: unless it displays a valid control BILLING CODE 4830–01–P Paperwork Reduction Act number assigned by the Office of Management and Budget. The collection of information Books or records relating to a DEPARTMENT OF THE TREASURY contained in this notice of proposed collection of information must be rulemaking has been submitted to the Internal Revenue Service retained as long as their contents may Office of Management and Budget for become material in the administration review in accordance with the 26 CFR Part 1 of any internal revenue law. Generally, Paperwork Reduction Act of 1995 (44 tax returns and tax return information [REG–166012–02] U.S.C. 3507(d)). Comments on the are confidential, as required by 26 collection of information should be sent U.S.C. 6103. RIN 1545–BB82 to the Office of Management and Budget, Attn: Desk Officer for the Background National Principal Contracts; Department of the Treasury, Office of Contingent Nonperiodic Payments This document contains proposed Information and Regulatory Affairs, amendments to 26 CFR Part 1 under AGENCY: Internal Revenue Service (IRS), Washington, DC 20503, with copies to section 446(b) of the Internal Revenue Treasury. the Internal Revenue Service, Attn: IRS Code (Code). This document also ACTION: Notice of proposed rulemaking Reports Clearance Officer, contains proposed amendments under and notice of public hearing. SE:W:CAR:MP:T:T:SP, Washington, DC sections 162, 212 and 1234A of the 20224. Comments on the collection of Code. SUMMARY: This document contains information should be received by April In 1989, the IRS issued Notice 89–21 proposed regulations relating to the 26, 2004. Comments are specifically (1989–1 C.B. 651), to provide guidance inclusion into income or deduction of a requested concerning: with respect to the tax treatment of contingent nonperiodic payment Whether the proposed collection of lump-sum payments received in provided for under a notional principal information is necessary for the proper connection with NPCs. The Notice contract (NPC). This document also performance of the functions of the IRS, stated that a method of accounting that provides guidance relating to the including whether the information will properly recognizes a lump-sum character of payments made pursuant to have practical utility; payment over the life of the contract
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clearly reflects income and indicated soliciting comments on the appropriate and-see method is also inconsistent that regulations would be issued to method for the inclusion or deduction with the timing regime that § 1.1275– provide specific rules regarding the of contingent nonperiodic payments 4(b) provides for contingent debt manner in which a taxpayer must take made pursuant to NPCs and the proper instruments subject to the into account over the life of an NPC character treatment of payments made noncontingent bond method. Under the payments made or received with respect pursuant to an NPC. The Notice set forth noncontingent bond method, the parties to the contract. The Notice further stated four different methods under to a contingent payment debt that ‘‘for contracts entered into prior to consideration by the IRS and Treasury instrument must determine the yield at the effective date of the regulations, the and asked the public to comment on the which a comparable noncontingent debt Commissioner will generally treat a extent to which each method reflects instrument would be issued and then method of accounting as clearly certain fundamental tax policy project a fixed amount for each reflecting income if it takes such principles, including certainty, clarity, contingent payment and each payments into account over the life of administrability, and neutrality. Several noncontingent payment. The projected the contract under a reasonable comments were received from the amounts are accounted for over the term amortization method, whether or not the public, which expressed diverse views of the debt instrument. The difference, method satisfies the specific rules in the regarding the relative advantages and if any, between the projected amount of forthcoming regulations.’’ (1989–1 C.B. disadvantages of the different methods. a contingent payment and the actual 652). Included in the four methods were the amount of the payment generally is On October 14, 1993, the IRS noncontingent swap method and a accounted for when payment is made. published in the Federal Register final mark-to-market method, versions of The proposed regulations adopt a regulations (TD 8491; 1993–2 C.B. 215 which are adopted in the proposed variation on the noncontingent swap [58 FR 53125]) under section 446(b) regulations. regime described in Notice 2001–44, as relating to the timing of income and The Notice also solicited comments well as an elective mark-to-market deductions for amounts paid or received on the proper character of payments on regime. The 1993 Treasury regulations pursuant to NPCs. § 1.446–3. In this NPCs and bullet swaps. The comments reflect an underlying principle that preamble, the final regulations received on this issue also reflected nonperiodic payments should be spread published in 1993 are referred to as the differing views. over the term of an NPC in a manner 1993 Treasury regulations. that properly reflects the economic The 1993 Treasury regulations define Explanation of Provisions substance of the contract. The proposed an NPC as a ‘‘financial instrument that A. Overview regulations build upon this principle. provides for the payment of amounts by Furthermore, the IRS and Treasury one party to another at specified The IRS and Treasury understand that believe that the proposed regulations intervals calculated by reference to a some taxpayers take into account provide a timing regime for contingent specified index upon a notional contingent nonperiodic payments on an nonperiodic payments that clearly principal amount in exchange for NPC only when the payment becomes reflects the economics of the underlying specified consideration or a promise to fixed and determinable (the open contracts. The requirement that pay similar amounts.’’ § 1.446–3(c)(1)(i). transaction or wait-and-see method of nonperiodic payments be spread over Payments made pursuant to NPCs are accounting). The wait-and-see method, the term of an NPC results in divided into three categories (periodic, however, is inconsistent with the substantially similar treatment for all nonperiodic, and termination existing specific timing rules for NPCs without regard to whether payments), and the 1993 Treasury periodic and nonperiodic payments and payment obligations are settled on a regulations provide timing regimes for with the general rule in § 1.446–3(f)(2)(i) current basis through periodic payments each. The 1993 Treasury regulations respecting recognition of nonperiodic or are either pre-paid or deferred require all taxpayers, regardless of their payments over the term of the contract. through nonperiodic payments. method of accounting, to recognize the For example, if the amount of a periodic Adopting this approach for contingent ratable daily portion of a nonperiodic payment is set in arrears at the end of payment NPCs achieves symmetry payment for the taxable year to which an accrual period that spans taxable between fixed payment NPCs and that portion relates. Nonperiodic years, the parties cannot use a wait-and- contingent payment NPCs. payments generally must be recognized see method for the portion of the accrual The proposed noncontingent swap over the term of an NPC in a manner period in the first taxable year. Instead, method requires taxpayers to project the that reflects the economic substance of the parties must use a reasonable expected amount of contingent the contract. § 1.446–3(f)(2)(i). Although estimate of the payment for determining payments, to take into account annually § 1.446–3 does not distinguish between taxable income in the year before the the appropriate portions of the projected noncontingent and contingent payment is fixed. § 1.446–3(e)(2)(ii). In contingent amounts, to reproject the nonperiodic payments, the specific addition, some NPCs are structured to contingent amounts annually, and to rules and examples in the 1993 Treasury provide for nonperiodic payments reflect the differences between projected regulations address only noncontingent consisting of a noncontingent amounts and reprojected amounts nonperiodic payments. The Preamble to component and a contingent through adjustments. The IRS and the 1993 Treasury regulations states that component, which the parties to the Treasury recognize that annual ‘‘the IRS expects to address contingent contract treat as a single contingent reprojections will require additional payments in future regulations, and payment that they account for under the effort by taxpayers and the IRS. The IRS welcomes comment on the treatment of wait-and-see method. The attempted and Treasury believe, however, that the those payments.’’ (1993–2 C.B. 216). In application of the wait-and-see method annual reprojection requirement is addition, neither § 1.446–3 nor any to these contracts highlights the essential to ensure clear reflection of other section provides specific rules potential for abuse present in the income with respect to NPCs with one governing the character of the various method. See Rev. Rul. 2002–30 (2002– or more contingent nonperiodic types of NPC payments. 1 C.B. 971). payments. Moreover, reprojections, and On July 23, 2001, the IRS published The back-loaded timing of tax the resulting adjustments to current Notice 2001–44 (2001–2 C.B. 77), consequences that results from the wait- inclusion and deduction amounts, are
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especially important for the income and regulations issued under section 1234A under the level payment method deductions generated by these types of provide capital treatment for described in § 1.446–3(f)(2)(iii)(A). contracts because otherwise taxpayers termination payments. Under the The proposed regulations also provide might be more likely to attempt to proposed regulations, however, even that an NPC with a significant manipulate the character of the income nonperiodic payments made at the nonperiodic payment that is not paid or deductions from the contract. maturity of an NPC are not termination upfront is treated as if the party In developing the proposed payments under section 1234A. receiving the significant nonperiodic regulations, the IRS and Treasury have Because of their recurring nature, payment paid a series of annual level payment loan advances, equal to the taken into account comments received periodic payments should be treated as in response to Notice 2001–44, as well present value of the nonperiodic ordinary income items, whether or not as the following considerations. First, payment, to the party owing the the payments are made at the expiration although many comments advocated the significant nonperiodic payment. The of an NPC. The same rationale applies wait-and-see method of accounting for interest component of the level to nonperiodic payments, which are contingent nonperiodic payments, this payments is treated as interest for all required to be spread over the term of method encourages the creation of NPCs purposes of the Code and is not taken an NPC. Even if a nonperiodic payment that provide such payments. As a result into account in determining the income is made at the expiration or termination of the adoption of guidelines for taking and deductions on the NPC. The of an NPC, only the final portion is contingent nonperiodic payments into principal component of the level taken into account on the termination account over the term of an NPC, the tax payments is calculated solely to treatment of payments with respect to date for the contract, and that portion determine the interest amount. The an NPC should no longer provide an should be treated in the same way as a party owing the significant nonperiodic incentive for structuring payments in a periodic payment. payment is then treated as using the particular manner. Second, taxpayers B. Specific Provisions level payment loan advances to make using swaps with contingent annual level payment NPC payments, nonperiodic payments are sophisticated Adjustments which are included in income and investors. Many of these taxpayers will Paragraph (d)(2) of the proposed deducted as provided in § 1.446–3(d). be making similar projections and regulations provides for adjustments to Contingent Nonperiodic Payments reprojections for their own purposes in be made in the gain or loss realized on The 1993 Treasury regulations define evaluating the results of their derivative the sale, exchange, or termination of an both periodic and nonperiodic investments and taking actions to NPC, to account for inclusions into payments but do not distinguish manage the risks created by their income and deductions provided for in derivative investments. Third, the between contingent and noncontingent the 1993 Treasury regulations and the nonperiodic payments. Paragraph proposed regulations also provide an proposed regulations, as well as for any elective mark-to-market method as an (g)(6)(i)(B) of the proposed regulations payments made or received on the NPC. defines a contingent nonperiodic alternative to the noncontingent swap These adjustments are expected to method. Taxpayers who use a mark-to- payment as any nonperiodic payment produce consequences similar to the other than a noncontingent nonperiodic market method for financial reporting consequences that would result if basis purposes may adopt the elective mark- payment. A noncontingent nonperiodic were increased or decreased for these payment is defined in paragraph to-market method to reduce their tax items. Using adjustments for this and accounting administrative burden (g)(6)(i)(A) of the proposed regulations purpose avoids the issue of negative for NPCs. as a nonperiodic payment that either is basis. The IRS and Treasury understand that fixed on or before the end of the taxable similar timing issues exist for other Significant Nonperiodic Payments year in which a contract commences or types of derivative investments, like is equal to the sum of amounts that bullet swaps and prepaid forward Paragraph (g)(4) of the proposed would be periodic payments if they are contracts. Although the application of regulations clarifies the rules for the paid when they become fixed, including the proposed regulations to these types treatment of an NPC with a significant amounts determined as interest of transactions may achieve appropriate upfront nonperiodic payment and accruals. timing, the application of these rules to provides additional rules for the Paragraph (g)(6)(ii) of the proposed investments other than NPCs could treatment of a significant nonperiodic regulations sets forth the noncontingent present a number of issues not directly payment that is not paid upfront. The swap method for the inclusion into addressed by the rules contained in 1993 Treasury regulations provide that income and deduction of contingent these proposed regulations. The a significant nonperiodic payment on an nonperiodic payments. The expansion of the scope of these NPC is treated as two separate noncontingent swap method requires proposed regulations to contracts other transactions—an on-market level taxpayers to project the reasonably than NPCs is not being proposed at this payment NPC and a loan. § 1.446– expected amount of the contingent time so as not to delay the publication 3(g)(4). The proposed regulations clarify nonperiodic payment and to apply the of the proposed regulations. that the parties to an NPC with one or level payment method and, as With respect to character, the more significant nonperiodic payments appropriate, the rules for significant proposed regulations under sections 162 must treat the contract as two or more nonperiodic payments, to the projected and 212 provide that both periodic and separate transactions consisting of an amount as if it were a noncontingent nonperiodic payments with respect to on-market NPC and one or more loans. nonperiodic payment. The risk-free rate NPCs are generally ordinary in In some cases, the on-market NPC of return, which is defined in the character. This is because neither payments for a party making a proposed regulations, is used in periodic nor nonperiodic payments significant nonperiodic upfront applying the level payment method. (whenever made) involve a sale or payment will be level payments that Paragraphs (g)(6)(iii)(A) through (C) of exchange within the meaning of section may be constructed through a the proposed regulations provide the 1222, and no other section of the Code combination of the actual payments on methods for projecting the reasonably provides otherwise. The proposed the NPC and level payments computed expected amount. If the contingent
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payment is determined by reference to Comments are requested as to how the taken into account under the proposed the value of a specified index at a reprojection process should respond to regulations. designated future date, the projected changes in the availability of market The IRS and Treasury are considering amount may be determined by reference data during the life of an NPC. Suppose, whether to provide an alternative to the to the future value of the specified index for example, that the initial projection is noncontingent swap method that would in actively traded futures or forward made when there are no actively traded permit a taxpayer to use a current contracts providing for delivery or futures or forward contracts in the inclusion method for certain NPCs that settlement on the designated future specified index but that these contracts provide for periodic calculations of date. If no actively traded contract exists come into existence before the time of amounts due under the terms of the for the designated future date, the value one of the reprojections. Should the NPC, but provide for deferred payment may be derived from actively traded reprojections be made using the newly of the amounts. The IRS and Treasury futures or forward contracts providing available futures data rather than the are considering permitting current for delivery or settlement within three method employed for the first inclusion of income and deduction for months of the designated future date. projection? the amounts so calculated, provided the The projected amount may also be Paragraph (g)(6)(v) of the proposed NPC also provides for accrual of interest determined based on the projected regulations provides rules for at a qualified rate until the periodically future value of the current market price adjustments following the determined amounts are paid or offset of the specified index. The future value redetermination of the projected amount against other amounts due under the is determined using a constant yield of the contingent payment. The amounts NPC. The purpose of providing a method at the risk-free interest rate with determined for the redetermined current inclusion method for the appropriate compounding and making projected amount under the level deferred payment NPC described above appropriate adjustments for expected payment method and, as applicable, the is to provide tax treatment for NPCs cash payments on the property rules for significant nonperiodic with contingent nonperiodic payments underlying the specified index. The payments, are recognized in the current that is economically equivalent to the proposed regulations use the applicable and subsequent taxable years. In tax treatment of NPCs providing only for federal rate under section 1274(d)(1) as addition, any difference between the periodic payments while avoiding the the risk-free rate for this purpose. newly determined amounts for prior necessity of using projected amounts for Comments are requested on whether periods and the amounts determined contingent payments. The IRS and this rate is appropriate. and previously taken into account using Treasury request comments concerning the previously projected contingent whether an NPC like the deferred If neither of the two methods payment are recognized ratably over the payment NPC described above would be described above results in a reasonable one-year period beginning with the a viable transaction for market estimate of the future value of the redetermination date. Any difference in participants, whether a current specified index, the taxpayer must use amounts that would have been treated inclusion method would be an another method that does result in a as interest under the rules for significant appropriate substitute for the reasonable estimate of the amount of the nonperiodic payments is also treated as noncontingent swap method for contingent payment and that is based on interest for all purposes of the Code. deferred payment NPCs, and whether objective financial information, and Paragraph (g)(6)(iv)(B) of the proposed that method should require separate must consistently use the method from regulations provides a special rule for a computation of interest accruals. year to year. contingent nonperiodic payment that is The proposed regulations require fixed more than six months before it is Elective Mark-to-Market Methodology annual adjustments to the projected due. If the date on which the payment Paragraph (i) of the proposed amounts of the contingent payment. becomes fixed is in a different taxable regulations provides an elective mark- Paragraphs (g)(6)(iv) through (vi) of the year from the date it is due, the date on to-market methodology for certain NPCs proposed regulations provide rules for which the payment becomes fixed is a providing for nonperiodic payments. If the redetermination of the projected special redetermination date. In such a an election is made, the specific amount of the contingent payment and case, the fixed amount is treated as the accounting rules for nonperiodic the subsequent adjustments to the reprojected amount, and the rules payments in § 1.446–3(f)(2) (other than recognition of income and deductions described above for redeterminations (f)(2)(i)) are not applicable. Instead, for under a contract based on the and adjustments apply. any contract that is held at the close of reprojected amount. In general, under paragraph (g)(6)(vi) the taxable year, the taxpayer Paragraph (g)(6)(iv) of the proposed of the proposed regulations, when a determines income inclusions and regulations provides that the projected contingent payment is made, the parties deductions by reference to the gain or amount must be redetermined on each must make appropriate adjustments to loss that would be realized if the successive anniversary date the amount of income or deduction contract were sold for its fair market (redetermination date) and on each attributable to the NPC for any value on the last business day of the special redetermination date as differences between the projected taxable year. Because the determination described below. On each amount of the contingent payment and of fair market value takes into account redetermination date, the taxpayer must the actual amount of the contingent the expected value of future reproject the amount of the contingent payment. nonperiodic payments, the mark-to- payment using the same method used at Paragraph (g)(6)(vii) of the proposed market methodology constitutes a the commencement of the NPC but regulations provides a recordkeeping reasonable basis for amortizing the applied to the new current value of the requirement with respect to the nonperiodic payments over the term of specified index. Once the contingent noncontingent swap method. Taxpayers the contract as required by § 1.446– payment is reprojected, the level must maintain in their books and 3(f)(2)(i). payment method (and the rules for records a description of the method Proper adjustments are made in the significant nonperiodic payments, if used to determine the projected amount amount of gain or loss subsequently applicable) are applied again using the of the contingent payment, the projected realized (or calculated) for income new projected amount. payment schedules, and the adjustments inclusions and deductions taken into
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account in marking the contract to fair relative usefulness and administrability mark-to-market provisions of section market value. Furthermore, under of the mark-to-market methodology. 475 applicable to securities dealers and paragraph (i)(5) of the proposed Paragraph (i)(2) of the proposed electing commodities dealers and regulations, if an election is made for a regulations provides the scope of the securities and commodities traders. The contract providing for a significant non election. The election is available to IRS and Treasury will take into account periodic payment, paragraph (g)(4) contracts that are: (1) Actively traded the comments received in response to continues to apply and proper within the meaning of § 1.1092(d)–1(c) that Advance Notice in developing the adjustments must be made to the (determined without regard to the rules to be established for use of income inclusions and deductions limitation in § 1.1092(d)–1(c)(2)); (2) financial statement values under the recognized under the mark-to-market marked to market for purposes of the mark-to-market method set forth in methodology to take into account taxpayer’s financial statements provided paragraph (i) of the proposed amounts recognized as interest and the the taxpayer satisfies the requirements regulations. In addition, unlike other payment or receipt of the significant in paragraph (i)(4) of the proposed mark-to-market regimes, the mark-to- nonperiodic payment, subject to the regulations; (3) subject to an agreement market method proposed in paragraph special rule set forth below. by a party to the contract that is a (i) does not require a mark immediately The proposed regulations set forth a person to whom section 475 applies to before disposition in either a special rule for contracts providing for supply to the taxpayer the value that it recognition or nonrecognition context. significant contingent nonperiodic uses in applying section 475(a)(2); or (4) Cf. section 1256(c) and proposed payments that are subject to the mark- marked to market by a regulated regulations § 1.475(a)–2. The IRS and to-market election. If a contract provides investment company (RIC) described in Treasury request comments regarding for a significant contingent nonperiodic section 1296(e)(2). Paragraphs (i)(3) (i) this aspect of the proposed regulations payment, the taxpayer must apply the through (iv) of the proposed regulations and whether taxpayers who are eligible noncontingent swap method to provide the acceptable methods for to elect a mark-to-market method under determine the amounts recognized as determining fair market value. If the section 475 but do not do so should be interest under paragraph (g)(4). contract is actively traded, the fair eligible to make the paragraph (i) However, the taxpayer is not required to market value is determined based on the election for NPCs. reproject the amount of the contingent mean between the bid and asked prices payment each year. The interest quoted for the contract. If a contract is Anti-abuse Rule amounts for subsequent years are the not actively traded, but is marked to Paragraph (i) of the 1993 Treasury interest amounts as determined using market for financial statement purposes, regulations provides that if a taxpayer the initial projection of the contingent and the valuations used for those ‘‘enters into a transaction with a payment. Furthermore, an alternative purposes comply with the requirements principal purpose of applying the rules deemed equivalent value method may of paragraph (i)(4), the fair market value of [§ 1.446–3] to produce a material be used to determine the projected is deemed to be the value used for the distortion of income,’’ the IRS may amount of the contingent payment. The financial statements. For a contract that depart from those rules ‘‘as necessary to deemed equivalent value method may is subject to an agreement with a dealer reflect the appropriate timing of income be applied when the contract fixes the in securities to provide a value, the and deductions from the transaction.’’ timing and amount of all of the value that is provided by the dealer is In light of the comprehensive rules in payments under the contract, except for the fair market value. Finally, for a the proposed regulations prescribing the significant contingent nonperiodic contract marked to market by a RIC, the methods of accounting for NPCs, the IRS payment. The amount of the significant fair market value is equal to the value and Treasury have determined that a contingent nonperiodic payment is used for purposes of determining the general anti-abuse rule is not necessary deemed to be the amount that causes the RIC’s net asset value. to prevent these methods being used in present value of all the payments by the Paragraph (i)(6) of the proposed a manner that fails to clearly reflect taxpayer to equal the present value of all regulations provides that the mark-to- income. Accordingly, the proposed of the payments of the counterparty to market election shall be made in the regulations delete this rule. time and manner prescribed by the the contract. Proposed Dates of Applicability The inclusion of an elective mark-to- Commissioner and is effective for the market methodology is intended to taxable year in which it is made and all These proposed regulations contain provide taxpayers with an alternative to subsequent years unless revoked with both new substantive rules as well as the provisions of paragraphs (f) of the the consent of the Commissioner. clarifying changes to the 1993 Treasury 1993 Treasury regulations and (g)(6) of The proposed regulations indicate regulations. The new substantive rules, the proposed regulations respecting that a taxpayer will be permitted to elect which are contained in paragraph (g)(6) nonperiodic payments. With respect to the mark-to-market method for NPCs (the noncontingent swap method) significant nonperiodic payments, that are marked to market for purposes (except (g)(6)(i)) and paragraph (i) (the however, the proposed regulations of the taxpayer’s financial statements mark-to-market election), are proposed preserve certain features of those and that the values used on the financial to apply to NPCs entered into on or after provisions for purposes of computing an statements may be used as fair market 30 days after the date of publication of interest component of swap payments. value under the mark-to-market the final regulations in the Federal Such a calculation is necessary to election. However, the proposed Register. Paragraphs (c) (definitions), (d) preserve the characterization of an regulations also indicate that an election (taxable year of inclusion and accrual as interest. The IRS and to use financial statement values will be deduction), (f) (nonperiodic payments), Treasury request comments on the subject to further requirements. On May (g)(4) (significant nonperiodic appropriateness of requiring taxpayers 5, 2003, the IRS and Treasury published payments), and (g)(6)(i) (definition of to compute an interest amount for in the Federal Register an Advance contingent and noncontingent significant nonperiodic payments under Notice of Proposed Rule Making (REG– nonperiodic payments) are proposed to the elective mark-to-market 100420–03) requesting comments be integrated into the 1993 Treasury methodology and, in particular, on any regarding appropriate rules for the use regulations which apply to NPCs effect that requirement may have on the of financial statement values under the entered into on or after December 13,
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1993. Because of their purely clarifying payments, and contingent nonperiodic section 7805(f) of the Code, this notice nature, these proposed changes will payments are not termination payments. of proposed rulemaking will be apply to the same transactions that are The proposed regulations under submitted to the Chief Counsel for governed by the 1993 Treasury section 1234A also apply to any gain or Advocacy of the Small Business regulations. loss arising from the settlement of Administration for comment on its With respect to NPCs that provide for obligations under a bullet swap or impact on small businesses. contingent nonperiodic payments and forward contract. A payment in that are in effect or entered into on or settlement of obligations under a bullet Comments and Public Hearing after 30 days after the date of swap or forward contract, including a Before these proposed regulations are publication of these proposed payment pursuant to the terms of the adopted as final regulations, regulations in the Federal Register, if a bullet swap or forward contract, is consideration will be given to any taxpayer has not adopted a method of treated as gain or loss from a written comments (a signed original and accounting for these NPCs, the taxpayer termination of the bullet swap or eight (8) copies) or electronic comments must adopt a method that takes forward contract. that are submitted timely to the IRS. The contingent nonperiodic payments into For purposes of these proposed IRS and Treasury specifically request account over the life of the contract regulations, a bullet swap is defined as comments on the clarity of the proposed under a reasonable amortization a financial instrument that is not an rules and how they may be made easier method, which may be, but need not be, excluded contract as defined in § 1.446– to understand. All comments will be a method that satisfies the specific rules 3(c)(1)(ii), that provides for the available for public inspection and in these proposed regulations. If a computation of an amount or amounts copying. taxpayer has adopted a method of due from one party to another by A public hearing has been scheduled accounting for these NPCs, the reference to a specified index upon a for May 25, 2004, beginning at 10 a.m., notional principal amount, and that Commissioner generally will not require in the IRS Auditorium, Seventh Floor, provides for settlement of all the parties’ a change in the accounting method Internal Revenue Building, 1111 obligations at or close to maturity of the earlier than the first year ending on or Constitution Avenue, NW., Washington, contract, rather than for the payment of after 30 days after the date of DC. Due to building security the specified amounts at specific publication of the final regulations in procedures, visitors must enter at the intervals. The definition of bullet swap the Federal Register. The preceding Constitution Avenue entrance. In is intended to cover a contract that sentence does not apply to transactions addition, all visitors must present photo described in Rev. Rul. 2002–30 (2002– obligates each party to make a payment identification to enter the building. 1 C.B. 971) or other published guidance. at the end of the contract, although only Because of access restrictions, visitors The proposed regulations do not one net payment will actually be paid. contain a specific consistency For example, party A is obligated to pay will not be admitted beyond the requirement. Nevertheless, under the at the end of three years a fixed rate immediate entrance area more than 30 general rules governing accounting multiplied by the notional amount. Also minutes before the hearing starts. For methods, once a taxpayer adopts a at the end of three years, party B is information about having your name method of accounting for an item, the obligated to pay a variable rate placed on the building access list to taxpayer must use the same method multiplied by the same notional attend the hearing, see FOR FURTHER from year to year unless the taxpayer amount. At the end of three years, only INFORMATION CONTACT section of this obtains the Commissioner’s consent to one party makes a net payment equal to preamble. change to another method of the difference between the fixed rate The rules of 26 CFR 601.601(a)(3) accounting. multiplied by the notional amount and apply to the hearing. Persons who wish the variable rate multiplied by the to present oral comments at the hearing Character notional amount. must submit written comments or The proposed regulations under These regulations under section electronic comments and an outline of § 1.162–30 provide that in general, the 1234A are proposed to apply to NPCs topics to be discussed and the time to net periodic and nonperiodic payments entered into on or after 30 days after the be devoted to each topic (a signed (including mark-to-market deductions) date of publication of the final original and eight (8) copies) by May 4, are deductible by the payor under regulations in the Federal Register. 2004. A period of 10 minutes will be section 162 as ordinary and necessary allotted to each person making business expenses. However, payments Special Analyses comments. An agenda showing the representing interest under the rules for It has been determined that this notice scheduling of the speakers will be significant nonperiodic payments as of proposed rulemaking is not a prepared after the deadline for receiving well as termination payments are not significant regulatory action as defined outlines has passed. Copies of the deductible under section 162. A similar in Executive Order 12866. Therefore, a agenda will be available free of charge rule is provided for individuals in the regulatory assessment is not required. It at the hearing. is hereby certified that these regulations proposed regulations under § 1.212– Drafting Information 1(q). These regulations under sections will not have a significant economic 162 and 212 are proposed to apply to impact on a substantial number of small The principal author of these NPCs entered into on or after 30 days entities. This certification is based on regulations is Kate Sleeth, Office of the after the date of publication of the final the fact that very few small businesses Associate Chief Counsel (Financial regulations in the Federal Register. enter into NPCs with contingent Institutions and Products). However, Any gain or loss arising from a nonperiodic payments because these other personnel from the IRS and termination payment, however, is contracts are costly and complex and Treasury participated in their treated as capital gain or loss pursuant because they require constant development. to the proposed regulations under monitoring and a sophisticated List of Subjects in 26 CFR Part 1 section 1234A. These proposed understanding of the capital markets. regulations clarify that periodic Therefore, a Regulatory Flexibility Income taxes, Reporting and payments, noncontingent nonperiodic Analysis is not required. Pursuant to recordkeeping requirements.
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Proposed Amendments to the (2) Effective date. Paragraph (q) of this (iv) General rule for caps and floors. Regulations section is applicable to notional (v) Alternative methods for caps and floors that hedge debt instruments. Accordingly, 26 CFR part 1 is principal contracts entered into on or after 30 days after the date a Treasury (A) Prepaid caps and floors. proposed to be amended as follows: (B) Other caps and floors. decision based on these proposed (C) Special method for collars. PART 1—INCOME TAXES regulations is published in the Federal (vi) Additional methods. Register. (3) Term of extendible or terminable Paragraph 1. The authority citation Par. 4. Section 1.446–3 is amended contracts. for part 1 continues to read in part as by: (4) Examples. follows: 1. Revising the introductory text of (g) Special rules. Authority: 26 U.S.C. 7805 * * * paragraph (a) and the table of contents (1) Disguised notional principal contracts. in paragraph (a). (2) Hedged notional principal contracts. Par. 2. Section 1.162–30 is added to (3) Options and forwards to enter into read as follows: 2. Adding paragraph (c)(5). notional principal contracts. 3. Revising paragraphs (d), (f)(2)(i), (4) Swaps with significant nonperiodic § 1.162–30 Notional principal contract (f)(2)(iii)(A), and (g)(4). payments. payments. 4. Redesignating the text of paragraph (5) Caps and floors that are significantly in- (a) In general. Amounts taken into (g)(6) as paragraph (g)(7). the-money. [Reserved] account by a taxpayer pursuant to 5. Adding new paragraph (g)(6). (6) Notional principal contracts with § 1.446–3(d)(1) (including mark-to- 6. Amending the newly designated contingent nonperiodic payments. market deductions) with respect to a text of paragraph (g)(7) by: (i) Definitions. notional principal contract as defined in (a) Revising the heading for Example (A) Noncontingent nonperiodic payments. § 1.446–3(c)(1)(i), are deductible as (B) Contingent nonperiodic payments. 3. (ii) Noncontingent swap method. ordinary and necessary business (b) Adding Example 5 through (iii) Determining projected amount of expenses. However, this section will not Example 9. contingent payment. apply to any amount representing 7. Revising paragraphs (i) and (j). (A) Payment based on actively traded interest expense on the deemed loan The revisions and additions read as futures or forward contracts. component of a significant nonperiodic follows: (B) Payment based on extrapolation from payment as described in § 1.446–3(g)(4). current market prices. For any loss arising from a termination § 1.446–3 Notional principal contracts. (C) Payment based on reasonable estimate. payment as defined in § 1.446–3(h)(1), (a) Table of contents. This paragraph (iv) Redeterminations of projected see section 1234A and the regulations (a) lists captioned paragraphs contained payments and level payment amounts. in this section. (A) General rule. thereunder. For the timing of (B) Special rule for fixed but deferred deductions with respect to notional § 1.446–3 Notional principal contracts. contingent nonperiodic payments. principal contracts, see § 1.446–3. (v) Adjustments following (b) Effective date. Paragraph (a) of this (a) Table of contents. redeterminations. section is applicable to notional (b) Purpose. (vi) Adjustments for differences between principal contracts entered into on or (c) Definitions and scope. projected and actual payments. after 30 days after the date a Treasury (1) Notional principal contract. (vii) Recordkeeping requirements. decision based on these proposed (i) In general. (7) Examples. regulations is published in the Federal (ii) Excluded contracts. (h) Termination payments. Register. (iii) Transactions within section 475. (1) Definition. Par. 3. In § 1.212–1, paragraph (q) is (iv) Transactions within section 988. (2) Taxable year of inclusion and (2) Specified index. deduction by original parties. added to read as follows: (3) Notional principal amount. (3) Taxable year of inclusion and § 1.212–1 Nontrade or nonbusiness (4) Special definitions. deduction by assignees. expenses. (i) Related person and party to the contract. (4) Special rules. (ii) Objective financial information. (i) Assignment of one leg of a contract. * * * * * (iii) Dealer in notional principal contracts. (ii) Substance over form. (q) Notional principal contract (5) Risk-free interest rate and (5) Examples. payments—(1) Amounts taken into determination date. (i) Election to mark to market. account by an individual pursuant to (i) Risk-free interest rate. (1) General rule. § 1.446–3(d)(1) (including mark-to- (ii) Determination date. (2) Scope of election. market deductions) with respect to a (d) Taxable year of inclusion and deduction; (3) Determination of fair market value. notional principal contract as defined in adjustment of gain or loss. (i) Determination based on readily § 1.446–3(c)(1)(i), are ordinary and (1) Inclusion and deduction. ascertainable value. necessary, and are deductible to the (2) Adjustment of gain or loss. (ii) Determination based on value used for (e) Periodic payments. financial statements. extent these amounts are paid or (1) Definition. (iii) Determination based on counterparty’s incurred in connection with the (2) Recognition rules. mark-to-market value. production or collection of income. (i) In general. (iv) Determination based on value used in However, this section will not apply to (ii) Rate set in arrears. determining net asset value. any amount representing interest (iii) Notional principal amount set in (4) Requirements for use of financial expense on the deemed loan component arrears. statement values. of a significant nonperiodic payment as (3) Examples. [Reserved] described in § 1.446–3(g)(4). For any (f) Nonperiodic payments. (5) Notional principal contracts accruing loss arising from a termination payment (1) Definition. interest on significant nonperiodic (2) Recognition rules. payments. as defined in § 1.446–3(h)(1), see section (i) In general. (i) General rule. 1234A and the regulations thereunder. (ii) General rule for swaps. (ii) Special rules for significant contingent For the timing of deductions with (iii) Alternative methods for swaps. nonperiodic payments. respect to notional principal contracts, (A) Prepaid swaps. (iii) Nonapplicability to regulated see § 1.446–3. (B) Other nonperiodic swap payments. investment companies.
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(6) Election. (A) Prepaid swaps. An upfront payment will be level payments that (j) Effective dates. payment on a swap may be amortized may be constructed through a (1) General rule. by assuming that the nonperiodic combination of the actual payments on (2) Exception. payment represents the present value of the swap and level payments computed * * * * * a series of equal payments made under the level payment method (c) * * * throughout the term of the swap provided by paragraph (f)(2)(iii)(A) of (5) Risk-free interest rate and contract (the level payment method), this section. In certain cases, a swap determination date—(i) Risk-free adjusted as appropriate to take account with significant nonperiodic payments interest rate. The risk-free interest rate is of increases or decreases in the notional other than an upfront payment may be the applicable Federal rate determined principal amount. The discount rate treated as if the swap provided for a in accordance with section 1274(d)(1) used in this calculation must be the rate series of level payment loan advances for a determination date and the period (or rates) used by the parties to having a present value equal to the remaining in the term of the contract on determine the amount of the present value of the nonperiodic the determination date. nonperiodic payment. If that rate is not payments, with the amount of each loan (ii) Determination date. A readily ascertainable, the discount rate advance being immediately returned as determination date is the used must be a rate that is reasonable a level payment on the swap. See commencement date of the swap, each under the circumstances. Under this paragraph (g)(7) Example 5 of this redetermination date as defined in method, an upfront payment is allocated section. For purposes of section 956, the paragraph (g)(6)(ii) of this section, and by dividing each equal payment into its Commissioner may treat any each special redetermination date as principal recovery and time value nonperiodic swap payment, whether or defined in paragraph (g)(6)(iv)(B) of this components. The principal recovery not it is significant, as one or more section. components of the equal payments are loans. (d) Taxable year of inclusion and treated as periodic payments that are * * * * * deduction; adjustment of gain or loss— deemed to be made on each of the dates (6) Notional principal contracts with (1) Inclusion and deduction. For all that the swap contract provides for contingent nonperiodic payments—(i) purposes of the Internal Revenue Code, periodic payments by the payor of the Definitions—(A) Noncontingent the net income or net deduction from a nonperiodic payment or, if none, on nonperiodic payments. A noncontingent notional principal contract for a taxable each of the dates that the swap contract nonperiodic payment is a nonperiodic year is taken into account for that provides for periodic payments by the payment that either is fixed on or before taxable year. The net income or net recipient of the nonperiodic payment. the end of the taxable year in which a deduction from a notional principal The sum of the principal recovery contract commences or is equal to the contract for a taxable year equals the components equals the amount of the sum of amounts that would be periodic total of all of the periodic payments that upfront payment. The time value payments if they are paid when they are recognized from that contract for the component is used to compute the become fixed (including amounts taxable year under paragraph (e) of this amortization of the nonperiodic determined as interest accruals). section, all of the nonperiodic payments payment but is otherwise disregarded. (B) Contingent nonperiodic payments. that are recognized from that contract See paragraph (f)(4) Example 5 of this A contingent nonperiodic payment is for the taxable year under paragraph (f) section. any nonperiodic payment other than a of this section, and the mark-to-market * * * * * noncontingent nonperiodic payment. income inclusions and deductions (g) * * * (ii) Noncontingent swap method. recognized from that contract under (4) Swaps with significant Under the noncontingent swap method, paragraph (i) of this section. nonperiodic payments. The parties to a a taxpayer, regardless of its method of (2) Adjustment of gain or loss. Proper swap with one or more significant accounting, recognizes each contingent adjustment shall be made in the amount nonperiodic payments must treat the nonperiodic payment with respect to a of any gain or loss realized on a sale, contract as two or more separate notional principal contract by exchange, or termination of a notional transactions consisting of an on-market determining the projected amount of the principal contract for inclusions or swap and one or more loans. The parties payment and by applying to that deductions pursuant to paragraphs must account for the loans separately projected amount the level payment (d)(1) and (g)(4) of this section and for from the swap. The payments associated method described in paragraphs payments or receipts with respect to the with the on-market swap are included (f)(2)(iii)(A) and (B) of this section. The notional principal contract. in the net income or net deduction from projected amount of a contingent * * * * * the swap under paragraph (d) of this nonperiodic payment is the reasonably (f) * * * section. The time value components expected amount of the payment, which (2) Recognition rules—(i) In general. associated with the loans are not is determined by using one of the All taxpayers, regardless of their method included in the net income or net methods described in paragraph of accounting, must recognize the deduction from the swap under (g)(6)(iii) of this section and by using the ratable daily portion of a nonperiodic paragraph (d) of this section but are risk-free interest rate in applying the payment for the taxable year to which recognized as interest for all purposes of level payment method. On each that portion relates. Generally, a the Internal Revenue Code. The on- successive anniversary date for the nonperiodic payment must be market swap must result in recognition notional principal contract (a recognized over the term of a notional of the payments associated with the redetermination date) and each special principal contract in a manner that swap in a manner that complies with redetermination date (as defined in reflects the economic substance of the the principles set forth in paragraph paragraph (g)(6)(iv)(B) of this section), contract. See paragraph (g)(6) of this (f)(2)(i) of this section. See paragraph the taxpayer must redetermine the section for additional rules for (g)(7) Example 3 of this section for a projected amount of each contingent contingent nonperiodic payments. situation in which the on-market swap nonperiodic payment, reapply the level * * * * * payments for a party making a payment method as provided in (iii) * * * significant nonperiodic upfront paragraph (g)(6)(iv) of this section, and
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make the adjustments specified in cash payments on the property calculated under paragraph (g)(4) of this paragraph (g)(6)(v) of this section. If underlying the specified index. section, is recognized as interest for all paragraph (g)(4) of this section applies (C) Payment based on reasonable purposes of the Internal Revenue Code. to the notional principal contract, estimate. If the methods provided in (vi) Adjustments for differences redeterminations and adjustments must paragraphs (g)(6)(iii)(A) and (B) of this between projected and actual payments. also be made to account for the time section do not result in a reasonable Any difference between the amounts value components of the transaction as estimate of the amount of the contingent taken into account under paragraph (f) interest in accordance with that payment, the taxpayer must use another and this paragraph (g)(6) on the one paragraph. Except for contingent method that does result in a reasonable hand and the amount of the actual nonperiodic payments governed by estimate of the amount of the contingent payment under the contract on the other paragraph (g)(6)(iv)(B) of this section, in payment and that is based on objective hand is taken into account as an the taxable year in which a contingent financial information. adjustment to the net income or net payment is made or received, the parties (iv) Redeterminations of projected deduction from the notional principal must make appropriate adjustments to payments and level payment amounts— contract for the taxable year during the amount of income or deductions (A) General rule. On each which the payment occurs, and not as attributable to the notional principal redetermination date, the taxpayer must an adjustment to interest income or contract for any differences between redetermine the projected amount using expense. projected and actual contingent current values on the redetermination date and the same method that was used (vii) Recordkeeping requirements. The nonperiodic payments as provided in books and records maintained by a paragraph (g)(6)(vi) of this section. on the commencement date of the notional principal contract, and must taxpayer must contain a description of (iii) Determining projected amount of reapply the level payment method as of the method used to determine the contingent payment—(A) Payment the commencement date of the notional projected amount of a contingent based on actively traded futures or principal contract on the basis of the payment, projected payment schedules, forward contracts. If a contingent new projected payment amount and the any adjustments following nonperiodic payment is determined risk-free interest rate in effect on the redeterminations, and any adjustments under the contract by reference to the redetermination date. for differences between projected and value of a specified index on a (B) Special rule for fixed but deferred actual contingent payments. designated future date, the projected contingent nonperiodic payments. If a (7) * * * amount of the payment may be contingent nonperiodic payment is determined on the basis of the future Example 3. Upfront significant nonperiodic fixed more than six months before it is payment. *** value for the specified index in actively due, and if the date the payment is fixed * * * * * traded futures or forward contracts, if is in a different taxable year from the any, providing for delivery or settlement Example 5. Backloaded significant date the payment is due, the date on nonperiodic payment. (i) On January 1, 2003, on the designated future date. If no which the payment is fixed is a special unrelated parties P and Q enter into an actively traded contract exists for the redetermination date. As of that date, interest rate swap contract. Under the terms designated future date, a determination the taxpayer must treat the fixed amount of the contract, P agrees to make five annual from the future values for the specified as the projected amount for that payments to Q equal to LIBOR times a index in actively traded futures or contingent nonperiodic payment and notional principal amount of $100,000,000. forward contracts, if any, providing for apply paragraphs (g)(6)(iv) and (v) of In return, Q agrees to pay P 6% of delivery or settlement on dates within $100,000,000 annually, plus $24,420,400 on this section as if the special December 31, 2007. At the time P and Q enter three months of the designated future redetermination date were a date may be used. into this swap agreement the rate for similar redetermination date. on-market swaps is LIBOR to 10%. Assume (B) Payment based on extrapolation (v) Adjustments following that on January 1, 2003, the risk-free rate is from current market prices. If a redeterminations. Following each 10%. contingent nonperiodic payment is redetermination of projected payments (ii) The $24,420,400 payment from Q to P determined under the contract by and level payment amounts, the is significant when compared to the present reference to the value of a specified taxpayer must apply the new schedule value of the total payments due from Q under index on a designated future date, the of level payments for purposes of the contract. Accordingly, pursuant to projected amount of the payment may determining amounts to be recognized paragraph (g)(4) of this section, the transaction is recharacterized as two separate be determined on the basis of the in the current and subsequent taxable transactions. First, P is treated as paying to current value of the specified index as years with respect to the contingent Q a series of $4,000,000 level payment loan established by objective financial nonperiodic payments. Any difference advances. The present value of the level information adjusted to convert the between the amounts recognized in payment loan advances equals the present current value to a future value for the prior taxable years and the amounts that value of $24,420,400, the significant specified index on the designated future would have been recognized in those nonperiodic payment. Stated differently, the date. The current value is converted to years had the new level payment sum of the level payment loan advances and a future value by adding to the current schedule been in effect for those years accrued interest on those advances equals the value an amount equal to the accrual of is taken into account as additional significant nonperiodic payment. (iii) Next, Q is treated as using each loan interest on the current value under a payments or receipts with respect to the advance to fund five annual level swap constant yield method at the risk-free contract ratably over the one-year period payments of $4,000,000. The level payment interest rate with appropriate beginning with the redetermination date loan advances and accrued interest on the compounding and by making and, to the extent attributable to a advances computed with annual appropriate adjustments for expected difference in the interest amounts compounding at 10% are as follows:
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Accrued Level payment interest
2003 ...... $4,000,000 $0 2004 ...... 4,000,000 400,000 2005 ...... 4,000,000 840,000 2006 ...... 4,000,000 1,324,000 2007 ...... 4,000,000 1,856,400
$20,000,000 $4,420,400
(iv) P recognizes interest income, and Q over the term of the swap. V is obligated to transaction is recharacterized as two separate accrues interest expense, each taxable year make a single payment on December 31, transactions. equal to the interest accruals on the deemed 2007, equal to the depreciation, if any, in the (iv) As a preliminary step, using the risk- level payment loan advances. These interest same $50,000,000 investment in the basket of free rate of 10.0% as the discount rate, the amounts are not included in the parties’ net equity securities. Assume that on January 1, parties determine the level payment amounts income or net deduction from the swap 2005, 1-year LIBOR is 9.5%, and the risk-free that have a present value equal to the present contract under paragraph (d) of this section. rate is 10.0%. value of $16,550,000, the projected (v) The level payment amounts of (ii) This contract is a notional principal significant nonperiodic payment. Stated $4,000,000 are taken into account in contract as defined in paragraph (c)(1) of this differently, the sum of the level payment determining the parties’ net income and section. The annual LIBOR-based payments amounts and accrued interest at 10.0% on deductions on the swap pursuant to from V to W are periodic payments and the those amounts must equal the projected paragraph (d) of this section. single payment on December 31, 2007, is a Example 6. Contingent nonperiodic contingent nonperiodic payment. significant nonperiodic payment. The level payment on an equity swap. (i) On January (iii) Pursuant to the method described in payment amounts thus determined are 1, 2005, unrelated parties V and W enter into (g)(6)(iii)(B) of this section, the parties $5,000,000. an equity swap contract. Under the terms of determine that the projected amount of the (v) Next, V is treated as paying to W a the contract, V agrees to make three annual contingent nonperiodic payment that W will series of $5,000,000 loan advances. payments to W equal to 1-year LIBOR times pay V on December 31, 2007, is $16,550,000. (vi) Then, W is treated as using each loan a notional principal amount of $50,000,000. The present value of this projected fixed advance to fund one of the three annual level In return, W agrees to make a single payment payment is significant when compared to the swap payments of $5,000,000. The level on December 31, 2007, equal to the present value of the total payments due from payment loan advances and accrued interest appreciation, if any, of a $50,000,000 W under the contract. Accordingly, pursuant on the advances computed with annual investment in a basket of equity securities to paragraph (g)(4) of this section, the compounding at 10.0% are as follows:
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Accrued Level payment interest
2005 ...... $5,000,000 $0 2006 ...... 5,000,000 500,000 2007 ...... 5,000,000 1,050,000
$15,000,000 $1,550,000
(vii) No interest amount is taken into and the risk-free rate is 10.5%. On that date, preliminary step, using the risk-free rate of account for the contract year 2005. the parties redetermine the projected amount 10.5% as the discount rate, the parties (viii) The level payment amount of of the contingent nonperiodic payment using determine the level payment amounts that $5,000,000 is taken into account for the current values in effect on that date. Under have a present value equal to the present contract year 2005 in determining the parties’ the method described in (g)(6)(iii)(B) of this value of $23,261,500, the reprojected net income and deductions on the swap section, the parties determine that the significant nonperiodic payment. Stated pursuant to paragraph (d) of this section. reprojected amount of the contingent differently, the sum of the level payment (ix) For the contract year 2005, V makes a nonperiodic payment that W will pay V on amounts and accrued interest at 10.5% on swap payment to W equal to 1-year LIBOR at December 31, 2007, is $23,261,500. The those amounts must equal the reprojected 9.5% times $50,000,000, or $4,750,000, and present value as of January 1, 2005, of this significant nonperiodic payment. The level W is deemed to make a swap payment to V projected fixed payment is significant when equal to the annual level payment of compared to the present value of the total payment amounts thus determined are $5,000,000. The net of the ratable daily payments due from W under the contract. $6,993,784. portions of these payments determines the Accordingly, pursuant to paragraph (g)(4) of (iii) Next, V is treated as paying to W a annual net income or deduction from the this section, the transaction is series of $6,993,784 loan advances. contract for both V and W. recharacterized as two separate transactions. (iv) Then, W is treated as using each loan Example 7. Initial Adjustment. (i) The (ii) The parties use the redetermined advance to fund one of the three annual level terms of the equity swap agreement are the projected amount of $23,261,500, to reapply swap payments of $6,993,784. The level same as in Example 6. In addition, assume the method provided by paragraph (g)(4) of payment loan advances and accrued interest that on January 1, 2006, the first this section effective as of the on the advances computed with annual redetermination date, 1-year LIBOR is 10.0%, commencement date of the swap. As a compounding at 10.5%, are as follows:
Accrued Level payment interest
2005 ...... $6,993,784 $0 2006 ...... 6,993,784 734,347 2007 ...... 6,993,784 1,545,801
$20,981,352 $2,280,148
(v) For the contract year 2006, V recognizes at 10.0% times $50,000,000, or $5,000,000, this section, the transaction is interest income, and W accrues interest and W is deemed to make a swap payment recharacterized as two separate transactions. expense equal to the accrued interest of to V equal to the annual level payment of (ii) The parties use the redetermined $734,347 on the deemed level payment loan $6,993,784 and the adjustment amount of projected amount of $11,050,000, to reapply advance. These interest amounts are not $1,993,784. The net of the ratable daily the method provided by paragraph (g)(4) included in the parties’ net income or net portions of these payments determines the effective as of the commencement date of the deduction from the swap contract under annual net income or deduction from the swap. As a preliminary step, using the risk- paragraph (d) of this section. contract for both V and W. free rate of 11.0% as the discount rate, the (vi) The level payment amount of Example 8. Subsequent Adjustment. (i) The parties determine the level payment amounts $6,993,784 is taken into account for the terms of the equity swap agreement are the that have a present value equal to the present contract year 2006 in determining the parties’ same as in Example 7. In addition, assume value of $11,050,000, the reprojected net income and deductions on the swap that on January 1, 2007, the second significant nonperiodic payment. Stated pursuant to paragraph (d) of this section. redetermination date, 1-year LIBOR is 11.0%, differently, the sum of the level payment (vii) The parties also take into account for and the risk-free rate is also 11.0%. On that amounts and accrued interest at 11.0% on the contract year 2006 the difference between date, the parties redetermine the projected those amounts must equal the reprojected the amount recognized for 2005 and the amount of the contingent nonperiodic significant nonperiodic payment. The level amount that would have been recognized in payment using current values in effect on payment amounts thus determined are 2005 had the new level payment schedule in that date. The parties determine that the $3,306,304. this Example 7 been in effect in 2005. Thus, reprojected amount of the contingent (iii) Next, V is treated as paying to W a for purposes of paragraph (d) of this section, nonperiodic payment that W will pay V on series of $3,306,304 loan advances. W is treated as making a swap payment, and December 31, 2007, is $11,050,000. The (iv) Then, W is treated as using each loan V is treated as receiving a swap payment of present value as of January 1, 2005, of this advance to fund one of the three annual level $1,993,784 ($6,993,784¥$5,000,000) for projected fixed payment is significant when swap payments of $3,306,304. The level purposes of paragraph (d) of this section. compared to the present value of the total payment loan advances and accrued interest (viii) For the contract year 2006, V makes payments due from W under the contract. on the loan advances computed with annual a swap payment to W equal to 1-year LIBOR Accordingly, pursuant to paragraph (g)(4) of compounding at 11.0% are as follows:
Accrued Level payment interest
2005 ...... $3,306,304 $ 0 2006 ...... 3,306,304 363,693
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Accrued Level payment interest
2007 ...... 3,306,304 767,393
$9,918,912 $1,131,086
(v) For 2007, V recognizes interest income, (i) Election to mark to market. A based on the mean between the bid and and W accrues interest expense equal to the taxpayer may elect to mark to market asked prices quoted for the contract on $767,393 accrued interest amount for 2007 notional principal contracts providing an established financial market as on the deemed loan advances. In addition, V for nonperiodic payments. The rules of defined in § 1.1092(d)–1(b)(1), or, if bid has a net interest expense item and W has a paragraphs (f) (other than (f)(2)(i)), and asked prices are not available, net interest income item equal to $370,654 comparable prices determined on the ($734,347¥363,693), the difference between (g)(6)(ii) through (vii), and (h) of this the interest accrual taken into account for section do not apply to contracts to basis of recent price quotations 2006 and the amount that would have been which this paragraph (i) applies. See described in § 1.1092(d)–1(b)(2). taken into account for 2006 had the new level paragraph (i)(5) of this section for rules (ii) Determination based on value payment schedule in this Example 8 been in respecting interest accruals under used for financial statements. For a effect for 2006. As a result, V has net interest paragraph (g)(4) of this section for contract described in paragraph (i)(2)(ii) income and W has net interest expense in the contracts providing for significant of this section that is not described in amount of $396,739 for 2007. These interest nonperiodic payments to which this paragraph (i)(2)(i) of this section, fair amounts are not included in the parties’ net paragraph (i) applies. market value is the value used by the income or net deduction from the swap (1) General rule. In the case of any taxpayer for purposes of preparing its contract under paragraph (d) of this section. contract held at the close of the taxable financial statements under paragraph (vi) The level payment amount of year to which this paragraph (i) applies, (i)(4) of this section. $3,306,304 is taken into account for the (iii) Determination based on contract year 2007 in determining the parties’ the taxpayer shall determine income counterparty’s mark-to-market value. net income and deductions on the swap inclusions and deductions by reference pursuant to paragraph (d) of this section. to the gain or loss that would be realized For a contract described in paragraph (vii) For 2007, the parties also take into if the contract were sold for its fair (i)(2)(iii) of this section that is not account for 2007 the difference between the market value on the last business day of described in paragraph (i)(2)(i) of this amounts previously recognized for 2005 and the taxable year. Proper adjustment section, fair market value is the mark-to- 2006 and the amounts that would have been shall be made in the amount of any gain market value provided by a recognized for those years had the new level or loss subsequently realized (or counterparty as being the value the payment schedule in this Example 8 been in calculated) for the income inclusions counterparty used for purposes of effect in 2005 and 2006. The amounts and deductions taken into account by section 475(a)(2). previously recognized were: a total of reason of this paragraph (i)(1) as (iv) Determination based on value $6,993,784 for 2005, which is the sum of used in determining net asset value. $5,000,000 (in 2005) and $1,993,784 (in provided in paragraph (d)(2) of this Notwithstanding paragraphs (i)(3)(i) 2006), and a total of $6,993,784 for 2006 (in section. 2006). The adjustment amount, therefore, (2) Scope of election. The election through (iii) of this section, for a equals two times $3,687,480 provided by this paragraph is available contract described in paragraph (i)(2)(iv) ($6,993,784¥$3,306,304), or $7,374,960. for notional principal contracts that of this section, fair market value is the This amount is taken into account as a are— value used by the taxpayer in payment for purposes of paragraph (d) of this (i) Of a type that is actively traded determining its net asset value. section. within the meaning of § 1.1092(d)–1(c) (4) Requirements for use of financial (viii) For the contract year 2007, V makes (determined without regard to the statement values. [Reserved]. a swap payment to W equal to 1-year LIBOR limitation in § 1.1092(d)–1(c)(2)); (5) Notional principal contracts at 11.0% times $5,000,000, or $5,500,000. W (ii) Marked to market by the taxpayer accruing interest on significant is deemed to make a swap payment to V for purposes of determining the nonperiodic payments—(i) General rule. equal to the annual level payment for 2007 If a notional principal contract that is of $3,306,304, and V is deemed to make a taxpayer’s financial income provided swap payment to W equal to the adjustment the taxpayer satisfies the requirements marked to market under this paragraph amount of $7,374,960. The net of the ratable in paragraph (i)(4) of this section; (i) provides for one or more significant daily portions of these payments determines (iii) Subject to an agreement by a nonperiodic payments, paragraph (g)(4) the annual net income or deduction from the party to the contract that is subject to of this section applies to the contract contract for both V and W. section 475 to supply to the taxpayer the (computed with regard to the rule in Example 9. Adjustment for actual value that it uses in applying section paragraph (i)(5)(ii) of this section). payment. (i) The terms of the equity swap 475(a)(2); or Proper adjustment shall be made in the agreement are the same as in Example 8. In (iv) Marked to market by a regulated amount of any income inclusions or addition, on December 31, 2007, W makes a investment company described in deductions recognized under paragraph payment to V of $25,000,000, an amount section 1296(e)(2). (i)(1) of this section to take into account equal to the appreciation of a $50,000,000 (3) Determination of fair market amounts recognized as interest under investment in the basket of equity securities. (ii) For 2007, $13,950,000, the difference value. For purposes of paragraph (i)(1) paragraph (g)(4) of this section and the between $25,000,000 and $11,050,000, the of this section, fair market value is payment or receipt of the nonperiodic projected amount of the contingent payment determined by applying the rules set payment or payments. as of January 1, 2007, is taken into account forth in paragraphs (i)(3)(i) through (iv) (ii) Special rules for significant as an adjustment to the parties’ net income of this section. contingent nonperiodic payments. In the or deductions for each party’s taxable year (i) Determination based on readily case of a contract providing for a that contains December 31, 2007, pursuant to ascertainable value. For a contract significant contingent nonperiodic paragraph (d) of this section. described in paragraph (i)(2)(i) of this payment, the projected amount of the * * * * * section, fair market value is determined payment is determined by applying one
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of the methods described in paragraph (b) Nonapplicability to payments DEPARTMENT OF THE INTERIOR (g)(6)(iii) of this section or by applying other than termination payments. For the deemed equivalent value method purposes of section 1234A, none of the Office of Surface Mining Reclamation described in this paragraph (i)(5)(ii). following payments terminate or cancel and Enforcement The amount of the payment is not a right or obligation: a periodic payment redetermined except as provided in described in § 1.446–3(e), a nonperiodic 30 CFR Parts 701, 773, 774, 778, 843 paragraph (g)(6)(iv)(B) of this section. payment described in § 1.446–3(f), a and 847 The deemed equivalent value method contingent nonperiodic payment RIN 1029–AC08 may be applied if the contract fixes the described in § 1.446–3(g)(6) to which timing and amount of all of the § 1.446–3(g)(6)(ii) applies, or mark-to- Ownership and Control Settlement payments under the contract, except for market income inclusions and Rule a sole significant contingent deductions described in § 1.446–3(i)(1). nonperiodic payment. Under the AGENCY: Office of Surface Mining Accordingly, section 1234A does not deemed equivalent value method, the Reclamation and Enforcement, Interior. apply to any of these items, including amount of the significant contingent ACTION: Proposed rule; extension of nonperiodic payment is the amount any final scheduled payment. If a comment period. that, as of the date the terms of the payment made or received pursuant to SUMMARY: We, the Office of Surface contract are fixed, causes the present a notional principal contract is not a Mining Reclamation and Enforcement value of all of the payments by the termination payment as defined in (OSM), are extending the comment taxpayer to equal the present value of all § 1.446–3(h)(1), the payment constitutes period on the proposed Ownership and of the payments of the counterparty to ordinary income or expense. See Control Settlement Rule published on the contract. The present value of each sections 162 and 212 and the December 29, 2003. The comment payment of the contract is determined regulations thereunder. period is being extended in response to by applying the risk-free interest rate. (c) Bullets swaps and forward a request for an extension from members (iii) Nonapplicability to regulated contracts—(1) Any gain or loss arising of the public. investment companies. Paragraphs from the settlement of obligations under DATES: We will accept written (i)(5)(i) and (ii) of this section do not a bullet swap or forward contract apply to a regulated investment comments on the proposed rule until 5 (including a payment pursuant to the p.m., Eastern Time on March 29, 2004. company described in paragraph terms of the obligations) is treated as (i)(2)(iv) of this section that makes an ADDRESSES: You may mail or hand- gain or loss from a termination of the election under paragraph (i) of this deliver comments to the Office of bullet swap or forward contract. section. Surface Mining Reclamation and (6) Election. An election to apply this (2) Definition of bullet swap. A bullet Enforcement, Administrative Record, paragraph (i) must be made with respect swap is a financial instrument that is Room 101, 1951 Constitution Avenue, to all notional principal contracts not an excluded contract as defined in NW., Washington, DC 20240. You may described in paragraph (i)(2) of this § 1.446–3(c)(1)(ii), that provides for the also submit comments electronically to section to which the taxpayer is a party. computation of an amount or amounts OSM at the following Internet address: The election must be made in the time due from one party to another by [email protected]. and manner prescribed by the reference to a specified index upon a FOR FURTHER INFORMATION CONTACT: Earl Commissioner and is effective for the notional principal amount, and that D. Bandy, Jr., Office of Surface Mining taxable year for which made and all provides for settlement of all the parties’ Reclamation and Enforcement, subsequent taxable years, unless obligations at or close to maturity of the Appalachian Regional Coordinating revoked with the consent of the contract. Center, Applicant/Violator System Commissioner. Office, 2679 Regency Road, Lexington, (j) Effective dates—(1) General rule. (d) Effective date. Paragraphs (b)(1) Kentucky 40503. Telephone: (606) 260– Except as provided in paragraph (j)(2) of and (c) of this section are applicable to 8424 or (800) 643–9748. E-Mail: this section, this section is applicable notional principal contracts, bullet [email protected]. for notional principal contracts entered swaps, and forward contracts entered SUPPLEMENTARY INFORMATION: into on or after 30 days after the date a On into on or after December 13, 1993. December 29, 2003 (68 FR 75036), we (2) Exception. Paragraphs (g)(6) (other Treasury decision based on these published a proposed rule for public than (g)(6)(i)) and (i) of this section are proposed regulations is published in the comment. The proposed rule, referred to applicable for notional principal Federal Register. as the Ownership and Control contracts entered into on or after 30 Settlement Rule, would revise certain days after the date a Treasury decision Mark E. Matthews, provisions adopted in our December 19, based on these proposed regulations is Deputy Commissioner for Services and 2000, Ownership and Control final rule published in the Federal Register. Enforcement. Par. 5. Section 1.1234A–1 is added to [FR Doc. 04–4151 Filed 2–25–04; 8:45 am] in order to effectuate a settlement read as follows: agreement we entered into with the BILLING CODE 4830–01–P National Mining Association. § 1.1234A–1 Notional principal contracts, Specifically, the proposed rule would bullet swaps, and forward contracts. revise the provisions in the 2000 final (a) General rule. If a taxpayer has a rule pertaining to the definitions of position in a notional principal contract ownership and control; permit governed by the rules of § 1.446–3, any eligibility determinations eligibility for gain or loss arising from a termination provisionally issued permits; payment as defined in § 1.446–3(h)(1) is improvidently issued permits; treated as gain or loss from a challenges to ownership or control termination of the notional principal listings or findings; post-permit contract. issuance requirements for regulatory
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authorities and other actions based on comments to the Office of Management Please use the rear entrance to the ownership, control, and violation and Budget, Office of Information and building and have photo identification information; providing applicant, Regulatory Affairs, Attention: Interior with you. operator, and ownership and control Desk Officer, via e-mail to These hearings will be open to anyone information; improvidently issued State [email protected], or via who would like to attend and/or testify. permits; and alternative enforcement. facsimile to 202–365–6566. The primary purpose of the public Additional information is contained in See the SUPPLEMENTARY INFORMATION hearing is to obtain your views on the the proposed rule published on section for hearing addresses. proposed rule so that we can prepare a December 29, 2003. FOR FURTHER INFORMATION CONTACT: complete and objective analysis. A The comment period on the proposed David G. Hartos, Office of Surface public hearing is not an adversarial rule was scheduled to close on February Mining Reclamation and Enforcement, process and, therefore, we encourage 27, 2004. In response to a request from U.S. Department of the Interior, 3 you to limit your testimony to the members of the public, we are extending Parkway Center, Pittsburgh, PA 15220; proposed rule. We appreciate any and the public comment period to March 29, Telephone: 412–937–2909. E-mail all comments, but those most useful and 2004. address: [email protected]. Additional likely to influence decisions on the final Dated: February 19, 2004. information concerning this rule and rule will be those that either involve personal experience or include citations Jeffrey D. Jarrett, related documents may be found on our home page on the Internet at http:// to and analyses of the Surface Mining Director, Office of Surface Mining Control and Reclamation Act of 1977, its Reclamation and Enforcement. www.osmre.gov/ocpropos.htm. SUPPLEMENTARY INFORMATION: On legislative history, its implementing [FR Doc. 04–4300 Filed 2–25–04; 8:45 am] regulations, case law, other State or BILLING CODE 4310–05–M January 7, 2004 (69 FR 1036), we published a proposed rule that would Federal laws and regulations, technical minimize the adverse environmental literature, or relevant publications. At the hearing, a court reporter will DEPARTMENT OF THE INTERIOR effects stemming from the construction record and make a written record of the of excess spoil fills associated with coal statements presented. This written Office of Surface Mining Reclamation mining in Appalachia. The proposed record will be made part of the and Enforcement rule would also clarify the administrative record for the rule. If you circumstances in which mining have a written copy of your testimony, 30 CFR Parts 780, 816, and 817 activities, such as the construction of we encourage you to give us a copy. It excess spoil fills, may be allowed within RIN 1029–AC04 will assist the court reporter in the ‘‘stream buffer zone’’ within 100 feet preparing the written record. Please do of a perennial or intermittent stream. Surface Coal Mining and Reclamation not feel intimidated by either the The comment period on the proposed Operations; Excess Spoil; Stream reporter or the formal structure of the rule was scheduled to close on March 8, Buffer Zones; Diversions hearing. Any disabled individual who 2004. We have received six requests to needs special accommodation to attend AGENCY: Office of Surface Mining hold public hearings on the proposed a public hearing is encouraged to Reclamation and Enforcement, Interior. rule from representatives of the contact the person listed under FOR ACTION: Proposed rule; extension of following organizations: Save Our FURTHER INFORMATION CONTACT. comment period and notice of public Cumberland Mountains, Citizens Coal hearings. Council, Kentuckians for the Dated: February 18, 2004. Commonwealth, Mountain Watershed Brent Wahlquist, SUMMARY: We are extending the Association, Inc., Coal River Watch, and Regional Director, Appalachian Regional comment period on our proposed rule Tri-State Citizens Mining Network. We Coordinating Center, Office of Surface Mining commonly referred to as the ‘‘excess are granting their requests for public Reclamation and Enforcement. spoil/stream buffer zone rule.’’ The hearings and are extending the comment [FR Doc. 04–4299 Filed 2–25–04; 8:45 am] comment period is being extended by 30 period on the proposed rule by 30 days BILLING CODE 4310–05–M days in order to afford the public more in order to hold the following five time to comment and to allow enough hearings on the dates and locations time to hold five public hearings. We shown below: POSTAL SERVICE are also notifying the public of the dates 1. March 30, 2004, 6 p.m. to 9 p.m., and locations for five public hearings on Charleston Civic Center, Room 206, 200 39 CFR Part 111 the proposed rule. Civic Center Drive, Charleston, WV. DATES: We will accept written 2. March 30, 2004, 6 p.m. to 9 p.m., Packaging Standards and General comments on the proposed rule until 5 Best Western Parkway Center, 8th Floor Mailability p.m., eastern time, on April 7, 2004. in the Horizon Room, 875 Greentree AGENCY: Postal Service. See the SUPPLEMENTARY INFORMATION Road, Greentree, PA. ACTION: Proposed rule. section for the hearing dates. 3. March 30, 2004, 6 p.m. to 9 p.m., ADDRESSES: You may mail or hand carry Hazard Community College, Hazard SUMMARY: This proposed rule contains comments to the Office of Surface Campus, Jolly Center, Room 208, One minor changes to the Domestic Mail Mining Reclamation and Enforcement, Community College Drive, Hazard, KY. Manual (DMMTM) that would clarify Administrative Record, Room 101, 1951 4. March 30, 2004, 6 p.m. to 9 p.m., packaging and closure requirements, Constitution Avenue, NW., Washington, Roane State Community College, types of acceptable mailing containers, DC 20240, or you may send comments O’Brien Building, Room 101, 276 Patton and standards for certain articles via electronic mail to Lane, Harriman, TN. processed on Postal ServiceTM parcel [email protected]. 5. March 30, 2004, from 2 p.m. to 4 sorting equipment. This proposed rule If you wish to comment on the p.m., Office of Surface Mining, South would also update terminology and information collection aspects of this Interior Auditorium, 1951 Constitution reorganize current standards for better proposed rule, you may submit your Avenue NW., Washington, DC 20240. reference and presentation.
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DATES: Submit comments on or before is at least of 60-pound basis weight or Packaging for Mailing, after all pertinent March 29, 2004. the plastic is at least 2 mils thick and information is transferred to the DMM. ADDRESSES: Mail or deliver comments to snugly secured to the box either with Although exempt from the notice and the Manager, Mailing Standards, Attn: tape or heatshrinking. Proposed DMM comment requirements of the Neil Berger, U.S. Postal Service, 1735 N. C010.3.4 would increase the minimum Administrative Procedure Act [5 U.S.C. Lynn Street, Room 3025, Arlington, VA thickness specification (mil) for plastic 553(b), (c)] regarding proposed 22209–6038. Written comments may film used as the mailing container from rulemaking by 39 U.S.C. 410(a), the also be submitted by facsimile 3⁄4 mil for easy loads and 11⁄4 mils for Postal Service invites public comment transmission to (703) 292–4058. Copies average loads to a minimum thickness on the following proposed revisions to of all written comments will be of 2 mils for either easy or average the Domestic Mail Manual, incorporated available for inspection and loads. This proposed change to a in the Code of Federal Regulations. See photocopying between 9 a.m. and 4 heavier film would be consistent with 39 CFR 111.1. the current standards for plastic mailing p.m., Monday through Friday, at the List of Subjects in 39 CFR Part 111 Postal Service Headquarters Library, bags in proposed DMM C010.3.3. This 11th Floor North, 475 L’Enfant Plaza, proposed change would also ensure that Postal Service. SW., Washington, DC. mailpieces using plastic film solely as the mailing container would maintain PART 111—[AMENDED] FOR FURTHER INFORMATION CONTACT: Neil their integrity throughout transit, Berger at (703) 292–3645, Mailing 1. The authority citation for 39 CFR processing, and delivery. part 111 continues to read as follows: Standards, U.S. Postal Service. Part C010.4.0. This part would SUPPLEMENTARY INFORMATION: When the contain the standards for special Authority: 5 U.S.C. 552(a); 39 U.S.C. 101, general mailability standards from 401, 403, 404, 414, 416, 3001–3011, 3201– mailing envelopes currently in DMM 3219, 3403–3406, 3621, 3626, 5001. Domestic Mail Manual (DMM) Issue 45 C010.6.0. were consolidated and republished as Part C010.5.0. This part would 2. Amend the following sections of part C010 in DMM Issue 46 on July 1, include examples and the standards for the Domestic Mail Manual (DMM) as set 1993, most of the same standards on cushioning material currently in DMM forth below: packing, closing, and sealing mailable C010.4.0. Domestic Mail Manual (DMM) articles were also transferred to Postal Part C010.6.0. This part would Service Publication 2, Packaging for contain the standards for closing, * * * * * Mailing. In the intervening 10 years, the sealing, and reinforcing parcels C Characteristics and Content Postal Service has made relatively few currently in DMM C010.5.0. Proposed editorial or substantive changes to the changes would clarify that duct tape C000 General Information current mailing standards and would not be acceptable for closing or C010 General Mailability Standards information in either DMM C010 or in reinforcing parcels. This part would * * * * * Publication 2. include additional information on the With the growing awareness in various types of permissible tapes. This 2.0 PACKAGING effective package preparation, especially part would also expressly prohibit the [Revise heading of 2.1 to read as for parcels, the Postal Service believes use of twine or cord for closure and follows:] that it is important to reexamine these reinforcement. mailing standards, update them where Part C010.8.0. This part would be 2.1 Preparation Adequacy appropriate, and present them in a more extensively amended and reorganized to [Revise 2.1 to read as follows:] logical sequence. clarify packaging standards and to Letters, flats, and parcels presented Throughout this document and the separate the mailpiece weight categories for mailing must be prepared under the relevant DMM sections, the term for various types of articles weighing 35 general and specific standards in the ‘‘package’’ is used to mean a parcel, and pounds and under from those weighing Domestic Mail Manual. Parcels must be is not to be confused with the same term more than 35 pounds. This proposed able to withstand normal transit and used in conjunction with mail change would reflect the current handling without breakage, injury to preparation and presort destination separation between machinable and USPS employees, or damage to other packages of letter-size and flat-size nonmachinable parcels based on the 35- mail. In addition to the standards in 1.0, mailpieces. pound threshold. Books, printed matter, parcels must have an address side with The following listing represents the and business forms do have a 25-pound enough surface area to accommodate major proposed changes: weight limit for machinability as completely the delivery address, return Part C010.2.0. This part would be specified in DMM C700.2.0. Under address, postage, markings, slightly reorganized, with additional DMM C010.8.5 for magnetic tapes, the endorsements, and any barcode and proposed packaging standards included minimum thickness for plastic film special service markings. Separate and about certain items such as liquids, wraps for individual tapes would be additional standards can apply to high-density items, and hazardous changed from 0.00075 mil to 3⁄4 mil, and overseas military mail and international materials that require special packaging the fiberboard and chipboard minimum mail. Mailers can evaluate the adequacy and markings. specifications of 0.022 mil (also of their packaging for parcels by using Part C010.3.0. This part would be designated as 22 points) would be Test Procedure 1A developed by the slightly reorganized, with additional changed to 125-pound test fiberboard or International Safe Transit Association proposed packaging standards for boxes equivalent. (ISTA) (see G043 for address). and changes to the minimum thickness M041.5.6. This section would be of heat-shrinkable plastic film amended to specify that high-density 2.2 Acceptability (shrinkwrap) acceptable for easy and parcels weighing 25 to 35 pounds would [Revise 2.2 by adding 2.9 as the average loads of up to 5 pounds. not be permitted on pallets containing second sentence then revising to read as Proposed DMM C010.3.1d would restore machinable parcels. follows:] the use of paper or plastic wrappers as USPS Publication 2. This proposed No mailpiece may be prepared or an outside cover for a box if the paper rule would eliminate Publication 2, packed so that its contents or physical
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construction could harm employees or c. High-Density Items. These items are a. Box material: damage equipment or other mail. solid objects other than books (or [Revise 3.1a(1) by changing ‘‘up to 10 Perishable items must be packed to similar publications) whose weight is pounds’’ to ‘‘up to 5 pounds’’ in first prevent deterioration or degradation. comparatively high for their volume sentence and ‘‘up to 20 pounds’’ to ‘‘up Fragile items must be packed to (e.g., tools, hardware, and machine and to 10 pounds’’ in the second sentence to withstand mail processing and auto parts). High-density items weighing read as follows:] transportation. Heavy items must be more than 15 pounds must be packed so (1) Paperboard boxes (e.g., suitbox) braced and cushioned to prevent that the contents do not exert more than may be used for easy and average loads damage to other mail. State and federal 60 pounds per square foot (0.4167 up to 5 pounds if the contents and any regulations can also affect the pound per square inch) on the smallest cushioning material fill the boxes mailability of mailpieces containing side of the mailing container. completely. Metal-stayed paperboard items such as hazardous, biological, and d. Perishable, Hazardous, or boxes may be used for easy and average restricted materials (see C020). The Restricted Items. These items must be loads up to 10 pounds. USPS accepts only properly prepared packed and marked under C022, C023, (2) Solid and corrugated fiberboard and marked letters, flats, and parcels or C024, respectively. boxes may be used for all load types as and reserves the right to refuse [Redesignate current 2.8 as new 2.4.] shown in Exhibit 3.1, unless otherwise nonmailable matter under 10.0 or any 2.4 Load Type specified. The first maximum reached improperly prepared or packed article whether combined length and girth or [Revise new 2.4 to read as follows:] weight, determines the box grade or substance. The following three terms describe [Revise title of 2.3 to read as follows:] required. The box grade (bursting types of loads, based on content, degree strength) is printed within the 2.3 Special Items of protection, and strength of the boxmaker’s certificate on the box and package or mailing container: shows other specifications such as size [Revise 2.3 by combining with current a. An easy load contains items of and gross weight limits. 2.4, 2.5, 2.6, and 2.7 to read as follows:] moderate density that completely fill The following items require special (3) Wood, metal, or plastic boxes may the mailing container, or are packed be used for all types of loads, assuming attention in packaging: with sufficient surrounding cushioning a. Stationery. Stationery-type items adequate construction. See 8.0 for USPS materials that completely fill the parcel sorting system standards. measuring more than 1 inch thick or mailing container or are packed in weighing more than 1 pound are not interior containers that completely fill Exhibit 3.1 Fiberboard Boxes accepted in flat nongussetted envelopes. the outer mailing container. This load [Add new Exhibit 3.1 to read as The contents must be unitized within type is not easily damaged by shock, follows:] the envelope or mailing container by compression, or puncture, and does not tying, banding, or using partitions on shift within the mailing container or Maximum weight of close-fitting interior containers to present a hazard to other parcels. box and content Maximum prevent shifting, damage to the contents, b. An average load contains (pounds) length Box and breakage to the envelope or mailing moderately concentrated items packed Easy or and girth grade container. directly into a mailing container or are average Difficult (inches) b. Liquids. Mailpieces containing subjected to an intermediate stage of load load liquids must meet these additional packing providing partial support to all standards: surfaces of the mailing container. This 20 N/A 67 125 (1) Containers with only friction-top load type can be prepacked by nesting 40 20 100 175 closures (push-down types) are not 65 45 108 200 items within partitions or in separate 70 65 108 275 acceptable. Screw-on caps, soldering, paperboard boxes to stabilize items and N/A 70 108 350 clips, or other means must be used for prevent shifting and damage. N/A 70 130 350 closure. c. A difficult load contains items that (2) Glass and other breakable require a high degree of protection to b. The size of the box must be containers of liquid with a capacity of prevent shock, puncture, or distortion to sufficiently adequate to contain the more than 4 fluid ounces must be the items or the mailing container. items and provide enough space for cushioned, with material sufficient to Fragile items, delicate instruments, and cushioning material. See 5.0. absorb any leakage in case of breakage, high-density, small-bulky items that do c. Used boxes in good, rigid inside a sealed, leakproof container. not support the mailing container are condition, with all flaps intact, are Containers of liquid with a capacity of not acceptable in paperboard boxes, acceptable if all obsolete labels and more than 32 fluid ounces must also be bags, or wraps. markings (from previous mailings or packed within another sealed, leakproof [Delete 2.9.] other uses) are entirely removed or container such as a can or sealable [Revise heading of 3.0 to read as completely obliterated. plastic bag. The outer mailing container follows:] d. A paper wrapper such as kraft must be strong enough to protect the 3.0 MAILING CONTAINERS— paper may be used as an outside cover contents and must be marked to indicate PARCELS for a box if the paper is at least of 60- the liquid nature of the contents. The pound basis weight and snugly secured marking ‘‘LIQUID’’ with orientation 3.1 Boxes to the box. A plastic cover may also be markings (i.e., up arrows) indicating the [Revise 3.1 by combining current 3.1a, used as an outside cover if the plastic upright position of the mailing 3.1b, 3.1c, and 3.1d into new 3.1a; by is at least 2 mils thick and snugly container may be used. redesignating current 3.1e and 3.1f as secured to the box by shrinkwrapping or (3) Steel pails and drums with 3.1b and 3.1c respectively; by adding heatshrinking. carrying handles and positive closures, new 3.1d; and by redesignating current e. Except for parcels prepared for such as locking rings or recessed spouts 3.1g as 3.1e to read as follows:] destination delivery unit entry (e.g., under screw-cap closures, may be Boxes are acceptable, subject to these Parcel Select-DDU), boxes with accepted without additional packaging. standards: difficult loads must be reinforced with
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banding about every 8 inches in each equal the strength of the basic material. for tubes less than 18 inches long, 3⁄32 direction around the package. Adhesive address labels or adhesive inch thick for tubes 18 to 32 inches [Delete 3.2 and redesignate current postage may not be affixed to cloth long, and 5⁄32 inch thick for tubes more 3.3 through 3.10 as new 3.2 through 3.9, sacks. than 32 inches long. respectively.] 3.6 Bales c. Crimped or taped end closures are [Revise title and text of new 3.2 to not acceptable for other than lightweight read as follows:] [Revise new 3.6 by changing ‘‘within rolled items. Tape must completely postal weight limits’’ to ‘‘only for easy 3.2 Paper Mailing Bags and Wraps encircle all seams when friction slide and average loads of up to 70 pounds’’ closures (end caps) are used. Paper mailing bags and wraps are to read as follows:] acceptable as mailing containers only Bales are acceptable only for easy and 3.9 Cans and Drums for easy and average loads (see 2.4) of average loads of up to 70 pounds, if [Revise 3.9 to read as follows:] up to 20 pounds and only if the contents adequately compressed and reinforced Cans and drums with positive are compressed and stabilized as much to contain the material. closures (e.g., clips) are acceptable. as possible. Paper bags and wraps are 3.7 Envelopes Friction closures alone are not used according to these weight acceptable. Protruding devices, such as [Revise new 3.7 to read as follows:] categories: locking rings, must be shielded by Envelopes used as mailing containers a. For easy loads of up to 5 pounds, padding to prevent injury to USPS must be able to be processed and paper bags and wraps must be at least employees, and damage to equipment, delivered without damage to the of a 50-pound basis weight (the strength or other mail. of an average large grocery bag) and the contents or other mail. Envelopes made of extra-strength materials are necessary [Redesignate current 4.0 as new 5.0, contents must be immune from impact current 5.0 as new 6.0, and current 6.0 or pressure damage. A combination of for items intended for processing on USPS parcel sorting equipment. as new 4.0, and revise heading to read plies (double bagging) adding up to or as follows:] exceeding a 50-pound basis weight is Envelopes are acceptable only for easy not acceptable. loads of up to 5 pounds. Envelopes may 4.0 MAILING CONTAINERS— b. For easy and average loads of up to be used for odd-shaped items, if the SPECIAL ENVELOPES mailpiece meets the standards for that 20 pounds, paper bags must be * * * * * reinforced or at least of a 70-pound basis class of mail. Envelopes must be weight. Nonreinforced loose-fill padded prepared according to these weight 5.0 CUSHIONING limits: bags are not acceptable as mailing [Redesignate current 4.1 and 4.2 as containers, unless the exterior ply is at a. Up to 1 pound, flat nongusseted envelopes are acceptable for nonrigid new 5.2 and 5.3, respectively; add new least of a 60-pound basis weight. 5.1 to read as follows:] [Revise title and text of new 3.3 to stationery and similar material for read as follows:] mailpieces weighing no more than 1 5.1 Acceptable Material pound and measuring no more than 1 Acceptable cushioning material 3.3 Plastic Mailing Bags inch thick. includes bubble wrap, corrugated Bags of polyethylene or equivalent b. Up to 5 pounds, larger or heavier fiberboard, foamed plastics, and loose- plastic material must be securely sealed envelopes are acceptable for mailpieces fill material such as excelsior, and are acceptable only for easy loads weighing more than 1 pound or polystyrene, and shredded paper. (see 2.4) of up to 10 pounds as follows: measuring more than 1 inch thick. The Combinations of several types of a. Up to 5 pounds, the plastic must be envelopes must be made either from cushioning (such as corrugated at least 2 mils thick. paper equivalent to 28-pound basis b. More than 5 pounds and up to 10 weight or greater, or from extra-strength fiberboard pads and less dense, loose- pounds, the plastic must be at least 4 materials with a Mullen strength of fill material) are also acceptable and mils thick. more than 90 pounds per square inch. help dissipate shock and pressure. Envelopes for photographic film or 3.4 Plastic Film 5.2 Volume gusseted (three dimensional) envelopes [Revise new 3.4 by changing the are acceptable if made from paper [Revise new 5.2 to read as follows:] required thickness for all permitted load equivalent to 24-pound basis weight or Loose-fill cushioning must overfill the types to at least 2 mils to read as greater. mailing container before closure to hold follows:] [Revise heading of new 3.8 to read as the item and prevent its movement to an Heat-shrinkable plastic film (e.g., follows:] inside surface of the container or to irradiated polyethylene, linear low- other items in the package. Shock and density polyolefin, or copolymer) is 3.8 Fiberboard Tubes and Similar pressure forces must be dissipated over acceptable solely as a mailing container Long Containers as much of the surface of the item as only for easy and average loads of up to [Revise new 3.8 by reorganizing text to possible. 5 pounds. The film must be at least 2 read as follows:] 5.3 Several Items Within Container mils thick. When requested, mailers Fiberboard tubes and similar lengthy must provide documentation that this containers are acceptable if they meet [Revise new 5.3 to read as follows:] film is being used for mailing. these requirements: When several items are inside a single a. The length must not exceed 10 mailing container, they must be 3.5 Cloth Bags times the girth. protected from each other as well as [Revise the first sentence and add a b. The strength of the tube ends must from external forces. Concentrated new second sentence to 3.5 to read as be at least equal to the tube sidewall heavy items must not be packed with follows:] strength, unless the contents are fragile items unless extreme care is Cloth bags are acceptable only for lightweight, rolled items (e.g., posters, exercised to separate them from each easy and average loads of up to 10 charts). Sidewall strength is always other. Heavy items must be adequately pounds. All seams of the bags must equal to solid fiberboard 1⁄16 inch thick stabilized.
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6.0 CLOSURE, SEALING, AND ¥20 degrees to +160 degrees otherwise stabilized to prevent shifting, REINFORCEMENT Fahrenheit. Hot-melt adhesive may be damage to the contents, and breakage to [Revise and redesignate current 5.1, used if at least four strips are applied on the envelope or other mailing container. 5.2, and 5.3 as new 6.2; add new 6.1 to each part of the box flap where the outer Books and publications must be packed, read as follows:] flap overlays the inner flap; each strip closed, and sealed according to these is 3⁄16 inch wide after compression; the weight categories: 6.1 General strips are not more than 11⁄2 inches a. Up to 5 pounds, in close-fitting Standards for closing, sealing, and apart, with the first strip no more than paperboard or fiberboard boxes, padded reinforcing the outside of a mailing 1⁄2 inch from the center seam; and all or reinforced bags (exterior ply of at container depend on the load type (see strips are the full width of the inner least 60-pound basis weight), or wraps 2.4) and the accetable material. Fragile flap, unless hot-melt adhesive is applied (corrugated or at least 60-pound basis items must be packed to withstand to 25% of the area where the outer flap weight paper). Closure must be with processing and transportation. The main lies over the inner flap. multiple friction closures, completely clinched staples, heat-sealing, materials for closing, sealing, and 6.4 Banding reinforcing mailing containers are adhesives, tape, or banding. Although adhesives, nonmetallic bandings [Revise new 6.4 to read as follows:] shrinkwrap is not acceptable as the sole (strappings), staples and steel stitching, When banding is used for closure and packaging for hardback books exceeding and tapes (gummed and pressure- reinforcement, it must snugly encircle 1 pound or 1 inch thick, shrinkwrap sensitive). Friction closures, screw caps, the length and girth of the package at may be used on the exterior of otherwise and locking devices are used to close least once and be firmly applied to the acceptable mailing containers. and seal cans and similar containers. point that the straps tighten until they Shrinkwrap at least 2 mils thick may be depress the box at the edges. Twine, used as the sole method of packaging for 6.2 Tapes cord, metal strapping (banding), and paperback books up to 3 pounds. [Revise new 6.2 to read as follows:] loose strapping may not be used for b. From 5 to 10 pounds, in 175-pound Cellophane tape, masking tape, and closure and reinforcement. test fiberboard boxes or equivalent containers. Closure must be with tape, duct tape may not be used for closure 6.5 Staples and Steel Stitching or reinforcement of packages but may be banding, or adhesives. Reinforced tape used to improve adhesive closures on [Revise 6.5 to read as follows:] or firmly applied banding is adequate Staples and steel stitching are for closure and reinforcement. envelope flaps or to cover staples on 1 mailing bags. Tape that may be used for acceptable if placed not more than 1 ⁄4 c. From 10 to 25 pounds, in 200- closure or reinforcement must meet inches from the ends of the box, and pound test fiberboard boxes or these standards: spaced not more than 5 inches apart for equivalent containers. Closure must be a. Gummed paper (kraft) tape must easy and average loads, and not more with tape, banding, or adhesives. 1 meet these standards: than 2 ⁄2 inches apart for difficult loads. Reinforced tape or firmly applied (1) Reinforced tape is acceptable for Boxes not meeting these requirements banding is adequate for closure and closing and reinforcing regular mailing may be made acceptable by applying a reinforcement. containers, irregular-shaped parcels, strip of 3-inch-wide reinforced tape in d. From 25 to 50 pounds, hardbound and soft-wrapped parcels. the gap between the staples or by publications in 275-pound test (2) Nonreinforced tape is acceptable strapping to compensate for the gap in fiberboard boxes or equivalent only for closing mailing containers if the the staple closure. Improperly clinched containers, and paperback publications tape is at least of a 60-pound basis staples used with reply (double) cards, in 200-pound test fiberboard boxes or weight kraft. envelopes, flats, or mailing bags are not equivalent containers. Closure must be (3) The adhesive on gummed tape acceptable. with tape, banding, or adhesives. must be adequately activated before * * * * * Reinforced tape or firmly applied application and firmly applied with the [Revise heading of 8.0 to read as banding is adequate for closure and tape extending at least 3 inches over the follows:] reinforcement. adjoining side of the box. Gummed tape e. From 50 to 70 pounds, hardbound 8.0 PARCEL SORTING SYSTEMS is applied correctly if it remains books in 350-pound test fiberboard STANDARDS attached to the mailing container during boxes or equivalent containers, and handling and transportation and if its [Revise heading of 8.1 to read as paperback books in 275-pound test removal causes delamination or at least follows:] fiberboard boxes or equivalent containers. Closure must be with tape, a 50% fiber tear on the surface to which 8.1 Books and Printed Material the tape is applied. banding, or adhesives. Reinforced tape b. Pressure-sensitive tape is [Revise 8.1 to read as follows:] or firmly applied banding is adequate acceptable for closing and reinforcing For packaging purposes only, these for closure and reinforcement. standards include books and printed mailing containers. Except for pressure- 8.2 High-Density Items sensitive filament tape, tape used for material such as magazines, catalogs, closure and reinforcement may not be and directories with 24 pages or more, [Revise 8.2 to read as follows:] less than 2 inches wide. Nonreinforced fastened (bound) along one edge High-density items (see 2.3) must be plastic tape must be at least as strong in between hardback, paperback, or self- packed in fiberboard boxes constructed the cross direction (width) as in the covers. Books or printed material of a minimum specified test board or in machine direction (length) of the tape. measuring more than 1 inch thick or containers of equivalent strength [Redesignate current 5.4, 5.5, and 5.6 weighing more than 1 pound are not constructed of wood, metal, or plastic. as new 6.3, 6.4, and 6.5, respectively.] acceptable in flat nongusseted Plastic, metal, and similar hard envelopes. Other envelopes meeting the containers must be treated or otherwise 6.3 Adhesive standards in 3.7 must be used. Empty prepared so that their coefficient of [Revise new 6.3 to read as follows:] spaces within envelopes or other friction or ability to slide on a smooth, Adhesives for closure on box flaps or mailing containers must be filled with hard surface is similar to that of a on tapes must remain serviceable from acceptable cushioning material or domestic-class fiberboard box of the
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same approximate size and weight. polyethylene or equivalent), or banding is adequate for reinforcement. Boxes without inner packing or paperboard or fiberboard box. Reinforcement must be placed about containing loose material must be b. From 5 to 10 pounds, cloth bag, every 8 inches around the container. reinforced with reinforced paper or paper bag, filament-reinforced paper 8.5 Magnetic Tapes plastic tape, pressure-sensitive filament bag, paper wraps (with an exterior ply tape, or banding tightened until the of at least 70-pound basis weight), [Revise 8.5 to read as follows:] straps depress the carton at the edges. plastic bag (at least 4 mils thick A single tape or cartridge (e.g., audio Internal blocking and bracing, including polyethylene or equivalent), or or video) may be packed in plastic film the use of interior containers, cut forms, paperboard or fiberboard box. wrap (at least 0.75 mil thick) or in partitions, cushioning material, and c. From 10 to 20 pounds, paper bag, cushioned bags, or cushioned and liners, must be used as required so that paper wraps (with an exterior ply of at packed in paper bags with a 60-pound packages maintain their integrity least 70-pound basis weight), reinforced minimum basis weight. Shrinkwrapping without damage to the contents if paper bag, or 175-pound test fiberboard is acceptable on the exterior of dropped once on one of their smallest box or equivalent container otherwise acceptable boxes of multiple sides on a solid surface from a height of d. From 20 to 35 pounds, 200-pound tape shipments. Shipments of multiple 3 feet. High-density items must be test fiberboard box or equivalent magnetic tapes and cartridges must be packed, closed, and sealed according to container. Closure must be with staples, packed and sealed according to these these weight categories: heat-shrinking, adhesives, or tape. weight categories: a. Up to 20 pounds, 200-pound test Pressure-sensitive filament tape or a. Up to 5 pounds, in 125-pound test fiberboard boxes or equivalent banding is adequate for reinforcement. fiberboard boxes or equivalent containers. Closure must be with e. From 35 to 70 pounds, 275-pound containers. Closure must be with staples, heat-shrinking, adhesives, or test fiberboard box or equivalent multiple friction closures, completely tape. Reinforced tape, pressure-sensitive container. Closure must be with staples, clinched staples, heat-shrinking or filament tape, or banding is adequate for heat-shrinking, adhesives, or tape. adhesives, or tape. Paper tape must be reinforcement. Pressure-sensitive filament tape or at least 60-pound basis weight kraft. b. From 20 to 35 pounds, 200-pound banding is adequate for reinforcement. b. From 5 to 20 pounds, in 125-pound test fiberboard boxes or equivalent [Revise heading of 8.4 to read as test fiberboard boxes or equivalent containers. Closure must be with follows:] containers. Closure must be with staples, heat-shrinking, adhesives, or 8.4 Records and Compact Discs adhesives, kraft paper tape, equivalent tape. Pressure-sensitive filament tape or plastic tape, or staples. banding is adequate for reinforcement. [Revise 8.4 to read as follows:] c. From 35 to 70 pounds, 275-pound Audio and video records and compact c. From 20 to 35 pounds, in 175- test fiberboard boxes or equivalent discs, (and paper sleeves, paperboard or pound test fiberboard boxes or containers. Closure must be with chipboard shells, or plastic cases) must equivalent containers that are banded or staples, heat-shrinking, adhesives, or be packed, closed, and sealed according reinforced at two points with reinforced tape. Pressure-sensitive filament tape or to these weight categories: paper or plastic tape, pressure-sensitive banding is adequate for reinforcement. a. Up to 10 pounds, individual or filament tape, or firmly applied multiple shell in 70-pound basis weight banding. Closure and reinforcement 8.3 Soft Goods envelopes for shipments up to 3 must be with adhesives, kraft paper [Revise 8.3 to read as follows:] pounds, or outer corrugated, fiberboard tape, equivalent plastic tape, or staples. Soft goods include clothing and any containers for shipments up to 10 d. From 35 to 70 pounds, in 200- textile items such as sheets, blankets, pounds. Closure and reinforcement pound test fiberboard boxes or pillows, draperies, and cloth. Soft goods must be with adhesives, kraft paper equivalent containers (for shipments may be packed in mailing bags or boxes. tape, equivalent plastic tape, or staples. weighing 35 to 65 pounds) or in 275- Soft goods intended for processing on b. From 10 to 20 pounds, multiple pound test fiberboard boxes or USPS parcel sorting equipement must shell containers in 125-pound test equivalent containers (for shipments be in mailing containers made of extra- fiberboard boxes or equivalent weighing more than 65 pounds). Closure strength materials to ensure container containers. Closure must be with and reinforcement must be with integrity throughout processing. Closure adhesives, kraft paper tape, equivalent adhesives, kraft paper tape, equivalent of bags must be with completely plastic tape, or staples. Reinforced tape, plastic tape, or staples. Reinforcement clinched staples, heat-sealing, pressure-sensitive filament tape, or must be placed about every 8 inches adhesives, stitching, or tape. Paper bags, banding is adequate for reinforcement. around the container. plastic bags, or wraps must be secured Reinforced tape is adequate for closure * * * * * to allow compression and prevent and reinforcement. bursting during processing and c. From 20 to 35 pounds, multiple C020 Restricted or Nonmailable transportation. Closure of boxes and shell containers in 175-pound test Articles and Substances similar mailing containers must be with fiberboard boxes or equivalent * * * * * staples, adhesive, heat sealing, banding, containers. Closure and reinforcement C022 Perishables reinforced tape, or pressure-sensitive must be with adhesives, kraft paper tape. Reinforced tape is adequate to tape, equivalent plastic tape, or staples. * * * * * d. From 35 to 70 pounds, multiple close and reinforce bags and boxes. 3.0 LIVE ANIMALS Shrinkwrapping is not acceptable as the shell containers in 200-pound test only packaging. Soft goods must be fiberboard boxes or equivalent * * * * * packed, closed, and sealed according to containers (for shipments weighing 35 3.5 Adult Chickens these weight categories: to 65 pounds) or in 275-pound test a. Up to 5 pounds, cloth bag, paper fiberboard boxes or equivalent [Change in second sentence ‘‘(detailed bag, paper wraps (with an exterior ply containers (for shipments weighing in Publication 2, Packaging for of at least 50-pound basis weight), more than 65 pounds). Reinforced tape, Mailing)’’ to ‘‘(see G043 for address).’’] plastic bag (at least 2 mils thick pressure-sensitive filament tape, or * * * * *
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G General Information submitted by the State of Michigan on SUPPLEMENTARY INFORMATION: G000 The USPS and Mailing April 3, 2003. The submittal made by Throughout this document, the term Standards the Michigan Department of ‘‘you’’ refers to the reader of this rule Environmental Quality (MDEQ) and/or to sources subject to the State * * * * * responds to the EPA’s regulation rule, and the terms ‘‘we’’, ‘‘us’’, or ‘‘our’’ G040 Information Resources entitled, ‘‘Finding of Significant refer to EPA. Contribution and Rulemaking for On April 3, 2003, MDEQ submitted a * * * * * Certain States in the Ozone Transport NOX emission control plan to the EPA G043 Address List for Correspondence Assessment Group Region for Purposes for inclusion in Michigan’s SIP to meet of Reducing Regional Transport of the requirements of the Phase I NOX SIP * * * * * Ozone,’’ otherwise known as the ‘‘NOX Call. The revisions generally comply OTHER SIP Call.’’ The rules submitted by with the requirements of the Phase I MDEQ establish and require nitrogen NOX SIP Call. Included in this * * * * * oxides (NO ) emissions reductions document are Michigan Rules 802 [Add address to read as follows:] X through an allowance trading program through 817. The information in this International Safe Transit Association, for large electric generating and proposed conditional approval is 1400 Abbott Rd Ste 160, East Lansing industrial units, and reductions from organized as follows: MI 48823–1900, http://www.ista.org. cement kilns, beginning in 2004. The I. General Information * * * * * intended effect of the regulations II. Background M Mail Preparation and Sortation submitted by MDEQ is to reduce A. What is EPA proposing today? emissions of NOX in order to help attain B. What are the NOX SIP Call general M000 General Preparation Standards the national ambient air quality requirements? C. What is EPA’s NO budget and * * * * * standard for ozone. We are proposing to X conditionally approve Michigan’s allowance trading program? M040 Pallets D. EPA’s Section 126 Rule in Michigan. Oxides of Nitrogen Budget Trading E. What guidance did EPA use to evaluate M041 General Standards Program because it generally meets the Michigan’s submittal? requirements of the Phase I NO SIP * * * * * X F. What is the result of EPA’s evaluation Call that will significantly reduce ozone of Michigan’s program? 5.0 PREPARATION in Michigan and ozone transport in the G. NOX Allowance Allocations H. NOX Budget Permits * * * * * eastern United States. We deemed the submittal as administratively and I. What deficiencies must be addressed by 5.6 Mail on Pallets technically complete in a letter of MDEQ? J. What happens if MDEQ fails to address These standards apply to mail on completeness sent to MDEQ on April these deficiencies? 24, 2003. pallets: III. Michigan’s Control of NOX Emissions * * * * * DATES: We must receive written A. When did Michigan submit the SIP [Add new 5.6j to read as follows:] comments on or before March 29, 2004. revision to EPA in response to the NOX SIP Call? j. High-density parcels (see C010) ADDRESSES: You should send written B. When did Michigan hold public weighing 25 to 35 pounds must not be comments to: J. Elmer Bortzer, Acting hearings and what were the results? placed on the same pallet with Chief, Air Programs Branch (AR–18J), C. What is included in Michigan’s NOX SIP machinable parcels. U.S. Environmental Protection Agency, Call Revision? * * * * * Region 5, 77 West Jackson Boulevard, D. What is the Compliance Supplement We will publish an appropriate Chicago, Illinois 60604. Pool? amendment to 39 CFR 111 to reflect You may inspect copies of the State E. How does Michigan’s NOX SIP affect sources subject to EPA’s Section 126 these changes if the proposal is adopted. submittal and EPA’s analysis of it at: Rule in the SIP Call Area? Neva R. Watson, Criteria Pollutant Section, Air IV. EPA’s Proposal Programs Branch (AR–18J), U.S. V. Statutory and Executive Order Reviews Attorney. Environmental Protection Agency, [FR Doc. 04–4212 Filed 2–25–04; 8:45 am] Region 5, 77 West Jackson Boulevard, I. General Information BILLING CODE 7710–12–P Chicago, Illinois 60604. (Please contact A. How Can I Get Copies Of This Douglas Aburano at (312) 353–6960 or Document and Other Related [email protected] before Information? ENVIRONMENTAL PROTECTION visiting the Region 5 Office. AGENCY 1. We have established an official Comments may also be submitted public rulemaking file available for electronically or through hand delivery/ 40 CFR Part 52 inspection at the Regional Office. EPA courier; please follow the detailed has established an official public [MI84–01; FRL–7627–1] instructions described in Part(I)(B)(1)(i) rulemaking file for this action under through (iii) of the Supplementary ‘‘Region 5 Air Docket MI84’’. The Approval and Promulgation of Information section. Implementation Plans: Michigan: official public file consists of the FOR FURTHER INFORMATION CONTACT: Oxides of Nitrogen Rules documents specifically referenced in Douglas Aburano, Environmental this action, any public comments AGENCY: Environmental Protection Engineer, Criteria Pollutant Section received, and other information related Agency (EPA). (AR–18J), Air Programs Branch, Air and to this action. Although a part of the ACTION: Proposed rule. Radiation Division, United States official docket, the public rulemaking Environmental Protection Agency, file does not include Confidential SUMMARY: EPA is proposing to Region 5, 77 West Jackson Boulevard, Business Information (CBI) or other conditionally approve a State Chicago, Illinois 60604, (312) 353–6960, information whose disclosure is Implementation Plan (SIP) revision [email protected]. restricted by statute. The official public
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rulemaking file is the collection of or CD ROM you submit, and in any 3. By Hand Delivery or Courier. materials that is available for public cover letter accompanying the disk or Deliver your comments to: J. Elmer viewing at the Air Programs Branch, Air CD ROM. This ensures that you can be Bortzer, Acting Chief, Air Programs and Radiation Division, EPA Region 5, identified as the submitter of the Branch, (AR–18J), U.S. Environmental 77 West Jackson Boulevard, Chicago, comment and allows EPA to contact you Protection Agency, Region 5, 77 West Illinois 60604. EPA requests that if at all in case EPA cannot read your comment Jackson Boulevard, 18th floor, Chicago, possible, you contact the person listed due to technical difficulties or needs Illinois 60604. Such deliveries are only in the FOR FURTHER INFORMATION further information on the substance of accepted during the Regional Office’s CONTACT section to schedule your your comment. EPA’s policy is that EPA normal hours of operation. The Regional inspection. The Regional Office’s will not edit your comment, and any Office’s official hours of business are official hours of business are Monday identifying or contact information Monday through Friday, 8:30 to 4:30 through Friday, 8:30 to 4:30, excluding provided in the body of a comment will excluding federal holidays. Federal holidays. be included as part of the comment that 2. Electronic Access. You may access is placed in the official public docket. C. How Should I Submit CBI To the this Federal Register document If EPA cannot read your comment due Agency? electronically through the to technical difficulties and cannot Do not submit information that you Regulations.gov Web site located at contact you for clarification, EPA may consider to be CBI electronically to EPA. http://www.regulations.gov where you not be able to consider your comment. You may claim information that you can find, review, and submit comments i. E-mail. Comments may be sent by submit to EPA as CBI by marking any on federal rules that have been electronic mail (e-mail) to part or all of that information as CBI (if published in the Federal Register, the [email protected]. Please include the you submit CBI on disk or CD ROM, Government’s legal newspaper, and are text ‘‘Public comment on proposed mark the outside of the disk or CD ROM open for comment. rulemaking Region 5 Air Docket MI84’’ as CBI and then identify electronically For public commenters, it is in the subject line. EPA’s e-mail system within the disk or CD ROM the specific important to note that EPA’s policy is is not an ‘‘anonymous access’’ system. If information that is CBI). Information so that public comments, whether you send an e-mail comment directly marked will not be disclosed except in submitted electronically or in paper, without going through Regulations.gov, accordance with procedures set forth in will be made available for public EPA’s e-mail system automatically 40 CFR part 2. viewing at the EPA Regional Office, as captures your e-mail address. E-mail In addition to one complete version of EPA receives them and without change, addresses that are automatically the comment that includes any unless the comment contains captured by EPA’s e-mail system are information claimed as CBI, a copy of copyrighted material, CBI, or other included as part of the comment that is the comment that does not contain the information whose disclosure is placed in the official public docket. information claimed as CBI must be restricted by statute. When EPA ii. Regulations.gov. Your use of submitted for inclusion in the official identifies a comment containing Regulations.gov is an alternative method public regional rulemaking file. If you copyrighted material, EPA will provide of submitting electronic comments to submit the copy that does not contain a reference to that material in the EPA. Go directly to Regulations.gov at CBI on disk or CD ROM, mark the version of the comment that is placed in http://www.regulations.gov, then click outside of the disk or CD ROM clearly the official public rulemaking file. The on the button ‘‘TO SEARCH FOR that it does not contain CBI. Information entire printed comment, including the REGULATIONS CLICK HERE’’, and not marked as CBI will be included in copyrighted material, will be available select Environmental Protection Agency the public file and available for public at the Regional Office for public as the Agency name to search on. The inspection without prior notice. If you list of current EPA actions available for inspection. have any questions about CBI or the comment will be listed. Please follow B. How and To Whom Do I Submit procedures for claiming CBI, please the online instructions for submitting consult the person identified in the FOR Comments? comments. The system is an FURTHER INFORMATION CONTACT section. You may submit comments ‘‘anonymous access’’ system, which electronically, by mail, or through hand means EPA will not know your identity, II. Background delivery/courier. To ensure proper e-mail address, or other contact A. What Is EPA Proposing Today? receipt by EPA, identify the appropriate information unless you provide it in the rulemaking identification number by body of your comment. EPA is proposing to conditionally including the text ‘‘Public comment on iii. Disk or CD ROM. You may submit approve revisions to Michigan’s SIP proposed rulemaking Region 5 Air comments on a disk or CD ROM that concerning the adoption of its NOX Docket MI84’’ in the subject line on the you mail to the mailing address Rules, submitted on April 3, 2003. The first page of your comment. Please identified in Section 2, directly below. rules meet the requirements of the Phase ensure that your comments are These electronic submissions will be I NOX SIP Call with certain exceptions. submitted within the specified comment accepted in WordPerfect, Word or ASCII MDEQ is in the process of adopting period. Comments received after the file format. Avoid the use of special rules to correct these deficiencies. Once close of the comment period will be characters and any form of encryption. MDEQ has submitted the rule changes marked ‘‘late.’’ EPA is not required to 2. By Mail. Send your comments to: J. to address these deficiencies, we can consider these late comments. Elmer Bortzer, Acting Chief, Air take action to fully approve the SIP 1. Electronically. If you submit an Programs Branch, (AR–18J), U.S. revision. electronic comment as prescribed Environmental Protection Agency, below, EPA recommends that you Region 5, 77 West Jackson Boulevard, B. What Are the NOX SIP Call General include your name, mailing address, Chicago, Illinois 60604. Please include Requirements? and an e-mail address or other contact the text ‘‘Public comment on proposed On October 27, 1998, EPA published information in the body of your rulemaking Region 5 Air Docket MI84’’ a final rule entitled, ‘‘Finding of comment. Also include this contact in the subject line on the first page of Significant Contribution and information on the outside of any disk your comment. Rulemaking for Certain States in the
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Ozone Transport Assessment Group To assist the states in their efforts to C. What Is EPA’s NOX Budget and Region for Purposes of Reducing meet the SIP Call, the NOX SIP Call final Allowance Trading Program? Regional Transport of Ozone,’’ rulemaking notice included a model EPA’s model NOX budget and otherwise known as the ‘‘NOX SIP Call.’’ NOX cap and trade regulation, called allowance trading rule, 40 CFR part 96, See 63 FR 57356. The NOX SIP Call ‘‘NOX Budget Trading Program for State sets forth an NOX emissions trading requires 22 states and the District of Implementation Plans,’’ (40 CFR part program for large EGUs and non-EGUs. Columbia to meet NOX emission 96), that could be used by states to A state can voluntarily choose to adopt budgets during the five month period develop their regulations. The NOX SIP EPA’s model rule in order to allow from May 1 through September 30 in Call notice explained that if states sources within its borders to participate order to reduce the amount of ground developed an allowance trading in regional allowance trading. The level ozone that is transported across regulation consistent with the EPA October 27, 1998, Federal Register the eastern United States. As the result model rule, they could participate in a notice contains a full description of the of court actions, the compliance date for regional allowance trading program that EPA’s model NOX budget trading the first year has been changed to May would be administered by the EPA (See program (See 63 FR 57514–57538 and 31, 2004 and the NO SIP Call has been X 63 FR 57458–57459). 40 CFR part 96). divided into two phases. Air emissions trading, in general, uses There were several periods during EPA identified NOX emission market forces to reduce the overall cost reductions by source category that could which EPA received comments on of compliance for pollution sources, be achieved by using highly cost- various aspects of the NOX SIP Call such as power plants, while achieving effective measures. The source emissions inventories. On March 2, emission reductions and environmental categories included were large electric 2000, EPA published additional benefits. One type of market-based generating units (EGUs) and non-electric technical amendments to the NOX SIP program is an emissions budget and generating units (non-EGUs), internal Call in the Federal Register (65 FR allowance trading program, commonly combustion (IC) engines and cement 11222). On March 3, 2000, the DC referred to as a ‘‘cap and trade’’ kilns. EPA derived state-wide NOX Circuit issued its decision on the NOX program. emission budgets based on the SIP Call ruling in favor of EPA on all the In an emissions cap and trade implementation of these highly cost- major issues. Michigan v. EPA, 213 F.3d program, the state or EPA sets a effective controls for each affected 663 (D.C. Cir. 2000). The DC Circuit regulatory limit, or emissions budget or jurisdiction to be met by the year 2007. denied petitioners’ requests for cap, for total mass emissions from a Internal combustion engines are not rehearing or rehearing en banc on July specific group of sources. The budget addressed by Michigan in this submittal 22, 2000. However, the Circuit Court limits the total number of allowances for which responds to Phase I, but will be remanded four specific elements to EPA all sources covered by the program addressed in a response to EPA’s Phase for further action: The definition of during a particular control period. II requirements. The NOX SIP Call electric generating unit, the level of When the budget is set at a level lower allowed states the flexibility to decide control for stationary internal than the current emissions, the effect is which source categories to regulate in combustion engines, the geographic to reduce the total amount of emissions order to meet the statewide budgets. In extent of the NO SIP Call for Georgia during the control period. After setting the NO SIP Call notice, EPA suggested X X and Missouri, and the inclusion of the budget, the state or EPA then that a cap and trade program for EGUs Wisconsin. On March 5, 2001, the U.S. assigns, or allocates, allowances up to (fossil-fuel fired electric generating the level of the budget. Each allowance Supreme Court declined to hear an boilers and turbines serving a generator authorizes the emission of a quantity of appeal by various utilities, industry greater than 25 MW) and non-EGUs pollutant, e.g., one ton of airborne NOX. (large fossil-fuel fired industrial boilers groups and a number of upwind states At the end of the control period, each and turbines) would provide a highly from the DC Circuit’s ruling on EPA’s affected source must demonstrate that cost-effective means for states to meet NOX SIP Call rule. its actual emissions during the control their NOX budgets. In fact, the state- On April 11, 2000, in response to the period were less than or equal to the specific budgets were set assuming an Court’s decision, EPA notified Michigan number of available allowances it holds. emission rate of 0.15 pounds NOX per of the maximum amount of NOX Sources that reduce their emissions million British thermal units (lb. NOX/ emissions allowed for the State during below their allocated allowance level mmBtu) at EGUs, multiplied by the the ozone season. This emission budget may sell or bank their extra allowances. projected heat input (mmBtu) from reflected adjustments to Michigan’s Sources that emit more than the amount burning the quantity of fuel needed to NOX emission budget to reflect the of their allocated allowance level may meet the 2007 forecast for electricity Court’s decision that Georgia and buy allowances from the sources with demand (See 63 FR 57407). The NOX Missouri should not be included in full. extra reductions. In this way, the budget SIP Call State budgets also assume a 30 Although the Court did not order EPA is met and in the most cost-effective percent NOX reduction from cement to modify Michigan’s budget, the EPA manner. kilns, and a 60 percent reduction from believes these adjustments are D. EPA’s Section 126 Rule in Michigan non-EGUs. The non-EGU control consistent with the Court’s decision. assumptions were applied at units In a rulemaking separate from the whose maximum design heat input was On February 22, 2002 (67 FR 8396), NOX SIP Call, EPA placed requirements greater than 250 mmBtu per hour, or in EPA published a proposal that directly on sources in Michigan, and cases where heat input data were not addresses the remanded portion of the many other states in the eastern half of available or appropriate, at units with NOX SIP Call Rule. Any additional the country, to reduce NOX emissions actual emissions greater than one ton emissions reductions required as a that adversely affect downwind areas in per day. Phase I budgets did not include result of a final rulemaking on that other states. This rule is known as EPA’s reductions from IC engines. EPA’s Phase proposal will be reflected in the second Section 126 Rule (65 FR 2764). The II NOX SIP Call will address reductions phase portion (Phase II) of the State’s Section 126 Rule is similar to the NOX from these sources. emission budget. SIP Call in that it is designed to address
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the problem of downwind transport and compliance dates and schedules, and will remain effective until EPA many of the sources that would be the monitoring, recordkeeping and approves the Michigan SIP. The EPA affected by states’ NOX SIPs are also emission reporting requirements will be cannot approve the Michigan SIP, and affected by the Section 126 Rule. The met. move forward to remove the Section 126 sources that are required to reduce We identified certain deficiencies requirements, unless the SIP has in emissions under the Section 126 Rule during our review but because MDEQ place regulations to achieve the are EGUs (units serving a generator with has been made aware of these problems necessary emissions reductions to meet nameplate capacity greater than 25 MW) and is currently in the process of the Phase I budget. In evaluating the and non-EGUs (units with maximum addressing them, we are proposing to SIP, EPA cannot take into consideration design heat input greater than 250 conditionally approve the submittal the emissions reductions required by mmBtu/hr). These rules are different in made by MDEQ on April 3, 2003. MDEQ the Section 126 Rule. Because the that the NOX SIP Call is a requirement requested this conditional approval of Section 126 Rule would still be in place placed upon states to develop rules that its April 2003 submittal in a letter dated at the time EPA takes action on the will reduce NOX emissions but it is up January 9, 2004. In this letter, MDEQ Michigan SIP, oxides of nitrogen budget to the state to determine what sources has committed to submit fully adopted units that would otherwise be subject to to control. rules addressing the identified controls under the Michigan SIP would EPA issued the Section 126 deficiencies by May 31, 2004. Upon not be covered at that time. Therefore, rulemaking based on petitions filed by receipt of these newly adopted rules the SIP would not be providing eight Northeastern States seeking to eliminating all deficiencies, we can take sufficient emissions reductions to meet mitigate interstate transport of NOX. action to fully approve Michigan’s NOX the Phase I budget and would not be These petitions requested EPA to SIP. approvable. This language must be require NOX reductions from specific removed from the State’s rules. EPA will G. NOX Allowance Allocations upwind NOX sources or source then take action to ensure that no unit categories. EPA based its section 126 Because the vast majority of the SIP is subject to both trading programs. findings on the same technical work submitted by MDEQ has been found 2. The applicability of these rules is that was used in the NOX SIP Call. approvable by EPA and because MDEQ based on named counties in the southern portion of Michigan. While E. What Guidance Did EPA Use To has committed to address the this applicability is sufficient to meet Evaluate Michigan’s Submittal? deficiencies identified by EPA, by no later than May 31, 2004, EPA will the requirements found in the SIP Call, The final NOX SIP Call rule included allocate NOX allowances to the affected it is not enough to remove all of the a model NOX budget trading program sources in Michigan per the allocation Section 126 requirements from the regulation (See 40 CFR part 96). EPA methodology found in the Michigan SIP State. This is because there is one used the model rule and 40 CFR 51.121– after finalization of this conditional source, Detroit Edison’s Harbor Beach 51.122 to evaluate Michigan’s Oxides of approval. unit, that is affected by Section 126 Nitrogen Budget Trading Program for requirements, but is not in one of the H. NOX Budget Permits EGUs and non-EGUs. A cement kiln rule counties affected by Michigan’s NOX was included as part of a Federal State rules currently require the SIP call rule. Michigan has indicated a Implementation Plan (FIP) that EPA MDEQ to issue NOX Budget permits. desire to include the Harbor Beach unit proposed on October 28, 1998 (See 63 Following EPA’s final conditional in the trading program in order to satisfy FR 56393). We used this proposed FIP approval of the Michigan NOX Rules the Section 126 requirements for this cement kiln rule to evaluate Michigan’s into the Michigan SIP, the terms of any source. To address this situation and cement kiln rule. NOX Budget permit issued under the enable EPA to remove all of the Section F. What Is the Result of EPA’s SIP-approved program are federally 126 requirements from Michigan after Evaluation of Michigan’s Program? enforceable pursuant to the SIP. the Michigan NOX SIP has been approved, MDEQ must extend the I. What Deficiencies Must Be Addressed EPA has evaluated Michigan’s April applicability of the Michigan NOX SIP 3, 2003, SIP submittal and finds the by MDEQ? to that one source. majority of it approvable. The Michigan In the review of Michigan’s NOX SIP, 3. Twenty-five ton exemption—States Oxides of Nitrogen Budget Trading EPA identified six deficiencies that may develop alternative 25-ton NOX Program is basically consistent with need to be corrected before these rules exemptions to the one included in the EPA’s guidance and almost meets all of can be fully approved. These model rule provided they are based on the requirements of the Phase I NOX SIP deficiencies have been communicated to permit restrictions that limit a unit’s Call. EPA finds the NOX control MDEQ and now, MDEQ is in the process potential to emit during an ozone season measures in the Michigan’s Oxides of of changing its rules to address these to 25 tons or less and are not Nitrogen Budget Trading Program problems. inconsistent with 40 CFR part 75 generally approvable. If it becomes fully Following is a list of the identified monitoring requirements. Michigan’s approved, the April 3, 2003, submittal deficiencies: regulation, Part 8. Emissions Limitations will strengthen Michigan’s SIP for 1. Rule 802(5) states, ‘‘An oxides of and Prohibitions—Oxides of Nitrogen, reducing ground level ozone by nitrogen budget unit that is subject to a includes in Rule 802(2) the 25-ton providing NOX reductions beginning in rule promulgated under section 126 of exemption. The rule language is based 2004. EPA finds that the submittal the Clean Air Act shall not be subject to on the model rule but provides contained the information necessary to this rule until the section 126 additional options for qualifying for the demonstrate that Michigan has the legal requirements no longer apply.’’ Under exemption that involve emission authority to implement and enforce the this language, those oxides of nitrogen monitoring or testing that is inconsistent control measures, and to demonstrate budget units that are subject to the with part 75. their appropriate distribution of the Section 126 Rule and that would be In addition, when a unit receives a 25- compliance supplement pool. subject to controls under the Michigan ton exemption, the unit’s potential Furthermore, EPA finds that the SIP are not covered by the SIP. The emissions (reflected as an equivalent submittal demonstrates that the Section 126 Rule remains in place and number of allowances) must be removed
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from the trading budget to avoid double J. What Happens if MDEQ Fails To • 808 Permit requirements under counting. An exempt unit’s emissions Address These Deficiencies? oxides of nitrogen budget trading are included in the state’s large EGU or program In a letter dated, January 9, 2004, • large non-EGU emissions budget and MDEQ committed to submit fully 809 Compliance certification under therefore as allowances in the state’s adopted rules addressing the oxides of nitrogen budget trading trading budget. EPA is concerned that program deficiencies by May 31, 2004. If a • Michigan’s rule does not account for submittal is not made by this date, this 810 Allowance allocations under potential emissions from the exempt conditional approval will automatically oxides of nitrogen budget trading units. Neither the rule nor the SIP revert to a disapproval of the Michigan program • 811 New source set-aside under submittal specifies a procedure for NOX SIP. removing from the trading budget the oxides of nitrogen budget trading III. Michigan’s Control of NOX program allowances reflecting the exempt unit’s Emissions • 812 Allowance tracking system and potential emissions. To address the transfers under oxides of nitrogen A. When Did Michigan Submit the SIP deficiencies related to the 25-ton budget trading program exemption provisions including the Revision to EPA in Response to the NOX • 813 Monitoring and reporting related budget adjustments, Michigan SIP Call? requirements under oxides of nitrogen must modify its regulations to ensure an On April 3, 2003, MDEQ submitted a budget trading exempt source’s emissions are less than final revision to its SIP to meet the • 814 Individual opt-ins under oxides 25 tons in each ozone season and requirements of the Phase I NOX SIP of nitrogen budget trading program provide a process for adjusting the Call. • 815 Allowance banking under trading budget accordingly. EPA oxides of nitrogen budget trading B. When Did Michigan Hold Public provided MDEQ suggested language program Hearings and What Were the Results? modifying the regulations. • 816 Compliance supplement pool Public hearings were held on 4. New source set-aside—The new under oxides of nitrogen budget trading December 3, 2001 and January 22, 2003. source set-aside provisions of § 811(1)(a) program MDEQ holds public hearings on rules at • 817 Emission limitations and specify the set-aside pool allocation. the end of a 30-day public comment restrictions for Portland cement kilns The rule contains a typographical error period. MDEQ either modified its rules Michigan’s Oxides of Nitrogen Budget regarding the number of allowances to to accommodate the comments received Trading Program (Rules 802 through be set-aside after 2006. A footnote in the or explained why the rules were not 816) establishes and requires a NOX Michigan SIP submittal highlights this changed in light of the comments. allowance trading program for large error and indicates the correct number. EGUs and non-EGUs. These rules This error should be corrected since the C. What Is Included in Michigan’s NOX SIP Call Revision? establish a NOX cap and allowance official regulations are the basis for all trading program for the ozone control allocations. Also, Section 811(2) appears Michigan allows, as in the model rule, seasons beginning May 31, 2004. to address the issue of adjusting a new EGUs and non-EGUs to participate in Michigan Rule 817, not part of the source’s allowances to account for the multi-state cap and trade program. trading program, applies to cement kilns reduced utilization, but is incomplete Cement kilns are not included in the and also requires control during the and, for example, lacks the adjustment trading program, but will be required to ozone season starting on May 31, 2004. formula. This section also appears to install low NOX burners, mid-kiln firing Beginning in 2005, the ozone control specify how remaining set-aside system or technology that achieves the period is May 1 through September 30. allowances are determined, but that same emission decreases (a 30% The State of Michigan voluntarily reduction). Michigan’s SIP revision to matter is also addressed in Section chose to follow EPA’s model NOX 811(3). Michigan must clarify these meet the requirements of the NOX SIP budget and allowance trading rule, 40 Call consists of the revision of Michigan provisions. EPA provided MDEQ CFR part 96, that sets forth a NOX suggested language to clarify these Rules 802 through 817. The regulations emissions trading program for EGUs and provisions. 802 through 816 affect EGUs and non- non-EGUs. Michigan’s Oxides of EGUs. Rule 817 applies requirements to Nitrogen Budget Trading Program is 5. Language in § 802(1)(a) appears to cement manufacturing facilities. allow the State to exempt an EGU for based upon EPA’s model rule, therefore, Michigan’s SIP revision to meet the Michigan sources are allowed to which applicability has not been requirements of the NO SIP Call X participate in the interstate NO determined. EPA cannot approve any consists of the following Michigan X allowance trading program that EPA is exemption that is solely at the Rules: discretion of the State and does include • 802 Applicability under oxides of administering for the participating EPA approval as well. The language nitrogen budget trading program states. The State of Michigan has adopted regulations that, revised relating to exemptions based solely on • 803 Definitions for oxides of consistent with the conditions noted the State’s discretion must be removed nitrogen budget trading program • above, are substantively identical to 40 as a condition of final approval. 804 Retired unit exemption from oxides of nitrogen budget trading CFR part 96. Therefore, with the 6. Language in § 804 relating to retired program conditions noted, pursuant to 40 CFR unit exemptions must be modified to • 805 Standard requirements of 51.121(p)(1), Michigan’s SIP revision is include the requirement that a unit that oxides of nitrogen budget trading being proposed for a conditional qualifies for this exemption, is not program approval as satisfying the State’s NOX required to have a permit, and • 806 Computation of time under emission reduction obligations. Under subsequently resumes operation will oxides of nitrogen budget trading Rule 810, Michigan allocates NOX lose the exemption at the time of program allowances to the EGU and non-EGU resumption of operation. EPA provided • 807 Authorized account units that are affected by these MDEQ suggested language modifying representative under oxides of nitrogen requirements. The NOX trading program this section of the regulations. budget trading program applies to EGUs (fossil fuel fired boilers
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and turbines serving a generator with a Allowances from the compliance IV. EPA Proposal nameplate capacity greater than 25 MW supplement pool will not be valid for EPA is proposing to conditionally or more that sell any amount of compliance past the 2005 ozone season. approve the Michigan’s SIP revision electricity) as well as non-EGUs The NOX SIP Call included these consisting of its Oxides of Nitrogen (industrial boilers and turbines that voluntary provisions in order to address Budget Trading Program and its rule have a maximum design heat input commenters’ concerns about the that affects cement kilns, which was greater than 250 mmBtu per hour). Each possible adverse effect that the control submitted on April 3, 2003. EPA finds NOX allowance permits a source to emit requirements might have on the that Michigan’s submittal is one ton of NOX during the seasonal reliability of the electricity supply or on conditionally approvable because it control period. NOX allowances may be other industries required to install meets the requirements of the Phase I bought or sold. Unused NOX allowances controls as the result of a state’s NOX SIP Call with some exceptions. may also be banked for future use, with response to the NOX SIP Call. certain limitations. V. Statutory and Executive Order Source owners will monitor and A state may issue some or all of the Reviews. compliance supplement pool via two report their NOX emissions by using methodologies that meet the mechanisms. First, a state may issue Executive Order 12866; Regulatory requirements of 40 CFR part 75, subpart some or all of the pool to sources with Planning and Review H, and report resulting data to EPA credits from implementing NOX Under Executive Order 12866 (58 FR electronically. Each budget source reductions beyond all applicable 51735, October 4, 1993), this action is complies with the program by requirements after September 30, 1999, not a ‘‘significant regulatory action’’ and demonstrating at the end of each control but before May 31, 2004 (i.e., early therefore is not subject to review by the period that actual emissions do not reductions). This allows sources that Office of Management and Budget. exceed the amount of allowances held cannot install controls prior to May 31, Executive Order 13211: Actions That for that period. However, regardless of 2004, to purchase other sources’ early Significantly Affect Energy Supply, the number of allowances a source reduction credits in order to comply. Distribution, or Use holds, it cannot emit at levels that Second, a state may issue some or all of would violate other federal or State the pool to sources that demonstrate a For this reason, this action is also not limits, for example, reasonably available need for an extension of the May 31, subject to Executive Order 13211, control technology (RACT), new source 2004, compliance deadline due to ‘‘Actions Concerning Regulations That performance standards, or Title IV (the undue risk to the electricity supply or Significantly Affect Energy Supply, Federal Acid Rain program). other industrial sectors, and where early Distribution, or Use’’ (66 FR 28355, May Michigan’s Oxides of Nitrogen Budget reductions are not available (See 40 CFR 22, 2001). Trading Program establishes 51.121(e)(3)). Michigan has opted to Regulatory Flexibility Act requirements for cement manufacturing issue the State’s compliance supplement facilities, however, these sources are pool through the Early Reduction Credit This action merely approves state subject to NOX reduction requirements program only. regulations as meeting Federal but do not participate in the NOX requirements and imposes no additional trading program. Michigan’s submittal E. How Does Michigan’s NOX SIP Affect requirements beyond those imposed by does not rely on any additional Sources Subject to EPA’s Section 126 state regulations. Accordingly, the reductions beyond the anticipated Rule in the SIP Call Area? Administrator certifies that this rule federal measures in the mobile and area will not have a significant economic All of the existing sources in the SIP source categories. impact on a substantial number of small Call area that are subject to EPA’s Michigan’s submittal demonstrates entities under the Regulatory Flexibility Section 126 Rule are also subject to that the Phase I NOX emission budgets Act (5 U.S.C. 601 et seq.). established by EPA will be met because Michigan’s NOX rules. There is, MDEQ agrees with all of the however, one Section 126 affected Unfunded Mandates Reform Act assumptions, projections, etc. used by source that falls outside of the SIP Call Because this rule approves pre- EPA to determine the 2007 budgets. affected area. This source is Detroit existing requirements under state law Because Michigan has adopted all of the Edison’s Harbor Beach unit and it is and does not impose any additional same controls assumed by EPA in located in Huron County. While Huron enforceable duty beyond that required County falls outside of the area covered developing the State’s NOX budget, the by state law, it does not contain any actual emissions in 2007 should be the by the Michigan’s NOX SIP rules, MDEQ unfunded mandate or significantly or same as those EPA has projected to be is in the process of modifying the uniquely affect small governments, as the State’s 2007 budget. applicability of the NOX Rules to described in the Unfunded Mandates include this one source. Detroit Edison Reform Act of 1995 (Pub. L. 104–4). D. What Is the Compliance Supplement requested inclusion of the Harbor Beach Pool? unit in the State trading program Executive Order 13175 Consultation To provide additional flexibility for because it would then be able to take and Coordination With Indian Tribal complying with emission control advantage of the trading provisions that Governments requirements associated with the NOX are not otherwise available. Since This rule also does not have tribal SIP Call, the final NOX SIP Call rule Michigan adopted the same implications because it will not have a provided each affected state with a applicability thresholds for EGU and substantial direct effect on one or more ‘‘compliance supplement pool.’’ The non-EGU sources as those found in Indian tribes, on the relationship compliance supplement pool is a EPA’s Section 126 Rule, all of the same between the Federal Government and quantity of NOX allowances that may be sources will be covered once MDEQ has Indian tribes, or on the distribution of used to cover excess emissions from adopted rules to include the Harbor power and responsibilities between the sources that are unable otherwise to Beach unit. The Michigan trading Federal Government and Indian tribes, meet control requirements during the budget was not increased as a result of as specified by Executive Order 13175 2004 and 2005 ozone season. adding the Harbor Beach unit. (65 FR 67249, November 9, 2000).
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Executive Order 13132 Federalism of agency organization, procedure, or Angeles County; and lower Big Tujunga This action also does not have practice that do not substantially affect Creek in Los Angeles County. When Federalism implications because it does the rights or obligations of non-agency final, this rulemaking would replace the not have substantial direct effects on the parties. 5 U.S.C. 804(3). EPA is not critical habitat designation for Santa States, on the relationship between the required to submit a rule report Ana sucker as promulgated today by a national government and the States, or regarding this action under section 801 rule that amends 50 CFR 17.11(h) and on the distribution of power and because this is a rule of particular 17.95(e). responsibilities among the various applicability. DATES: We will accept comments from levels of government, as specified in Under section 307(b)(1) of the Clean all interested parties until April 26, Executive Order 13132 (64 FR 43255, Air Act, petitions for judicial review of 2004. We must receive requests for August 10, 1999). This action merely this action must be filed in the United public hearings, in writing, at the approves a state rule implementing a States Court of Appeals for the address shown in the ADDRESSES section federal standard, and does not alter the appropriate circuit by April 26, 2004. by April 12, 2004. relationship or the distribution of power Filing a petition for reconsideration by ADDRESSES: Comments and materials and responsibilities established in the the Administrator of this final rule does received, as well as supporting Clean Air Act. not affect the finality of this rule for the documentation used in the preparation purposes of judicial review nor does it of this proposed rule, will be available Executive Order 13045 Protection of extend the time within which a petition for public inspection, by appointment, Children from Environmental Health for judicial review may be filed, and during normal business hours at the and Safety Risks shall not postpone the effectiveness of Carlsbad Fish and Wildlife Office, 6010 This rule also is not subject to such rule or action. This action may not Hidden Valley Road, Carlsbad, Executive Order 13045 ‘‘Protection of be challenged later in proceedings to California 92009 (telephone 760/431– Children from Environmental Health enforce its requirements. (See section 9440 or facsimile 760/431–9618). Risks and Safety Risks’’ (62 FR 19885, 307(b)(2).) If you wish to comment, you may April 23, 1997), because it is not submit your comments and materials List of Subjects in 40 CFR Part 52 economically significant. concerning this proposed rule by any Environmental protection, Air one of several methods: National Technology Transfer pollution control, Oxides of nitrogen, 1. You may submit written comments Advancement Act Ozone, Reporting and recordkeeping and information to the Field Supervisor, In reviewing plan submissions, EPA’s requirements. U.S. Fish and Wildlife Service, Carlsbad role is to approve state choices, Authority: 42 U.S.C. 7401 et seq. Fish and Wildlife Office, 6010 Hidden provided that they meet the criteria of Valley Road, Carlsbad, California 92009. the Clean Air Act. In this context, in the Dated: February 17, 2004. 2. You may hand-deliver written absence of a prior existing requirement Bharat Mathur, comments to our Office, at the address for the State to use voluntary consensus Acting Regional Administrator, Region 5. given above. standards (VCS), EPA has no authority [FR Doc. 04–4253 Filed 2–25–04; 8:45 am] 3. You may send comments by to disapprove a plan submission for BILLING CODE 6560–50–P electronic mail (e-mail) to failure to use VCS. It would thus be [email protected]. Please see the inconsistent with applicable law for Public Comments Solicited section EPA, when it reviews a plan DEPARTMENT OF THE INTERIOR below for file format and other submission, to use VCS in place of a information about electronic filing. plan submission that otherwise satisfies Fish and Wildlife Service FOR FURTHER INFORMATION CONTACT: Jim the provisions of the Clean Air Act. Bartel at the address listed above Thus, the requirements of section 12(d) 50 CFR Part 17 (telephone 760/431–9440 or facsimile of the National Technology Transfer and RIN 1018–AT57 760/431–9618). Advancement Act of 1995 (15 U.S.C. SUPPLEMENTARY INFORMATION: 272 note) do not apply. Endangered and Threatened Wildlife Public Comments Solicited Paperwork Reduction Act and Plants; Proposed Rule To Designate Critical Habitat for the Santa We solicit your comments on the This rule does not impose an Ana Sucker (Catostomus santaanae) proposed designation of critical habitat information collection burden under the for the Santa Ana sucker. Comments provisions of the Paperwork Reduction AGENCY: Fish and Wildlife Service, particularly are sought concerning: Act of 1995 (44 U.S.C. 3501 et seq.). Interior. (1) The reasons why any habitat Congressional Review Act ACTION: Proposed rule. should or should not be determined to be critical habitat as provided by section The Congressional Review Act, 5 SUMMARY: We, the U.S. Fish and 4 of the Act, including whether the U.S.C. 801 et seq., as added by the Small Wildlife Service (Service), propose to benefit of designation will outweigh any Business Regulatory Enforcement designate critical habitat for the Santa threats to the species due to designation; Fairness Act of 1996, generally provides Ana sucker (Catostomus santaanae) (2) Specific information on the that before a rule may take effect, the pursuant to the Endangered Species Act amount and distribution of Santa Ana agency promulgating the rule must of 1973, as amended (Act). This sucker habitat, and what habitat is submit a rule report, which includes a threatened species is now restricted to essential to the conservation of the copy of the rule, to each House of the three noncontiguous populations in species and why; Congress and to the Comptroller General three different stream systems in (3) Land use designations and current of the United States. Section 804 southern California: The lower and or planned activities in the subject areas exempts from section 801 the following middle Santa Ana River in San and their possible impacts on proposed types of rules: (1) Rules of particular Bernardino, Riverside, and Orange critical habitat; applicability; (2) rules relating to agency counties; the East, West, and North (4) Any foreseeable economic or other management or personnel; and (3) rules Forks of the San Gabriel River in Los potential impacts resulting from the
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proposed designation and, in particular, February 26, 2003, the district court exclusions outweigh the benefits of any impacts on small entities; and held that the Service had failed to specifying such areas as part of critical (5) Whether our approach to designate critical habitat for the listed habitat. We cannot exclude such areas designating critical habitat could be populations of Santa Ana sucker within from critical habitat if such exclusion improved or modified in any way to the statutory timeframe and ordered the would result in the extinction of the provide for greater public participation Service to complete a final critical species. and understanding, or to assist us in habitat designation for the Santa Ana An analysis of the economic impacts accommodating public concerns and sucker by February 21, 2004. The court of proposing critical habitat for the comments. further enjoined the Service from Santa Ana sucker will be prepared. We If you wish to comment, you may issuing any section 7 concurrence or will announce the availability of the submit your comments and materials biological opinion on a proposed concerning this rule by any one of draft economic analysis as soon as it is Federal action that ‘‘may affect’’ the completed, at which time we will seek several methods (see ADDRESSES Santa Ana sucker until completion of public review and comment. We section). Please submit Internet the designation. specifically solicit public comment on comments to [email protected] in A final rule to designate critical exclusion under section 4(b)(2) of the ASCII file format and avoid the use of habitat for the Santa Ana sucker is special characters or any form of published in the Rules and Regulations Act of lands included within the encryption. Please also include ‘‘Attn: section of this issue of the Federal Western Riverside Multi-Species Habitat Santa Ana Sucker Critical Habitat’’ in Register. In order to comply with the Conservation Plan (MSHCP) and lands your e-mail subject header and your designation deadline established by the included within the Santa Ana Sucker name and return address in the body of district court, we were unable to open Conservation Program on the Santa Ana your message. If you do not receive a a public comment period, hold a public River. When completed, copies of the confirmation from the system that we hearing, or complete an economic draft economic analysis will be have received your Internet message, analysis of the final rule. However, we available for downloading from the contact us directly by calling our fully recognize the value and Internet at http://carlsbad.fws.gov, or by Carlsbad Fish and Wildlife Office (see importance of public input in contacting the Carlsbad Fish and FOR FURTHER INFORMATION CONTACT developing a critical habitat designation Wildlife Office directly (see ADDRESSES section). for the Santa Ana Sucker. Therefore, in section). Our practice is to make comments, order to allow members of the public an Peer Review including names and home addresses of opportunity to comment on the critical respondents, available for public review habitat designation for the Santa Ana In accordance with our joint policy during regular business hours. sucker, and to enable the Service to seek published in the Federal Register on Individual respondents may request that peer review of such designation and to July 1, 1994 (59 FR 34270), we will seek we withhold their home addresses from complete and circulate for public review the expert opinions of at least three the rulemaking record, which we will an economic analysis of critical habitat appropriate and independent specialists honor to the extent allowable by law. designation, we are publishing and regarding this proposed rule. The There also may be circumstances in soliciting comment on this proposed purpose of such review is to ensure that which we would withhold from the rule. The amendments made to 17.11(h) our critical habitat designation is based rulemaking record a respondent’s and 17.95(e) in the final critical habitat on scientifically sound data, identity, as allowable by law. If you rule published elsewhere in this issue of assumptions, and analyses. We will wish us to withhold your name and/or the Federal Register are the same as the send these peer reviewers copies of this address, you must state this amendments we are proposing in this proposed rule immediately following prominently at the beginning of your proposed rule. In addition, the publication in the Federal Register. We comment. However, we will not SUPPLEMENTARY INFORMATION for that will invite these peer reviewers to consider anonymous comments. We final rule is the same as the comment, during the public comment will make all submissions from SUPPLEMENTARY INFORMATION for this period, on the specific assumptions and organizations or businesses, and from proposed rule. Because this proposed conclusions regarding the proposed individuals identifying themselves as critical habitat rule incorporates by designation of critical habitat. representatives or officials of reference the substance of the final rule, We will consider all comments and organizations or businesses, available please refer to the final rule in information received during the for public inspection in their entirety. formulating your comments on this comment period on this proposed rule Comments and materials received will proposal. At the conclusion of this during preparation of a final be available for public inspection, by rulemaking process we will determine rulemaking. Accordingly, the final appointment, during normal business whether the final critical habitat rule for decision may differ from this proposal. hours at the above address. the Santa Ana sucker separately published in this issue of the Federal Background Public Hearings Register should be replaced with a new The Santa Ana sucker was listed as a final rule. The Act provides for one or more threatened species under the Act on public hearings on this proposal, if April 12, 2000 (65 FR 19686). On March Economic Analysis requested. Requests for public hearings 19, 2002, California Trout, Inc., the Section 4(b)(2) of the Act requires us must be made in writing at least 15 days California-Nevada Chapter of the to designate critical habitat on the basis prior to the close of the public comment American Fisheries Society, the Center of the best scientific and commercial period. We will schedule public for Biological Diversity, and the Friends information available and to consider hearings on this proposal, if any are of the River filed a complaint for the economic and other relevant requested, and announce the dates, declaratory and injunctive relief with impacts of designating a particular area times, and places of those hearings in the U.S. District Court for the Northern as critical habitat. We may exclude areas the Federal Register and local District of California. (California Trout from critical habitat upon a newspapers at least 15 days prior to the v. DOI, No. 97–3779 (N.D.Cal.)). On determination that the benefits of such first hearing.
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Required Determinations flexibility analysis is required if the intra-Service study investigating the head of the agency certifies the rule will effects of temporary cessation of water Regulatory Planning and Review not have a significant economic impact discharge on the sucker, flood control The Office of Management and Budget on a substantial number of small improvements in Reach 8 and 9 of the (OMB) has not reviewed this proposed entities. The SBREFA amended the Santa Ana River, flood control critical habitat designation in Regulatory Flexibility Act (RFA) to improvements in Prado Basin, the accordance with Executive Order 12866. require Federal agencies to provide a operation of Prado Dam for water In order to comply with the critical statement of the factual basis for conservation, emergency sand mining habitat designation deadline established certifying that the rule will not have a activity to maintain safety of a bridge, by the district court, there was significant economic impact on a the widening of Interstate 71, and a insufficient time for OMB to formally substantial number of small entities. programmatic consultation for the review this proposal. However, the SBREFA does not Angeles National Forest. These We are preparing a draft economic explicitly define ‘‘substantial number’’ consultations resulted in non-jeopardy analysis of this proposed action, which or ‘‘significant economic impact.’’ biological opinions. will be available for public comment, to Consequently, to assess whether a We also conducted approximately five determine the economic consequences ‘‘substantial number’’ of small entities is informal consultations since this species of designating the proposed areas as affected by this designation, this was listed. These informal consultations critical habitat. analysis considers the relative number concerned activities such as: A seismic Within these areas, the types of of small entities likely to be impacted in retrofit of six bridges, removal of Federal actions or authorized activities an area. The SBREFA also amended the nonnative vegetation, maintaining sewer that we have identified as potential RFA to require a certification statement. line manholes and access, and concerns are: We are hereby certifying that this continued use of recreational residences (1) Regulation of activities affecting proposed rule will not have a significant in the Angeles National Forest. Informal waters of the United States by the Army effect on a substantial number of small consultations regarding the Santa Ana Corps under section 404 of the Clean entities. sucker usually resulted in Water Act; According to the Small Business recommendations to employ erosion (2) Regulation of water flows, Administration, small entities include control measures, conduct certain damming, diversion, and channelization small organizations, such as activities by hand, conduct activities by any Federal agency; independent nonprofit organizations, outside of spawning season, implement (3) Road construction and and small governmental jurisdictions, best management practices to avoid maintenance, right-of-way designation, including school boards and city and spilling hazardous materials, and or any activity funded or permitted by town governments that serve fewer than avoidance of habitat, and resulted in the Federal Highway Administration; 50,000 residents, as well as small little to no modification of the proposed (4) Voluntary conservation measures businesses (13 CFR 121.201). Small activities. In reviewing these past by private landowners funded by the businesses include manufacturing and informal consultations and the activities Natural Resources Conservation Service; mining concerns with fewer than 500 involved in light of proposed critical (5) Regulation of airport improvement employees, wholesale trade entities habitat, we do not believe the outcomes activities by the Federal Aviation with fewer than 100 employees, retail would have been different in areas Administration; and service businesses with less than $5 designated as critical habitat. (6) Licensing of construction of million in annual sales, general and In summary, we have considered communication sites by the Federal heavy construction businesses with less whether this proposed designation Communications Commission; and, than $27.5 million in annual business, would result in a significant economic (7) Funding of activities by the U.S. special trade contractors doing less than impact on a substantial number of small Environmental Protection Agency, $11.5 million in annual business, and entities, and we have concluded that it Department of Energy, Federal agricultural businesses with annual would not. Future consultations are not Emergency Management Agency, sales less than $750,000. To determine likely to affect a substantial number of Federal Highway Administration, or any if potential economic impacts to these small entities. We have no indication other Federal agency. small entities are significant, we that the types of activities we review The availability of the draft economic considered the types of activities that under section 7 of the Act will change analysis will be announced in the might trigger regulatory impacts under significantly in the future. Given that a Federal Register and in local this rule as well as the types of project large part of the critical habitat newspapers so that it is available for modifications that may result. In designation overlaps with already public review and comments. general, the term significant economic designated critical habitat (i.e., least impact is meant to apply to a typical Bell’s vireo, southwestern willow Regulatory Flexibility Act (5 U.S.C. 601 small business firm’s business flycatcher, San Bernardino kangaroo et seq.) operations. rat), or occupied habitat for other Under the Regulatory Flexibility Act If this critical habitat designation is species (mountain yellow-legged frog, (5 U.S.C. 601 et seq., as amended by the finalized, Federal agencies must consult slender-horn spineflower, and woolly- Small Business Regulatory Enforcement with us if their activities may affect star), we would expect no more than 1 Fairness Act (SBREFA) of 1996), designated critical habitat. Measures to additional section 7 consultation per whenever an agency is required to avoid the destruction or adverse year resulting from this rule as certain publish a notice of rulemaking for any modification of critical habitat would be of the proposed critical habitat units are proposed or final rule, it must prepare incorporated into the existing currently unoccupied by Santa Ana and make available for public comment consultation process. suckers. These consultations would a regulatory flexibility analysis that Since the Santa Ana sucker was listed likely address bridge widening, seismic describes the effects of the rule on small (2000), we have conducted retrofits of bridges, water diversion, entities (i.e., small businesses, small approximately seven formal water conservation, pipeline organizations, and small government consultations involving this species. construction, post-fire actions, and fuel jurisdictions). However, no regulatory These formal consultations included: an modification.
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This rule would result in major purposes and we anticipate that the Takings project modifications only when designation will have little to no effect In accordance with Executive Order proposed activities with a Federal nexus on costs or prices for consumers or any 12630 (‘‘Government Actions and would destroy or adversely modify other significant commercial or business Interference with Constitutionally critical habitat. Based on our experience related activities. The remaining 52 Protected Private Property Rights’’), we in consultations involving designated percent of designated critical habitat have analyzed the potential takings critical habitat for other listed species, that occurs on private lands is implications of designating critical we are almost always able to work with constrained by other existing habitat for the Santa Ana sucker in a the Federal action agency, and non- conditions, such as being within takings implications assessment. The Federal applicant, if any, to incorporate wetlands regulated by the U.S. Army takings implications assessment minor changes into a proposed project Corps of Engineers, floodplains concludes that this final designation of to avoid adverse modification of critical identified by FEMA, or by the presence critical habitat for the Santa Ana sucker habitat and enable the project to go of listed species or other designated does not pose significant takings forward. While it is possible that major critical habitat. Therefore, we believe implications. modifications to a proposed action that this critical habitat designation will might be necessary to avoid adverse not have an effect on the economy of Federalism modification of critical habitat, it is not $100 million or more, will not cause a In accordance with Executive Order expected to occur frequently enough to major increase in costs or prices for 13132, this final rule does not have affect a substantial number of small consumers, and will not have significant Federalism implications or impose entities. Therefore, we are certifying that adverse effects on competition, substantial direct compliance costs on the proposed designation of critical employment, investment, productivity, State and local governments. This habitat for the Santa Ana sucker will not innovation, or the ability of U.S.-based designation requires Federal agencies to have a significant economic impact on enterprises to compete with foreign- ensure that their actions do not a substantial number of small entities, based enterprises. adversely modify critical habitat; it does and an initial regulatory flexibility not impose direct obligations on State or analysis is not required. Executive Order 13211 local governments. A Federalism Our determination is based upon the On May 18, 2001, the President issued assessment is not required. information regarding potential an Executive Order (E.O. 13211) on The designations may have some economic impact that is available to us regulations that significantly affect benefit to the State of California and at this time. This assessment of energy supply, distribution, and use. local government, in that the areas economic effect may be modified prior Executive Order 13211 requires agencies essential to the conservation of the to final rulemaking based upon review to prepare Statements of Energy Effects Santa Ana sucker are more clearly of the draft economic analysis prepared when undertaking certain actions. This defined, and the primary constituent pursuant to section 4(b)(2) of the ESA proposed rule to designate critical elements of the habitat necessary to and E.O. 12866. This analysis is for the habitat for the Santa Ana sucker is not their survival are specifically identified. purposes of compliance with the a significant regulatory action under While this definition and identification Regulatory Flexibility Act and does not Executive Order 12866, and it is not do not alter where and what federally reflect our position on the type of expected to significantly affect energy sponsored activities may occur, they economic analysis required by New supplies, distribution, or use. Therefore, may assist these local governments in Mexico Cattle Growers Assn. v. U.S. this action is not a significant energy long-range planning, rather than causing Fish & Wildlife Service 248 F.3d 1277 action and no Statement of Energy them to wait for case-by-case section 7 (10th Cir. 2001). Effects is required. consultation to occur. Small Business Regulatory Enforcement Unfunded Mandates Reform Act (2 Civil Justice Reform Fairness Act (5 U.S.C. 801 et. seq.) U.S.C. 1501 et seq.) In accordance with Executive Order Under the Small Business Regulatory 12988, the Office of the Solicitor has In accordance with the Unfunded Enforcement Fairness Act (5 U.S.C. 801 determined that the rule does not et seq.), this rule is not a major rule. As Mandates Reform Act (2 U.S.C. 1501 et unduly burden the judicial system and previously discussed, we have excluded seq.): meets the requirements of sections 3(a) critical habitat from private lands (a) This rule will not produce a and 3(b)(2) of the Order. We have within the draft Western Riverside Federal mandate on State or local proposed designating critical habitat in MSHCP and the SAS Conservation governments or the private sector of accordance with the provisions of the Program under section 4(b)(2) of the $100 million or greater in any year, that Endangered Species Act. This proposed Act. The exclusion of these private is, it is not a ‘‘significant regulatory rule uses standard property descriptions lands and the activities associated with action’’ under the Unfunded Mandates and identifies the primary constituent the draft Western Riverside MSHCP and Reform Act. The designation of critical elements within the designated areas to SAS Conservation Program eliminates habitat imposes no direct obligations on assist the public in understanding the the potential for critical habitat in these State or local governments. habitat needs of the Santa Ana sucker. excluded areas to have any effect on the (b) This rule will not ‘‘significantly or increase in costs or prices for consumers uniquely’’ affect small governments so a Paperwork Reduction Act of 1995 (44 or any significant adverse effects on Small Government Agency Plan is not U.S.C. 3501 et seq.) competition, employment, investment, required. Small governments will not be This rule does not contain any new productivity, innovation or the ability of affected unless they propose an action collections of information that require U.S.-based enterprises to compete with requiring Federal funds, permits, or approval by OMB under the Paperwork foreign-based enterprises. Moreover, other authorizations. Any such activities Reduction Act. This rule will not approximately 48 percent of the will require that the Federal agency impose recordkeeping or reporting designated critical habitat is on Forest ensure that the action will not adversely requirements on State or local Service lands that are not intensively modify or destroy designated critical governments, individuals, businesses, or used for commercial or business habitat. organizations. An agency may not
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conduct or sponsor, and a person is not Dated: February 20, 2004. internet should be sent to required to respond to, a collection of Craig Manson, [email protected]. information unless it displays a Assistant Secretary for Fish and Wildlife and Written comments regarding the currently valid OMB control number. Parks. burden-hour estimates or other aspects of the collection-of-information National Environmental Policy Act [FR Doc. 04–4226 Filed 2–25–04; 8:45 am] BILLING CODE 4310–55–U requirements contained in this proposed We have determined that we do not rule should be submitted to the Regional need to prepare an Environmental Administrator at the address above and Assessment and/or an Environmental DEPARTMENT OF COMMERCE by e-mail to Impact Statement as defined by the [email protected], or fax to National Environmental Policy Act of National Oceanic and Atmospheric (202) 395–7285. 1969 in connection with regulations Administration Copies of Amendment 10, its adopted pursuant to section 4(a) of the Regulatory Impact Review (RIR), Act. We published a notice outlining 50 CFR Part 648 including the Initial Regulatory our reasons for this determination in the Flexibility Analysis (IRFA), and the Federal Register on October 25, 1983 [Docket No. 040210050–4050–01; I.D. draft Final Supplemental Environmental 011204A] (48 FR 49244). This final determination Impact Statement (FSEIS) are available does not constitute a major Federal RIN 0648–AN16 on request from Paul J. Howard, action significantly affecting the quality Executive Director, New England of the human environment. Fisheries of the Northeastern United Fishery Management Council, 50 Water States; Atlantic Sea Scallop Fishery; Street, Newburyport, MA 01950. These Government-to-Government Amendment 10 documents are also available online at Relationship With Tribes AGENCY: National Marine Fisheries http://www.nefmc.org. In accordance with the President’s Service (NMFS), National Oceanic and FOR FURTHER INFORMATION CONTACT: memorandum of April 29, 1994, Atmospheric Administration (NOAA), Peter W. Christopher, Fishery Policy ‘‘Government-to-Government Relations Commerce. Analyst, 978–281–9288; fax 978–281– With Native American Tribal ACTION: Proposed rule; request for 9135; e-mail Governments’’ (59 FR 22951), Executive [email protected]. Order 13175, and the Department of comments. SUPPLEMENTARY INFORMATION: Interior’s manual at 512 DM 2, we SUMMARY: NMFS proposes regulations to readily acknowledge our responsibility implement Amendment 10 to the Background to communicate meaningfully with Atlantic Sea Scallop Fishery Amendment 10 was developed by the recognized Federal Tribes on a Management Plan (FMP) developed by Council over a period of more than 3 government-to-government basis. We the New England Fishery Management years. The primary management have determined that there are no tribal Council (Council). Amendment 10 measure included in Amendment 10 is lands essential for the conservation of proposes a long-term, comprehensive the proposed area rotation management the Santa Ana sucker. Therefore, critical program to manage the sea scallop program, which is designed to improve habitat for the Santa Ana sucker has not fishery through an area rotation yield from the scallop resource by been designated on Tribal lands. management program to maximize defining areas to be closed and re- References Cited scallop yield. Areas would be defined opened based on the condition and size and would be closed and re-opened to A complete list of all references cited of the scallop resource. Amendment 10 fishing on a rotational basis, depending evaluates and proposes measures to in this rulemaking is available upon on the condition and size of the scallop request from the Field Supervisor, minimize the adverse effects of fishing resource in the areas. Amendment 10 on EFH, in accordance with the Joint Carlsbad Fish and Wildlife Office (see evaluates and proposes measures to ADDRESSES section). Stipulation and Order resulting from the minimize the adverse effects of fishing legal challenge American Oceans Author on Essential Fish Habitat (EFH). Campaign et al. v. Evans et al. (Civil Amendment 10 also proposes days-at- The primary author of this document Case Number 99–982 (GK)) (Joint sea (DAS) allocations consistent with is the Carlsbad Fish and Wildlife Office Stipulation and Order). Amendment 10 the current status of the resource, (see ADDRESSES section). also proposes days-at-sea (DAS) measures to minimize bycatch to the allocations consistent with the current List of Subjects in 50 CFR Part 17 extent practicable, and other measures status of the resource, measures to Endangered and threatened species, to make the management program more minimize bycatch to the extent Exports, Imports, Reporting and effective, efficient, and flexible. practicable, and other measures to make recordkeeping requirements, DATES: Comments must be received at the management program more Transportation. the appropriate address or fax number effective, efficient, and flexible. (see ADDRESSES) by 5 p.m., local time, Area-based management was first Proposed Rule Promulgation on March 29, 2004. used for the scallop resource in 1998, For the reasons set out in the ADDRESSES: Written comments should when NMFS, in consultation with the preamble, we propose to amend 50 CFR be sent to Patricia A. Kurkul, Regional Council, implemented an interim rule to 17.11(h) and 17.95(e) to designate Administrator, NMFS, Northeast close two areas in the Mid-Atlantic critical habitat for the Santa Ana sucker. Regional Office, One Blackburn Drive, (MA) to scallop fishing (March 31, 1998, The text of the proposed amendments is Gloucester, MA 01930. Mark the outside 63 FR 15324). These areas, the Hudson identical to the text of the final rule of the envelope, ‘‘Comments on Canyon South and Virginia Beach areas, amendments made to 17.11(h) and Amendment 10 to the Scallop FMP.’’ were closed to protect an abundance of 17.95(e) for the Santa Ana sucker, Comments also may be sent via small scallops that would have been published elsewhere in this issue of the facsimile (fax) to (978) 281–9135. vulnerable to excessive mortality if left Federal Register. Comments submitted via e-mail or unprotected. On March 29, 1999,
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Amendment 7 to the FMP (March 29, Statement (DSEIS) for Amendment 10 authorize access because those areas 1999, 64 FR 14835) extended the was published in the Federal Register were closed by the NE Multispecies closures until March 1, 2001, to allow on April 18, 2003 (68 FR 19206). The FMP to protect groundfish. Therefore, scallops within the areas to grow and public was given 90 days to comment access to the groundfish closed areas spawn. on the DSEIS, in accordance with the will be considered in a separate joint On June 10, 1999, NMFS and the EFH Joint Stipulation and Order. After framework action, Framework 16 to the Council expanded the use of area-based considering all comments on the DSEIS, FMP and Framework 39 to the NE management in the scallop fishery by the Council adopted the final measures Multispecies FMP (the Joint implementing Framework 11 to the FMP to be included in Amendment 10 at its Framework), and these proposed and Framework 29 to the Northeast August 13–14, and September 16–17, regulations do not enact the access Multispecies FMP (NE Multispecies 2003, meetings. The Council submitted program in the groundfish closed areas. FMP)(Frameworks 11/29) (64 FR 31144) the final Amendment 10 document to DAS allocations could also be to authorize scallop vessels to fish NMFS in December 2003. impacted, depending on whether or not within Groundfish Closed Area II (CAII) A notice of availability for the Joint Framework is implemented. on Georges Bank (GB). On June 19, Amendment 10 was published in the Upon implementation of Amendment 2000, with the implementation of Federal Register at 69 FR 2561 on 10, DAS would be 42, 17, and 4 for Full- Framework 13 to the FMP and January 16, 2004. The comment period time, Part-time and Occasional vessels, Framework 34 to the NE Multispecies on Amendment 10 in terms of its respectively. Amendment 10 proposes FMP (Frameworks 13/34) (65 FR 37903), approvability under the Magnuson- that if the Joint Framework is not area-based management for the scallop Stevens Fishery Conservation and approved and a final rule allowing fishery was further expanded. Management Act (Magnuson-Stevens access to the groundfish closed areas is Frameworks 13/34 allowed access by Act) ends on March 15, 2004. not published by August 15, 2004, the the scallop fishery to Groundfish CAI DAS for the 2004 fishing year will Measures of Particular Concern and II on GB and the Nantucket increase by 20, 8, and 1 DAS for Full- Lightship Closed Area (NLCA) in NMFS is highlighting the following time, Part-time, and Occasional vessels, southern New England. In both five measures included in Amendment respectively. A delay of action on the Frameworks 11/29 and Frameworks 13/ 10, due to concern relating to Joint Framework until after August 15, 34, these areas, closed to protect implementation and timing: Scallop 2004, would likely delay potential groundfish species managed under the fishing access in the groundfish closed access to the three groundfish closed NE Multispecies FMP, were found to areas; cooperative industry surveys; the areas until the 2005 scallop fishing year have high concentrations of large increase in the minimum ring size; (March 1, 2005,through February 28, scallops that would support a controlled implementation of an observer set-aside 2006). fishery for scallops with only minimal program; and the title of the proposed 2. Cooperative Industry Surveys bycatch of groundfish. MA closed area. NMFS’s concern with Frameworks 14 (66 FR 24052, May 1, these measures is described below. NMFS notes its concerns about the 2001) and 15 (68 FR 9580, February 28, While NMFS only raises the groundfish Council’s proposal to establish a 2003), to the FMP implemented on May access issue for public awareness, cooperative industry scallop survey in 1, 2001, and March 1, 2003, NMFS seeks specific public input on the support of area rotation. The proposed respectively, included area-based remaining four measures of concern. measure is intended as an important controlled harvest strategies for the The measures are described in full in tool for the fully adaptive area rotation Hudson Canyon and Virginia Beach the ‘‘Proposed Measures’’ section of this scheme proposed in Amendment 10. areas similar to the programs preamble. However, Amendment 10 specifies no established within the groundfish details of the cooperative scallop survey 1. Scallop Fishing Access in Groundfish closed areas. The MA scallop closed regarding the vessels that would be Closed Areas areas were reopened to controlled used, the survey design and timing, and scallop fishing by these actions because Amendment 10 would allow scallop issues of survey standardization. New the area closure had provided sufficient vessels to fish within the groundfish information about the scallop resource, time for the protected scallop resource closed areas (CAI, CAII, and the NLCA), presumably through the cooperative within the areas to grow to a size more pending action under the Northeast (NE) industry surveys, would need to be suitable for harvest. These recent area- Multispecies FMP, because a high available to the Council in the early based management actions for the percentage of the scallop biomass at spring of 2005 in order to be used in the scallop fishery provided the Council harvestable size is within the proposed biennial framework with valuable information and boundaries of those areas. If vessels are adjustment process for 2006 through experience in area-based management allowed to harvest the scallops within 2007. Given the lack of detail in the for the scallop fishery, which it relied the closed areas, Amendment 10 cooperative industry survey provision, upon in the development of projects that the yield from the scallop it is unclear what the Council or NMFS, Amendment 10. fishery could be improved significantly, is to do if vessel owners do not make Amendment 10 was also developed boosting both short-term and long-term vessels available to conduct the survey. by the Council to minimize the adverse benefits to the resource and the In addition, although the cooperative effects of fishing on EFH. Consistent industry. Without access, the potential industry resource survey is the with the EFH Joint Stipulation and benefits would be lost, particularly in Council’s top research priority for Order, Amendment 10 evaluates the the long-term. scallops and the set-aside program, the impacts of fishing on EFH and proposes Although Amendment 10 research total allowable catch (TAC) set- management measures designed to contemplates access to the three aside program developed in minimize the adverse effects of scallop groundfish closed areas, it is not Amendment 10 does not establish fishing on EFH, to the extent possible to enact the access program for research TAC set-aside specifically for practicable. those areas through this action. the resource survey. Therefore, there is A notice of availability for the Draft Complementary action must be taken no assurance that any resource-based Supplemental Environmental Impact under the NE Multispecies FMP, to funding would be available for the
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survey. NMFS is concerned that the the scallop fishery. In order to provide compared to the fixed boundary proposed measure is not specified in the public with a clear presentation of alternatives. sufficient detail to be implemented, and the regulations that would result if Amendment 10 would establish notes that it appears likely that a Amendment 10 is approved and rotational area management closures for framework action will be required to implemented, NMFS is publishing the beds of small sea scallops before the develop these details prior to sea scallop regulations in 50 CFR part scallops are exposed to fishing implementation. 648, subpart D, in their entirety in this mortality. Scallops have their highest proposed rule. growth rates when they are very small 3. Minimum Ring Size Increase The proposed regulations also include and protection of these scallops through The Council has proposed that the some non-substantive revisions to the area closures is critical in the increase in the minimum ring size to 4 existing text in subpart D that are not management of the scallop resource. inches (10.2 cm) would be effective proposed in Amendment 10; these After a period of closure, according to upon implementation of Amendment 10 revisions would remove obsolete the criteria and procedures established, in the Hudson Canyon Access Area, and language and improve the organization the areas would re-open for scallop 6 months following publication of the and clarity of the regulations. fishing when the scallops are larger and final rule for Amendment 10, if more suitable for harvest. This process 1. Overfishing Definition approved, in the remaining areas. NMFS would boost scallop meat yield and seeks comment on whether it would be Amendment 10 proposes to maintain yield per recruit. The fully adaptive area feasible to implement the gear the existing overfishing definition in the rotation scheme would establish no pre- conversion requirement upon FMP, with an increase in the minimum defined conditions for area closures and publication of the final rule and biomass threshold from 1/4 BMAX to 1/ reopenings. There would be no standard implementation of Amendment 10. 2 BMAX to be consistent with the closure area boundaries, dimensions, or National Standard Guidelines. Annual durations. This area rotation program 4. DAS Set-aside for Observer Coverage determinations of the status of the would be based entirely on changing NMFS is concerned about effective resource would be based on the resource conditions of the scallop resource. The implementation of the DAS set-aside for conditions and fishery performance biennial frameworks used to enact the observer coverage that would help relative to biomass and fishing mortality fully adaptive area rotation program defray the cost of observers on open area reference points for the combined would use predetermined scallop trips. Implementation of this measure Georges Bank and Mid-Atlantic scallop biomass and growth rate reference would be complicated because it resource. Amendment 10 proposes new points to determine boundaries and requires allocation of additional fishing guidelines for the Council to use during duration of area closures and re- time that is based on several variables, the development of biennial framework openings. The fully adaptive area including random selection of vessels to adjustments that would assure that the rotation scheme would specify carry an observer, actual trip length, management measures implemented in guidelines as part of the biennial DAS and observer cost equivalents (i.e., the future would prevent overfishing framework process that would be used how many days of fishing is equal to the and achieve optimum yield (OY) on a to establish the rotational areas. cost of carrying an observer for 1 day, continuing basis. 3. Initial Area Rotation or for a trip), catch rates, and scallop 2. Area Rotation value. As suggested in the Amendment Amendment 10 proposes two areas in 10 document, to implement the Under area rotation, three types of the MA to be part of the initial area measure, NMFS proposes that vessels areas would exist: Closed areas; rotation scheme. First, a redefined would be allocated a pre-determined controlled access areas; and open areas. Hudson Canyon Access Area would be number of additional DAS for each trip Closed areas would be closed to all established as a controlled access that is observed. The number of scallop harvest as a result of large scallop fishing area, with limited access additional DAS to be allocated would be concentrations of fast growing, small scallop vessels allowed to take four trips determined from a multiplier of 0.14. scallops. Controlled access areas would into the area. Second, an area would be For example, if a vessel takes trip of 14 be re-openings of closed areas or areas closed that includes the lower portion of DAS, 1.96 DAS would be added to its needing additional effort or harvest the existing Hudson Canyon Access allocation. A multiplier is taken from controls. Controlled access areas would Area, and an adjacent area. The new the analysis provided in the have area-specific effort allocation closed area is called the ‘‘Elephant Amendment 10 FSEIS. programs, or ‘‘Area Access Programs’’ as Trunk Area.’’ Fishing for and possession described below, established to prevent of scallops would be prohibited in the 5. MA Closed Area rapid harvest of the scallop resource Elephant Trunk Area through February NMFS is concerned about the title of within the areas. Finally, open areas 2007. Vessel transit with gear stowed MA closed area proposed in would be all areas without area-specific would be allowed for both areas. Amendment 10. The title, ‘‘Elephant controls. In general, open areas would 4. Area-specific DAS and Trip Trunk’’ closed area was provided to the be subject to DAS and gear restrictions Allocations for Limited Access Vessels Council by a member of the scallop with no possession limit and trip industry, but it has come to NMFS’s limitations other than those for General Amendment 10 would limit fishing by attention that the ‘‘Elephant Trunk’’ is Category vessels and vessels fishing for limited access scallop vessels under also used to describe an area in the scallops outside of scallop DAS. area access programs in order to prevent Great South Channel area of GB. NMFS The Council considered various rapid harvest of scallops in controlled therefore seeks public comment on how approaches to area rotation and adopted access areas. Limits on fishing would to clarify the designation of the area the approach that would provide the include: Area-specific DAS allocations; proposed in Amendment 10. most flexibility to define future a number of DAS to be charged for each rotational areas. The ‘‘fully adaptive closed area trip, regardless of trip Proposed Measures area rotation scheme’’ was adopted by length; a maximum number of trips Amendment 10 proposes a number of the Council because it would allow allowed into each area; and a maximum changes to the management regime for more accurate area definitions sea scallop possession limit per trip.
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These limits would be based upon a Amendment 10 proposes to open only state exemption program, vessels issued target TAC for each area and the level the Hudson Canyon Access Area to a limited access scallop permit that are of effort that would be expected to controlled fishing. not fishing under a scallop DAS, would harvest the target TAC. The harvest of be prohibited from possessing more 6. Compensation for Sea Scallop Access scallops at a level at or above the target than 40 lb (18.1 kg) of shucked scallops Area Trips Terminated Early TAC would not result in a closure of the or 5 U.S. bu. (176.2 L) of unshucked area. Rather, landings relative to the Amendment 10 would allow vessel scallops. This would eliminate the target TAC would be evaluated through owners to request that NMFS allow current allowance for limited access biennial, or more frequent reviews of compensation for a Sea Scallop Access vessels to fish for scallops outside of the fishery. Area trip terminated before the vessel DAS and land up to 400 lb (181.4 kg) Unused controlled access DAS could has fished up to the automatic deducted of scallops. The measure is intended to not be carried forward into the next DAS. Such trips would be allowed prevent excessive harvest of scallops fishing year. The area target TAC, DAS without counting as one of the initially outside of DAS, which could have allocations, maximum number of trips allocated trips and at a reduced DAS negative effects on overall resource and possession limit, and number of charge and possession limit. The vessel conditions and DAS allocations. DAS charged per trip would be owner must submit proof that the vessel calculated to optimize yield while owner terminated a controlled access 9. EFH Closures reducing the potential for trip due to unforeseen events, Amendment 10 would define areas to overexploitation of the resource in the emergencies, or for safety reasons. This be closed to scallop fishing to minimize open fishing areas. is intended to promote vessel and crew the impacts of scallop gear on EFH. Amendment 10 proposes specific safety by preventing the minimum DAS These areas are within the areas measures that would be a part of the charge from being imposed if a vessel currently closed under the NE rotational area access program for the owner/operator believes it is necessary Multispecies FMP in order to protect Hudson Canyon Area, based on a target to terminate a trip. The existing groundfish (CAI, CAII and the NLCA). TAC of 18,789,999 lb (8,523 mt) in 2004, regulations provide a very limited set of These areas do not include the portions and 14,956,160 lb (6,784 mt) in 2005. circumstances that allow such DAS of the groundfish closed areas that were DAS assignments for the 2004 and 2005 restoration, and this would broaden the previously opened to the scallop fishery fishing years would be in trip-length provision. under the Scallop Framework 13 Closed blocks of 12 DAS, and four trips with a Area Access Program. The proposed trip possession limit of 18,000 lb 7. Gear Restrictions EFH closed areas include areas (8,164.7 kg), consistent with a 1,500–lb Amendment 10 proposes to increase designated as EFH for several finfish (680–kg) per day catch rate. Each vessel the minimum size of the metal rings species, which would be closed to would be charged 12 DAS for each trip, used to construct the chain bag in prevent impacts by scallop gear. To regardless of actual trip length. Trip scallop dredge gear from 3.5 inches (8.9 promote the rebuilding of groundfish length DAS charge and possession cm) to 4 inches (10.2 cm) in diameter. stocks, the NE Multispecies FMP limits would be re-evaluated for future The new minimum ring size is intended prohibits the use of most bottom- years through the framework adjustment to improve yield from the scallop tending gear in the groundfish closed process, beginning with the resource by promoting harvest of larger areas. development of the first biennial scallops with higher meat weights. 10. Data Collection, Monitoring, and framework in 2005, that would be Upon implementation of Amendment Scallop Research effective March 1, 2006. 10, if approved, all scallop dredges onboard vessels conducting a Hudson Under the current regulations, vessels 5. One-for-one Controlled Access Trip Canyon Area controlled access trip issued scallop permits may be required Exchanges would be required to comply with the by the Administrator, Northeast Region, The controlled area access program proposed requirement, because the NMFS (Regional Administrator) to carry would allocate each limited access improved selectivity of the larger rings an observer onboard, with the related vessel a specific number of trips into would help achieve the objective of the costs being borne by the vessel. To each controlled area. Limited access controlled access program, to improve partially or entirely defray these costs, vessel owners would be allowed to enter yield. A 6–month delay in effectiveness vessels carrying an observer would be into one-for-one exchanges of controlled of this measure has been proposed by allowed to land more scallops or utilize access area trips. Allowing vessel the Council for vessels fishing outside of more DAS than it would otherwise be owners to exchange trips would enable the Hudson Canyon Area, in order to allowed. Amendment 10 proposes to them to take advantage of fishing area allow vessel owners time to convert establish a 1–percent set-aside of the preferences. For example, a vessel their gear. total DAS in open areas and the target owner in the north could exchange a Amendment 10 also proposes to TAC within the Area Access Program trip in a southern area with a vessel require all scallop dredge twine tops to areas to help defray the cost of owner in the south for a trip in a be constructed of mesh with a minimum observers. The set-asides for observers is northern area. The northern vessel size of 10 inches (25.4 cm), inside intended to improve data on scallop would thus gain one trip in the northern measure, for both diamond and square catch and bycatch. Expansion of the area, but would give up one trip in the mesh. The increase in the twine top program to open areas under the DAS southern area. The total number of trips mesh size is intended to minimize set-aside would further improve data in each area would be unchanged, bycatch and bycatch mortality by collection. assuming each vessel would take all of improving escapement of some species Amendment 10 would also establish a its allocated trips. The one-for-one trip of finfish. DAS set-aside from open area DAS and exchange provision would require more a TAC set-aside to supplement the than one area to be managed under a 8. Permit Restrictions available funding for research. controlled access program. This Except for vessels fishing under the Amendment 10 would expand the proposed rule would establish the NE multispecies or monkfish DAS research objectives to be pursued using provision for future use, because program, or fishing for scallops under a this set-aside to include habitat-related
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research, research to identify potential frequency; and area-specific gear limits sector of the fleet. Limited access solutions to bycatch of fish and sea and specifications. vessels are issued permits to fish for turtles, and cooperative industry scallop scallops on a Full-time, Part-time or 13. Proactive Protected Species Program resource survey work. The TAC set- Occasional basis. In 2001, there were aside made available for the research To reduce the risk of takes of sea 252 Full-time permits, 38 Part-time would be 2 percent of the target TAC turtles and other species protected permits, and 20 Occasional permits. In within the the Area Access Program under the Endangered Species Act by 2002, there were 270 Full-time permits, areas. In addition, 2 percent of the open fishing gear used in the scallop fishery, 31 part time permits, and 19 Occasional area DAS allocation would be set aside Amendment 10 proposes a mechanism permits. Because the fishing year ends to help fund scallop related research. A to close areas, establish seasons, on the last day of February of each year, request for proposals will be published implement gear modifications, or other 2003 vessel permit information was in the Federal Register in the near measures through the framework incomplete at the time the Amendment future which solicits proposals for adjustment process. As new information 10 analysis was completed. Much of the research for the 2004 fishing year. The about sea turtles and other protected economic impacts analysis is based on research set-aside program is intended species becomes available, particularly the 2001 and 2002 fishing years; 2001 to promote cooperative research related if interactions between protected and 2002 were the last 2 years with to the scallop resource and fishery. species and the scallop fishery increase complete permit information. According beyond anticipated levels, the Council to the most recent vessel permit records 11. Cooperative Industry Resource would propose actions to mitigate takes. for 2003, there were 278 Full-time Surveys limited access vessels, 32 Part-time Classification Amendment 10 proposes to use a limited access vessels, and 16 At this time, NMFS has not cooperative industry scallop survey to Occasional vessels. In addition, there determined that the FMP amendment improve the precision of closed area were 2,293, 2,493, and 2,257 vessels that this proposed rule would designations, and re-opening dates and issued permits to fish in the General implement is consistent with the conditions. The Regional Administrator Category in 2001, 2002, and 2003, national standards of the Magnuson- would be authorized to allocate respectively. Annual scallop revenue for Stevens Act and other applicable laws. additional compensation trips to vessels the limited access sector averaged from NMFS, in making that determination, that participate in the cooperative $615,000 to $665,600 for Full-time will take into account the data, views, surveys to help defray the costs of the vessels, $194,790 to $209,750 for Part- and comments received during the vessel’s participation in research time vessels, and $14,400 to $42,500 for comment period. projects. Vessel compensation and Occasional vessels during the 2001 and A notice of availability of the DSEIS, direct administrative costs for these 2002 fishing years. Total revenues per which analyzed the impacts of all of the surveys would be recaptured from the vessel, including revenues from species measures under consideration in 2–percent DAS and TAC set-asides, if other than scallops, exceeded these Amendment 10, was published on April cooperative industry resource surveys amounts, but were less than $3.5 18, 2003, (68 FR 19206). are approved through set-aside awards. million per vessel. This proposed rule has been Two criteria, disproportionality and 12. Framework Adjustment Process determined to be not significant for profitability, were considered in purposes of Executive Order 12866. determining the significance of Amendment 10 proposes a biennial The Council prepared an IRFA as regulatory impacts. The framework adjustment process for required under section 603 of the disproportionality criterion compares changing area rotation closed areas and Regulatory Flexibility Act (RFA). The the effects of the regulatory action on area re-openings, setting DAS IRFA describes the economic impact small versus large entities. Because all allocations, and making other that this proposed rule, if adopted, of the vessels permitted to harvest sea management adjustments. In addition to would have on small entities. A scallops are considered to be small a change from an annual to a biennial summary of the analysis follows: entities, there are no disproportional process, the new framework procedures A description of the action, why it is impacts. Due to a lack of individual would ensure that OY is achieved and being considered, and the legal basis for vessel cost data, the analyses performed overfishing is prevented on a continuing the action are contained in the preamble for this proposed rule use increases in basis, through consideration of the to this proposed rule. This proposed fleet revenue as a proxy for vessel resource condition by the Scallop Plan rule does not duplicate, overlap or profitability. Development Team (PDT). In addition conflict with any relevant Federal rules. to the frameworkable measures in the Proposed Reporting, Recordkeeping, FMP, Amendment 10 proposes that Description of Small Entities to Which and Other Compliance Requirements the Proposed Rule Will Apply changes in the following measures There are four proposed measures that could be enacted through framework The measures proposed in impose new reporting, recordkeeping or action: Size and configuration of Amendment 10 could impact any other compliance requirements upon rotation management areas; controlled commercial vessel issued a Federal sea the small entities that participate in the access seasons to minimize bycatch and scallop vessel permit. All of these fishery. maximize yield; area-specific DAS or vessels are considered small business trip allocations; amount and duration of entities for purposes of the RFA because Reporting and Recordkeeping TAC specifications following re- all of them grossed less than $3.5 Two measures with new reporting opening; limits on number of closures; million according to the dealer reports requirements are intended to provide TAC or DAS set-asides for funding for the 2001 and 2002 fishing years. flexibility to vessel owners participating research; priorities for scallop-related There are two main components of the in the area access program proposed in research that is funded by a set-aside scallop fleet: Vessels eligible to Amendment 10. The first would allow from scallop management allocations; participate in the limited access sector vessel owners to request restoration of finfish TACs for controlled access areas; of the fleet and vessels that participate DAS charged for area access trips finfish possession limits; sea sampling in the open access General Category terminated by the vessel operator due to
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an emergency, poor weather or any estimated at $0.47 representing the cost larger ring size would be more valuable other reason deemed appropriate. This of postage ($ 0.37) and document and would make up more of the overall broken trip provision would require a reproduction ($ 0.10), for a total catch. The increase in the minimum vessel owner to notify NMFS via its compliance cost of $130.66. mesh size in twine tops would impose vessel monitoring system (VMS) when All vessels issued permits to harvest a cost on vessel owners, though scallop the trip was terminated, and to submit sea scallops must carry an at-sea vessels on controlled access trips have a request for DAS restoration by mail to observer onboard, if requested by the had to use 10–inch (25.4–cm) mesh the Regional Administrator. The Regional Administrator to gather data twine tops since 1999, so some vessels estimated number of such requests necessary to manage the fishery. The would already be in compliance and varies from 188–481, with the higher cost to the vessel is estimated at would have already incurred those number based on the larger number of $1,100.00 per DAS. Amendment 10 costs. Additionally, Full-time limited area access trips expected to occur if proposes to mitigate the impact of this access vessels customarily have to Amendment 10 is followed by action in cost to vessel owners by establishing an replace their twine tops several times a the Joint Framework to authorize observer set-aside that would allow year, so the purchase of twine would scallop fishing in the Groundfish closed vessels carrying an observer to harvest not represent an additional expense. areas. Each request is estimated to have additional scallops to offset the cost. In The process of sewing a twine top into associated compliance costs of $1.26, order to ensure that all scallop vessels a dredge takes about 30–45 minutes in representing the cost of the VMS are considered for at-sea observer good weather, dockside. message ($ 0.79 per minute), postage ($ coverage, vessel owners would be Economic Impacts of the Proposed 0.37), and document reproduction ($ required to notify NMFS of their intent Action 0.10)). Therefore, 188 requests would to fish through their VMS. Without impose total compliance costs of access to the groundfish closed areas, it Economic impacts were analyzed $236.88 and 481 requests would impose is expected that approximately 1,965 relative to no action, defined as the total compliance costs of $606.06. trips would be reported by vessels for continuation of the existing DAS The second proposed measure to VMS coverage. With access to the schedule (as specified in Amendment 7) provide flexibility to vessel owners groundfish closed areas, the number of with no access by scallop vessels to the participating in the area access program trips would decrease (because of lower scallop resource located within the would allow vessel owners to exchange overall DAS allocations with access) to groundfish closed areas. The combined the controlled access trips allocated to 957. The cost of notification is estimated economic impacts of the proposed their vessel for use within specific at $0.79 per response, for a total measures are positive for the majority of access areas. Such exchanges would compliance cost of $1,552.35 without small business entities in the scallop allow vessel owners to mitigate their access, and $756.03 with access. fishing industry. Although the economic operating costs. For example, a vessel analysis was conducted for an average Other Compliance Costs owner in New England with an Full-time limited access vessel, the allocated trip to an access area in the Two proposed gear modifications impacts would be similar for Part-time MA region could exchange with a vessel have associated implementation costs: and Occasional limited access vessels owner in the MA region who had an An increase in the minimum size of the because the overall management allocated trip to an access area in New rings used to construct scallop dredge measures apply equally to all limited England. Both owners could minimize chain bags from 3.5 inches (8.9 cm) in access vessels. The DAS allocations for their vessel operating expenses without diameter to 4 inches (10.2 cm) in Part-time and Occasional limited access foregoing any area access trips. A diameter; and an increase in the size of vessels would be impacted in the same conservative estimate of the potential the mesh used to construct scallop manner as Full-time DAS allocations, compliance costs associated with this dredge twine tops, from 8 inches (20.3 though proportional to their relative provision was calculated based on the cm) to 10 inches (25.4 cm). The increase allocations. The impacts of specific assumption that each of the 278 Full- in the ring size would require vessel measures are summarized below. time limited access vessels would make owners to modify their existing gear. 1. Area Rotation one exchange per year. Both vessel Actual cost of converting ring size is not owners involved in the trade would be available. Additional information The proposed area rotation alternative required to submit a form, so the total gathered during the public comment with access to the GB groundfish areas number of respondents would be 556. period regarding gear conversion should would have positive economic impacts Each request is estimated to have assist NMFS in determining the actual on vessels compared to the no action associated compliance costs of $ 0.47 cost. With the exception of requiring 4– levels in the short term from 2004 to representing the cost of postage ($ 0.37) inch (10.2–cm) rings in the Hudson 2007. Gross revenues would increase by and document reproduction ($ 0.10). Canyon Access Area upon over 50 percent from 2004 to 2007. The Therefore, 556 requests would impose implementation, Amendment 10 average gross profits per year are compliance costs of $261.32. proposes to provide a 6–month delay in estimated to be positive during these Amendment 10 proposes that the requirement to provide time for the first 4 years, and to exceed the no-action commercial vessels would participate in industry to purchase the gear. This levels by approximately $72,000 from the conduct of a cooperative industry would temporarily mitigate the 2004 to 2007. The impacts would be survey, with the direct costs of economic impact of the requirement by positive over the next 4 years (2008– participation covered by a research set- allowing vessel owners to use existing 2011) as well. Therefore, if all vessels aside of TAC and DAS. However, there gear in most areas for the first 6 months are able to use their area-specific DAS would be some costs to vessel owners after implementation and replace worn allocations, and if access is provided to interested in participating in this gear with the new 4–inch (10.2–cm) the Groundfish closed areas by the Joint survey, because they would be required rings. Long-term benefits of the Framework, the impacts on vessel to notify NMFS of their interest by increased ring size are expected to revenues and profits would be positive submitting a form to NMFS. The outweigh the short-term cost of both in the short and long term. number of respondents is estimated at replacing the 3.5–inch (8.9–cm) rings Although the proposed regulations are 278, with the cost of notification because larger scallops caught with the expected to benefit most vessels in the
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scallop fishery by increasing the When the analysis was conducted, or larger possession limit generates productivity of the scallop resource, however, based on a sample of vessels lower average annual net revenues for these benefits may not necessarily be that were active during all the years 2004 2007, compared to the other equally distributed. Area rotation and when access was provided to these possession limit alternatives. On the area closures could have differential areas, the percentage of Full-time other hand, it could be difficult for some effects on scallop vessel owners, vessels that did not access one or more vessels to land the possession limit processors, ports, and fishing of the controlled access areas in GB and within 12 DAS. In order to communities, depending upon their the MA was reduced to 22 percent. accommodate for this difficulty, this home port proximity to open and Therefore, the proportion of vessels that rule proposes that the limited access controlled access areas. These impacts could be affected by area-specific DAS vessels would be charged no more than may vary depending upon the relative allocations ranges from one-fourth to 12 DAS, even if the actual trip length mobility of vessels in accessing one-third of the Full-time fleet. was longer. alternative fishing areas. However, the Although the provision that allows one- 3. One-to-one Exchanges of Controlled differential effects are difficult to to-one exchange of controlled access Access Area Trips quantify and predict since actual effects area trips may mitigate these impacts, would depend on reaction to the new some vessels may be unable to arrange To mitigate the potential adverse regulations by the industry. an exchange to fish in a preferable area impacts related to the fact that some Without future access to the if other vessel owners are not willing to vessels may not be able to utilize area access trips into specific areas, the Groundfish closed areas, area rotation exchange trips. These vessels could face proposed action would allow one-to-one would increase estimated gross and net negative economic impacts from area- exchanges of controlled access area revenues for the first 3 years, from 2004 specific trip and DAS allocations if they trips. This is expected to provide to 2006, but would have negative are unable to take their trips to specific flexibility to vessel owners regarding impacts on revenue and profits in controlled access areas due to the which areas to fish, thereby reducing subsequent years as vessels would not limitations in vessel size and the possibility of revenue loss if they are benefit from abundant fishing grounds equipment, safety concerns, or cost unable to access some areas. As noted and as the resource in open areas factors. Controlled area access revenue above, the compliance costs associated becomes less abundant. Annual average is estimated to constitute 45 percent of with this provision are minor, and the gross revenues would decrease by 4 the total scallop revenue in 2004 and 35 measure should provide benefits to percent per year from 2008 to 2011. percent in 2005, if there is no access to groundfish closed areas. Controlled area vessel owners involved in an exchange. 2. Annual DAS Allocations access revenue is estimated to increase 4. Compensation for Sea Scallop Access This action would allocate DAS to to 66 percent of the total scallop Area Trips Terminated Early vessels in order to achieve OY from the revenue in 2004 and 60 percent in 2005, This action proposes to allow vessel scallop resource. The DAS allocations if there is access provided to the owners to request compensation for Sea would be area-specific, and one-to-one groundfish closed areas through Joint Scallop Access Area trips terminated by exchanges would be allowed between Framework 16/39. The scallop revenue the vessel operator due to unforseen vessel owners for the controlled access from even one access area trip could events, emergency, or safety reasons. If area trips. The initial DAS allocations amount to more than 10 percent of the such a request is approved by NMFS, a and catch levels proposed by annual revenue in 2004 without access vessel would be authorized to resume Amendment 10 are higher than the to the Groundfish closed areas and close the area access trip and harvest 1,500 lb allocations and catch levels under the to 10 percent of the annual revenue with (680 kg) of scallop meats for each DAS no action alternative. As a result, vessel access to the Groundfish closed areas. restored. Therefore, this measure would landings, revenues and gross profits Therefore, the loss of revenue and gross have positive economic impacts on would increase in the short term, profits from controlled access trips vessels by reducing lost revenue from compared to the no action alternative. could be significant, even if one or two area access trips that are terminated, These economic impacts assume that of these trips could not be taken. making it more likely that vessels would all vessels would be able to access each Under the proposed area access utilize their controlled access trips. As of the controlled access areas. There is program, a vessel could harvest 18,000 noted above, the compliance costs uncertainty, however, regarding the lb (8,165 kg) of scallop meats, with a associated with this measure are minor. number of vessels that would be able to minimum charge of 12 DAS for each fish in those areas or that would be able area access trip. This trade-off would 5. Gear Restrictions to trade their trips in one access area for result in maximum annual net revenues The proposal to increase the trips to a preferable access area. The per vessel from the controlled access minimum ring size to 4 inches (10.2 cm) analysis showed that, although the areas in 2004 alone, or on average for is expected to have positive economic majority of the Full-time limited access the period 2004 to 2007. When impacts overall, despite short-term costs vessels that were active in 2002 compared to other possession limits, the associated with gear changes. Larger previously fished both in the controlled possession limit of 18,000 lb (8,165 kg) rings would allow more small scallops access areas of GB and Hudson Canyon, is slightly lower than the status quo trip to escape capture, reducing discard about 9 percent of them never fished in limit of 21,000 lb (9,525 kg) and could mortality and improving yield and the MA controlled access areas, another constrain larger vessels with the vessel revenue. The increase in the ring 17 percent never fished in the GB capacity to land more scallops per trip. size is estimated to improve the groundfish areas, and about 8 percent However, larger possession limits at efficiency of the gear in capturing large never fished in any of these areas. These higher automatic DAS deduction (e.g., (greater than 4.3–inch (10.9–cm)) three groups of vessels constitute about 21,000 lb (9,525 kg) with an automatic scallops by about 10–15 percent. In one-third of the Full-time vessels that 14 DAS deduction) result in a smaller addition, gear efficiency for large were active in the 2002 fishing year and number of trips per vessel as less trips scallops would increase, reducing the that would be allocated trips in areas would be necessary to harvest the target tow time needed to catch the allowed that they have not fished in the past. TAC. As a result, a 21,000–lb (9,525 kg) possession limit. This in turn could
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result in lower vessel operating 8. Biennial Framework Adjustment are positive when compared to the expenses. The positive benefits of the Procedure impacts of both the no action and status 10–inch (25.4 cm) twine top The framework provision would have quo measures, if there is future access requirement are indirect, because the positive impacts on the scallop industry to the groundfish closed areas. If there measure would allow for greater by adjusting the management actions to is no future access to the groundfish closed areas, however, economic escapement of many finfish species, changing resource conditions. Biennial thus minimizing bycatch. Without impacts from the proposed option adjustments would enable participants measures to keep bycatch low, the would be negative in comparison to no in the fishery to conduct their business Council felt it was unlikely that scallop action after the first 4 years of planning on a biennial basis, as well. vessels would be allowed to fish within implementation. This is because open the Groundfish closed areas. The 9. Proactive Protected Species Program areas would be fished at a higher rate in Council did not consider alternatives for This program is expected to have the absence of access to the groundfish mesh larger than 10 inches (25.4 cm) positive impacts on the scallop fishery closed areas, reducing landings per unit because studies of 12–inch (30.5–cm) by helping to minimize the interactions effort and, consequently, resulting in mesh twine tops indicate excessive between scallop gear and protected lower landings than the level of landings under the no action alternative. reductions in scallop catch. species and, therefore, reducing the With or without access to the need for more conservative actions that 6. General Category Permit Restrictions groundfish closed areas, the proposed This proposed action would prohibit could have negatively impacts on the measures would result in higher DAS a vessel issued a limited access permit small businesses in scallop industry. allocations than the no action to harvest scallops under the regulations Economic Impacts of Significant and alternative. This would translate into applicable to the General Category when Other Non-selected Alternatives higher landings, lower prices, larger not fishing on a scallop DAS. This fleet revenue, producer and consumer The RFA requires consideration of would prohibit an activity that is surpluses and greater total benefits than alternatives that accomplish the stated allowed under current regulations. the no action alternative during the first objectives of the applicable statutes and Although one-third of the limited access 4 years of the program (2004 to 2007). that minimize economic impacts on vessels landed some scallops under the The annual fleet revenues would exceed small entities. The IRFA should identify General Category rules during the 2002 no action levels by $58 million during fishing year, only 7 percent of these any significant alternatives that would the initial 4–year period with access to vessels derived more than 1 percent of minimize economic impacts on small the groundfish closed areas, and by $37 their revenues from the General entities, if such alternatives exist. If million without access to the groundfish Category trips. The Council concluded there is an alternative with less impact closed areas. The cumulative value of that the measure would benefit most on small entities that meets the stated the net benefits, measured by the sum limited access vessels, since an increase objectives, the IRFA should identify and of consumer and producer surpluses net in General Category landings could describe such an alternative. A rationale of no action, would reach $371 million require the reduction of DAS allocations should be provided to explain any with access to the groundfish closed to limited access vessels in the future. unavoidable adverse effects on small areas, and $124 million without access Such reductions would impact all entities that are necessary to achieve the during the initial 4–year period. The limited access vessels, including those objectives. economic impacts during the following that have never harvested scallops The Council compared the economic 4 years, and in the long term, would under the General Category. impacts of the proposed measures to the also be positive if access is allowed to Vessels holding General Category impacts of the other significant the groundfish closed areas, increasing scallop permits and limited access alternatives considered. The Council total benefits by $53 million during scallop vessels fishing under a NE selected its proposed measures to 2008–2012 and by $95 million over the multispecies or monkfish DAS would be function as a set of integrated measures long term (2013–2030). authorized to harvest up to 400 lb (181.4 that would, when implemented, achieve The alternatives considered by the kg) of scallop meats from open areas and a number of conservation and Council included alternatives with no controlled access areas. Allowing the management objectives while area rotation component, as well as harvest of up to 400 lb (181.4 kg) of minimizing the economic impacts on various rotational management scallop meats in controlled access areas the industry, to the extent possible. alternatives with fixed area boundaries, would benefit vessels that have been Therefore, one of the many analyses various closure durations, and restricted to 100 lb (45.4 kg) in conducted by the Council evaluated the inflexible/mechanical rotation schemes. controlled access areas under previous impacts of the set of proposed measures These were examined with both 3.5– actions. in comparison to the no action inch (8.9–cm) and 4–inch (10.2–cm) measures, and considered the impacts ring requirements. 7. Habitat Alternatives both with and without future access to The Council did not find it necessary Amendment 10 proposes to close the groundfish closed areas through The to select one of these other alternatives specified areas to scallop gear to Joint Framework. Furthermore, the because development of the Joint minimize the adverse effects of fishing impacts of the proposed measures were Framework was contemplated by the on EFH to the extent practicable. The compared to the status quo alternative, Council at the time it selected its areas identified for closure are currently defined to be limited access fishing DAS proposed measures. The Joint closed to the scallop fishery by allocated consistent with the existing Framework addresses the circumstances regulations implemented under the NE fishing mortality targets and the current that would cause the negative impacts Multispecies FMP to conserve condition of scallop resource, no projected in the absence of access to the groundfish. Therefore, establishing increase in the minimum ring size, and groundfish closed areas. It should be these areas as Habitat Closed Areas in no area rotation program. possible to develop a program to allow Amendment 10 would have no impact The results of this analysis show that such access before the negative impacts on small entities, when compared to the the combined economic impacts on of the proposed measures are no action alternative. small entities of the proposed measures experienced by the industry.
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Amendment 10 also includes analyses increase average landings to 33–34 scallop fishery of areas that were closed that compare the various alternatives. million lb (14,968–15,422 mt) per year to scallop fishing under Framework 13; The proposed rotational management from 2003–2012. There are three Alternative 7, area closures designed measure (adaptive rotation with flexible rotational management alternatives that to protect areas of high EFH value and area boundaries based on frequent would not increase average landings low scallop productivity; surveys of the resource) was found to during the period: The mechanical Alternative 8 (a and b), area closures have positive impacts compared to rotation alternative, the alternative that on the eastern portion of GB; alternatives that did not include area allows areas to be closed for 4 years, and Alternative 9, area closures that rotation. This is because it protects the program that allows 50 percent and include all of the existing year-round small scallops during periods of their 100 percent of the maximum biomass to groundfish closed areas in southern highest growth rates, and allows the be located in closed areas. Mechanical New England, GB and the Gulf of boundaries of closed areas to be rotation is estimated to reduce average Maine; determined more accurately, improving landings and revenues per year, and Alternative 10, restrictions on use of both yield and fishing efficiency. The result in high variability in landings, rock chains; proposed area rotation measure also had prices, revenues and in total economic Alternative 11 (adopted by the higher benefits compared to other benefits during the first 10 years, as well Council), increase in the minimum ring rotational management alternatives with as in the long term. In general, the size to 4 inches (10.2 cm); mechanical rotation and fixed rotational management options that Alternative 12 (adopted by the boundaries. Specifically, area rotation increase closure duration or the amount Council), habitat research funded closed areas would be determined of biomass that can be within closed through scallop TAC set-aside; and optimally based on recent surveys, and areas, also would result in higher Alternative 13, area based area boundaries could be established to variability in landings and prices, which management and rotation based on minimize the social and economic could reduce vessel revenues. habitat protection. impacts on fishing communities located The rotational management Many of these alternatives (1, 3a, 3b, close to areas proposed for closure or alternatives with access to the 4, 5a-d, 6, 7, 8a, 8b, 9) proposed to close area access programs. groundfish closed areas are estimated to various areas and the impacts on The results also showed that area result in an increase in average annual revenues and economic benefits from rotation combined with 3.5–inch (8.9– landings during the 10–year period from various habitat closures were examined. cm) rings could result in slightly higher 32 million lb (14,515 mt) under status These relative impacts show that economic benefits in the first 10 years quo to 39–55 million lb (17,690–24,948 proposed Alternative 6 was ranked in of implementation, than area rotation mt) with access to some groundfish the middle of the range of impacts on combined with the proposed 4–inch closed areas. If the scallop fishery has (10.2–cm) ring size. Four-inch rings scallop revenues and economic benefits. access to all groundfish closed areas, the Several other habitat alternatives, result in slightly lower landings, about average annual landings for the period a million pounds per year on the including Alternatives 5a, 5c, 5d, 8a, could increase to 68 million lb (30,844 and 8b, would have lower impacts on average, compared to the 3.5–inch (8.9– mt). Rotational management alternatives cm) ring options during the first 10 vessel revenues. These alternatives were were also considered that would have years from 2003 to 2013 under all not chosen, however, because they utilized the groundfish closed areas as scenarios. However, over the long term, either had impracticable social/ a ‘‘stabilizing reservoir.’’ These the increase in ring size yields higher economic impacts on some fishing alternatives increase average landings to benefits than those achieved with the communities or did not satisfy the 40–46 million lb (18,144–20,865 mt) per smaller ring size. requirement to minimize adverse In addition, analysis of the ring size year, while at the same time reducing impacts of fishing on EFH, to the extent indicates that the 4–inch (10.2–cm) the variability. practicable. rings are preferable over the long-term The Council considered a large The alternatives considered by the because they reduce mortality on small number of alternatives to minimize and Council also included measures other scallops and, as a result improve yield mitigate adverse effects of the fishery on than closures. An alternative to restrict and increase scallop revenues. By EFH, to the extent practicable. The the use of rock chains (Alternative 10), improving dredge efficiency in alternatives are briefly defined below, was determined to have a neutral harvesting larger scallops, the use of 4– including the four alternatives adopted impact on habitat because it was not inch (10.2–cm) rings would also reduce by the Council. anticipated to reduce the footprint of the bottom contact time, potentially Alternative 1, status quo measures scallop fishery. Another alternative, that reducing both bycatch of other species with no scallop access to Groundfish was ultimately adopted, was the 4–inch and impacts on habitat. Thus, the closed areas; (10.2–cm) ring requirement (Alternative Council rejected alternatives with no Alternative 2 (adopted by the 11), which was found to have a modest area rotation and rotational management Council), habitat benefits of other benefit to habitat through reductions in alternatives that incorporated the 3.5– selected measures in Amendment 10; bycatch and epifaunal displacement. In inch (8.9–cm) ring size in favor of the Alternative 3 (a and b), area closures the initial implementation period, it proposed measures. to protect hard-bottom habitat; appeared that this alternative could Even without access to the groundfish Alternative 4, area closures to proect increase area swept, as dredge efficiency closed areas, almost all of the rotational hard-bottom habitats that overlap decreases and previously recruitable management alternatives would result proposed modified groundfish closed scallops are no longer retained. This in an increase in landings compared to areas in Amendment 13; was expected to last approximately 1 the status quo option over the first 10 Alternative 5 (a-d), area closures year, at which point those same scallops years of the management program. The designed to protect EFH and balance would be recruitable and, as the average status quo alternative is estimated to fishery productivity; size of recruited scallops increases area result in landings averaging 32 million Alternative 6 (adopted by Council), swept is projected to decrease due to the lb (14,515 mt) per year, while most of area closures within the Groundfish increased efficiency of 4–inch (10.2–cm) the rotational management options closed areas that maintain closure to the rings in catching large scallops.
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The proposed action relies on the EFH to the requirements of the PRA, unless the following requirements and benefits of all of the other management that collection of information displays a presumptions: measures in the proposed action, along currently valid OMB control number. * * * * * with the establishment of portions of the List of Subjects in 50 CFR Part 648 (3) Atlantic Sea Scallop Vessel VMS current groundfish closed areas as EFH Notification Requirements. To facilitate Closed Areas. This would preserve Fisheries, Fishing, Recordkeeping and the deployment of at-sea observers, all within the Scallop FMP the habitat reporting requirements. sea scallop vessels issued limited access benefits currently realized as a result of Dated: February 18, 2004. permits are required to comply with the the NE Multispecies FMP provision that John Oliver, additional VMS notification prohibits the use of scallop gear within Deputy Assistant Administrator for requirements specified in those closed areas. The establishment of Operations, National Marine Fisheries § 648.60(c)(2)(ii), except that scallop these closures as EFH measures would Service. vessels issued Occasional scallop prohibit the use of scallop gear in For the reasons set out in the permits and not participating in the vulnerable EFH areas containing various preamble, 50 CFR Part 648 is proposed Area Access Program specified in benthic habitat types. This is the only to be amended as follows: § 648.60 may provide the specified habitat closure alternative that does not information to the Regional have significant revenue losses for other PART 648—FISHERIES OF THE Administrator by calling the Regional fisheries including those harvesting NORTHEASTERN UNITED STATES Administrator. groundfish and monkfish, because most of this area has been closed to access by 1. The authority citation for part 648 3. In § 648.14, paragraphs (a)(56), these fisheries since 2001. continues to read as follows: (a)(57), (a)(61), (a)(97), (a)(110), (a)(111), (h), and (i) are revised to read as This proposed rule contains Authority: 16 U.S.C. 1801 et seq. collection-of-information requirements follows: 2. In § 648.10, paragraph (b)(1) subject to review and approval by Office § 648.14 Prohibitions. of Management and Budget (OMB) introductory text is revised, and (a)* * * under the Paperwork Reduction Act paragraph (b)(3) is added to read as (PRA). These requirements have been follows: (56) Possess, or land per trip, scallops submitted to OMB for approval. Public in excess of 40 lb (18.14 kg) of shucked, § 648.10 DAS notification requirements. or 5 bu (176.2 L) of in-shell scallops, reporting burden for these collections of * * * * * information are estimated to average, as unless: (b) * * * (i) The scallops were harvested by a follows: (1) Unless otherwise authorized or 1. Broken trip adjustment, OMB vessel that has been issued and carries required by the Regional Administrator #0648–0416 (0.27 hr per response); on board a General Category scallop 2. One-to-one trip exchange, OMB under paragraph (d) of this section, a permit; #0648–0416 (0.083 hr per response); scallop vessel issued a Full-time or Part- (ii) The scallops were harvested by a 3. Open area trip declaration for time limited access scallop permit; or a vessel that has been issued and carries observer deployment, OMB #0648–0416 scallop vessel issued an Occasional on board a limited access scallop permit (0.033 hr per response); and limited access permit when fishing and is fishing under the scallop DAS 4. Cooperative research participant under the Sea Scallop Area Access program as specified in § 648.53; Program specified under § 648.60; or a enrollment form, OMB #0648–0416 (iii) The scallops were harvested by a scallop vessel fishing under the small (0.02 hr per response). vessel that has not been issued a scallop dredge program specified in § 648.51(e); These estimates include the time for permit and fishes for scallops or a vessel issued a limited access reviewing instructions, searching exclusively in state waters; or existing data sources, gathering and multispecies, monkfish, Occasional scallop, or Combination permit whose (iv) The scallops were harvested by a maintaining the data needed, and vessel that has been issued and carries completing and reviewing the collection owner elects to provide the notifications required by this paragraph using a VMS, on board a limited access or General information. Category scallop permit and the vessel Public comment is sought regarding: must have installed on board an is fishing under the provisions of the Whether this proposed collection of operational VMS unit that meets the state waters exemption program information is necessary for the proper minimum performance criteria specified specified in § 648.54. performance of the functions of the in § 648.9(b), or as modified pursuant to agency, including whether the § 648.9(a). The owner of such a vessel (57) Fish for, possess or land per trip, information shall have practical utility; must provide documentation to the scallops in excess of 400 lb (181.44 kg) the accuracy of the burden estimate; Regional Administrator at the time of or 50 bu (17.62 hl) of in-shell scallops, ways to enhance the quality, utility, and application for a limited access permit unless: clarity of the information to be that the vessel has an operational VMS (i) The scallops were harvested by a collected; and ways to minimize the unit installed on board that meets those vessel that has been issued and carries burden of the collection of information, criteria. If a vessel has already been on board a limited access scallop permit including through the use of automated issued a limited access permit without and the vessel is fishing under the collection techniques or other forms of the owner providing such scallop DAS program; information technology. Send comments documentation, the Regional (ii) The scallops were harvested by a on these or any other aspects of the Administrator shall allow at least 30 vessel that has not been issued a scallop collection of information to NMFS and days for the vessel to install an permit and fishes for scallops to OMB (see ADDRESSES). operational VMS unit that meets the exclusively in state waters; or Notwithstanding any other provision criteria and for the owner to provide (iii) The scallops were harvested by a of the law, no person is required to documentation of such installation to vessel that has been issued and carries respond to, and no person shall be the Regional Administrator. A vessel on board a limited access or General subject to penalty for failure to comply that is required to, or whose owner has Category scallop permit and the vessel with, a collection of information subject elected to, use a VMS unit is subject to is fishing under the provisions of the
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state waters exemption program replacement upgraded or increased in (19) Fail to comply with any specified in § 648.54. excess of the limitations specified in requirement for participating in the DAS * * * * * § 648.4(a)(2)(i)(E) or (F). Exemption Program as specified in (61) Sell, barter or trade, or otherwise (7) Fish for, possess, or land scallops § 648.54. transfer, or attempt to sell, barter or with or from a vessel that has had the (20) Fish with, possess on board, or trade, or otherwise transfer, for a length, GRT, or NT of such vessel or its land scallops while in possession of commercial purpose, any scallops from replacement increased or upgraded in trawl nets, when fishing for scallops a trip whose catch is 40 lb (18.14 kg) of excess of limitations specified in under the DAS allocation program, shucked scallops or less, or 5 bu (176.2 § 648.4(a)(2)(i)(E) or (F). unless exempted as provided for in L) of in-shell scallops, unless the vessel (8) Possess more than 40 lb (18.14 kg) § 648.51(f). has been issued a valid general or of shucked, or 5 bu (176.2 l) of in-shell (21) Fail to comply with the limited access scallop permit, or the scallops, or participate in the DAS restriction on twine top described in scallops were harvested by a vessel that allocation program, while in the § 648.51(b)(4)(iv). has not been issued a scallop permit and possession of trawl nets that have a (22) Fail to comply with any of the fishes for scallops exclusively in state maximum sweep exceeding 144 ft (43.9 provisions and specifications of waters. m), as measured by the total length of § 648.60. the footrope that is directly attached to (23) Possess or land more than 50 bu * * * * * (17.62 hl) of in-shell scallops, as (97) Fail to comply with any of the the webbing of the net, except as specified in § 648.51(a)(1). specified in § 648.52(d), once inside the provisions specified in § 648.56. VMS Demarcation Line by a vessel that, * * * * * (9) Fish under the DAS allocation program with, or have available for at any time during the trip, fished in or (110) Fish for, possess, or land sea transited any area south of 42°20′ N. lat., scallops in or from the areas specified immediate use, trawl nets of mesh smaller than the minimum size except as provided in § 648.54. in §§ 648.58 and 648.61. (i) In addition to the general specified in § 648.51(a)(2). (111) Transit or be in the areas prohibitions specified in § 600.725 of (10) Fish under the DAS allocation described in §§ 648.58 and 648.61 in this chapter and in paragraphs (a), (f), program with trawl nets that use chafing possession of scallops, except when all and (g) of this section, it is unlawful for gear or other means or devices that do fishing gear is unavailable for any person owning or operating a vessel not meet the requirements of immediate use as defined in § 648.23(b), issued a general scallop permit to do § 648.51(a)(3). unless there is a compelling safety any of the following: reason to be in such areas. (11) Possess or use dredge gear that (1) Fish for, possess, or land per trip, does not comply with any of the * * * * * more than 400 lb (181.44 kg) of shucked (h) In addition to the general provisions and specifications specified or 50 bu (17.62 hl) of in-shell scallops. prohibitions specified in § 600.725 of in § 648.51(a) or (b). (2) Fish for, possess, or land scallops this chapter and in paragraphs (a) and (12) Participate in the DAS allocation on more than one trip per calendar day. (g) of this section, it is unlawful for any program with more than the number of (3) Possess or use dredge gear that person owning or operating a vessel persons specified in § 648.51(c), does not comply with any of the issued a limited access scallop permit including the operator, on board when provisions or specification specified in under § 648.4(a)(2) to do any of the the vessel is not docked or moored in § 648.51(a) or (b). following: port, unless otherwise authorized by the * * * * * (1) Possess, or land per trip, more Regional Administrator. 4. Subpart D is revised to read as than 40 lb (18.4 kg) of shucked, or 5 bu (13) Fish under the small dredge follows: (176.2 L) of in-shell scallops after using program specified in § 648.51(e), with, up the vessel’s annual DAS allocation or or while in possession of, a dredge that Subpart D—Management Measures for when not participating under the DAS exceeds 10.5 ft (3.2 m) in overall width, the Atlantic Sea Scallop Fishery program pursuant to § 648.10, unless as measured at the widest point in the Sec. exempted from DAS allocations as bail of the dredge. (14) Fish under the small dredge 648.50 Shell-height standard. provided in § 648.54. 638.51 Gear and crew restrictions. (2) Fail to have an approved, program as specified in § 648.51(e) with 648.52 Possession and landing limits. operational, and functioning VMS unit more than five persons, including the 648.53 DAS allocation. that meets the specifications of § 648.9 operator, aboard the vessel, unless 648.54 State waters exemption. on board the vessel at all times, unless otherwise authorized by the Regional 648.55 Framework adjustments to the vessel is not subject to the VMS Administrator. management measures. requirements specified in § 648.10. (15) Have a shucking or sorting 648.56 Scallop research. (3) If the vessel is not subject to VMS machine on board a vessel that shucks 648.57 Sea scallop area rotation program. requirements specified in § 648.10(a), scallops at sea while fishing under the 648.58 Rotational closed areas. DAS allocation program, unless 648.59 Sea scallop access areas. fail to comply with the requirements of 648.60 Sea scallop area access program the call-in system specified in otherwise authorized by the Regional requirements. § 648.10(b). Administrator. 648.61 EFH closed areas. (4) Combine, transfer, or consolidate (16) Refuse or fail to carry an observer DAS allocations. if requested to do so by the Regional § 648.50 Shell-height standard. (5) Have an ownership interest in Administrator. (a) Minimum shell height. The more than 5 percent of the total number (17) Fail to provide an observer with minimum shell height for in-shell of vessels issued limited access scallop required food, accommodations, access, scallops that may be landed, or permits, except as provided in and assistance, as specified in § 648.11. possessed at or after landing, is 3.5 § 648.4(a)(2)(i)(H). (18) Fail to comply with any inches (8.9 cm). Shell height is a straight (6) Fish for, possess, or land scallops requirement for declaring in and out of line measurement from the hinge to the with or from a vessel that has had the the DAS allocation program as specified part of the shell that is farthest away horsepower of such vessel or its in § 648.10. from the hinge.
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(b) Compliance and sampling. Any strengtheners, ropes, lines, or chafing Access Program specified in time at landing or after, including when gear, on the top of a trawl net, except § 648.60(a)(6). the scallop are received or possessed by that one splitting strap and one bull (ii) Beginning [6 months after the date a dealer or person acting in the capacity rope (if present), consisting of line and of publication of the final rule in the of a dealer, compliance with the rope no more than 3 inches (7.62 cm) in FEDERAL REGISTER], the ring size used minimum shell-height standard will be diameter, may be used if such splitting in a scallop dredge possessed or used by determined as follows: Samples of 40 strap and/or bull rope does not constrict scallop vessels shall not be smaller than scallops each will be taken at random in any manner the top of the trawl net. 4 inches (10.2 cm). from the total amount of scallops in ‘‘The top of the trawl net’’ means the 50 (iii) Ring size is determined by possession. The person in possession of percent of the net that (in a hypothetical measuring the shortest straight line the scallops may request that as many situation) would not be in contact with passing through the center of the ring as 10 sample groups (400 scallops) be the ocean bottom during a tow if the net from one inside edge to the opposite examined. A sample group fails to were laid flat on the ocean floor. For the inside edge of the ring. The comply with the standard if more than purpose of this paragraph (a)(3), head measurement shall not include normal 10 percent of all scallops sampled are ropes shall not be considered part of the welds from ring manufacturing or links. less than the shell height specified. The top of the trawl net. The rings to be measured will be at least total amount of scallops in possession (ii) Mesh obstruction or constriction. five rings away from the mouth, and at will be deemed in violation of this A fishing vessel may not use any mesh least two rings away from other rigid subpart and subject to forfeiture, if the configuration, mesh construction, or portions of the dredge. sample group fails to comply with the other means on or in the top of the net, (4) Chafing gear and other gear obstructions—(i) Chafing gear minimum standard. as defined in paragraph (a)(3)(i) of this restrictions. No chafing gear or cookies section, if it obstructs the meshes of the § 648.51 Gear and crew restrictions. shall be used on the top of a scallop net in any manner. (a) Trawl vessel gear restrictions. dredge. Trawl vessels issued a limited access (iii) A fishing vessel may not use or (ii) Link restrictions. No more than scallop permit under § 648.4(a)(2) while possess a net capable of catching double links between rings shall be used fishing under or subject to the DAS scallops in which the bars entering or in or on all parts of the dredge bag, allocation program for scallops and exiting the knots twist around each except the dredge bottom. No more than authorized to fish with or possess on other. triple linking shall be used in or on the board trawl nets pursuant to § 648.51(f), (b) Dredge vessel gear restrictions. All dredge bottom portion and the any trawl vessels in possession of more vessels issued limited access and diamonds. Damaged links that are than 40 lb (18.14 kg) of shucked, or 5 General Category scallop permits and connected to only one ring, i.e., bu (176.2 L) of in-shell scallops in or fishing with scallop dredges, with the ‘‘hangers,’’ are allowed, unless they from the EEZ, and any trawl vessels exception of hydraulic clam dredges occur between two links that both fishing for scallops in the EEZ, must and mahogany quahog dredges in couple the same two rings. Dredge rings comply with the following: possession of 400 lb (181.44 kg), or less, may not be attached via links to more (1) Maximum sweep. The trawl sweep of scallops, must comply with the than four adjacent rings. Thus, dredge of nets shall not exceed 144 ft (43.9 m), following restrictions, unless otherwise rings must be rigged in a configuration as measured by the total length of the specified: such that, when a series of adjacent footrope that is directly attached to the (1) Maximum dredge width. The rings are held horizontally, the webbing, unless the net is stowed and combined dredge width in use by or in neighboring rings form a pattern of not available for immediate use, as possession on board such vessels shall horizontal rows and vertical columns. A specified in § 648.23. not exceed 31 ft (9.4 m) measured at the copy of a diagram showing a schematic (2) Net requirements—(i) Minimum widest point in the bail of the dredge, of a legal dredge ring pattern is available mesh size. The mesh size for any scallop except as provided under paragraph (e) from the Regional Administrator upon trawl net in all areas shall not be smaller of this section. However, component request. than 5.5 inches (13.97 cm). parts may be on board the vessel such (iii) Dredge or net obstructions. No (ii) Measurement of mesh size. Mesh that they do not conform with the material, device, net, dredge, ring, or size is measured by using a wedge- definition of ‘‘dredge or dredge gear’’ in link configuration or design shall be shaped gauge having a taper of 2 cm § 648.2, i.e., the metal ring bag and the used if it results in obstructing the (0.79 inches) in 8 cm (3.15 inches) and mouth frame, or bail, of the dredge are release of scallops that would have a thickness of 2.3 mm (0.09 inches), not attached, and such that no more passed through a legal sized and inserted into the meshes under a than one complete spare dredge could configured net and dredge, as described pressure or pull of 5 kg (11.02 lb). The be made from these component’s parts. in this part, that did not have in use any mesh size is the average of the (2) Minimum mesh size. The mesh such material, device, net, dredge, ring measurements of any series of 20 size of a net, net material, or any other link configuration or design. consecutive meshes for nets having 75 material on the top of a scallop dredge (iv) Twine top restrictions. In addition or more meshes, and 10 consecutive (twine top) possessed or used by vessels to the minimum twine top mesh size meshes for nets having fewer than 75 fishing with scallop dredge gear shall specified in paragraph (b)(2) of this meshes. The mesh in the regulated not be smaller than 10–inch (25.4–cm) section, vessels issued limited access portion of the net will be measured at square or diamond mesh. scallop permits that are fishing for least five meshes away from the lacings (3) Minimum ring size. (i) Prior to [6 scallops under the DAS Program are running parallel to the long axis of the months after the date of publication of also subject to the following restrictions: net. the final rule in the FEDERAL (A) If a vessel is rigged with more (3) Chafing gear and other gear REGISTER], the ring size used in a than one dredge, or if a vessel is rigged obstructions—(i) Net obstruction or scallop dredge possessed or used by with only one dredge and such dredge constriction. A fishing vessel may not scallop vessels shall not be smaller than is greater than 8 ft (2.4 m) in width, use any device or material, including, 3.5 inches (8.9 cm), unless otherwise there must be at least seven rows of non- but not limited to, nets, net required under the Sea Scallop Area overlapping steel rings unobstructed by
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netting or any other material between valid letter of authorization or permit the state waters exemption as specified the terminus of the dredge (club stick) that endorses the vessel to fish for under § 648.54. and the net material on the top of the scallops with trawl nets. dredge (twine top). (2) Replacement vessels. A vessel that § 648.53 DAS allocations. (B) If a vessel is rigged with only one is replacing a vessel authorized to use (a) Assignment to DAS categories. dredge, and such dredge is less than 8 trawl nets to fish for scallops under Subject to the vessel permit application ft (2.4 m) in width, there must be at least scallop DAS may also be authorized to requirements specified in § 648.4, for four rows of non-overlapping steel rings use trawl nets to fish for scallops under each fishing year, each vessel issued a unobstructed by netting or any other scallop DAS if it meets the following limited access scallop permit shall be material between the club stick and the criteria: assigned to the DAS category (full-time, twine top of the dredge. (A copy of a (i) Has not fished for scallops with a part-time, or Occasional) it was assigned diagram showing a schematic of a legal scallop dredge after December 31, 1987; to in the preceding year, except as dredge with twine top is available from or provided under the small dredge the Regional Administrator upon (ii) Has fished for scallops with a program specified in § 648.51(e). request). scallop dredge on no more than 10 trips (b) Open area DAS allocations. (1) (c) Crew restrictions. Limited access from January 1, 1988, through December Total DAS to be used in all areas other vessels participating in or subject to the 31, 1994, has an engine horsepower no than those specified in §§ 648.58 and scallop DAS allocation program may greater than 450. 648.59 will be specified through the have no more than seven people aboard, § 648.52 Possession and landing limits. framework process as specified in including the operator, when not § 648.55. (a) Owners or operators of vessels docked or moored in port, unless (2) One percent of total DAS will be with a General Category scallop permit, participating in the small dredge set aside to help defray the cost of unless exempted under the state waters program as specified in paragraph (e) of observers, as specified in paragraph exemption program described under this section, or otherwise authorized by (h)(i) of this section. Two percent of § 648.54, are prohibited from possessing the Regional Administrator. total DAS will be set aside to pay for or landing per trip more than 400 lb (d) Sorting and shucking machines. scallop related research, as outlined in (181.44 kg) of shucked, or 50 bu (17.62 (1) Shucking machines are prohibited paragraph (h)(ii) of this section. on all limited access vessels fishing L) of in-shell scallops. Such vessels may not land scallops on more than one trip (3) Each vessel qualifying for one of under the scallop DAS program, or any the three DAS categories specified in the vessel in possession of more than 400 lb during any single calendar day, which is defined as the 24–hour period table in this paragraph (b)(3) (Full-time, (181.44 kg) of scallops, unless the vessel Part-time, or Occasional) shall be has not been issued a limited access beginning at 0001 hours and ending at 2400 hours. allocated, for each fishing year, the scallop permit and fishes exclusively in maximum number of DAS it may state waters. (b) Owners or operators of vessels with a limited access scallop permit that participate in the limited access scallop (2) Sorting machines are prohibited fishery, according to its category, after on limited access vessels fishing under have declared out of the DAS program as specified in § 648.10, or that have deducting research and observer DAS the scallop DAS program. set-asides from the total DAS allocation. (e) Small dredge program restrictions. used up their DAS allocations, unless A vessel whose owner/operator has Any vessel owner whose vessel is exempted under the state waters declared it out of the scallop fishery, assigned to either the part-time or exemption program described under pursuant to the provisions of § 648.10, Occasional category may request, in the § 648.54, and owners or operators of or that has used up its allocated DAS, application for the vessel’s annual vessels without a scallop permit, except may leave port without being assessed permit, to be placed in one category vessels fishing for scallops exclusively a DAS, as long as it does not possess or higher. Vessel owners making such in state waters, are prohibited from land more than 40 lb (18.14 kg) of request may be placed in the fishing for, possessing or landing per shucked or 5 bu (176.2 L) of in-shell appropriate higher category for the trip, more than 40 lb (18.14 kg) of scallops and complies with all other entire year, if they agree to comply with shucked, or 5 bu (176.2 L) of in-shell requirements of this part. The annual the following restrictions, in addition to scallops. Owners or operators of vessels DAS allocations for each category of and notwithstanding other restrictions specified in this paragraph (b) and not vessel for the fishing years indicated, of this part, when fishing under the DAS issued a scallop permit are prohibited after deducting DAS for observer and program described in § 648.53, or in from selling, bartering, or trading research DAS set-asides, are as follows: possession of more than 400 lb (181.44 scallops harvested from Federal waters. (c) Owners or operators of vessels kg) of shucked, or 50 bu (17.62 hl) of in- DAS Category 20041 2005 shell scallops: with a limited access scallop permit that (1) The vessel must fish exclusively have declared into the Sea Scallop Area Full-time 42 117 with one dredge no more than 10.5 ft Access Program as specified in § 648.60 Part-time 17 47 (3.2 m) in width. are prohibited from fishing for, Occasional 4 10 (2) The vessel may not use or have possessing or landing per trip more than 1 Unless additional DAS are allocated as more than one dredge on board. the sea scallop possession and landing specified in paragraph (b)(4) of this section. (3) The vessel may have no more than limit specified in § 648.60(a)(5). five people, including the operator, on (d) Owners or operators of vessels (4) Additional 2004 DAS. Unless a board. issued limited access or General final rule is published in the Federal (f) Restrictions on use of trawl nets. (1) Category scallop permits fishing in or Register by August 15, 2004, that A vessel issued a limited access scallop transiting the area south of 42°20′ N. lat. implements a framework action permit fishing for scallops under the at any time during a trip are prohibited allowing access by scallop vessels to scallop DAS allocation program may not from fishing for, possessing, or landing portions of the Northeast multispecies fish with, possess on board, or land per trip more than 50 bu (17.62 hl) of closed areas specified in § 648.81(a), (b), scallops while in possession of, trawl in-shell scallops shoreward of the VMS and (c), the DAS allocations for the 2004 nets unless such vessel has on board a Demarcation Line, unless fishing under fishing year, beginning on August 15,
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2004, shall increase by the following respectively. Vessels carrying an (b) General Category scallop vessel amounts: observer will be allocated additional gear and possession limit restrictions. DAS for use in the applicable fishing Any vessel issued a general scallop DAS Category 2004 DAS Increase year on a first-come, first-served basis. permit is exempt from the gear Allocation of additional DAS will be restrictions specified in § 648.51(a), (b), Full-time 20. made based on the length of the trip and (e)(1) and (e)(2) while fishing Part-time 8. by using a DAS multiplier of 0.14. For exclusively landward of the outer Occasional 1. example, a vessel taking a 10–DAS trip boundary of the waters of a state that (c) Sea Scallop Access Area DAS with an observer will be allocated an has been determined by the Regional allocations. Vessels fishing in a Sea additional 1.4 DAS at the end of its trip. Administrator under paragraph (b)(3) of Scallop Access Area specified in Likewise, a vessel taking a 15–DAS trip this section to have a scallop fishery and with an observer will be allocated an a scallop conservation program that § 648.59, under the Sea Scallop Area additional 2.1 DAS at the end of its trip. does not jeopardize the fishing Access Program specified in § 648.60, When the DAS set-aside for observer mortality/effort reduction objectives of are allocated additional DAS to fish coverage has been utilized, vessel the Scallop FMP, provided the vessel only within each Sea Scallop Access owners will be notified that no complies with paragraphs (d) through Area, as specified in § 648.60(a)(3). additional DAS remain available to (g) of this section. (d) Adjustments in annual DAS offset the cost of carrying observers. The (c) State eligibility for exemption. (1) allocations. Annual DAS allocations obligation to carry an observer will not A state may be eligible for the state will be established for 2 fishing years be waived due to the absence of waters exemption if it has a scallop through biennial framework additional DAS allocation. fishery and a scallop conservation adjustments as specified in § 648.55. If (2) DAS set-aside for research. As program that does not jeopardize the a biennial framework action is not specified in paragraph (b)(2) of this fishing mortality/effort reduction undertaken by the Council and enacted section, to help support the activities of objectives of the Scallop FMP. by NMFS, the allocations from the most vessels participating in certain research, (2) The Regional Administrator shall recent fishing year will continue. The as specified in § 648.56; the DAS set- determine which states have a scallop Council may adjust DAS allocations aside for research for the 2004 and 2005 fishery and which of those states have through a framework action at any time, fishing years are 233 DAS and 607 DAS, a scallop conservation program that if deemed necessary. respectively. Vessels participating in does not jeopardize the fishing (e) End-of-year carry-over for open approved research will be authorized to mortality/effort reduction objectives of area DAS. With the exception of vessels use additional DAS in the applicable the Scallop FMP. that held a Confirmation of Permit fishing year. Notification of allocated (3) Maine, New Hampshire, and History as described in § 648.4(a)(1)(i)(J) additional DAS will be provided Massachusetts have been determined by for the entire fishing year preceding the through a letter of acknowledgement, the Regional Administrator to have carry-over year, limited access vessels letter of authorization, or Exempted scallop fisheries and scallop that have unused open area DAS on the Fishing Permit issued by NMFS, as conservation programs that do not last day of February of any year may appropriate. jeopardize the fishing mortality/effort carry over a maximum of 10 DAS into reduction objectives of the Scallop FMP. the next year. DAS carried over into the § 648.54 State waters exemption. These states must immediately notify next fishing year may only be used in (a) Limited access scallop vessel the Regional Administrator of any open areas. DAS sanctioned vessels will exemption. (1) DAS requirements. Any changes in their respective scallop be credited with unused DAS based on vessel issued a limited access scallop conservation program. The Regional their unused DAS allocation, minus permit is exempt from the DAS Administrator will review these changes total DAS sanctioned. requirements specified in § 648.53(b) and, if a determination is made that the (f) Accrual of DAS. Unless while fishing exclusively landward of state’s conservation program jeopardizes participating in the Area Access the outer boundary of a state’s waters, the fishing mortality/effort reduction Program described in § 648.60, DAS provided the vessel complies with objectives of the Scallop FMP, or that shall accrue to the nearest minute. paragraphs (d) through (g) of this the state no longer has a scallop fishery, (g) Good Samaritan credit. Limited section. the Regional Administrator shall access vessels fishing under the DAS (2) Gear and possession limit publish a rule in the Federal Register, program and that spend time at sea restrictions. Any vessel issued a limited in accordance with the Administrative assisting in a USCG search and rescue access scallop permit that is exempt Procedure Act, amending this paragraph operation or assisting the USCG in from the DAS requirements of (c)(3) to eliminate the exemption for that towing a disabled vessel, and that can § 648.53(b) under paragraph (a) of this state. The Regional Administrator may document the occurrence through the section is also exempt from the gear determine that other states have scallop USCG, will not accrue DAS for the time restrictions specified in § 648.51(a), (b), fisheries and scallop conservation documented. (e)(1) and (e)(2), and the possession programs that do not jeopardize the (h) DAS set-asides—(1) DAS set-aside restrictions specified in § 648.52(a), fishing mortality/effort reduction for observer coverage. As specified in while fishing exclusively landward of objectives of the Scallop FMP. In such paragraph (b)(2) of this section, to help the outer boundary of the waters of a case, the Regional Administrator shall defray the cost of carrying an observer, state that has been deemed by the publish a rule in the Federal Register, 1 percent of the total DAS allocations Regional Administrator under paragraph in accordance with the Administrative will be set aside from the total DAS (c) of this section to have a scallop Procedure Act, amending this paragraph allocation and reallocated to vessels that fishery and a scallop conservation (c)(3) to provide the exemption for such are assigned to take an at-sea observer program that does not jeopardize the states. on a trip other than an Area Access fishing mortality/effort reduction (d) Notification requirements. Vessels Program trip. The DAS set-aside for objectives of the Scallop FMP, provided fishing under the exemptions provided observer coverage for the 2004 and 2005 the vessel complies with paragraphs (d) by paragraph(s) (a)(1) and/or (a)(2) of fishing years are 117 DAS and 304 DAS, through (g) of this section. this section must notify the Regional
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Administrator in accordance with the year will continue, beginning March 1 measures must include measures to provisions of § 648.10(e). of each fishing year. prevent overfishing of the available (e) Restriction on fishing in the EEZ. (c) In the SAFE Report, the Scallop biomass of scallops and ensure that OY A vessel fishing under a state waters PDT shall review and evaluate the is achieved on a continuing basis, and exemption may not fish in the EEZ existing management measures to must come from one or more of the during the time in which it is fishing determine if the measures are achieving following categories: under the state waters exemption, as the FMP objectives and OY from the (1) DAS changes. declared under the notification scallop resource as a whole. In doing so, (2) Shell height. requirements of this section. the PDT shall consider the effects of any (3) Offloading window reinstatement. (f) Duration of exemption. An closed areas, either temporary, (4) Effort monitoring. exemption expires upon a change in the indefinite, or permanent, on the ability (5) Data reporting. vessel’s name or ownership, or upon of the FMP to achieve OY and prevent (6) Trip limits. notification by the participating vessel’s overfishing on a continuing basis, as (7) Gear restrictions. owner. required by National Standard 1 of the (8) Permitting restrictions. (g) Applicability of other provisions of Magnuson-Stevens Act. If the existing (9) Crew limits. this part. A vessel fishing under the management measures are deemed (10) Small mesh line. exemptions provided by paragraphs (a) insufficient to achieve FMP objectives (11) Onboard observers. and/or (b) of this section remains and/or are not expected to achieve OY (12) Modifications to the overfishing subject to all other requirements of this and prevent overfishing on a continuing definition. part. basis, the PDT shall recommend to the (13) VMS Demarcation Line for DAS Council appropriate measures and monitoring. § 648.55 Framework adjustments to (14) DAS allocations by gear type. management measures. alternatives that will meet FMP objectives, achieve OY, and prevent (15) Temporary leasing of scallop (a) Biennially, or upon a request from overfishing on a continuing basis. When DAS requiring full public hearings. the Council, the Regional Administrator making the status determination in the (16) Scallop size restrictions, except a will provide the Council with SAFE Report, the PDT shall calculate minimum size or weight of individual information on the status of the scallop the stock biomass and fishing mortality scallop meats in the catch. resource. Within 60 days of receipt of for the entire unit stock and consider all (17) Aquaculture enhancement that information, the Council PDT shall sources of scallop mortality to compare measures and closures. assess the condition of the scallop with the minimum biomass and (18) Closed areas to increase the size resource to determine the adequacy of maximum fishing mortality thresholds. of scallops caught. the management measures to achieve (d) In order to assure that OY is (19) Modifications to the opening the stock-rebuilding objectives. Based achieved and overfishing is prevented, dates of closed areas. on this information, the PDT will on a continuing basis, the PDT shall (20) Size and configuration of rotation prepare a Stock Assessment and Fishery recommend management measures management areas. Evaluation (SAFE) Report that provides necessary to achieve optimum yield-per- (21) Controlled access seasons to the information and analysis needed to recruit from the exploitable components minimize bycatch and maximize yield. evaluate potential management of the resource (e.g., those components (22) Area-specific DAS or trip adjustments. Based on this information available for harvest in the upcoming allocations. and analysis, the Council will initiate a fishing years), taking into account at (23) TAC specifications and seasons framework adjustment to establish or least the following factors: following re-opening. revise DAS allocations, rotational area (1) Differential fishing mortality rates (24) Limits on number of area management programs, TACs, scallop for the various spatial components of closures. possession limits, or other measures to the resource; (25) TAC or DAS set-asides for achieve FMP objectives and limit (2) Overall yields from the portions of funding research. fishing mortality. The Council’s the scallop resource available to the (26) Priorities for scallop-related development of an area rotation fishery; research that is funded by a TAC or DAS program shall take into account at least (3) Outlook for phasing in and out set-aside. the following factors: General rotation closed or controlled access areas under (27) Finfish TACs for controlled policy; boundaries and distribution of the Area Rotation Program; and access areas. rotational closures; number of closures; (4) Potential adverse impacts on EFH. (28) Finfish possession limits. minimum closure size; maximum (e) After considering the PDT’s (29) Sea sampling frequency. closure extent; enforceability of findings and recommendations, or at (30) Area-specific gear limits and rotational closed and re-opened areas; any other time, if the Council specifications. monitoring through resource surveys; determines that adjustments to, or (31) Any other management measures and re-opening criteria. additional management measures are currently included in the FMP. (b) The preparation of the SAFE necessary, it shall develop and analyze (f) The Council must select an Report shall begin on or about June 1, appropriate management actions over alternative that will achieve OY and 2005, for fishing year 2006, and on or the span of at least two Council prevent overfishing on a continuing about June 1 of the year preceding the meetings. Such adjustments may basis, and which is consistent with fishing year in which measures will be include proactive measures to address other applicable law. If the Council fails adjusted. If the biennial framework protected species concerns. The Council to act or does not recommend an action is not undertaken by the Council, shall provide the public with advance approvable alternative, the Regional or if a final rule resulting from a notice of the availability of both the Administrator may select one of the biennial framework is not published in proposals and the analyses, and alternatives developed and the Federal Register with an effective opportunity to comment on them prior recommended by the PDT, which would date of March 1, in accordance with the to and at the second Council meeting. achieve OY and prevent overfishing on Administrative Procedure Act, the The Council’s recommendation on a continuing basis and is consistent measures from the most recent fishing adjustments or additions to management with applicable law, and shall
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implement such alternative pursuant to Council may return the proposed additional public comment, if the the Administrative Procedure Act. framework adjustment to the standing or Regional Administrator concurs with (g) The Council may make ad hoc gear conflict committee for the Council recommendation, the action recommendations to the Regional further review and discussion. will be published as a final rule in the Administrator to implement measures (i) Unless otherwise specified, after Federal Register; or in accordance with the procedures developing a framework adjustment and (3) The Regional Administrator does described in this subpart to address gear receiving public testimony, the Council not concur, the Council will be notified, conflict as defined under § 600.10 of shall make a recommendation to the in writing, of the reasons for the non- this chapter. In developing such Regional Administrator. The Council’s concurrence. recommendation, the Council shall recommendation must include (k) Nothing in this section is meant to define gear management areas, each not supporting rationale and, if management derogate from the authority of the to exceed 2,700 mi2 (5,000 km2), and measures are recommended, an analysis Secretary to take emergency action seek industry comments by referring the of impacts and a recommendation to the under section 305(c) of the Magnuson- matter to its standing industry advisory Regional Administrator on whether to Stevens Act. committee for gear conflict, or to any ad publish the framework adjustment as a hoc industry advisory committee that final rule. If the Council recommends § 648.56 Scallop research may be formed. The standing industry that the framework adjustment should (a) Annually, the Council and NMFS advisory committee or ad hoc be published as a final rule, the Council shall prepare and issue a Request for committee on gear conflict shall hold must consider at least the following Proposals (RFP) that identifies research public meetings seeking comments from factors and provide support and priorities for projects to be conducted by affected fishers and develop findings analysis for each factor considered: vessels using research set-aside as and recommendations on addressing the (1) Whether the availability of data on specified in §§ 648.53(b)(2) and gear conflict. After receiving the which the recommended management 648.60(e). industry advisory committee findings measures are based allows for adequate (b) Proposals submitted in response to and recommendations, or at any other time to publish a proposed rule, and the RFP must include the following time, the Council shall determine whether regulations have to be in place information, as well as any other whether it is necessary to adjust or add for an entire harvest/fishing season. specific information required within the management measures to address gear (2) Whether there has been adequate RFP: A project summary that includes conflicts and which FMPs must be notice and opportunity for participation the project goals and objectives; the modified to address such conflicts. If by the public and members of the relationship of the proposed research to the Council determines that adjustments affected industry, consistent with the scallop research priorities and/or or additional measures are necessary, it Administrative Procedure Act, in the management needs; project design; shall develop and analyze appropriate development of the Council’s participants other than the applicant, management actions for the relevant recommended management measures. funding needs, breakdown of costs, and FMPs over the span of at least two (3) Whether there is an immediate the vessel(s) for which authorization is Council meetings. The Council shall need to protect the resource or to requested to conduct research activities. provide the public with advance notice impose management measures to (c) NMFS will make the final of the availability of the resolve gear conflicts. determination as to what proposals are (4) Whether there will be a continuing recommendation, the appropriate approved and which vessels are evaluation of management measures justification and economic and authorized to take scallops in excess of adopted following their promulgation as biological analyses, and opportunity to possession limits, utilize DAS set-aside a final rule. comment on them prior to and at the for research, or take additional trips into (j) If the Council’s recommendation Access Areas. NMFS will provide second or final Council meeting before includes adjustments or additions to submission to the Regional authorization of such activities to management measures, and if, after specific vessels by letter of Administrator. The Council’s reviewing the Council’s recommendation on adjustments or acknowledgement, letter of recommendation and supporting authorization, or Exempted Fishing additions to management measures for information: gear conflicts must come from one or Permit issued by the Regional (1) The Regional Administrator Administrator, which must be kept on more of the following categories: approves the Council’s recommended (1) Monitoring of a radio channel by board the vessel. management measures, the Secretary (d) Upon completion of scallop fishing vessels. may, for good cause found pursuant to (2) Fixed gear location reporting and research projects approved under this the Administrative Procedure Act, plotting requirements. part, researchers must provide the (3) Standards of operation when gear waive the requirement for a proposed Council and NMFS with a report of conflict occurs. rule and opportunity for public research findings, which must include: (4) Fixed gear marking and setting comment in the Federal Register. The A detailed description of methods of practices. Secretary, in doing so, shall publish data collection and analysis; a (5) Gear restrictions for specific areas only the final rule. Submission of a discussion of results and any relevant (including time and area closures). recommendation by the Council for a conclusions presented in a format that (6) VMS. final rule does not effect the Secretary’s is understandable to a non-technical (7) Restrictions on the maximum responsibility to comply with the audience; and a detailed final number of fishing vessels or amount of Administrative Procedure Act; or accounting of all funds used to conduct gear. (2) The Regional Administrator the sea scallop research. (8) Special permitting conditions. approves the Council’s recommendation (h) The measures shall be evaluated and determines that the recommended § 648.57 Sea scallop area rotation and approved by the relevant management measures should be program. committees with oversight authority for published first as a proposed rule, the (a) An area rotation program is the affected FMPs. If there is action will be published as a proposed established for the scallop fishery, disagreement between committees, the rule in the Federal Register. After which may include areas closed to
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scallop fishing defined in § 648.58, and/ area access program described in name, owner and operator’s phone or sea scallop access areas defined in § 648.60, or is transiting the area as numbers, and number of trips § 648.59, subject to the Sea Scallop Area provided in paragraph (b) of this anticipated for each Sea Scallop Access Access program requirements specified section. Area in which it intends to fish. The in § 648.60. Areas not defined as closed (2) The Hudson Canyon Sea Scallop Regional Administrator may waive a areas or access areas are open to scallop Access Area is defined by straight lines portion of this notification period for fishing as governed by the other connecting the following points in the trips into the Sea Scallop Access Areas management measures and restrictions order stated (copies of a chart depicting if it is determined that there is imposed in this part. The Council’s this area are available from the Regional insufficient time to provide such development of area rotation programs Administrator upon request): notification prior to an access opening. is subject to the framework adjustment Notification of this waiver of a portion process specified in § 648.55, including Point Latitude Longitude of the notification period shall be the Area Rotation Program factors provided to the vessel through a permit H1 39°30′N. 73°10′W. included in § 648.55(a). H2 39°30′N. 72°30′W. holder letter issued by the Regional (b) [Reserved] H/3ET1 38°50′N. 73°30′W. Administrator. ° ′ ° ′ (ii) In addition to the information § 648.58 Rotational closed areas. H4/ET2 38 10 N. 74 20 W. H1 39°30′N. 73°10′W. described in paragraph (c)(2)(i) of this (a) Mid-Atlantic (Elephant Trunk) section, and for the purpose of selecting Closed Area. Through February 28, (b) Transiting. Limited access sea vessels for observer deployment, a 2007, no vessel may fish for scallops in, scallop vessels fishing under a scallop vessel shall provide notice to NMFS of or possess or land scallops from, the DAS that have not declared a trip into the time, port of departure, and specific area known as the Elephant Trunk the Sea Scallop Area Access Program Sea Scallop Access Area to be fished, at Closed Area. No vessel may possess may not fish for or possess scallops in least 5 working days prior to the scallops in the Elephant Trunk Closed the Sea Scallop Access Areas described beginning of any trip into the Sea Area, unless such vessel is only in this section, and may not enter or be Scallop Access Area. transiting the area as provided in in such areas unless the vessel is (iii) To fish in a Sea Scallop Access paragraph (b) of this section. The transiting the area and the vessel’s Area, the vessel owner or operator shall Elephant Trunk Closed Area is defined fishing gear is unavailable for declare a Sea Scallop Access Area trip by straight lines connecting the immediate use as defined in § 648.23(b), through the VMS less than 1 hour prior following points in the order stated or there is a compelling safety reason to to the vessel leaving port, in accordance (copies of a chart depicting this area are be in such areas without all such gear with instructions to be provided by the available from the Regional being unavailable for immediate use. Regional Administrator. Administrator upon request): (3) Number of trips. Except as § 648.60 Sea scallop area access program provided in paragraph (c) of this Point Latitude Longitude requirements. section, a vessel is limited to the (a) Vessels issued a limited access following number of trips and DAS into ET1 38°50′N. 74°20′W. ° ′ ° ′ scallop permit may fish in the Sea each of the Sea Scallop Access Areas ET2 38 10 N. 74 20 W. Scallop Access Areas specified in ET3 38°10′N. 73°30′W. during seasons specified in § 648.59: ET4 38°50′N. 73°30′W. § 648.59 and during seasons specified in (i) Full-time vessels. A Full-time ET1 38°50′N. 74°20′W. § 648.59, when fishing under a scallop vessel is restricted to a total of 4 trips, DAS, provided the vessel complies with equaling 48 DAS, into the Hudson (b) Transiting. No vessel possessing the requirements specified in Canyon Access Area. scallops may enter or be in the area(s) paragraphs (a)(1) through (a)(8) and (b) (ii) Part-time vessels. A Part-time specified in paragraph (a) of this section through (e) of this section. Unless vessel is restricted to a total of 1 trip, unless the vessel is transiting the area otherwise restricted under this part, equaling 12 DAS, into the Hudson and the vessel’s fishing gear is vessels issued General Category scallop Canyon Access Area. unavailable for immediate use as permits may fish in the Sea Scallop (iii) Occasional scallop vessels. An defined in § 648.23(b), or there is a Access Areas and during seasons Occasional vessel is restricted to a total compelling safety reason to be in such specified in § 648.59, subject to the of 1 trip equaling 12 DAS into the areas without all such gear being possession limit specified in § 648.52(b). Hudson Canyon Access Area. unavailable for immediate use. If no season is specified in § 648.59, the (iv) One-for-one area access trip Access Area is open from March 1 exchanges. If the total number of trips § 648.59 Sea scallop access areas. through February 28 of each fishing into all Sea Scallop Access Areas (a) Hudson Canyon Sea Scallop year. combined is greater than one trip, the Access Area. (1) Through February 28, (1) VMS. The vessel must have owner of a vessel issued a limited access 2006, vessels issued limited access installed on board an operational VMS scallop permit may exchange, on a one- scallop permits may not fish for scallops unit that meets the minimum for-one basis, unutilized trips into one in, or possess or land scallops from, the performance criteria specified in access area for unutilized trips into area known as the Hudson Canyon Sea §§ 648.9 and 648.10, and paragraph (e) another Sea Scallop Access Area. A Scallop Access Area, described in of this section. vessel owner must request the exchange paragraph (a)(2) of this section, unless (2) Declaration. (i) Prior to the 25th of trips by submitting a completed Trip the vessel is participating in, and day of the month preceding the month Exchange Form at least 15 days before complies with the requirements of, the in which fishing is to take place, the the date on which the applicant desires area access program described in vessel must submit a monthly report the exchange to be effective, but no later § 648.60. Limited access scallop vessels through the VMS e-mail messaging than May 1 of each year. Each vessel may not possess scallops in the Hudson system of its intention to fish in any Sea involved in an exchange is required to Canyon Sea Scallop Access Area, unless Scallop Access Area, along with the submit a completed Trip Exchange such vessel is participating in, and following information: Vessel name and Form. Trip Exchange Forms will be complies with the requirement of, the permit number, owner and operator’s provided by the Regional Administrator.
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The transfer is not effective until the Access Area based on the conditions provided in paragraph (c)(5)(i) of this vessel owner(s) receive a confirmation and requirements of paragraphs (c)(1) section, the vessel could land up to in writing from the Regional through (5) of this section. 10,500 lb (4,763 kg) of scallops. Administrator. A vessel owner holding (1) The vessel owner/operator has (iii) The vessel that terminates a Sea a Confirmation of Permit History is not determined that the Sea Scallop Access Scallop Access Area trip and has been eligible to exchange trips. Area trip should be terminated early authorized to take an additional trip (4) Area fished. While on a Sea due to an unforeseen event, emergency, may only utilize the DAS allocated for Scallop Access Area trip, a vessel may or safety reason; that trip as determined under paragraph not fish for, possess, or land scallops (2) The landing of the vessel for the (c)(5)(i) of this section. Vessels that are from outside the specific Sea Scallop trip must be less than the maximum authorized more than one additional Access Area fished during that trip and possession limit specified in paragraph trip for compensation for more than one must not enter or exit the specific Sea (a)(5) of this section. terminated trip may combine the DAS Scallop Access Area fished more than (3) The vessel owner/operator must authorized the trips into one additional once per trip. A vessel on a Sea Scallop report the early termination of the trip trip if all terminated trips occurred in Access Area trip may not exit that Sea prior to leaving the Sea Scallop Access the same access area and provided the Scallop Access Area and transit to, or Area by VMS email messaging, with the total of the combined resumed trips enter, another Sea Scallop Access Area following information: Vessel name; does not exceed the number of on the same trip. vessel owner; vessel operator; time of additional DAS deducted as specified in (5) Possession and landing limits. trip termination; emergency or safety paragraph (c)(2) of this section. reason for terminating the trip; expected Unless authorized by the Regional (d) Increase of possession limit to date and time of return to port; and Administrator as specified in paragraph defray costs of observers.—(1) Observer amount of scallops on board in pounds. (c) and (d) of this section, after declaring set-aside limits by area. For the 2004 a trip into a Sea Scallop Access Area in (4) The vessel owners/operator must request that the Regional Administrator and 2005 fishing years, the observer set- fishing year 2004 and 2005, a vessel aside for the Hudson Canyon Access owner or operator may fish for, possess, authorize an additional trip as Area is 187,900 lb (85.2 mt) and 149,562 and land up to 18,000 lb (9,525 kg) of compensation for the terminated trip by lb (67.8 mt), respectively. scallop meats per trip. No vessel fishing submitting a written request to the (2) Defraying the costs of observers. in the Sea Scallop Access Area may Regional Administrator within 30 days The Regional Administrator may possess shoreward of the VMS of the vessel’s return to port from the increase the sea scallop possession limit demarcation line or land, more than 50 early terminated trip. specified in paragraph (a)(5) of this bu (17.62 hl) of in-shell scallops. (5) The Regional Administrator must (6) Gear restrictions. The minimum authorize the vessel to take an section to defray costs of at-sea ring size for dredge gear used by a vessel additional trip and must specify the observers deployed on area access trips fishing on a Sea Scallop Access Area number of DAS for such trip and the subject to the limits specified in trip is 4 inches (10.2 cm). Dredge or amount of scallops the vessel may land paragraph (d)(1) of this section. Owners trawl gear used by a vessel fishing on a on such trip, pursuant to the calculation of limited access scallop vessels will be Sea Scallop Access Area trip must be in specified in paragraphs (c)(5)(i) through notified of the increase in the accordance with the restrictions (iii) of this section. possession limit through a permit specified in § 648.51(a) and (b). (i) The number of DAS a vessel may holder letter issued by the Regional (7) Transiting. While outside a Sea fish on an additional trip in the Sea Administrator. If the observer set-aside Scallop Access Area on a Sea Scallop Scallop Access Area will be calculated is fully utilized prior to the end of the Access Area trip, the vessel must have as the difference between the number of fishing year, the Regional Administrator all fishing gear stowed and unavailable DAS automatically deducted for the trip will notify owners of limited access for immediate use as specified in as specified in paragraph (b) of this vessels that, effective on a specified § 648.23(b), unless there is a compelling section, and the sum of the following date, the possession limit will be safety reason. calculation: 2 DAS, plus one DAS for decreased to the level specified in (8) Off-loading restrictions. The vessel each 10 percent (1,800 lb (816 kg)) paragraph (a)(5) of this section. Vessel may not off-load its catch from a Sea increment of the overall possession owners shall be responsible for paying Scallop Access Area trip at more than limit on board. For example, a vessel the cost of the observer, regardless of one location per trip. that terminates a Sea Scallop Access whether the vessel lands or sells sea (b) Accrual of DAS. For each Sea Area trip on the 5th day of the trip with scallops on that trip, and regardless of Scallop Access Area trip, except as no scallops on board would be charged the availability of set-aside for an provided in paragraph (c) of this 2 DAS for the trip and could make an increased possession limit. section, a vessel on a Sea Scallop Access additional trip of no more than 10 DAS. (e) Adjustments to possession limits Area trip shall have 12 DAS deducted Likewise, a vessel returning to port prior and/or number of trips to defray the from its access area DAS allocation to the 12th DAS with 5,000 lb (2,268 kg) costs of sea scallop research—(1) specified in paragraph (a)(3) of this of scallops on board would be charged Research set-aside limits and number of section, regardless of the actual number 5 DAS (2 DAS plus 3 DAS for the 3, 10 trips by area. For the 2004 and 2005 of DAS used during the trip. percent (1,800 lb (816 kg) increments) fishing years, the research set-aside for (c) Compensation for Sea Scallop and could make a resumed trip of 7 the Hudson Canyon Access Area is Access Area trips terminated early. If a DAS. Pounds of scallops landed shall be 375,800 lb (170.5 mt) and 299,123 lb Sea Scallop Access Area trip is rounded up to the nearest 1,800 lb (816 (135.7 mt), respectively. terminated before the vessel has fished kg). (2) Defraying the costs of sea scallop up to the number of DAS automatically (ii) The amount of scallops that can be research. The Regional Administrator deducted, due to unforeseen events, landed on an authorized additional Sea may increase the sea scallop possession emergency or safety reasons, as Scallop Access Area trip shall equal limit specified in paragraph (a)(5) of this determined by the owner/operator of the 1,500 lb (680 kg) multiplied by the section or allow additional trips into a vessel, the vessel may be authorized to number of DAS authorized for the Sea Scallop Access Area to defray costs fish an additional trip in the Sea Scallop resumed trip. In the second example for approved sea scallop research up to
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the amount specified in paragraph (e)(1) in the Closed Area I EFH Closure, unless SECTION 2 of this section. such vessel is only transiting the area as (f) VMS polling. For the duration of provided in paragraph (d) of this Point Latitude Longitude the Sea Scallop Area Access Program, as section. The Closed Area I EFH Closure CAIE5 41°04.5′N. 69°1.2′W. described under this section, all sea consists of two sections, defined by CAIE6 41°0.9′N. 68°30′W. scallop limited access vessels equipped straight lines connecting the following CAIE7 40°45′N. 68°30′W. with a VMS unit shall be polled at least points in the order stated (copies of a CAIE8 40°45′N. 68°45′W. twice per hour, regardless of whether chart depicting this area are available CAIE5 41°04.5′N. 69°1.2′W. the vessel is enrolled in the Sea Scallop from the Regional Administrator upon Area Access Program. Vessel owners request): (b) Closed Area II EFH Closure. No shall be responsible for paying the costs vessel may fish for scallops in, or for the polling. SECTION 1 possess or land scallops from, the area known as the Closed Area II EFH § 648.61 EFH closed areas. Point Latitude Longitude Closure. No vessel may possess scallops Notwithstanding any other provision in the Closed Area II EFH Closure, of this part, the following areas are CAIE1 41°30′N. 69°23′W. unless such vessel is only transiting the closed to scallop fishing to protect EFH CAIE2 41°30′N. 68°35′W. area as provided in paragraph (d) of this from adverse effects of scallop fishing: CAIE3 41°08′N. 69°4.2′W. section. The Closed Area II EFH Closure (a) Closed Area I EFH Closure. No CAIE4 41°30′N. 69°23′W. is defined by straight lines connecting vessel may fish for scallops in, or the following points in the order stated possess or land scallops from, the area (copies of a chart depicting this area are known as the Closed Area I EFH available from the Regional Closure. No vessel may possess scallops Administrator upon request):
Point Latitude Longitude
CAIIE1 42°22′N. 67°20′W. (the U.S.-Canada Maritime Boundary) CAIIE2 41°30′N. 66°34.8′W. (on the U.S./Canada Maritime Boundary) CAIIE3 41°30′N. 67°20′W. CAIIE1 42°22′N. 67°20′W. (the U.S.-Canada Maritime Boundary)
(c) Nantucket Lightship Closed Area order stated (copies of a chart depicting (d) Transiting. No vessel possessing EFH Closure. No vessel may fish for this area are available from the Regional scallops may enter or be in the area(s) scallops in, or possess or land scallops Administrator upon request): specified in paragraphs (a) through (c) of from, the area known as the Nantucket this section, unless the vessel is Lightship Closed Area EFH Closure. No Point Latitude Longitude transiting the area(s) as allowed in vessel may possess scallops in the ° ′ ° ′ § 648.81(b)(2) and (d). Nantucket Lightship Closed Area EFH NLSE1 40 50 N. 70 20 W. NLSE2 40°50′N. 69°29′W. [FR Doc. 04–4019 Filed 2–25–04; 8:45 am] Closure, unless such vessel is only NLSE3 40°50°N. 69°00′ BILLING CODE 3510–22–S transiting the area as provided in NLSE4 40°3′N. 69°14.5′W. paragraph (d) of this section. The NLSE5 40°′N. 69°00′W. Nantucket Lightship Closed Area EFH NLSE6 40°20′N. 70°20′W. Closure is defined by straight lines NLSE1 40°50′N. 70°20′W. connecting the following points in the
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Notices Federal Register Vol. 69, No. 38
Thursday, February 26, 2004
This section of the FEDERAL REGISTER currently are infested with spruce condition. This project EIS would tier to contains documents other than rules or beetles (Dendroctonus rufipennis) or are the Forest Plan, which provides goals, proposed rules that are applicable to the in stands that are susceptible to spruce objectives, standards and guidelines for public. Notices of hearings and investigations, beetle infestations. the various activities and land committee meetings, agency decisions and The project proposes to improve the allocations on the Forest. rulings, delegations of authority, filing of petitions and applications and agency health and vigor of the forest by The development of this project began statements of organization and functions are salvaging approximately 841 acres of during the summer of 2003 with an examples of documents appearing in this dead and/or dying Engelmann spruce environmental assessment (EA). Public section. trees to recover wood products that scoping was completed in September of would otherwise be lost, and to remove 2003. The interdisciplinary team high risk Engelmann spruce trees from reviewed public comment, identified DEPARTMENT OF AGRICULTURE 715 acres to make these stands more issues, developed action alternatives resilient to spruce beetle infestations. and began the effects analysis for this Forest Service These actions would reduce rule project. Since that time the deciding loadings to reduce wildfire risk, provide official decided that an Environmental Rio Grande National Forest, Colorado, opportunities for reforestation and Impact Statement would be a more County Line Vegetation Management improve residual stand vigor. appropriate means of analysis for this Project Rehabilitation of areas heavily project. AGENCY: Forest Service, USDA impacted by bark beetles mortality The Forest Service will analyze and ACTION: Notice of Intent to Prepare an through the completion of natural and document direct, indirect, and Environmental Impact Statement. artificial regeneration activities would cumulative environmental effects for a occur as needed. An estimated 693 acres range of alternatives. Each alternative SUMMARY: The USDA Forest Service would be planted with spruce seedlings. will include mitigation measures and gives notice that it is preparing an Travel management is proposed for this monitoring requirements. Environmental Impact Statement (EIS) project. Responsible Official: Peter Clark, to implement vegetation management The purpose of this activity is to Forest Supervisor, Rio Grande National treatments and travel management in restore and rehabilitate ecological Forest. 1803 W. Hwy 160, Monte Vista, the spruce/fir forests within the Conejos values in areas where excessive CO 81144. Peak Ranger District, Rio Grande numbers of open roads exist and to Comments Requested: Comments will National Forest, Colorado. The agency provide access to areas heavily continue to be received and considered gives notice of the environmental impacted by spruce beetle. This throughout the analysis process. analysis and decision process that will proposal would close 2.1 miles of road Comments received in response to this occur on the proposal so that interested and convert it to a non-motorized trail. notice and through scoping, including and affected people may become aware A reduction in open road density names and addresses of those who of how they can participate in the following project implementation would comment, will be considered part of the process and contribute to the final reduce adverse environmental impacts public record of this proposed action decision. associated with excessive numbers of and will be available for public roads and would reduce long-term inspection. Comments submitted DATES: Scoping comments must be maintenance costs. anonymously will be accepted and received within thirty days of The transportation system required to considered; however, those who submit publication of this Notice Of Intent in access commercial harvest areas is in anonymous comments will not have the Federal Register. Public meetings place throughout most of the analysis standing to appeal the subsequent were previously held and no further area. However, some new system and decision under 36 CFR Parts 215. meetings are planned. The draft temporary road construction would be Additionally, pursuant to 7 CFR 1.27(d), environmental impact statement is required. any person may request the agency to expected to be available for review and Vegetation management treatments withhold a submission from the public comment in April 2004. The final involving commercial harvest, artificial record by showing how the Freedom of environmental impact statement and regeneration, and travel management Information Act (FOIA) permits such decision is expected in August 2004. would occur on National Forest system confidentiality. Persons requesting such ADDRESSES: Send written comments to: lands located within portions of confidentiality should be aware that, Rio Grande National Forest, ATTN: John sections 2, 3, 11 and 12 of Township (T) under the FOIA, confidentiality may be Murphy, 1803 W. Hwy 160, Monte 32 North (N), Range (R) 4 East (E) and granted in only very limited Vista, CO 81144. Send e-mail comments _ _ _ sections 22, 23, 25, 26, 27, 34, 35 and circumstances, such as to protect trade to: mailroom r2 rio [email protected]. 36 of T33N, R4E, Conejos County, CO. secrets. The Forest Service will inform FOR FURTHER INFORMATION CONTACT: John The proposed actions would the requester of the agency’s decision Murphy at (719) 852–5941. implement management direction, regarding the request for confidentiality, SUPPLEMENTARY INFORMATION: The contribute to meeting the goals and and where the request is denied, the proposed project is located in a 2,282 objectives identified in the 1996 Revised agency will return the submission and acre analysis area in portions of the Land and Resource Management Plan, notify the requester that the comments Wolf Creek (near Cumbres Pass) and Rio as amended, for the Rio Grande National may be resubmitted with or without de Los Pinos watersheds. The proposed Forest (Forest Plan), and move the name and address within a specified commercial conifer treatment areas project area toward the desired number of days.
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Early Notice of Importance of Public may wish to refer to the Council on Forest, Bass Lake Ranger District, 57003 Participation in Subsequent Environmental Quality Regulations for Road 225, North Fork, CA, 93643 (559) Environmental Review: A draft implementing the procedural provisions 877–2218 ext. 3100; e-mail: environmental impact statement will be of the National Environmental Policy [email protected]. prepared for comment. The draft EIS is Act at 40 CFR 1503.3 in addressing SUPPLEMENTARY INFORMATION: Agenda expected to be filed with the EPA these points. items to be covered include: (1) New In the final EIS, the Forest Service is (Environmental Protection Agency) and RAC proposal presentations, (2) review required to respond to substantive to be available for public review. At that RAC post funding process, (3) review comments and responses received time the EPA will publish a notice of Holistic Goal & Evaluation Criteria, (4) during the comment period that pertain availability of the draft EIS in the Arrowhead presentation, and (5) review to the environmental consequences Federal Register. The comment period of Sierra Business Council book. Public discussed in the draft EIS and for the draft environmental impact input opportunity will be provided and applicable laws, regulations, and statement will be 45 days from the date individuals will have the opportunity to the EPA’s notice of availability appears policies considered in making a address the Committee at that time. in the Federal Register. Comments on decision regarding the proposal. The the draft EIS should be as specific as Responsible Official will document the Dated: February 19, 2004. possible and may address the adequacy decision and rationale for the decision Mark D. Lemon, of the statement or the merits of the in a Record of Decision. The final EIS Acting District Ranger, Bass Lake Ranger alternatives discussed (Reviewers may is scheduled for completion in August, District. wish to refer to the Council on 2004. The decision will be subject to [FR Doc. 04–4237 Filed 2–25–04; 8:45 am] Environmental Quality Regulations for review under Forest Service Appeal BILLING CODE 3410–11–M implementing the procedural provisions Regulations. of the National Environmental Policy Dated: February 20, 2004. Act at 40 CFR 1503.3 in addressing Peter L. Clark, DEPARTMENT OF AGRICULTURE these points). Forest Supervisor, Rio Grande National Forest Service The Forest Service believes, at this Forest. early stage, it is important to give [FR Doc. 04–4242 Filed 2–25–04; 8:45 am] reviewers notice of several court rulings Catron County Resource Advisory related to public participation in the BILLING CODE 3410–11–M Committee environmental review process. First, AGENCY: Forest Service, USDA. reviewers of draft environmental impact DEPARTMENT OF AGRICULTURE ACTION: Notice of meeting. statements must structure their participation in the environmental Forest Service SUMMARY: The Catron County Resource review of the proposal so that it is Advisory Committee (RAC) will meet in meaningful and alerts an agency to the Madera County Resource Advisory Reserve, New Mexico, on March 16, reviewers’ position and contentions. Committee 2004, at 10 a.m. MST. The purpose of Vermont Yankee Nuclear Power Corp. v. the meeting is to evaluate submitted AGENCY: Forest Service, USDA. NRDC, 435 U.S. 519, 553 (1978). Also, projects and select projects for ACTION: environmental objections that could Notice of Resource Advisory recommendation to be funded under Committee Meeting. have been raised at the draft Title II of the Secure Rural Schools and environmental impact statement stage SUMMARY: Pursuant to the authorities in Community Self-Determination Act but that are not raised until after the Federal Advisory Committee Act of (Pub. L. 106–393), also called the completion of the final environmental 1972 (Pub. L. 92–463) and under the ‘‘Payments to States Act.’’ impact statement may be waived or secure Rural Schools and Community DATES: The meeting will be held March dismissed by the courts. City of Angoon Self-Determination Act of 2000 (Public 16, 2004. v. Hodel, (9th Circuit, 1986) and Law 106–393) the Sierra National ADDRESSES: The meeting will be held at Wisconsin Heritages, Inc. v. Harris, 490 Forest’s Resource Advisory Committee the Catron County Courtroom of the F. Supp. 1334. 1338 (E.D. Wis. 1980). for Madera County will meet on Catron County Court House, 101 Main Because of these court rulings, it is very Monday, March 15, 2004. The Madera Street, Reserve, New Mexico, 87830. important that those interested in this Resource Advisory Committee will meet Send written comments to Michael proposed action participate by the close at the USDA Forest Service Office, Gardner, Catron County Resource of the 45-day comment period so that North Fork, CA. The purpose of the Advisory Committee, c/o Forest Service, substantive comments and objections meeting is: New RAC proposal USDA, 3005 E. Camino del Bosque, are made available to the Forest Service presentations, review RAC post funding Silver City, New Mexico, 88061–7863 or at the time it can meaningfully consider process, review Holistic Goal & them and respond to them in the final electronically to [email protected]. Evaluation Criteria, Arrowhead environmental impact statement. FOR FURTHER INFORMATION CONTACT: presentation, and review Sierra To assist the Forest Service in Michael Gardner, Rural Community identifying and considering issues and Business Council book. Assistant Staff, Gila National Forest, concerns about the proposed action, DATES: The Madera Resource Advisory (505) 388–8212, or Janet Porter, Catron comments on the draft environmental Committee meeting will be held County RAC Chairperson, at (505) 533– impact statement should be as specific Monday, March 15, 2004. The meeting 6384 or [email protected]. as possible. It is also helpful if will be held from 7 p.m. to 9 p.m. SUPPLEMENTARY INFORMATION: The comments refer to specific pages or ADDRESSES: The Madera County RAC meeting is open to the public. chapters of the draft statement. meeting will be held at the USDA Forest Committee discussion is limited to Comments may also address the Service Office, 57003 Road 225, North Forest Service staff and Committee adequacy of the statement or the merits Fork, CA 93643. members unless provided for on the of the alternatives formulated and FOR FURTHER INFORMATION CONTACT: agenda. However, persons who wish to discussed in the statement. Reviewers Dave Martin, U.S.D.A., Sierra National bring Public Law 106–393 related
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matters to the attention of the information. For further information on of subject merchandise, and petitioners Committee may file written statements RAC history, operations, and the (Allegheny Ludlum Corporation, AK with the Committee Staff before or after application process, a Web site is Steel, Inc., North American Stainless, the meeting. Public input sessions will available at http://www.fs.fed.us/r10/ro/ United Steelworkers of America, AFL- be provided and individuals may payments. CIO/CLC, Butler Armco Independent address the committee at times provided SUPPLEMENTARY INFORMATION: This Union and Zanesville Armco on the agenda in the morning and meeting will focus on the discussion Independent Organization) requested afternoon. To be considered at the and potential recommendation for the Department conduct an March 16, 2004, RAC meeting, the funding of the costs of travel and administrative review. On August 22, project proposals must be submitted to registration for up to two committee 2003, the Department published a notice Michael Gardner or Janet Porter, Catron members to attend the National of initiation of an administrative review County RAC Chairperson, by March 9, Resource Advisory Committee meeting of the antidumping duty order on 2004, to enable distribution to all RAC in Sparks, Nevada, March 25, 2004. The subject merchandise, for the period July members. Send written comments to meeting is open to the public. 1, 2002, through June 30, 2003 (see Michael Gardner at Forest Service, Teleconference capability is available Initiation of Antidumping and USDA, 3005 E. Camino del Bosque, (committee members from outside of Countervailing Duty Administrative Silver City, New Mexico, 88061–7863, Petersburg will participate via Reviews and Request for Revocation in or to Janet Porter at P.O. Box 407, teleconference). Part, 68 FR 50750 (August 22, 2003)). Reserve, NM, 87830. The preliminary results of this Dated: February 19, 2004. Dated: February 20, 2004. administrative review are currently due Forrest Cole, Delbert J. Griego, no later than April 1, 2004. Forest Supervisor. Acting Forest Supervisor, Gila National Extension of Time Limit for Preliminary Forest. [FR Doc. 04–4243 Filed 2–25–04; 8:45 am] Results BILLING CODE 3410–11–M [FR Doc. 04–4239 Filed 2–25–04; 8:45 am] Pursuant to section 751(a)(3)(A) of the BILLING CODE 3410–11–M Act, and section 351.213(h)(2) of the DEPARTMENT OF COMMERCE Department’s regulations, the Department may extend the deadline for DEPARTMENT OF AGRICULTURE International Trade Administration completion of the preliminary results of Forest Service a review if it determines that it is not [A–427–814] practicable to complete the preliminary results within the statutory time limit of Wrangell-Petersburg Resource Notice of Extension of Time Limit of Advisory Committee 245 days from the date on which the the Preliminary Results of review was initiated. Due to the AGENCY: Forest Service, USDA. Antidumping Duty Administrative complexity of issues present in this ACTION: Notice of meeting. Review 2002–2003: Stainless Steel administrative review, such as home Sheet and Strip in Coils From France market affiliated downstream sales, and SUMMARY: The Wrangell-Petersburg complicated cost accounting issues, the Resource Advisory Committee (RAC) AGENCY: Import Administration, Department has determined that it is not will meet from 5 p.m. until 7 p.m. on International Trade Administration, practicable to complete this review Tuesday, March 9, 2004, in Petersubrg, Department of Commerce. within the original time period provided Alaska. The purpose of this meeting is SUMMARY: The Department of Commerce in section 751(a)(3)(A) of the Act and to discuss and potentially recommend (‘‘the Department’’) is extending the section 351.213(h)(2) of the for funding the costs of travel and time limit of the preliminary results of Department’s regulations. registration for up to two committee the Antidumping Duty Administrative Therefore, we are extending the due members to attend the National Review of Stainless Steel Sheet and date for the preliminary results by 120 Resource Advisory Committee meeting Strip in Coils from France. days, until no later than July 31, 2004. in Sparks, Nevada, March 25, 2004. EFFECTIVE DATE: February 26, 2004. The final results continue to be due 120 DATES: The meeting will be held FOR FURTHER INFORMATION CONTACT: days after the publication of the commencing at 5 p.m. on Tuesday, Rachel Kreissl, AD/CVD Enforcement, preliminary results. March 9, 2004. It is anticipated that the Group III, Office 9, Import meeting will adjourn by 7 p.m. Dated: February 18, 2004. Administration, International Trade Joseph A. Spetrini, ADDRESSES: The meeting will be held at Administration, U.S. Department of the Petersburg Ranger District office Deputy Assistant Secretary for Import Commerce, 14th Street and Constitution Administration, Group III. conference room, Federal Building, 12 Avenue, NW., Washington DC 20230; [FR Doc. 04–4296 Filed 2–25–04; 8:45 am] North Nordic Drive, Petersburg, Alaska. telephone: (202) 482–0409. Committee members from outside BILLING CODE 3510–DS–P Petersburg will participate in the Background meeting via teleconference. On July 2, 2003, the Department DEPARTMENT OF COMMERCE FOR FURTHER INFORMATION CONTACT: published a notice of opportunity to Brian Riggers, Acting Wrangell District request an administrative review of the National Oceanic and Atmospheric Ranger, P.O. Box 51, Wrangell, AK antidumping duty order on stainless Administration 99929, phone (907) 874–2323, e-mail steel sheet and strip in coils from France [email protected], or Patty Grantham, (see Antidumping or Countervailing [I.D. 021704E] Petersburg District Ranger, P.O. Box Duty Order, Finding, or Suspended Caribbean Fishery Management 1328, Petersburg, AK 99833, phone Investigation; Opportunity To Request Council; Public Meeting (907) 772–3871, e-mail Administrative Review, 68 FR 39511 [email protected]. Contact either of (July 2, 2003)). On July 28, 2003, Ugine AGENCY: National Marine Fisheries these individuals for teleconference & ALZ France, S.A., a French producer Service (NMFS), National Oceanic and
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Atmospheric Administration (NOAA), DEPARTMENT OF COMMERCE the use of days-at-sea when vessels are Commerce. engaged in cooperative research. National Oceanic and Atmospheric ACTION: Notice of a public meeting. Finally, the Committee will finalize a Administration list of priorities and activities for 2004. SUMMARY: The Caribbean Fishery [I.D. 021804D] Although non-emergency issues not Management Council’s Advisory Panel contained in this agenda may come (AP) will hold a meeting. New England Fishery Management before these groups for discussion, those Council; Public Meetings issues may not be the subject of formal DATES: The AP meeting will be held on March 11, 2004, from 10 a.m. to 5 p.m., AGENCY: National Marine Fisheries action during these meetings. Action approximately. Service (NMFS), National Oceanic and will be restricted to those issues Atmospheric Administration (NOAA), specifically listed in this notice and any ADDRESSES: The meeting will be held at Commerce. issues arising after publication of this the Embassy Suites Hotel, 8000 Tartak notice that require emergency action ACTION: Notice of public meetings. St., Isla Verde, Carolina, Puerto Rico. under section 305(c) of the Magnuson- FOR FURTHER INFORMATION CONTACT: SUMMARY: The New England Fishery Stevens Act, provided the public has Caribbean Fishery Management Council, Management Council (Council) is been notified of the Council’s intent to 268 Mun˜ oz Rivera Avenue, Suite 1108, scheduling a public meeting of its take final action to address the San Juan, Puerto Rico 00918, telephone: Magnuson-Stevens Reauthorization emergency. Committee and Research Steering (787) 766–5926. Special Accommodations Oversight Committee in March 2004 to SUPPLEMENTARY INFORMATION: The AP These meetings are physically will meet to discuss the items contained consider actions affecting New England accessible to people with disabilities. in the following agenda: fisheries in the exclusive economic zone (EEZ). Recommendations from these Requests for sign language (1) Election of Officers groups will be brought to the full interpretation or other auxiliary aids (2) Draft Table 14 of the Draft Council for formal consideration and should be directed to Paul J. Howard Sustainable Fisheries Act Document action, if appropriate. (see ADDRESSES) at least 5 days prior to (3) Other Business DATES: The meetings will be held on the meeting dates. The meeting is open to the public, March 12 and 17, 2004. See Dated: February 19, 2004. and will be conducted in English. SUPPLEMENTARY INFORMATION for specific Peter H. Fricke, However, simultaneous interpretation dates and times. Acting Director, Office of Sustainable (Spanish-English) will be available. ADDRESSES: These meetings will be held Fisheries, National Marine Fisheries Service. Fishers and other interested persons are at the Sheraton Colonial, One Audubon [FR Doc. 04–4273 Filed 2–25–04; 8:45 am] invited to attend and participate with Road, Wakefield, MA 01880; telephone: BILLING CODE 3510–22–S oral or written statements regarding (781) 245–9300. agenda issues. Council address: New England Although non-emergency issues not Fishery Management Council, 50 Water contained in this agenda may come Street, Mill 2, Newburyport, MA 01950. COMMITTEE FOR THE before this group for discussion, those FOR FURTHER INFORMATION CONTACT: Paul IMPLEMENTATION OF TEXTILE issues may not be the subject of formal J. Howard, Executive Director, New AGREEMENTS action during this meeting. Action will England Fishery Management Council; be restricted to those issues specifically telephone: (978) 465–0492. Amendment of Export Visa identified in this notice and any issues SUPPLEMENTARY INFORMATION: Friday, Requirements to Include the Electronic arising after publication of this notice March 12, 2004 at 9:30 a.m. - Visa Information System for Certain that require emergency action under Magnuson-Stevens Reauthorization Cotton, Wool, and Man-Made Fiber section 305(c) of the Magnuson-Stevens Committee Meeting. Textiles and Textile Products Fishery Conservation and Management The Magnuson-Stevens Produced or Manufactured in The Act, provided the public has been Reauthorization Committee will review Socialist Republic of Vietnam notified of the Council’s intent to take the 2004 discussion/staff draft bills final action to address the emergency. released by Senator Olympia Snowe and February 20, 2004. Congressman Wayne Gilchrest, in AGENCY: Committee for the Special Accommodations addition to any other information that is Implementation of Textile Agreements The meeting is physically accessible relevant to reauthorization of the (CITA) to people with disabilities. For more Magnuson-Stevens Fishery ACTION: Issuing a directive to the information or request for sign language Conservation and Management Act Commissioner, Bureau of Customs and interpretation and/other auxiliary aids, (Magnuson-Stevens Act). Border Protection amending visa please contact Miguel A. Rolo´n, Wednesday, March 17, 2004 at 9:30 requirements. Executive Director, Caribbean Fishery a.m. - Research Steering Oversight Management Council, 268 Mun˜ oz Committee Meeting. EFFECTIVE DATE: March 22, 2004. The Research Steering Oversight Rivera Avenue, Suite 1108, San Juan, FOR FURTHER INFORMATION CONTACT: Puerto Rico, 00918, telephone (787) Committee will have a presentation on the status of the NMFS-funded cod- Naomi Freeman, International Trade 766–5926, at least 5 days prior to the Specialist, Office of Textiles and meeting date. tagging program in the Northeast from an informal perspective to ensure Apparel, U.S. Department of Commerce, Dated: February 19, 2004. project objectives are being met. The (202) 482–4212. Peter H. Fricke, Committee will also complete work on SUPPLEMENTARY INFORMATION: Acting Director, Office of Sustainable a policy to incorporate new research Authority: Section 204 of the Agricultural Fisheries, National Marine Fisheries Service. results into the management process Act of 1956, as amended (7 U.S.C. 1854); [FR Doc. 04–4285 Filed 2–25–04; 8:45 am] and initiate development of a policy Executive Order 11651 of March 3, 1972, as BILLING CODE 3510–22–S concerning the disposition of catch and amended.
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On February 19, 2004, the issued an appropriate export visa and not waive the quota requirement. Visa Governments of the United States and Electronic Visa Information System (ELVIS) waivers will only be issued for classification Vietnam signed an agreement amending transmission fully described below. Should purposes or for one-time special purpose the existing Visa Arrangement for additional categories, part-categories or shipments that are not part of an ongoing merged categories become subject to import commercial enterprise. cotton, wool, and man-made fiber quotas, the entire category(s), part-category(s) If the visaed invoice is deficient, the textiles and textile products subject to or merged category(s) shall be included in the Bureau of Customs and Border Protection specific quota limits, as detailed in the coverage of this Arrangement. will not return the original document after notice and letter to the Commissioner, A visa must accompany each shipment of entry, but will provide a certified copy of that Bureau of Customs and Border the aforementioned textile products. The visaed invoice for use in obtaining a new Protection, published in the Federal original visa in blue ink shall be stamped on correct original visaed invoice, or a visa Register on May 16, 2003 (see 68 FR the front of the original commercial invoice. waiver. 26575). The amended visa Arrangement Visa Requirements Only the actual quantity in the shipment Each visa stamp will include the following and the correct category will be charged to establishes new provisions for the information: the restraint level. Electronic Visa Information System 1. The visa number. The visa number shall ELVIS Requirements: (ELVIS). This notice amends, but does be in the standard nine digit letter format A. Each ELVIS transmission shall include not cancel, the notice and letter to the beginning with one numeric digit for the last the following information: Commissioner of Customs, as amended, digit of the year of export, followed by the i. The visa number: The visa number shall published in the Federal Register on two character alpha code specified by the be in the standard nine digit letter format July 30, 2003 (see 68 FR 44748). International Organization for beginning with one numeric digit for the last A description of the textile and Standardization (ISO) (The code for Vietnam digit of the year of export, followed by the apparel categories in terms of categories is VN), and a six digit numerical serial two character alpha code specified by the number identifying the shipment; e.g., International Organization for within the Harmonized Tariff Schedule 4VN123456. Standardization (ISO) (The code for Vietnam of the United States is available in the 2. The date of issuance. The date of is VN), and a six digit numerical serial CORRELATION: Textile and Apparel issuance shall be the day, month, and year number identifying the shipment; e.g., Categories with the Harmonized Tariff on which the visa was issued. 4VN123456. Schedule of the United States (see 3. The original signature of the issuing ii. The date of issuance: The date of Federal Register notice 69 FR 4926, official authorized by the Government of issuance shall be the day, month and year on published on February 2, 2004). Vietnam. which the visa was issued. Interested persons are advised to take 4. The correct category(s), merged iii. The correct category(s), merged all necessary steps to ensure that textile category(s), part category(s), quantity(s), and category(s), part category(s), quantity(s), and products entered into the United States units of quantity in the shipment in the unit(s) of quantity of the shipment in the units(s) of quantity provided for in the U.S. unit(s) of quantity provided for in the U.S. for consumption, or withdrawn from Department of Commerce Correlation and in Department of Commerce Correlation and in warehouse for consumption, will meet the Harmonized Tariff Schedule of the the Harmonized Tariff Schedule of the the visa requirements set forth in the United States (HTSUS), e.g., ‘‘Cat. 340–510 United States. Quantities must be stated in letter published below to the DZ’’. whole numbers. Decimals or fractions will Commissioner, Bureau of Customs and Quantities must be stated in whole not be accepted. Border Protection. numbers. Decimals or fractions will not be iv. The quantity of the shipment in the accepted. Merged category quota correct units of quantity James C. Leonard III, merchandise may be accompanied by either v. The manufacturer ID number (MID) Chairman, Committee for the Implementation the appropriate merged category visa or the B. Entry of a shipment shall not be of Textile Agreements. correct category visa corresponding to the permitted: actual shipment. (For example, quota I. if an ELVIS transmission has not been Committee for the Implementation of Textile Category 340/640 may be visaed as ‘‘Cat. 340/ received for the shipment from the Agreements 640’’ or if the shipment consists solely of Government of Vietnam; February 20, 2004. Category 340 merchandise, the shipment may II.if the ELVIS transmission for that Commissioner, be visaed as ‘‘Cat. 340,’’ but not as ‘‘Cat. shipment is missing any of the following Bureau of Customs and Border Protection, 640’’). information: Washington, DC 20229. The Bureau of Customs and Border i) visa number Dear Commissioner: This directive Protection shall not permit entry if the ii) category, part category, or merged amends, but does not cancel, the directive shipment does not have a visa, or if the visa category issued to you on July 24, 2003, as amended, number, date of issuance, signature, category, iii) quantity by the Chairman, Committee for the quantity are missing, incorrect, illegible, or iv) unit of measure Implementation of Textile Agreements. have been crossed out or altered in any way. v) date of issuance Under the terms of Section 204 of the If the quantity indicated on the visa is less vi) manufacturer ID number Agricultural Act of 1956, as amended (7 than that of the shipment, entry shall not be III. if the ELVIS transmission for the U.S.C. 1854); and pursuant to the Visa and permitted. If the quantity indicated on the shipment does not match the information ELVIS Arrangement, signed on February 19, visa is more than that of the shipment, entry supplied by the importer, or the Customs 2004, between the Governments of the shall be permitted and only the amount broker acting as an agent on behalf of the United States and Vietnam; and in entered shall be charged to any applicable importer, with regard to any of the following: accordance with the provisions of Executive quota. i) visa number Order 11651 of March 3, 1972, as amended, Quantities shall be those determined by the ii) category, part category, or merged you are directed to prohibit entry into the Bureau of Customs and Border Protection. category customs territory of the United States (i.e. the If the visa is not acceptable then a new visa iii) unit of measure 50 states, the District of Columbia and the must be obtained from the Government of IV. If the quantity being entered is greater Commonwealth of Puerto Rico) for Vietnam or a visa waiver may be issued by than the quantity transmitted. consumption and withdrawal from the U.S. Department of Commerce at the V. If the visa number has previously been warehouse for consumption of cotton, wool, request of the Vietnamese Embassy in used, except in the case of a split shipment, and man-made fiber textiles and textile Washington, DC and presented to the Bureau or cancelled, except when entry has already products subject to specific quota limits, as of Customs and Border Protection before any been made using the visa number. detailed in the directive dated May 12, 2003, portion of the shipment will be released. The C. A new, correct ELVIS transmission from and exported on or after March 22, 2004, for waiver, if used, only waives the requirement the Government of Vietnam is required which the Government of Vietnam has not to present a visa with the shipment. It does before a shipment that has been denied entry
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for one the circumstances mentioned above proposed information collection; (c) of allegiance to the foreign government; will be released. ways to enhance the quality, utility, and verifying that the member understands D. Visa waivers will only be accepted if the clarity of the information to be that retired pay equivalent to the shipment qualifies for a one-time special collected; and (d) ways to minimize the amount received from the foreign purpose shipment that is not part of an ongoing commercial enterprise. A visa burden of the information collection on government may be withheld if he or waiver may be issued by the Department of respondents, including through the use she accepts employment with a foreign Commerce at the request of the Vietnamese of automated collection techniques or government before receiving approval. Embassy in Washington, DC. A visa waiver other forms of information technology. Reserve members only must include a only waives the requirements to present an DATES: Consideration will be given to all request to be reassigned to Inactive ELVIS transmission at the time of entry, and comments received by March 29, 2004. Status List Reserve Section (Reserve doesn’t waive any quota requirements. Section Code RB). After verifying the E. In the event of a systems failure, ADDRESSES: Written comments and recommendations on the proposed status of the individual, the letter is shipments will not be released for twenty- forwarded to the Air Force Review four hours or 1 calendar day. If system failure information collection should be sent to exceeds twenty-four hours or 1 calendar day, the Retiree and Transition Programs Board for processing. If the signed letter for the remaining period of the system failure Division (DPPT), Air Force Personnel is not included in the file, individuals the Bureau of Customs and Border Protection Center, 550 C Street West, Suite 11, reviewing the file cannot furnish the will release shipments on the basis of the ATTN: Mr. Bruce O. Creller, Randolph necessary information to the Secretary visa data provided by the Government of AFB, TX 78150–4713. of the Air Force and Secretary of State Vietnam. Vietnam will retransmit all data on which a decision can be made. FOR FURTHER INFORMATION CONTACT: To that was affected by the systems failure when Requested information is necessary to request more information on this the system is functioning normally. maintain the integrity of the Request for proposed information collection or to Shipments not requiring visas or ELVIS Approval of Foreign Government transmission: obtain a copy of the proposal and Employment Program. Merchandise imported for the personal use associated collection instruments, of the importer and not for resale, regardless please write to the above address or call Pamela Fitzgerald, of value, and properly marked commercial Ms. Gail Weber at 210–565–2461. Air Force Federal Register Liaison Officer. sample shipments valued at U.S. $800 or less Title, Form Number, and OMB [FR Doc. 04–4145 Filed 2–25–04; 8:45 am] do not require a visa or an ELVIS Number: Air Force Instruction 36–2913, transmission for entry and shall not be BILLING CODE 5001–05–P charged to Agreement levels. ‘‘Request for Approval of Foreign Other Provisions: Government Employment of Air Force The visa stamp remains unchanged. Members,’’ OMB Number 0701–0134. DEPARTMENT OF DEFENSE The Committee for the Implementation of Needs and Uses: The information Textile Agreements has determined that this collection requirement is to obtain the Department of the Navy action fall with the foreign affairs exception information needed by the Secretary of to the rulemaking provisions of 5 U.S.C. the Air Force and Secretary of State on Meeting of the U.S. Naval Academy 553(a)(1). which to base a decision to approve/ Board of Visitors Sincerely, disapprove a request to work for a James C. Leonard III, AGENCY: Department of the Navy, DOD. Chairman, Committee for the foreign government. This approval is ACTION: Implementation of Textile Agreements. specified by Title 37, United States Notice of partially closed meeting. [FR Doc. E4–407 Filed 2–25–04; 8:45 am] Code, Section 908. This statue delegates such approval authority of Congress to BILLING CODE 3510–DR–S the respective service secretaries and to SUMMARY: The U.S. Naval Academy the Secretary of State. Board of Visitors will meet to make such Affected Public: Individuals and inquiry, as the Board shall deem DEPARTMENT OF DEFENSE Households. necessary into the state of morale and Annual Burden: 215. discipline, the curriculum, instruction, Department of the Air Force Number of Respondents: 215. physical equipment, fiscal affairs, and Proposed Collection; Comment Responses per Respondent: 1. academic methods of the Naval Request Average Burden per Response: 1 Academy. The meeting will include Hour. discussions of personnel issues at the AGENCY: Department of the Air Force, Frequency: On Occasion. Naval Academy, the disclosure of which DoD. SUPPLEMENTARY INFORMATION: would constitute a clearly unwarranted ACTION: Notice. invasion of personal privacy. The Summary of Information Collection executive session of this meeting will be In compliance with Section Respondents are Air Force retired closed to the public. 3506(c)(2)(A) of the Paperwork members and certain Reserve members DATES: The open session of the meeting Reduction Act of 1995, the Retiree and who have gained jobs with a foreign will be held on Monday, March 22, Transition Programs Division, Air Force government and who must obtain 2004, from 8:30 a.m. to 11:15 a.m. The Personnel Center, announces the approval of the Secretary of the Air closed Executive Session will be from proposed reinstatement of a public Force and Secretary of State to do so. 11:15 a.m. to 12 p.m. information collection and seeks public Information, in the form of a letter, comment on the provisions thereof. includes a detailed description of duty, ADDRESSES: The meeting will be held at Comments are invited on: (a) Whether name of employer, Social Security the U.S. Naval Academy, Annapolis, the proposed collection of information Number, and statements specifying Maryland in the Bo Coppedge dining is necessary for the proper performance whether or not the employee will be room of Alumni Hall. of the functions of the agency, including compensated; declaring if employee will FOR FURTHER INFORMATION CONTACT: whether the information shall have be required or plans to obtain foreign Commander Domenick Micillo, practical utility; (b) the accuracy of the citizenship; declaring that the member Executive Secretary to the Board of agency’s estimate of the burden of the will not be required to execute an oath Visitors, Office of the Superintendent,
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U.S. Naval Academy, Annapolis, MD Postal delays, please fax (202) 404– collection requests as required by the 21402–5000, (410) 293–1503. 7920, E-Mail: [email protected] or use Paperwork Reduction Act of 1995. SUPPLEMENTARY INFORMATION: This courier delivery to expedite response. DATES: An emergency review has been notice of meeting is provided per the (Authority: 35 U.S.C. 207, 37 CFR Part 404.) requested in accordance with the Act Federal Advisory Committee Act (5 (44 U.S.C. chapter 3507 (j)), since public Dated: February 19, 2004. U.S.C. App. 2). The executive session of harm is reasonably likely to result if the meeting will consist of discussions S.A. Hughes, normal clearance procedures are of personnel issues at the Naval Lieutenant Commander, Judge Advocate followed. Approval by the Office of Academy and internal Board of Visitors General’s Corps, U.S. Navy, Federal Register Management and Budget (OMB) has Liaison Officer. matters. Discussion of such information been requested by March 5, 2004. A cannot be adequately segregated from [FR Doc. 04–4240 Filed 2–25–04; 8:45 am] regular clearance process is also other topics, which precludes opening BILLING CODE 3810–FF–P beginning. Interested persons are the executive session of this meeting to invited to submit comments on or before the public. In accordance with 5 U.S.C. April 26, 2004. App. 2, section 10(d), the Secretary of DEFENSE NUCLEAR FACILITIES ADDRESSES: Written comments the Navy has determined in writing that SAFETY BOARD regarding the emergency review should the special committee meeting shall be be addressed to the Office of Sunshine Act Meeting partially closed to the public because it Information and Regulatory Affairs, will be concerned with matters as Pursuant to the provisions of the Attention: Melanie Kadlic, Desk Officer: outlined in section 552(b)(2), (5), (6), (7) ‘‘Government in the Sunshine Act’’ (5 Department of Education, Office of and (9) of title 5, United States Code. U.S.C. 552b), notice is hereby given of Management and Budget; 725 17th Dated: February 20, 2004. the Defense Nuclear Facilities Safety Street, NW., Room 10235, New Board’s (Board) meeting cancellation. Executive Office Building, Washington, S.A. Hughes, DC 20503 or should be electronically FEDERAL REGISTER CITATION OF PREVIOUS Lieutenant Commander, Judge Advocate mailed to the Internet address ANNOUNCEMENT: 69 FR 7911 (February General’s Corps, U.S. Navy, Federal Register [email protected]. Liaison Officer. 20, 2004). [FR Doc. 04–4236 Filed 2–25–04; 8:45 am] PREVIOUSLY ANNOUNCED TIME AND DATE OF SUPPLEMENTARY INFORMATION: Section BILLING CODE 3810–FF–P THE MEETING: 9:30 a.m., February 27, 3506 of the Paperwork Reduction Act of 2004. 1995 (44 U.S.C. chapter 35) requires that the Director of OMB provide interested CHANGES IN THE MEETING: On February DEPARTMENT OF DEFENSE Federal agencies and the public an early 23, 2004, the Secretary of Energy opportunity to comment on information Department of the Navy suspended the proposed rule in order to collection requests. The Office of seek further consultation from the Board Management and Budget (OMB) may Notice of Intent To Grant Exclusive and other interested stakeholders. For amend or waive the requirement for Patent License; Lumitox Gulf L.C. this reason, the Board is canceling the public consultation to the extent that February 27, 2004 public meeting public participation in the approval AGENCY: Department of the Navy, DOD. previously scheduled to hear testimony process would defeat the purpose of the ACTION: Notice. from Department of Energy (DOE) information collection, violate State or officials regarding the notice of SUMMARY: The Department of the Navy Federal law, or substantially interfere proposed rulemaking on worker safety with any agency’s ability to perform its hereby gives notice of its intent to grant and health. to Lumitox Gulf L.C. a revocable, statutory obligations. The Leader, CONTACT PERSON FOR MORE INFORMATION: nonassignable, exclusive license to Information Management Group, Office practice in the United States and certain Kenneth M. Pusateri, General Manager, of the Chief Information Officer, foreign countries, the Government- Defense Nuclear Facilities Safety Board, publishes this notice containing owned inventions described in U.S. 625 Indiana Avenue, NW., Suite 700, proposed information collection Patent No. 4,689,305 issued August 25, Washington, DC 20004–2901, (800) 788– requests at the beginning of the 1987, entitled ‘‘Solid State Photometer 4016. This is a toll-free number. Departmental review of the information Circuit’’, and U.S. Patent No. 4,950,594 Dated: February 24, 2004. collection. Each proposed information issued August 21, 1990, entitled John T. Conway, collection, grouped by office, contains ‘‘Microbiological Assay Using Chairman. the following: (1) Type of review requested, e.g., new, revision, extension, Bioluminescent Organism’. [FR Doc. 04–4363 Filed 2–24–04; 11:56 am] existing or reinstatement; (2) Title; (3) DATES: Anyone wishing to object to the BILLING CODE 3670–01–M Summary of the collection; (4) grant of this license must file written Description of the need for, and objections along with supporting proposed use of, the information; (5) evidence, if any, not later than March DEPARTMENT OF EDUCATION Respondents and frequency of 12, 2004. collection; and (6) Reporting and/or ADDRESSES: Written objections are to be Notice of Proposed Information Collection Requests Recordkeeping burden. ED invites filed with the Naval Research public comment. The Department of Laboratory, Code 1004, 4555 Overlook AGENCY: Department of Education. Education is especially interested in Avenue, SW., Washington, DC 20375– public comment addressing the 5320. ACTION: Notice of proposed information collection requests. following issues: (1) Is this collection FOR FURTHER INFORMATION CONTACT: Jane necessary to the proper functions of the F. Kuhl, Technology Transfer Office, SUMMARY: The Leader, Regulatory Department; (2) will this information be NRL Code 1004, 4555 Overlook Avenue, Information Management, Office of the processed and used in a timely manner; SW., Washington, DC 20375–5320, Chief Information Officer, invites (3) is the estimate of burden accurate; telephone (202) 767–7230. Due to U.S. comments on the proposed information (4) how might the Department enhance
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the quality, utility, and clarity of the Individuals who use a democracy, including seminars on the information to be collected; and (5) how telecommunications device for the deaf major governmental institutions and might the Department minimize the (TDD) may call the Federal Information systems in the United States, and visits burden of this collection on Relay Service (FIRS) at 1–800–877– to such institutions; respondents, including through the use 8339. (B) Visits to school systems, of information technology. [FR Doc. 04–4218 Filed 2–25–04; 8:45 am] institutions of higher education, and Dated: February 20, 2004. BILLING CODE 4000–01–P nonprofit organizations conducting Angela C. Arrington, exemplary programs in civics and government education in the United Leader, Regulatory Information Management, Office of the Chief Information Officer. DEPARTMENT OF EDUCATION States; (C) Translations and adaptations with Office of Postsecondary Education Office of Safe and Drug-Free Schools; respect to United States civics and Overview Information; the Cooperative Type of Review: Extension. government education curricular Civic Education and Economic Title: Teacher Quality Enhancement programs for students and teachers and, Education Exchange Program; Notice Grants Program (TQE) Scholarship and in the case of training programs for Inviting Applications for New Awards Teaching Verification Forms for teachers, translations and adaptations for Fiscal Year (FY) 2004 Scholarship Recipients. into forms useful in schools in eligible Abstract: Students receiving Catalog of Federal Domestic countries, and joint research projects in scholarships under section 204(3) of the Assistance (CFDA) Number: 84.304A. such areas; and (D) Independent research and Higher Education Act incur a service DATES: Applications Available: February evaluation assistance to determine the obligation to teach in a high-need school 26, 2004. effects of the Cooperative Education in a high-need LEA. This information Deadline for Transmittal of Exchange program on students’ collection consists of a contract to be Applications: April 12, 2004. development of the knowledge, skills, executed when funds are awarded and Deadline for Intergovernmental and traits of character essential for the a separate teaching verification form to Review: June 10, 2004. be used by students to document their Eligible Applicants: Organizations in preservation and improvement of compliance with the contract’s the United States experienced in the constitutional democracy. conditions. development of curricula and programs (2) Provide to the participants from Additional Information: This in civic and government education and the United States— information collection cleared the Office economic education for students in (A) Seminars on the histories and of Management and Budget a few elementary schools and secondary systems of government of eligible months ago. This is the second phase of schools in countries other than the countries; this specific process. OMB anticipates United States, to carry out civic (B) Visits to school systems, this expedited final clearance. education activities. institutions of higher education, and Frequency: On occasion, semi- Estimated Available Funds: organizations conducting exemplary annually, annually. $1,000,000. programs in civics and government Affected Public: Individuals or Maximum Award: We will reject any education located in eligible countries; household; Not-for-profit institutions; application that proposes a budget (C) Assistance from educators and State, local, or tribal Gov’t, SEAs or exceeding $1,000,000 for a single budget scholars in eligible countries in the LEAs. period of 12 months. We may change development of curricular materials on Reporting and Recordkeeping Hour the maximum amount through a notice the histories and governments of such Burden: published in the Federal Register. countries that are useful in United Responses: 2,850. Estimated Number of Awards: 1. States classrooms; Burden Hours: 3,250. (D) Opportunities to provide onsite Note: The Department is not bound by any demonstrations of United States Requests for copies of the proposed estimates in this notice. information collection request may be curricula and pedagogy for educational accessed from http://edicsweb.ed.gov, Project Period: Up to 60 months. leaders in eligible countries; and by selecting the ‘‘Browse Pending Full Text of Announcement (E) Independent research and Collections’’ link and by clicking on evaluation assistance to determine the link number 2461. When you access the I. Funding Opportunity Description effects of the Cooperative Education information collection, click on Purpose of Program: Through the Exchange program assisted under this ‘‘Download Attachments’’ to view. Cooperative Civic Education and section on students’ development of the Written requests for information should Economic Education Exchange program, knowledge, skills, and traits of character be addressed to Vivian Reese, the Department of Education provides essential for the preservation and Department of Education, 400 Maryland grants to improve the quality of civic improvement of constitutional Avenue, SW., Room 4050, Regional education through cooperative civic democracy. Office Building 3, Washington, DC education exchange programs with (3) Assist participants from eligible 20202–4651 or to the e-mail address emerging democracies. For FY 2004 the countries and the United States to [email protected]. Requests may also competition for new awards focuses on participate in international conferences be electronically mailed to the Internet statutory requirements we describe in on civics and government education for address [email protected] or faxed to the Statutory Requirements section of educational leaders, teacher trainers, 202–708–9346. Please specify the this notice. scholars in related disciplines, and complete title of the information Statutory Requirements: We will educational policymakers. collection when making your request. award grants to eligible applicants to— Program Authority: 20 U.S.C. 6711– Comments regarding burden and/or (1) Provide to the participants from 6716. the collection activity requirements, eligible countries— Applicable Regulations: (a) The contact Joe Schubart at his e-mail (A) Seminars on the basic principles Education Department General address Joe [email protected]. of United States constitutional Administrative Regulations (EDGAR) in
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34 CFR parts 74, 75, 77, 79, 80, 81, 82, IV. Application and Submission Applications Available: February 26, 84, 85, 86, 97, 98, 99, and 299. Information 2004. Note: The regulations in 34 CFR part 86 1. Address to Request Application Deadline for Transmittal of apply to institutions of higher education Package: Rita Foy Moss, U.S. Applications: April 12, 2004. only. Department of Education, 555 New The dates and times for the Jersey Avenue, NW., room 202c, transmittal of applications by mail or by II. Award Information Washington, DC 20208. Telephone: hand (including a courier service or commercial carrier) are in the Type of Award: Discretionary grant. (202) 219–2027 or by e-mail: [email protected]. application package for this Estimated Available Funds: competition. The application package $1,000,000. If you use a telecommunications device for the deaf (TDD), you may call also specifies the hours of operation of Maximum Award: We will reject any the e-Application Web site. application that proposes a budget 1–877–576–7734 or the Federal Information Relay Service (FIRS) at 1– We do not consider an application exceeding $1,000,000 for a single budget that does not comply with the deadline period of 12 months. We may change 800–877–8339. Individuals with disabilities may requirements. the maximum amount through a notice obtain a copy of the application package Deadline for Intergovernmental published in the Federal Register. in an alternative format (e.g., Braille, Review: June 10, 2004. 4. Intergovernmental Review: This Estimated Number of Awards: 1. large print, audiotape, or computer competition is subject to Executive Note: The Department is not bound by any diskette) on request to the program Order 12372 and the regulations in 34 estimates in this notice. contact person listed in this section. CFR part 79. Information about However, the Department is not able to Project Period: Up to 60 months. Intergovernmental Review of Federal reproduce in an alternative format the Programs under Executive Order 12372 III. Eligibility Information standard forms included in the is in the application package for this 1. Eligible Applicants: Organizations application package. 2. Content and Form of Application competition. in the United 5. Funding Restrictions: The Submission: Requirements concerning States experienced in the regulations on determining allowable the content of an application, together development of curricula and programs costs are set out in 34 CFR part 80. We with the forms you must submit, are in in civics and government education and reference additional applicable the application package for the economic education for students in regulations outlining funding Cooperative Civic Education and elementary schools and secondary restrictions in the Applicable Economic Education Exchange program schools in countries other than the Regulations section of this notice. competition. Page Limit: The United States, to carry out civic 6. Other Submission Requirements: application narrative (part III of the education activities. Instructions and requirements for the application) is where you, the applicant, transmittal of applications by mail or by 2. Cost Sharing or Matching: This address the selection criteria that hand (including a courier service or program does not involve cost sharing reviewers use to evaluate your commercial carrier) are in the or matching. application. You must limit part III to application package for this 3. Other: a. Eligible Countries: A the equivalent of no more than 50 pages, competition. Central European country, Eastern using the following standards: Application Procedures: European country, Lithuania, Latvia, • A ‘‘page’’ is 8.5″ x 11″, on one side Estonia, the independent states of the only, with 1″ margins at the top, bottom, Note: Some of the procedures in these former Soviet Union as defined in and both sides. instructions for transmitting applications section 3 of the FREEDOM Support Act • Double space (no more than three differ from those in the Education (22 U.S.C. 5801), the Republic of lines per vertical inch) all text in the Department General Administrative Regulations (EDGAR) (34 CFR 75.102). Under Ireland, the province of Northern application narrative, including titles, Ireland in the Republic of Ireland, the the Administrative Procedure Act (5 U.S.C. headings, footnotes, quotations, 553) the Department generally offers province of Northern Ireland in the references, and captions, as well as all interested parties the opportunity to United Kingdom, and any developing text in charts, tables, figures, and comment on proposed regulations. However, country (as such term is defined in graphs. these amendments make procedural changes section 209(d) of the Education for the • Use a font that is either 12 point or only and do not establish new substantive Deaf Act) if the Secretary, with larger or no smaller than 10 pitch policy. Therefore, under 5 U.S.C. 553(b)(A), concurrence of the Secretary of State, (characters per inch). the Secretary has determined that proposed determines that such developing The page limit does not apply to part rulemaking is not required. country has a democratic form of I, the cover sheet; part II, the budget Pilot Project For Electronic government. A listing of the countries section, including the narrative budget Submission Of Applications: We are also is included in the application justification; part IV, the assurances and continuing to expand our pilot project package. certifications; or the one-page abstract, of electronic submission of applications b. Primary Participants: Primary the resumes, the bibliography, or the to include additional formula grant participants in the Cooperative letters of support. However, you must programs and additional discretionary Education Exchange Program shall be include all of the application narrative grant competitions. The Cooperative leaders in the areas of civics and in part III. Civic Education and Economic government education, including Our reviewers will not read any pages Education Exchange Program—CFDA teachers, curriculum and teacher of your application that— 84.304A—is one of the programs training specialists, scholars in relevant • Exceed the page limit if you apply included in the pilot project. If you are disciplines, educational policymakers, these standards; or an applicant under the Cooperative and government and private sector • Exceed the equivalent of the page Civic Education and Economic leaders from the United States and limit if you apply other standards. Education Exchange Program eligible countries. 3. Submission Dates and Times: competition, you may submit your
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application to us in either electronic or pilot for the Cooperative Civic We reference the regulations outlining paper format. Education and Economic Education the terms and conditions of an award in The pilot project involves the use of Exchange Program and you are the Applicable Regulations section of the Electronic Grant Application System prevented from submitting your this notice and include these and other (e-Application). If you use e- application on the application deadline specific conditions in the GAN. The Application, you will be entering data because the e-Application system is GAN also incorporates your approved online while completing your unavailable, we will grant you an application as part of your binding application. You may not e-mail an extension of one business day in order commitments under the grant. electronic copy of a grant application to to transmit your application 3. Reporting: At the end of your us. If you participate in this voluntary electronically, by mail, or by hand project period, you must submit a final pilot project by submitting an delivery. We will grant this extension performance report, including financial application electronically, the data you if— information, as directed by the enter online will be saved into a 1. You are a registered user of e- Secretary. If you receive a multi-year database. We request your participation Application, and have initiated an e- award, you must submit an annual in e-Application. We shall continue to Application for this competition; and performance report that provides the evaluate its success and solicit 2. (a) The e-Application system is most current performance and financial suggestions for its improvement. unavailable for 60 minutes or more expenditure information as specified by If you participate in e-Application, between the hours of 8:30 a.m. and 3:30 the Secretary in 34 CFR 75.118. please note the following: p.m., Washington, DC time, on the 4. Performance Measures: The • Your participation is voluntary. application deadline date; or Secretary has established the following • performance measure to assess the When you enter the e-Application (b) The e-Application system is effectiveness of the Cooperative Civic system, you will find information about unavailable for any period of time Education and Economic Education its hours of operation. We strongly during the last hour of operation (that is, Exchange Program: The percentage of recommend that you do not wait until for any period of time between 3:30 p.m. teachers participating in training the application deadline date to initiate and 4:30 p.m., Washington, DC time) on programs or professional development an e-Application package. the application deadline date. • You will not receive any additional activities under the program (in the We must acknowledge and confirm point value because you submit a grant United States and in participating these periods of unavailability before application in electronic format, nor foreign countries) who have granting you an extension. To request will we penalize you if you submit an demonstrated improved quality of this extension or to confirm our application in paper format. instruction will increase. This measure acknowledgement of any system • You may submit all documents constitutes the Department of unavailability, you must contact either electronically, including the Education’s indicator of success for this (1) the person listed elsewhere in this Application for Federal Assistance (ED program. Consequently, applicants are notice under FOR FURTHER INFORMATION 424), Budget Information—Non- advised to give careful consideration to CONTACT (see VII. Agency Contact) or (2) Construction Programs, (ED 524), and the outcomes in conceptualizing the the e-GRANTS help desk at 1–888–336– all necessary assurances and design, implementation, and evaluation 8930. certifications. of a proposed project. If funded, • Your e-Application must comply You may access the electronic grant applicants will be asked to collect and with any page limit requirements application for the Cooperative Civic to report data about progress toward this described in this notice. Education and Economic Education goal in their annual performance • After you electronically submit Exchange Program at: http://e- reports. your application, you will receive an grants.ed.gov. VII. Agency Contact automatic acknowledgement, which V. Application Review Information will include a PR/Award number (an FOR FURTHER INFORMATION CONTACT: Rita identifying number unique to your 1. Selection Criteria: The selection Foy Moss, U.S. Department of application). criteria for this competition are in the Education, 555 New Jersey Avenue, • Within three working days after application package. N.W., room 202c, Washington, DC submitting your electronic application, 2. Review and Selection Process: 20208. Telephone: (202) 219-2027 or by fax a signed copy of the Application for Additional factors we consider in e-mail: [email protected]. Federal Assistance (ED 424) to the selecting an application for an award are If you use a telecommunications Application Control Center after in 20 U.S.C. 7247. device for the deaf (TDD), you may call following these steps: VI. Award Administration Information 1–877–576–7734 or the Federal 1. Print ED 424 from the e- Information Relay Service (FIRS) at 1– Application system. 1. Award Notices: If your application 800–877–8339. 2. The institution’s Authorizing is successful, we notify your U.S. Individuals with disabilities may Representative must sign this form. Representative and U.S. Senators and obtain a copy of this document in an 3. Place the PR/Award number in the send you a Grant Award Notification alternative format (e.g., Braille, large upper right hand corner of the hard (GAN). We may also notify you print, audiotape, or computer diskette) copy signature page of the ED 424. informally. on request to the program contact 4. Fax the signed ED 424 to the If your application is not evaluated or person listed in this section. Application Control Center at (202) not selected for funding, we notify you. 260–1349. 2. Administrative and National Policy VIII. Other Information • We may request that you give us Requirements: We identify Electronic Access to This Document: original signatures on other forms at a administrative and national policy You may view this document, as well as later date. requirements in the application package all other documents of this Department Application Deadline Date Extension and reference these and other published in the Federal Register, in in Case of System Unavailability: If you requirements in the Applicable text or Adobe Portable Document elect to participate in the e-Application Regulations section of this notice. Format (PDF) on the Internet at the
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following site: www.ed.gov/news/ to access the document. For assistance, Comments Date: February 20, 2004. fedregister. please contact FERC Online Support at Linda Mitry, To use PDF you must have Adobe [email protected] or toll- Acrobat Reader, which is available free free at (866) 208–3676, or TTY, contact Acting Secretary. at this site. If you have questions about (202) 502–8659. The Commission [FR Doc. E4–403 Filed 2–25–04; 8:45 am] using PDF, call the U.S. Government strongly encourages electronic filings. BILLING CODE 6717–01–P Printing Office (GPO), toll free, at 1– See 18 CFR 385.2001(a)(1)(iii) and the 888–293–6498; or in the Washington, instructions on the Commission’s Web DC, area at (202) 512–1530. site under the e-Filing link. DEPARTMENT OF ENERGY Note: The official version of this document Linda Mitry, Federal Energy Regulatory is the document published in the Federal Acting Secretary. Commission Register. Free Internet access to the official edition of the Federal Register and the Code [FR Doc. E4–401 Filed 2–25–04; 8:45 am] [Docket No. CP04–63–000] of Federal Regulations is available on GPO BILLING CODE 6717–01–P Access at: www.gpoaccess.gov/nara/ Dominion Transmission, Inc.; Notice of index.html. Application DEPARTMENT OF ENERGY Dated: February 23, 2004. February 19, 2004. Deborah A. Price, Federal Energy Regulatory Take notice that on February 11, 2004, Deputy Undersecretary, Office of Safe and Commission Dominion Transmission, Inc. (DTI), 120 Drug-Free Schools. Tredegar Street, Richmond, Virginia, [FR Doc. 04–4297 Filed 2–25–04; 8:45 am] [Docket No. PR03–16–001] filed in Docket No. CP04–63–000 an BILLING CODE 4001–01–P application for authorization to own, Cypress Gas Pipeline, LLC; Notice of operate and maintain, and abandon Refund Report certain facilities located in DEPARTMENT OF ENERGY Pennsylvania, Ohio, and West Virginia, February 5, 2004. pursuant to sections 7(c) and 7(b) of the Federal Energy Regulatory Take notice that on January 20, 2004, Natural Gas Act, as amended, and part Commission Cypress Gas Pipeline, LLC (Cypress) 157 of the Commission’s rules and tendered for filing a refund report regulations, all as more fully set forth in [Docket No. RP99–301–103] showing the refunds made to affected the application which is on file with the customers in connection with the ANR Pipeline Company; Notice of Commission and open to public Commission approved Stipulation and Negotiated Rate Filing inspection. As a result of an internal Agreement filed by Cypress on review conducted pursuant to the July February 5, 2004. November 25, 2003. Cypress states that 11, 2003, Stipulation and Agreement in Take notice that on February 2, 2004, on December 18, 2003, it had issued all Docket No. CP01–440–000,1 DTI ANR Pipeline Company (ANR) tendered required refunds on all amounts requests that the Commission clarify or for filing and approval three collected above the approved settlement confirm certificate authorization for amendments to existing negotiated rate rates. continued ownership and operation of service agreements between ANR and Any person desiring to protest said various facilities that DTI cannot show NJR Energy Services Company. filing should file a protest with the were authorized pursuant to ANR requests that the Commission Federal Energy Regulatory Commission, Commission regulations in effect at the accept and approve the subject 888 First Street, NE., Washington, DC time of each facility’s installation. The negotiated rate agreement amendments 20426, in accordance with section filing may be also viewed on the Web to be effective February 2, 2004. 385.211 of the Commission’s rules and at http://www.ferc.gov using the Any person desiring to be heard or to regulations. All such protests must be ‘‘eLibrary’’ link. Enter the docket protest said filing should file a motion filed in accordance with section 154.210 number excluding the last three digits in to intervene or a protest with the of the Commission’s regulations. the docket number field to access the Federal Energy Regulatory Commission, Protests will be considered by the document. For assistance, call (202) 888 First Street, NE., Washington, DC Commission in determining the 502–8222 or TTY, (202) 208–1659. 20426, in accordance with sections appropriate action to be taken, but will Any questions regarding the 385.214 or 385.211 of the Commission’s not serve to make protestants parties to application should be directed to Anne rules and regulations. All such motions the proceedings. This filing is available E. Bomar, Managing Director, or protests must be filed in accordance for review at the Commission in the Transmission Rates and Regulation, with section 154.210 of the Public Reference Room or may be Dominion Resources, Inc., 120 Tredegar Commission’s regulations. Protests will viewed on the Commission’s Web site at Street, Richmond, Virginia 23219, at be considered by the Commission in http://www.ferc.gov using the eLibrary (804) 819–2134 and with fax at (804) determining the appropriate action to be link. Enter the docket number including 819–2064. taken, but will not serve to make the last three digits in the docket There are two ways to become protestants parties to the proceedings. number field to access the document. involved in the Commission’s review of Any person wishing to become a party For assistance, please contact FERC this project. First, any person wishing to must file a motion to intervene. This Online Support at obtain legal status by becoming a party filing is available for review at the [email protected] or toll- to the proceedings for this project Commission in the Public Reference free at (866) 208–3676, or TTY, contact should, on or before March 11, 2004, file Room or may be viewed on the (202) 502–8659. The Commission with the Federal Energy Regulatory Commission’s Web site at http:// strongly encourages electronic filings. Commission, 888 First Street, NE., www.ferc.gov using the eLibrary. Enter See 18 CFR 385.2001(a)(1)(iii) and the Washington, DC 20426, a motion to the docket number excluding the last instructions on the Commission’s Web three digits in the docket number field site under the eFiling link. 1 104 FERC ¶ 61,073 (2003).
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intervene in accordance with the environmental review process. rules and regulations. All such motions requirements of the Commission’s rules Environmental commenters will not be or protests must be filed in accordance of practice and procedure (18 CFR required to serve copies of filed with section 154.210 of the 385.214 or 385.211) and the regulations documents on all other parties. Commission’s regulations. Protests will under the NGA (18 CFR 157.10). A However, the non-party commenters be considered by the Commission in person obtaining party status will be will not receive copies of all documents determining the appropriate action to be placed on the service list maintained by filed by other parties or issued by the taken, but will not serve to make the Secretary of the Commission and Commission (except for the mailing of protestants parties to the proceedings. will receive copies of all documents environmental documents issued by the Any person wishing to become a party filed by the applicant and by all other Commission) and will not have the right must file a motion to intervene. This parties. A party must submit 14 copies to seek court review of the filing is available for review at the of filings made with the Commission Commission’s final order. Commission in the Public Reference and must mail a copy to the applicant Comments, protests and interventions Room or may be viewed on the and to every other party in the may be filed electronically via the Commission’s Web site at http:// proceeding. Only parties to the Internet in lieu of paper. See 18 CFR www.ferc.gov using the eLibrary. Enter proceeding can ask for court review of 385.2001(a)(1)(iii) and the instructions the docket number excluding the last Commission orders in the proceeding. on the Commission’s Web site under the three digits in the docket number field However, a person does not have to ‘‘e-Filing’’ link. to access the document. For assistance, intervene in order to have comments Comment Date: March 12, 2004. please contact FERC Online Support at considered. The second way to [email protected] or toll- participate is by filing with the Magalie R. Salas, free at (866) 208–3676, or TTY, contact Secretary of the Commission, as soon as Secretary. (202) 502–8659. The Commission possible, an original and two copies of [FR Doc. E4–400 Filed 2–25–04; 8:45 am] strongly encourages electronic filings. comments in support of or in opposition BILLING CODE 6717–01–P See 18 CFR 385.2001(a)(1)(iii) and the to this project. The Commission will instructions on the Commission’s Web consider these comments in site under the e-Filing link. determining the appropriate action to be DEPARTMENT OF ENERGY taken, but the filing of a comment alone Magalie R. Salas, will not serve to make the filer a party Federal Energy Regulatory Secretary. to the proceeding. The Commission’s Commission [FR Doc. E4–399 Filed 2–25–04; 8:45 am] rules require that persons filing [Docket No. RP04–170–000] BILLING CODE 6717–01–P comments in opposition to the project provide copies of their protests only to Eastern Shore Natural Gas Company; the party or parties directly involved in Notice of Proposed Changes in FERC DEPARTMENT OF ENERGY Gas Tariff the protest. Federal Energy Regulatory The Commission may issue a Commission preliminary determination on non- February 19, 2004. Take notice that on February 17, 2004, environmental issues prior to the Entergy Asset Management, Inc., Eastern Shore Natural Gas Company completion of its review of the Entergy Power Ventures, L.P., Warren (ESNG) tendered for filing as part of its environmental aspects of the project. Power, LLC, and East Texas Electric FERC Gas Tariff, Second Revised This preliminary determination Cooperative, Inc.; Notice of Filing typically considers such issues as the Volume No. 1, the tariff sheets listed in need for the project and its economic Appendix A to the filing, with a February 19, 2004. effect on existing customers of the proposed effective date of February 1, Take notice that on February 18, 2004, applicant, on other pipelines in the area, 2004. Entergy Asset Management, Inc., and on landowners and communities. ESNG states that the purpose of this Entergy Power Ventures, L.P. (EPV) For example, the Commission considers instant filing is to track rate changes Warren Power LLC (WP) and East Texas the extent to which the applicant may attributable to a storage service Electric Cooperative, Inc. (ETEC) need to exercise eminent domain to purchased from Columbia Gas (collectively, Applicants) filed an obtain rights-of-way for the proposed Transmission Corporation (Columbia) application requesting all necessary project and balances that against the under its Rate Schedules FSS and SST. authorizations under section 203 of the non-environmental benefits to be ESNG asserts that the costs of the above Federal Power Act, 16 U.S.C. 824b, for provided by the project. Therefore, if a referenced storage service comprise the Applicants to engage in the transfer of person has comments on community rates and charges payable under ESNG’s a 9.1% undivided ownership interest in and landowner impacts from this Rate Schedule CFSS. ESNG indicates the jurisdictional facilities associated proposal, it is important either to file this tracking filing is being made with the 550 MW Harrison County comments or to intervene as early in the pursuant to section 3 of ESNG’s Rate Power Project from EPV to ETEC and a process as possible. Schedule CFSS. 25% undivided ownership interest in Persons who wish to comment only ESNG states that copies of the filing the jurisdictional facilities associated on the environmental review of this have been served upon its jurisdictional with the 300 MW Warren power plant project should submit an original and customers and interested State from WP to ETEC. Applicants have two copies of their comments to the Commissions. requested privileged treatment of the Secretary of the Commission. Any person desiring to be heard or to Ownership Interest Purchase Agreement Environmental commenters will be protest said filing should file a motion submitted as an appendix to the placed on the Commission’s to intervene or a protest with the application. environmental mailing list, will receive Federal Energy Regulatory Commission, Any person desiring to intervene or to copies of the environmental documents, 888 First Street, NE., Washington, DC protest this filing should file with the and will be notified of meetings 20426, in accordance with sections Federal Energy Regulatory Commission, associated with the Commission’s 385.214 or 385.211 of the Commission’s 888 First Street, NE., Washington, DC
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20426, in accordance with rules 211 and and procedure, 18 CFR 385.713 (2004), considered by the Commission in 214 of the Commission’s rules of provides that a rehearing request may be determining the appropriate action to be practice and procedure (18 CFR 385.211 sought after a final decision or other taken, but will not serve to make and 385.214). Protests will be final order in a proceeding. The protestants parties to the proceeding. considered by the Commission in Director’s December 19, 2003, letter is Any person wishing to become a party determining the appropriate action to be not a final decision or order. It does not must file a motion to intervene. All such taken, but will not serve to make impose an obligation on any party or motions or protests should be filed on protestants parties to the proceeding. adjudicate anyone’s substantive rights; or before the comment date, and, to the Any person wishing to become a party rather, the letter simply responds to extent applicable, must be served on the must file a motion to intervene. All such questions regarding proposed applicant and on any other person motions or protests should be filed on procedures. That being the case, Idaho designated on the official service list. or before the comment date, and, to the Power is not aggrieved by the letter. This filing is available for review at the extent applicable, must be served on the Moreover, a challenge to the Commission or may be viewed on the applicant and on any other person Commission’s procedures will be ripe Commission’s Web site at http:// designated on the official service list. only after the Commission has acted on www.ferc.gov, using the eLibrary This filing is available for review at the the merits of Idaho Power’s application, (FERRIS) link. Enter the docket number Commission or may be viewed on the not at this preliminary stage. excluding the last three digits in the Commission’s Web site at http:// 3. For the above reasons, rehearing of docket number field to access the www.ferc.gov, using the eLibrary the December 19, 2004, letter does not document. For assistance, please contact (FERRIS) link. Enter the docket number lie, and Idaho’s Power’s request for FERC Online Support at excluding the last three digits in the rehearing is rejected.1 [email protected] or toll- docket number field to access the 4. This notice constitutes final agency free at (866) 208–3676, or for TTY, document. For assistance, please contact action. Requests for rehearing by the contact (202) 502–8659. Protests and FERC Online Support at Commission may be filed within 30 interventions may be filed electronically [email protected] or toll- days of the date of issuance of this via the Internet in lieu of paper; see 18 free at (866) 208–3676, or for TTY, notice, pursuant to 18 CFR 385.713 CFR 385.2001(a)(1)(iii) and the contact (202) 502–8659. Protests and (2003). instructions on the Commission’s Web interventions may be filed electronically Magalie R. Salas, site under the ‘‘e-Filing’’ link. The via the Internet in lieu of paper; see 18 Commission strongly encourages Secretary. CFR 385.2001(a)(1)(iii) and the electronic filings. instructions on the Commission’s Web [FR Doc. E4–394 Filed 2–25–04; 8:45 am] Comment Date: March 5, 2004. site under the ‘‘e-Filing’’ link. The BILLING CODE 6717–01–P Magalie Salas, Commission strongly encourages Secretary. electronic filings. DEPARTMENT OF ENERGY Comment Date: March 10, 2004. [FR Doc. E4–393 Filed 2–25–04; 8:45 am] BILLING CODE 6717–01–P Magalie R. Salas, Federal Energy Regulatory Secretary. Commission [FR Doc. E4–391 Filed 2–25–04; 8:45 am] [Docket No. ER04–374–001] DEPARTMENT OF ENERGY BILLING CODE 6717–01–P Invenergy TN, LLC; Notice of Filing Federal Energy Regulatory Commission DEPARTMENT OF ENERGY February 19, 2004. Take notice that on February 13, 2004, [Docket No. RP04–154–000] Federal Energy Regulatory Invenergy TN LLC (Invenergy) tendered Iroquois Gas Transmission System, Commission for filing pursuant to section 205 of the Federal Power Act Substitute Original L.P.; Notice of Proposed Changes in [Project No. 1971–082] Sheet No. 1 to its FERC Electric Rate FERC Gas Tariff Idaho Power Company; Notice Schedule that amends Original Sheet February 5, 2004. No. 1 submitted in its application filed Rejecting Request for Rehearing Take notice that on February 2, 2004, December 31, 2003, for authorization to Iroquois Gas Transmission System, L.P. sell, as amended, energy and capacity at February 19, 2004. (Iroquois) tendered for filing the market-based rates, and to resell 1. On January 20, 2004, Idaho Power following tariff sheets, proposed to transmission rights. Invenergy TN LLC Company (Idaho Power) filed a request become effective March 3, 2004: for rehearing of a December 19, 2003, requests an effective date of June 1, letter by the Director, Office of Energy 2004. Third Revised Sheet No. 54 Projects (Director), responding to Idaho Any person desiring to intervene or to Sixth Revised Sheer No. 55 Power’s objections with respect to protest this filing should file with the In an effort to ensure that Iroquois has proposed meetings between Federal Energy Regulatory Commission, sufficient financial coverage in the event representatives of the Commission and 888 First Street, NE., Washington, DC of default by a shipper, Iroquois Indian tribes with an interest in the 20426, in accordance with rules 211 and proposes in the instant filing to revise relicensing of Idaho Power’s Hells 214 of the Commission’s rules of certain creditworthiness sections Canyon Hydroelectric Project. practice and procedure (18 CFR 385.211 effecting its Park and Loan Service 2. Section 313(a) of the Federal Power and 385.214). Protests will be (PALS). Act, 18 U.S.C. 8251(a), provides that Iroquois states that copies of its filing requests for rehearing may be filed only 1 Contemporaneous with its request for rehearing, were served on all jurisdictional Idaho Power filed a procedural motion that it by persons aggrieved by an order issued requested be considered should the Commission customers and interested State by the Commission. Moreover, rule 713 determine that rehearing did not lie. That motion regulatory agencies and all parties to the of the Commission’s rules of practice is pending. proceeding.
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Any person desiring to be heard or to and charge OBA parties a blended rate increase in revenues of approximately protest said filing should file a motion for imbalances on the system, regardless $29.6 million above the annual revenue to intervene or a protest with the of whether they trade the imbalances, requirement established in Northern’s Federal Energy Regulatory Commission, and to clarify that its restriction on 2003 rate case. 888 First Street, NE., Washington, DC trading imbalances across Posted Points The changes reflected in the Revised 20426, in accordance with sections of Restriction only applies to Tariff Sheets to be effective March 1, 385.214 or 385.211 of the Commission’s imbalances created while a Posted Point 2004, are required to effectuate the rate rules and regulations. All such motions of Restriction was in effect. increase and to make certain changes to or protests must be filed in accordance Maritimes states that it has served this Northern’s tariff. In addition, Northern with section 154.210 of the filing on all parties on the Commission’s proposes Pro Forma Tariff Sheets which Commission’s regulations. Protests will Official Service List in this proceeding. reflect further changes to become be considered by the Commission in Any person desiring to protest said effective on a prospective basis determining the appropriate action to be filing should file a protest with the following a Commission order on the taken, but will not serve to make Federal Energy Regulatory Commission, merits or a settlement of this protestants parties to the proceedings. 888 First Street, NE., Washington, DC proceeding. Any person wishing to become a party 20426, in accordance with section Any person desiring to be heard or to must file a motion to intervene. This 385.211 of the Commission’s rules and protest said filing should file a motion filing is available for review at the regulations. All such protests must be to intervene or a protest with the Commission in the Public Reference filed in accordance with section 154.210 Federal Energy Regulatory Commission, Room or may be viewed on the of the Commission’s regulations. 888 First Street, NE., Washington, DC Commission’s Web site at http:// Protests will be considered by the 20426, in accordance with Sections www.ferc.gov using the eLibrary. Enter Commission in determining the 385.214 or 385.211 of the Commission’s the docket number excluding the last appropriate action to be taken, but will Rules and Regulations. All such motions three digits in the docket number field not serve to make protestants parties to or protests must be filed in accordance to access the document. For assistance, the proceedings. This filing is available with Section 154.210 of the please contact FERC Online Support at for review at the Commission in the Commission’s Regulations. Protests will [email protected] or toll- Public Reference Room or may be be considered by the Commission in free at (866) 208–3676, or TTY, contact viewed on the Commission’s Web site at determining the appropriate action to be (202) 502–8659. The Commission http://www.ferc.gov using the eLibrary taken, but will not serve to make strongly encourages electronic filings. link. Enter the docket number excluding protestants parties to the proceedings. See, 18 CFR 385.2001(a)(1)(iii) and the the last three digits in the docket Any person wishing to become a party instructions on the Commission’s Web number field to access the document. must file a motion to intervene. This site under the e-Filing link. For assistance, please contact FERC filing is available for review at the Online Support at Commission in the Public Reference Linda Mitry, [email protected] or toll- Room or may be viewed on the Acting Secretary. free at (866) 208–3676, or TTY, contact Commission’s Web site at http:// [FR Doc. E4–404 Filed 2–25–04; 8:45 am] (202) 502–8659. The Commission www.ferc.gov using the eLibrary. Enter BILLING CODE 6717–01–P strongly encourages electronic filings. the docket number excluding the last See 18 CFR 385.2001(a)(1)(iii) and the three digits in the docket number field instructions on the Commission’s Web to access the document. For assistance, DEPARTMENT OF ENERGY site under the e-Filing link. please contact FERC Online Support at [email protected] or toll- Federal Energy Regulatory Magalie R. Salas, free at (866) 208–3676, or TTY, contact Commission Secretary. (202) 502–8659. The Commission [Docket Nos. RP00–474–007 and RP01–17– [FR Doc. E4–395 Filed 2–25–04; 8:45 am] strongly encourages electronic filings. 009 and RP03–174–004] BILLING CODE 6717–01–P See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission’s Web Maritimes & Northeast Pipeline, L.L.C.; site under the e-Filing link. Notice of Compliance Filing DEPARTMENT OF ENERGY Linda Mitry, February 19, 2004. Federal Energy Regulatory Acting Secretary. Take notice that on February 13, 2004, Commission [FR Doc. E4–405 Filed 2–25–04; 8:45 am] Maritimes & Northeast Pipeline, L.L.C. [Docket No. RP04–155–000] BILLING CODE 6717–01–P (Maritimes) tendered for filing as part of its FERC Gas Tariff, First Revised Northern Natural Gas Company; Notice Volume No. 1, the following tariff of Tariff Filing DEPARTMENT OF ENERGY sheets: (i) Second Sub First Revised Sheet No. 262A, with an effective date February 5, 2004. Federal Energy Regulatory of July 1, 2003, and (ii) Third Revised Take notice that on January 30, 2004, Commission Sheet No. 263 and Second Revised Northern Natural Gas Company [Docket No. RP04–171–000] Sheet No. 264, both with an effective (Northern) tendered for filing as part of date of March 1, 2004. its FERC Gas Tariff, Fifth Revised Portland Natural Gas Transmission Maritimes states that the purpose of Volume No. 1, the revised tariff sheets System; Notice of Proposed Change in this filing is to comply with the set forth in Appendix A to the filing. FERC Gas Tariff Commission’s order issued in the Northern states that the tariff sheets captioned dockets on January 29, 2004 are being filed to effectuate changes in February 19, 2004. (January 29 Order). Maritimes states that the rates and terms applicable to Take notice that on February 17, 2004, it is making changes to its General Northern’s jurisdictional services. The Portland Natural Gas Transmission Terms and Conditions in order to credit effect of the rate case is an overall System (PNGTS) tendered for filing as
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part of its FERC Gas Tariff, Original DEPARTMENT OF ENERGY Comment Date: March 5, 2004. Volume No. 1, the tariff sheets attached Magalie R. Salas, to the filing, to become effective on Federal Energy Regulatory April 1, 2004. Commission Secretary. [FR Doc. E4–392 Filed 2–25–04; 8:45 am] PNGTS states that the purpose of its BILLING CODE 6717–01–P filing is to establish a new firm [Docket No. EL02–129–000] transportation service, i.e., ‘‘Hourly Southern California Water Company; Reserve Service’’ (or ‘‘HRS’’), which will DEPARTMENT OF ENERGY be provided under a new Rate Schedule Notice of Filing HRS. PNGTS states that it is proposing Federal Energy Regulatory February 19, 2004. HRS service to provide additional Commission Take notice that on November 19, options and flexibility to shippers, such [Docket No. RP04–169–000] as electricity generators, or those serving 2002, Southern California Water electricity generators, whose intra-day Company (SCWC) tendered for filing a Stingray Pipeline Company, L.L.C.; delivery requirements may not be resubmission of an SCWC compliance Notice of Proposed Changes in FERC uniform and who may require filing initially filed on November 12, Gas Tariff accelerated flow rates and minimum 2002. SCWC states that the delivery pressures during particular resubmission does not contain any February 19, 2004. periods of the gas day. PNGTS states confidential or otherwise protected Take notice that on February 13, 2004, that its provision of HRS service will materials. SCWC explains that its Stingray Pipeline Company, L.L.C. not impair its ability to provide existing November 12, 2002, filing may have (Stingray) tendered for filing to become FT service and that PNGTS will provide contained confidential or otherwise part of its FERC Gas Tariff, Third HRS service from available system protected materials that should not be Revised Volume No. 1, the tariff sheets capacity; therefore no new facilities available for public inspections. listed in Appendix A to the filing, to construction is required. Therefore, SCWC requests that the become effective on March 15, 2004. Commission remove the original version Stingray states that the purpose of this PNGTS states that copies of this filing filing is to revise Stingray’s Rate from the eLibrary system and the Public are being served on all jurisdictional Schedule PAL to allow park and lending Reference Room. customers and interested State transactions to be contracted for on the commissions. Any person desiring to intervene or to Stingray system and to make Any person desiring to be heard or to protest this filing should file with the corresponding changes in Stingray’s protest said filing should file a motion Federal Energy Regulatory Commission, General Terms and Conditions and to intervene or a protest with the 888 First Street, NE., Washington, DC Form of Service Agreement related to Federal Energy Regulatory Commission, 20426, in accordance with rules 211 and implementing new service options 888 First Street, NE., Washington, DC 214 of the Commission’s rules of under Rate Schedule PAL. 20426, in accordance with sections practice and procedure (18 CFR 385.211 Stingray states that copies of this 385.214 or 385.211 of the Commission’s and 385.214). Protests will be filing have been sent to all of Stingray’s rules and regulations. All such motions considered by the Commission in customers and interested state or protests must be filed in accordance determining the appropriate action to be regulatory commissions. with section 154.210 of the taken, but will not serve to make Any person desiring to be heard or to Commission’s regulations. Protests will protestants parties to the proceeding. protest said filing should file a motion be considered by the Commission in Any person wishing to become a party to intervene or a protest with the determining the appropriate action to be must file a motion to intervene. All such Federal Energy Regulatory Commission, taken, but will not serve to make motions or protests should be filed on 888 First Street, NE., Washington, DC protestants parties to the proceedings. or before the comment date, and, to the 20426, in accordance with sections Any person wishing to become a party extent applicable, must be served on the 385.214 or 385.211 of the Commission’s must file a motion to intervene. This applicant and on any other person rules and regulations. All such motions filing is available for review at the designated on the official service list. or protests must be filed in accordance Commission in the Public Reference with section 154.210 of the This filing is available for review at the Room or may be viewed on the Commission’s regulations. Protests will Commission or may be viewed on the Commission’s Web site at http:// be considered by the Commission in Commission’s Web site at http:// www.ferc.gov using the eLibrary. Enter determining the appropriate action to be www.ferc.gov, using the eLibrary the docket number excluding the last taken, but will not serve to make three digits in the docket number field (FERRIS) link. Enter the docket number protestants parties to the proceedings. to access the document. For assistance, excluding the last three digits in the Any person wishing to become a party please contact FERC Online Support at docket number field to access the must file a motion to intervene. This [email protected] or toll- document. For assistance, please contact filing is available for review at the free at (866) 208–3676, or TTY, contact FERC Online Support at Commission in the Public Reference (202) 502–8659. The Commission [email protected] or toll- Room or may be viewed on the strongly encourages electronic filings. free at (866) 208–3676, or for TTY, Commission’s Web site at http:// See 18 CFR 385.2001(a)(1)(iii) and the contact (202) 502–8659. Protests and www.ferc.gov using the eLibrary. Enter instructions on the Commission’s Web interventions may be filed electronically the docket number excluding the last site under the e-Filing link. via the Internet in lieu of paper; see 18 three digits in the docket number field CFR 385.2001(a)(1)(iii) and the to access the document. For assistance, Magalie R. Salas, instructions on the Commission’s Web please contact FERC Online Support at Secretary. site under the ‘‘e-Filing’’ link. The [email protected] or toll- [FR Doc. E4–389 Filed 2–25–04; 8:45 am] Commission strongly encourages free at (866) 208–3676, or TTY, contact BILLING CODE 6717–01–P electronic filings. (202) 502–8659. The Commission
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strongly encourages electronic filings. Protests Date: February 26, 2004. notice before the Commission on this See 18 CFR 385.2001(a)(1)(iii) and the application if no petition to intervene is Magalie R. Salas, instructions on the Commission’s Web filed within the time required herein, site under the e-Filing link. Secretary. and the Commission on its own review [FR Doc. E4–397 Filed 2–25–04; 8:45 am] of the matter finds that a grant of the Magalie R. Salas, BILLING CODE 6717–01–P abandonment is required by the public Secretary. convenience and necessity. If a protest [FR Doc. E4–398 Filed 2–25–04; 8:45 am] or petition for leave to intervene is DEPARTMENT OF ENERGY BILLING CODE 6717–01–P timely filed, or if the Commission on its Federal Energy Regulatory own motion believes that a formal Commission hearing is required, further notice of DEPARTMENT OF ENERGY such hearing will be duly given. Under [Docket No. CP04–59–000] this procedure, unless otherwise Federal Energy Regulatory advised, it will be unnecessary for Commission Transcontinental Gas Pipe Line Transco to appear or to be represented Corporation; Notice of Application at the hearing. [Docket No. RP04–168–000] February 5, 2004. Comment Date: February 19, 2004. Take notice that on January 29, 2004, Linda Mitry, Trailblazer Pipeline Company; Notice Transcontinental Gas Pipe Line Acting Secretary. of Filing Penalty Revenue Crediting Corporation (Transco) pursuant to and Report [FR Doc. E4–406 Filed 2–25–04; 8:45 am] in accordance with section 7(b) of the BILLING CODE 6717–01–P February 18, 2004. Natural Gas Act and part 157 of the Commission’s regulations, tendered for Take notice that on February 13, 2004, filing an application, in abbreviated DEPARTMENT OF ENERGY Trailblazer Pipeline Company form, in Docket No. CP04–59–000 for an (Trailblazer) tendered for filing its order permitting and approving the Federal Energy Regulatory Penalty Revenue Crediting Report. abandonment of storage service under Commission Trailblazer states that the purpose of Rate Schedule LG–S provided to [Docket No. RP04–167–000] this filing is to inform the Commission Southern Connecticut Gas Company. of penalty revenues it has received in Any person desiring to be heard or to Viking Gas Transmission Company; the periods ended September 30, 2003, protest said filing should file a motion Notice of Proposed Changes in FERC and December 31, 2003. to intervene or a protest with the Gas Tariff Federal Energy Regulatory Commission, Trailblazer states that copies of the 888 First Street, NE., Washington, DC February 19, 2004. filing are being mailed to its customers 20426, in accordance with sections Take notice that on February 13, 2004, and interested State commissions. 385.214 or 385.211 of the Commission’s Viking Gas Transmission Company Any person desiring to be heard or to rules and regulations. All such motions (Viking) tendered for filing to become protest said filing should file a motion or protests must be filed on or before the part of its FERC Gas Tariff, First Revised to intervene or a protest with the date as indicated below. Protests will be Volume No. 1, the following tariff sheets Federal Energy Regulatory Commission, considered by the Commission in to become effective on April 1, 2004: 888 First Street, NE., Washington, DC determining the appropriate action to be Seventh Revised Sheet No. 5H 20426, in accordance with sections taken, but will not serve to make Original Sheet No. 5H.01 385.214 or 385.211 of the Commission’s protestants parties to the proceedings. Sixteenth Revised Sheet No. 6B rules and regulations. All such motions Any person wishing to become a party Original Sheet No. 6B.01 or protests must be filed on or before the must file a motion to intervene. This Fifth Revised Sheet No. 87C date as indicated below. Protests will be filing is available for review at the Viking states that the purpose of this considered by the Commission in Commission in the Public Reference filing is to make Viking’s annual determining the appropriate action to be Room or may be viewed on the adjustment to its Load Management Cost taken, but will not serve to make Commission’s Web site at http:// Reconciliation Adjustment (LMCRA) in protestants parties to the proceedings. www.ferc.gov using the eLibrary. Enter accordance with section 154.403 of the Any person wishing to become a party the docket number excluding the last Commission’s rules and regulations, 18 must file a motion to intervene. This three digits in the docket number field CFR 154.403 (2002) and section 27 of filing is available for review at the to access the document. For assistance, the General Terms and Conditions of Commission in the Public Reference please contact FERC Online Support at Viking’s FERC Gas Tariff and to make Room or may be viewed on the [email protected] or toll- minor housekeeping changes related to Commission’s Web site at http:// free at (866) 208–3676, or TTY, contact the LMCRA. www.ferc.gov using the eLibrary. Enter (202) 502–8659. The Commission Viking states that copies of the filing the docket number excluding the last strongly encourages electronic filings. have been mailed to all of its three digits in the docket number field See 18 CFR 385.2001(a)(1)(iii) and the jurisdictional customers and to affected to access the document. For assistance, instructions on the Commission’s Web State regulatory commissions. please contact FERC Online Support at site under the e-Filing link. Any person desiring to be heard or to [email protected] or toll- Take further notice that, pursuant to protest said filing should file a motion free at (866) 208–3676, or TTY, contact the authority contained in and subject to to intervene or a protest with the (202) 502–8659. The Commission the jurisdiction conferred upon the Federal Energy Regulatory Commission, strongly encourages electronic filings. Commission by sections 7 and 15 of the 888 First Street, NE., Washington, DC See 18 CFR 385.2001(a)(1)(iii) and the Natural Gas Act and the Commission’s 20426, in accordance with sections instructions on the Commission’s Web rules of practice and procedure, a 385.214 or 385.211 of the Commission’s site under the e-Filing link. hearing will be held without further rules and regulations. All such motions
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or protests must be filed in accordance facilities would consist of a liquefied Cheniere Corpus Christi seeks authority with section 154.210 of the natural gas (LNG) import terminal and to construct and operate: Commission’s regulations. Protests will storage facilities, and 24 miles of 48- • A new marine basin at the be considered by the Commission in inch-diameter pipeline. This EIS will be northwestern end of the existing La determining the appropriate action to be used by the Commission in its decision- Qunita Channel, consisting of a dredged taken, but will not serve to make making process to determine whether maneuvering area and two protected protestants parties to the proceedings. the project is in the public convenience berths, equipped to unload up to 300 Any person wishing to become a party and necessity. LNG ships per year, including three tugs must file a motion to intervene. This This notice is being sent to residents and two line-handling boats; filing is available for review at the within 0.5 mile of the proposed LNG • Three liquid unloading arms, one Commission in the Public Reference terminal; landowners along the vapor return arm, and two LNG transfer Room or may be viewed on the proposed pipeline route; Federal, state, lines for each dock; Commission’s Web site at http:// and local government representatives • Three all-metal, double-walled, www.ferc.gov using the eLibrary. Enter and agencies; environmental and public single containment, top entry LNG the docket number excluding the last interest groups; Native American tribes; storage tanks, each with a nominal three digits in the docket number field local libraries and newspapers; and working volume of approximately to access the document. For assistance, 2 intervenors in this proceeding. We 160,000 cubic meters (1,006,400 barrels please contact FERC Online Support at request that state and local government equivalent), surrounded by earthen [email protected] or toll- representatives notify their constituents dikes capable of containing 110 percent free at (866) 208–3676, or TTY, contact of this proposed action and encourage of the gross tank volume; (202) 502–8659. The Commission them to comment on their areas of • Three in-tank LNG pumps, an LNG strongly encourages electronic filings. concern. vaporization and send out system See 18 CFR 385.2001(a)(1)(iii) and the If you are a landowner receiving this consisting of 16 high pressure LNG send instructions on the Commission’s Web notice, you may be contacted by a out pumps, 16 high pressure submerged site under the e-Filing link. company representative about the combustion LNG vaporizers, three boil- acquisition of an easement to construct, Magalie R. Salas, off gas compressors and a boil-off gas operate, and maintain the proposed Secretary. condensing system, and two vapor facilities. The company would seek to [FR Doc. E4–396 Filed 2–25–04; 8:45 am] return blowers, together with LNG negotiate a mutually acceptable BILLING CODE 6717–01–P terminal control instrumentation and agreement. However, if the project is safety systems, and on-site natural gas approved by the Commission, that metering facilities; DEPARTMENT OF ENERGY approval conveys with it the right of • eminent domain. Therefore, if easement Various buildings at the LNG negotiations fail to produce an terminal site to house administrative Federal Energy Regulatory offices, warehouse/maintenance, Commission agreement, the company could initiate condemnation proceedings in terminal control system, utilities, [Docket No. CP04–37–000, CP04–44–000, accordance with state law. customs, and a gatehouse; CP04–45–000, and CP04–46–000] A fact sheet prepared by the FERC • 24 miles of 48-inch-diameter entitled ‘‘An Interstate Natural Gas natural gas pipeline; Corpus Christi LNG, L.P. and Cheniere • Corpus Christi Pipeline Company; Facility On My Land? What Do I Need Seven metering stations/delivery Notice of Intent To Prepare an To Know?’’ was attached to the project points, and pipeline interconnections Environmental Impact Statement for notice Cheniere Corpus Christi provided with the following existing natural gas the Proposed Cheniere Corpus Christi to landowners. This fact sheet addresses pipeline systems: Texas Eastern Lng Terminal and Pipeline Project, a number of typically asked questions, Transmission Company, Gulf South Request for Comments on including the use of eminent domain Pipeline Company, Channel Pipeline Environmental Issues, and Notice of and how to participate in the Company, Florida Gas Transmission Public Scoping Meetings and Site Visit Commission’s proceedings. It is Company, Kinder Morgan Texas available for viewing on the FERC Pipeline Company, Transcontinental February 20, 2004. Internet Web site (http://www.ferc.gov). Gas Pipeline Corporation, and Natural The staff of the Federal Energy Gas Pipeline Company of America; and Summary of the Proposed Project Regulatory Commission (FERC or • Three mainline valves, and a pig Commission) will prepare an Cheniere Corpus Christi proposes to launcher facility at the LNG terminal environmental impact statement (EIS) import, store, and vaporize on average and receiver facility at the northern that will discuss the environmental about 2,600 million cubic feet per day pipeline terminus. impacts of the Cheniere Corpus Christi of LNG at its terminal facility on the Construction of the proposed LNG LNG Terminal and Pipeline Project northern shoreline of Corpus Christi terminal would also require involving construction and operation of Bay, east of Portland, Texas. The construction of nonjurisdictional facilities by Corpus Christi LNG, L.P. proposed pipeline, extending from the facilities, consisting of about 1.6 miles and Cheniere Corpus Christi Pipeline LNG terminal to north of Sinton, Texas, of new 138 kV overhead electric power Company (collectively referred to as would be capable of transporting about line and an electrical substation and Cheniere Corpus Christi) in San Patricio 2,700 million cubic feet per day of about 1.6 miles of new potable water 1 and Nueces Counties, Texas. These imported natural gas to markets line. These facilities are not under throughout the United States, via jurisdiction of the Commission but they 1 On December 22, 2003, Corpus Christi LNG, L.P. interconnections with a number of will be addressed in the EIS as related filed its application with the Commission under existing interstate pipeline systems. Section 3(a) of the Natural Gas Act (NGA) and Part nonjurisdictional facilities. 153 of the Commission’s regulations, and Cheniere Cheniere Corpus Christi would like to 2 Corpus Christi Pipeline Company filed its ‘‘We,’’ ‘‘us,’’ and ‘‘our’’ refer to the have the project constructed and application under Section 7 of the NGA and Parts environmental staff of the FERC’s Office of Energy 157 and 284 of the Commission’s regulations. Projects (OEP). operational prior to the 2007 winter
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heating season. The general location of the EIS on the potentially significant generated during LNG vaporization the facilities is shown in appendix 1.3 environmental issues related to the process. proposed action. To ensure that your —Assessment of impacts construction Land Requirements for Construction scoping comments are considered, and operation of the LNG terminal Construction of the proposed LNG please carefully follow the instructions and pipeline would have on terminal would utilize a total of about in the public participation section wetlands. 1,078 acres of land and water. On-shore, beginning on page 6. —Potential impacts on surface permanent operation of the terminal We are also asking Federal, state, waterbodies. would require use of about 187 acres. local, and tribal agencies with • Vegetation and Wildlife: About 494 acres on-shore would be jurisdiction and/or special expertise —Impacts of clearing of native affected temporarily during with respect to the environmental issues vegetation at the LNG terminal and construction. An additional 316 acres to formally cooperate with us in the along pipeline. on-shore would be retained for preparation of the EIS. These agencies, —Assessment of impacts on state and/ exclusion zones, but would not be especially the U.S. Army Corps of or Federally-listed threatened and affected by either construction or Engineers, U.S. Coast Guard, U.S. Fish endangered species at the LNG operations of the facility. Off-shore, and Wildlife Service, and the National terminal and along the pipeline. about 81 acres of open water would be Marine Fisheries Service, may choose to —Assessment of impacts the creation used for construction and operation of participate once they have evaluated the of the LNG marine terminal may the marine basin and berthing facilities. proposal relative to their have on shellfish and finfish within The material dredged during creation of responsibilities. the essential fish habitat of Corpus the marine basin would be placed over Our independent analysis of the Christi Bay. existing bauxite residue beds and proposed project will be included in a • Land Use and Recreation: tailings ponds on a 385 acre area owned draft EIS. The draft EIS will be —Evaluation of project’s consistency by Alcoa, Inc., on the north side of the published and mailed to Federal, state, with coastal zone management area LNG storage facility. and local agencies, public interest guidelines. Construction of the proposed pipeline groups, interested individuals, affected —Assessment of impacts on would affect a total of about 390 acres landowners, Native American tribes, agricultural land crossed by the of land. A 120-foot-wide nominal newspapers, libraries, and the pipeline. construction right-of-way would be Commission’s official service list for —Visual impacts associated with new used, plus additional temporary extra this proceeding. A 45-day comment LNG storage tanks. work spaces, and the permanent period will be allotted for review of the • Socioeconomics: pipeline easement would be 50-feet- draft EIS. We will consider all timely —Assessment of environmental wide. Operation would require use of comments on the draft EIS and revise justice in location of LNG terminal about 166 acres, including about 4 acres the document, as necessary, before site. necessary for aboveground facilities. At issuing the final EIS. In addition, we —Assessment of impact and potential the end of construction, the remaining will consider all comments on the final benefits of construction workforce 224 acres of land along the pipeline EIS when we make our on local housing, infrastructure, route would be restored to its previous recommendations to the Commission. public services, and economy. condition and use. —Assessment of impacts of LNG ship Currently Identified Environmental traffic on the Port of Corpus Christi. The EIS Process Issues • Cultural Resources: The National Environmental Policy The EIS will discuss impacts that —Assessment of archaeological sites Act (NEPA) requires the Commission to could occur as a result of the at the LNG terminal. take into account the environmental construction and operation of the —Native American concerns. impacts that could result from an action proposed project under the general • Air and Noise Quality: whenever it considers the issuance of a resource headings listed below. We have —Assessment of impacts of Certificate of Public Convenience and already identified several issues that we construction and operation of the Necessity. NEPA also requires the think deserve attention based on a LNG terminal and pipeline on local Commission to discover and address preliminary review of the proposed air quality. concerns the public may have about facilities and the environmental —Assessment of noise from proposals. This process is referred to as information provided by Cheniere construction and operation of the ‘‘scoping.’’ The main goal of the scoping Corpus Christi. This preliminary list of LNG terminal and pipeline process is to focus the analysis in the issues may be changed based on your facilities. EIS on the important environmental comments and our analysis. • Reliability and Safety: issues and reasonable alternatives. • Geology and Soils: —Assessment of hazards associated With this notice, we are soliciting —Assessment of dredging for the new with the transport, unloading, input from the public and interested marine basin, and use of dredged storage, and vaporization of LNG. agencies to help us focus the analysis in material to cover existing bauxite —Assessment of security associated residue beds and tailings ponds at with LNG ship traffic and an LNG 3 The appendices referenced in this notice are not LNG terminal site. import terminal. being printed in the Federal Register. Copies of all —Location of LNG storage tanks • Alternatives: appendices, other than appendix 1 (maps), are —Assessment of the use of existing available on the Commission’s Web site at the within an area used for bauxite ‘‘eLibrary’’ link or from the Commission’s Public storage. LNG import terminals and natural Reference, Room 2A or call (202) 502–8371. For —Conversion of prime farm land for gas pipeline systems to achieve instructions on connecting to eLibrary refer to the aboveground facilities associated project goals. last page of this notice. Copies of the appendices with the pipeline. —Evaluation of alternative sites for were sent to all those receiving this notice in the • mail. Requests for detailed maps of the proposed Water Resources and Wetlands: the LNG terminal, including facilities should be made directly to the Cheniere —Handling of storm water captured offshore sites. Corpus Christi. in LNG storage dikes, and water —Evaluation of pipeline route
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alternatives. will conduct in the project area. The not need intervenor status to have your • Cumulative Impacts: location and time for this meeting is environmental comments considered. —Assessment of the effect of the listed below: Wednesday, March 24, proposed project when combined 2004, 7 p.m., Portland Community Environmental Mailing List with other past, present, or Center, 2000 Billy G. Webb Drive, If you do not want to send comments reasonably foreseeable future Portland, Texas 78374, Telephone: (361) at this time but still want to remain on actions in the project area, 777–3301. our mailing list, please return the including other proposed LNG The public scoping meeting is facilities in Corpus Christi Bay and Mailing List Form included in appendix designed to provide state and local 3. If you do not return this form or send the proposed Port of Corpus Christi agencies, interested groups, affected La Quinta Container Terminal. in written comments, you will be taken landowners, and the general public with off the mailing list. Public Participation more detailed information and another opportunity to offer your comments on Additional Information You can make a difference by the proposed project. Interested groups providing us with your specific and individuals are encouraged to Additional information about the comments or concerns about the project. attend the meeting and to present project is available from the By becoming a commentor, your comments on the environmental issues Commission’s Office of External Affairs, concerns will be addressed in the EIS they believe should be addressed in the at 1–866–208–FERC (3372) or on the and considered by the Commission. You EIS. A transcript of the meeting will be FERC Internet Web site (http:// should focus on the potential made so that your comments will be www.ferc.gov) using the eLibrary link. environmental effects of the proposal, accurately recorded. Click on the eLibrary link, click on alternatives to the proposal (including ‘‘General Search’’ and enter the docket alternative terminal locations or Also on Wednesday, March 24, 2004, number excluding the last three digits in pipeline routes), and measures to avoid starting at 1 p.m., we will be conducting or lessen environmental impact. The a visit to the LNG terminal site. Anyone the Docket Number field. Be sure you more specific your comments, the more interested in participating in the site have selected an appropriate date range. useful they will be. Please carefully visit should meet at the lobby of the For assistance with eLibrary, the follow these instructions to ensure that Days Inn, 133 U.S. Highway 181, eLibrary helpline can be reached at 1– your comments are received in time and Portland, Texas 78374. Participants 866–208–3676, TTY (202) 502–8659, or properly recorded: must provide their own transportation. at [email protected]. The • Send an original and two copies of For additional information, please eLibrary link on the FERC Internet Web your letter to: Magalie R. Salas, contact the Commission’s Office of site also provides access to the texts of Secretary, Federal Energy Regulatory External Affairs at 1–866–208–FERC formal documents issued by the Commission, 888 First St., NE., Room (3372). Commission, such as orders, notices, 1A, Washington, DC 20426. Becoming an Intervenor and rulemakings. • Label one copy of the comments for In addition, the Commission now the attention of Gas Branch 3. In addition to involvement in the EIS offers a free service called eSubscription • Reference Docket Nos. CP04–37– scoping process, you may want to 000, et al. become an official party to the which allows you to keep track of all • Mail your comments so that they proceeding known as an ‘‘intervenor.’’ formal issuances and submittals in will be received in Washington, DC on Intervenors play a more formal role in specific dockets. This can reduce the or before March 26, 2004. the process. Among other things, amount of time you spend researching Please note that we are continuing to intervenors have the right to receive proceedings by automatically providing experience delays in mail deliveries copies of case-related Commission you with notification of these filings, from the U.S. Postal Service. As a result, documents and filings by other document summaries and direct links to we will include all comments that we intervenors. Likewise, each intervenor the documents. To register for this receive within a reasonable time frame must provide 14 copies of its filings to service, go to http://www.ferc.gov/ in our environmental analysis of this the Secretary of the Commission and esubscribenow.htm. project. However, the Commission must send a copy of its filings to all strongly encourages electronic filing of other parties on the Commission’s Magalie R. Salas, any comments or interventions or service list for this proceeding. If you Secretary. protests to this proceeding. See 18 CFR want to become an intervenor you must [FR Doc. E4–410 Filed 2–25–04; 8:45 am] 385.2001(a)(1)(iii) and the instructions file a motion to intervene according to BILLING CODE 6717–01–P on the Commission’s Web site at Rule 214 of the Commission’s Rules of http://www.ferc.gov under the ‘‘e- Practice and Procedure (18 CFR Filing’’ link and the link to the User’s 385.214) (see appendix 2).4 Only Guide. Before you can file comments intervenors have the right to seek you will need to create a free account, rehearing of the Commission’s decision. which can be created by clicking on Affected landowners and parties with ‘‘Login to File’’ and then ‘‘New User environmental concerns may be granted Account.’’ You will be asked to select intervenor status upon showing good the type of filing you are making. This cause by stating that they have a clear filing is considered a ‘‘Comment on and direct interest in this proceeding Filing.’’ which would not be adequately Public Scoping Meeting and Site Visit represented by any other parties. You do
In addition to or in lieu of sending 4 Interventions may also be filed electronically via written comments, we invite you to the Internet in lieu of paper. See the previous attend the public scoping meeting we discussion on filing comments electronically.
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DEPARTMENT OF ENERGY encourage them to comment on their pumps, boil-off gas compressors, areas of concern. instrumentation, and safety systems; Federal Energy Regulatory If you are a landowner receiving this • Ancillary utilities, buildings, and Commission notice, you may be contacted by a service facilities, including hazard pipeline company representative about detection and fire response systems; • [Docket Nos. CP04–47–000, CP04–38–000, the acquisition of an easement to Approximately 16 miles of 42-inch- CP04–39–000, and CP04–40–000] construct, operate, and maintain the diameter natural gas pipeline extending proposed pipeline facilities. The from the LNG import terminal to an Sabine Pass LNG, L.P., Cheniere pipeline company would seek to interconnection with four existing Sabine Pass Pipeline Company; Notice negotiate a mutually acceptable pipelines at Johnson’s Bayou; of Intent To Prepare an Environmental agreement. However, if the project is • Three metering stations, one at the Impact Statement for the Proposed approved by the Commission, that LNG terminal site, one at an Sabine Pass, LNG, and Pipeline Project approval conveys with it the right of interconnection with Natural Gas and Request for Comments on eminent domain. Therefore, if easement Pipeline Company of America, and one Environmental Issues and Notice of negotiations fail to produce an at the interconnection with the existing Public Scoping Meetings and Site Visit agreement, the pipeline company could pipelines at Johnson’s Bayou; and • initiate condemnation proceedings in Associated pipeline facilities February 20, 2004. accordance with State law. including a pig launcher receiver The staff of the Federal Energy A fact sheet prepared by the FERC facility, and three mainline valves, and Regulatory Commission (FERC or entitled ‘‘An Interstate Natural Gas one side valve. Commission) will prepare an Facility On My Land? What Do I Need Construction of the LNG terminal environmental impact statement (EIS) To Know?’’ was attached to the project facilities would take approximately 3 that will discuss the environmental notice Cheniere Sabine provided to years, and the pipeline would take impacts of the Sabine Pass LNG and landowners. This fact sheet addresses a approximately 4 to 6 months. Cheniere Pipeline Project involving construction number of typically asked questions, Sabine proposes to place the project in and operation of facilities proposed by including the use of eminent domain service before the 2007 winter heating Sabine Pass LNG, L.P. and Cheniere and how to participate in the season. The general location of the Sabine Pass Pipeline Company Commission’s proceedings. It is proposed project facilities is shown in (collectively referred to as Cheniere available for viewing on the FERC appendix 1.4,5 Sabine) in Cameron Parish, Louisiana.1 Internet Web site at www.ferc.gov. In addition, certain nonjurisdictional These facilities would consist of a electric and water line facilities would liquefied natural gas (LNG) import Summary of the Proposed Project be required for operation of the LNG terminal and storage facilities and Cheniere Sabine proposes to build a terminal and would be subject to review approximately 16 miles of 42-inch- new LNG import, storage, and and approval by the appropriate state diameter pipeline in Cameron Parish.2 vaporization terminal in a rural part of and Federal agencies. The Jefferson This EIS will be used by the Cameron Parish, Louisiana, across the Davis Electric Cooperative would Commission in its decision-making Sabine Pass Channel from Sabine Pass, construct a 23.6-mile, 230 kilovolt (kV) process to determine whether the Texas. The LNG import terminal would electric transmission line that would project is in the public convenience and import, store, and vaporize an average of extend from its existing substation near necessity. approximately 2,600 million standard the Intracoastal Waterway south across This notice is being sent to residents cubic feet per day (MMscfd) of LNG, the eastern edge of Sabine Lake to the within 0.5 mile of the proposed LNG with an installed capacity of 2,880 LNG terminal site. Cameron Parish terminal facilities; potentially affected MMscfd, for supply to U.S. natural gas Waterworks, District 10, would landowners along the proposed pipeline markets. Cheniere Sabine seeks construct an approximate 8.6-mile, 8- route; Federal, State, and local authority to construct and operate the inch-diameter potable water line that government agencies; elected officials; following new facilities: will extend from its facilities near environmental and public interest • A new marine basin connected to Johnson’s Bayou west along the groups; Native American tribes; and the Sabine Pass Channel that would northern edge of State Highway 82 to local libraries and newspapers. We 3 include a ship maneuvering area and the LNG terminal site. have asked state and local government two protected berths to unload up to Land Requirements for Construction representatives to notify their 300 LNG ships per year with a ship constituents of this planned action and capacity ranging up to 250,000 cubic Cheniere Sabine has acquired 568 acres of land, formerly used for dredge meters (m3) of LNG; • spoil placement by the U.S. Army Corps 1 On January 2, 2004, the Commission gave notice Two 30-inch-diameter stainless that the applications for Sabine Pass LNG L.P. and steel insulated LNG transfer lines to of Engineers, for the proposed LNG Cheniere Sabine Pass Pipeline Company were filed transfer the LNG from the berth facilities terminal facility. Of this total, about on December 22, 2003, under section 3(a) and to the LNG storage tanks; 291.7 acres would be affected during section 7(c) of the Natural Gas Act and part 153, • construction, comprising 264.9 acres of part 157, and part 284 of the Commission’s Three all-metal, double-walled, regulations. single containment, top-entry LNG land and 26.8 acres of water. Operation 2 On February 10, 2004, the Commission gave storage tanks, each with a nominal notice that Sabine Pass Pipeline Company filed an working volume of approximately 4 Requests for detailed maps of the facilities may amendment to its application on February 6, 2004, 160,000 m3 and each with secondary be made to the company directly by calling 1–800– that reflected a shortening of the length of the 690–1361. Be as specific as you can about the originally proposed pipeline from approximately containment dikes to contain 110 location(s) of your area(s) of interest. 120 miles to approximately 16 miles, a reduction percent of the gross tank volume; 5 The appendices referenced in this notice are not of the diameter of the pipeline from 48 inches to • Sixteen high-pressure submerged being printed in the Federal RegisterE. Copies are 42 inches, and a decrease in the maximum capacity combustion LNG vaporizors with a available on the Commission’s Web site (http// of the pipeline from 2.7 to 2.6 billion cubic feet per www.ferc.gov) at the ‘‘eLibrary’’ link or from the day. capacity of approximately 180 MMscfd Commission’s Public Reference Room 2A or call 3 ‘‘We,’’ ‘‘us,’’ and ‘‘our’’ refer to the each, as well as other associated (202) 502–8371. Copies of the appendices were sent environmental staff of the Office of Energy Projects. vaporization equipment, including to all those receiving this notice in the mail.
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of the LNG facility would affect about draft EIS. We will consider all timely • Effects on essential fish habitat. 236.6 acres, comprising 210.1 acres of comments on the draft EIS and revise Land Use, Recreation and Special Use land and 26.5 acres of water. the document, as necessary, before Areas, and Visual Resources Cheniere Sabine proposes to use a issuing the final EIS. In addition, we 120-foot-wide construction right-of-way will consider all comments on the final • Potential impact on public access to and a 50-foot-wide operational right-of- EIS when we make our the Sabine Pass Lighthouse, which is way for the pipeline. Construction of the recommendations to the Commission. listed on the National Register of pipeline would disturb about 245.8 Historic Places. acres of land and would include land Currently Identified Environmental • Effects of pipeline construction on required for the pipeline construction Issues residences within 50 feet of the right-of-way, additional temporary The EIS will discuss impacts that proposed right-of-way. workspaces, access roads, meter could occur as a result of the • Consistency with coastal zone stations, and other associated construction and operation of the management plan. aboveground facilities. Total operational proposed project under the resource • Visual impacts of new LNG storage land requirements would be headings listed below. We have already tanks. approximately 105 acres for the new identified several issues that we think Socioeconomics permanent right-of-way, access roads, deserve attention based on a and above ground facilities. preliminary review of the proposed • Impact of construction equipment and construction worker vehicles on The EIS Process facilities and the environmental information provided by Cheniere local traffic. The National Environmental Policy Sabine. This preliminary list of issues • Effects of LNG ship traffic. Act (NEPA) requires the Commission to may be changed based on your • Effects of construction workforce take into account the environmental comments and our analysis. demands on public services and impacts that could result from an action housing. whenever it considers the issuance of a Geology and Soils Cultural Certificate of Public Convenience and • Assessment of dredged material Necessity, or an import authorization management plan, including the • Effects on archaeological sites and under section 3 of the Natural Gas Act. potential for beneficial uses of dredged historic properties. NEPA also requires us to discover and material. address issues and concerns the public Air Quality and Noise may have about proposals. This process Water Resources and Wetlands • Effects of construction and is referred to as ‘‘scoping.’’ The main • Assessment of construction effects operation on local air quality and the goal of the scoping process is to focus on quality of surface and groundwater. noise environment. the analysis in the EIS on the important • Assessment of effects of • Effects of LNG ship emissions on air environmental issues and reasonable construction and operation on the quality. alternatives. Chicot sole-source aquifer. Reliability and Safety With this notice, we are soliciting • Potential effects of freshwater input from the public and interested discharges on the salinity of receiving • Safety and security of the terminal agencies to help us focus the analysis in waterbodies. and pipeline. the EIS on the potentially significant • Effects of dredging approximately • Safety related to LNG shipping. environmental issues related to the 4.5 million cubic yards of clays for the Cumulative Impacts proposed action. We are also asking marine basin and berthing area. Federal, State, local, and tribal agencies • Assessment of construction and • Assessment of the effect of the with jurisdiction and/or special operation effects on wetlands at the proposed project when combined with expertise with respect to the terminal site and along the pipeline other past, present, or reasonably environmental issues to formally route. foreseeable future actions in the Sabine cooperate with us in the preparation of • Potential impacts of a thermal Pass area. At present, we are aware of the EIS. These agencies, especially the (coldwater) discharge. one other LNG project, the ExxonMobil U.S. Fish and Wildlife Service, U.S. Golden Pass LNG and Pipeline Project, Army Corps of Engineers, National Fish, Wildlife, and Vegetation in the vicinity of the proposed Sabine Marine Fisheries Service, and the U.S. • Effect on commercial and Pass LNG and Pipeline Project. As Coast Guard, may choose to participate recreational fisheries of Sabine Lake and currently proposed, the Golden Pass once they have evaluated the proposal other affected waterbodies. LNG Project site is approximately 2 relative to their responsibilities. • Potential effect of electric miles west of the Cheniere Sabine LNG Agencies that would like to request transmission lines on shore birds and site on the west bank of the Port Arthur cooperating status should follow the other birds. ship channel in Jefferson County, Texas. instructions for filing comments • Effects of lighting and towers on This project would also involve the described later in this notice. migratory birds. construction of approximately 75 miles Our independent analysis of the • Effects of construction on waterfowl of pipelines, extending from the LNG proposed project will be included in a habitat. site through Jefferson, Orange, and draft EIS. The draft EIS will be Newton Counties, Texas to the vicinity Endangered and Threatened Species published and mailed to Federal, State, of Starks, Louisiana in Calcasieu Parish, and local agencies, public interest • Potential effects on federally listed Louisiana. groups, interested individuals, affected species including piping plover, brown landowners, Native American tribes, pelican, and bald eagle; Kemp’s Ridley, Alternatives newspapers, libraries, and the loggerhead, green, hawksbill, and • Evaluation of no action alternative, Commission’s official service list for leatherback sea turtles; gulf sturgeon alternatives using other existing LNG this proceeding. A 45-day comment and smalltooth sawfish; and sperm terminals or pipeline systems, period will be allotted for review of the whale. alternative sites for the proposed LNG
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terminal, and alternative pipeline agencies, interested groups, affected in written comments, you will be taken routes. landowners, and the general public with off the mailing list. more detailed information and another Public Participation Additional Information opportunity to offer comments on the You can make a difference by proposed project. Interested groups and Additional information about the providing us with your specific individuals are encouraged to attend the project is available from the comments or concerns about the project. meetings and to present comments on Commission’s Office of External Affairs, By becoming a commentor, your the environmental issues they believe at 1–866–208–FERC (3372) or on the concerns will be addressed in the EIS should be addressed in the EIS. FERC Internet Web site (www.ferc.gov) and considered by the Commission. You Transcripts of the meetings will be using the eLibrary link. Click on the should focus on the potential made so that your comments are eLibrary link, click on ‘‘General Search’’ environmental effects of the proposal, accurately recorded. and enter the docket number excluding alternatives to the proposal (including We will also be conducting a limited the last three digits in the Docket alternative locations/routes), and site visit to the LNG terminal site and Number field. Be sure you have selected measures to avoid or lessen pipeline route on the day of the an appropriate date range. For environmental impact. The more meeting. Anyone interested in assistance with eLibrary, the eLibrary specific your comments, the more useful participating in the site visit should helpline can be reached at 1–866–208– they will be. Please carefully follow meet at the Johnson’s Bayou Recreation 3676, TTY (202) 502–8659, or at these instructions to ensure that your Center at 8 a.m. on March 11, 2004. [email protected]. The comments are received in time and Participants must provide their own eLibrary link on the FERC Internet Web properly recorded: site also provides access to the texts of • Send an original and two copies of transportation. For additional information, please contact the formal documents issued by the your letter to: Magalie R. Salas, Commission, such as orders, notices, Secretary, Federal Energy Regulatory Commission’s Office of External Affairs at 1–866–208 FERC (3372). and rulemakings. Commission, 888 First St., NE., Room In addition, the Commission now 1A, Washington, DC 20426. Becoming an Intervenor • offers a free service called eSubscription Label one copy of the comments for that allows you to keep track of all In addition to involvement in the EIS the attention of Gas Branch 2. formal issuances and submittals in • scoping process, you may want to Reference Docket Nos. CP04–38– specific dockets. This can reduce the become an official party to the 000 et al. and CP04–47–000 on the amount of time you spend researching proceeding known as an ‘‘intervenor’’. original and both copies. proceedings by automatically providing • Mail your comments so that they Intervenors play a more formal role in you with notification of these filings, will be received in Washington, DC on the process. Among other things, document summaries, and direct links or before March 22, 2004. intervenors have the right to receive to the documents. To register for this Please note that we are continuing to copies of case-related Commission service, go to www.ferc.gov/ experience delays in mail deliveries documents and filings by other esubscribenow.htm. from the U.S. Postal Service. As a result, intervenors. Likewise, each intervenor we will include all comments that we must provide 14 copies of its filings to Magalie R. Salas, receive within a reasonable time frame the Secretary of the Commission and Secretary. in our environmental analysis of this must send a copy of its filings to all [FR Doc. E4–411 Filed 2–25–04; 8:45 am] project. However, the Commission other parties on the Commission’s BILLING CODE 6717–01–P strongly encourages you to file your service list for this proceeding. If you comments electronically via the Internet want to become an intervenor you must in lieu of paper. See 18 CFR file a motion to intervene according to DEPARTMENT OF ENERGY 385.2001(a)(1)(iii) and the instructions Rule 214 of the Commission’s rules of on the Commission’s Web site at http:/ practice and procedure (18 CFR Federal Energy Regulatory /www.ferc.gov under the ‘‘e-Filing’’ link 385.214) (see appendix 2).6 Only Commission and the link to the User’s Guide. Before intervenors have the right to seek you can file comments you will need to rehearing of the Commission’s decision. Notice of Settlement Agreement and Soliciting Comments create a free account, which can be Affected landowners and parties with created by clicking on ‘‘Login to File’’ environmental concerns may be granted February 5, 2004. and then ‘‘New User Account.’’ You will intervenor status upon showing good Take notice that the following be asked to select the type of filing you cause by stating that they have a clear settlement agreement has been filed are making. This filing is considered a and direct interest in this proceeding with the Commission and is available ‘‘Comment on Filing.’’ which would not be adequately for public inspection. Public Scoping Meetings and Site Visit represented by any other parties. You do a. Type of Application: Settlement not need intervenor status to have your In addition to or in lieu of sending agreement on new license application. environmental comments considered. b. Project No.: P–2233–043. written comments, we invite you to c. Date Filed: February 2, 2004. attend a public scoping meeting that we Environmental Mailing List d. Applicant: Portland General will conduct in the area. The location If you do not want to send comments Electric Company. and time for this meeting is listed at this time but still want to remain on e. Name of Project: Willamette Falls below: our mailing list, please return the Hydroelectric Project. March 11, 2004, 7 p.m., Johnson Bayou Mailing List Form included in appendix f. Location: On the Willamette River, Recreation Center, 135 Berwick Road, 3. If you do not return this form or send in the Town of West Linn, Clackamas Cameron, LA 70631, telephone: 337– County, Oregon. 569–2204. 6 Interventions may also be filed electronically via g. Filed Pursuant to: Rule 602 of the The public scoping meeting is the Internet in lieu of paper. See the previous Commission’s rules of practice and designed to provide state and local discussion on filing comments electronically. procedure, 18 CFR 385.602.
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h. Applicant Contact: Julie A. Keil, www.ferc.gov using the ‘‘eLibrary’’ link. Street, Kansas City, MO 64105, (816) Director, Hydro Licensing, Portland Enter the docket number excluding the 467–3659. General Electric Company, 121 SW. last three digits in the docket number h. FERC Contact: Lynn R. Miles (202) Salmon Street, Portland, Oregon 97204, field to access the document. For 502–8763. 503–464–8864 assistance, contact FERC Online i. Deadline for filing comments, i. FERC Contact: John Blair, 202–502– Support at protests, and motions to intervene: 6092, [email protected]. [email protected] or toll- March 19, 2004. j. Deadline for Filing Comments: free at 1–866–208–3676, or for TTY, All documents (original and eight March 5, 2004. Reply comments: March (202) 502–8659. A copy is also available copies) should be filed with: Magalie R. 15, 2004. for inspection and reproduction at the Salas, Secretary, Federal Energy All documents (original and eight address in item h above. Regulatory Commission, 888 First copies) should be filed with: Magalie R. You may also register online at; http:/ Street, NE., Washington, DC 20426. Salas, Secretary, Federal Energy /www.ferc.gov/docs-filing/ Comments, protests, and interventions Regulatory Commission, 888 First esubscription.asp to be notified via may be filed electronically via the Street, NE., Washington, DC 20426. email of new filings and issuances Internet in lieu of paper; see 18 CFR The Commission’s rules of practice related to this or other pending projects. 385.2001(a)(1)(iii) and the instructions require all interveners filing documents For assistance, contact FERC Online on the Commission’s web site under the with the Commission to serve a copy of Support. ‘‘e-Filing’’ link. The Commission that document on each person on the strongly encourages electronic filings. official service list for the project. Linda Mitry, Please include the project number (P– Further, if an intervener files comments Acting Secretary. 4784–066) on any comments or motions or documents with the Commission [FR Doc. E4–402 Filed 2–25–04; 8:45 am] filed. relating to the merits of an issue that BILLING CODE 6717–01–P The Commission’s Rules of Practice may affect the responsibilities of a and Procedure require all interveners particular resource agency, they must filing a document with the Commission also serve a copy of the document on DEPARTMENT OF ENERGY to serve a copy of that document on that resource agency. each person in the official service list Comments may be filed electronically Federal Energy Regulatory for the project. Further, if an intervener via the Internet in lieu of paper. The Commission files comments or documents with the Commission strongly encourages Commission relating to the merits of an electronic filings. See 18 CFR Notice of Application for Transfer of issue that may affect the responsibilities 385.2001(a)(1)(iii) and the instructions License and Soliciting Comments, of a particular resource agency, they on the Commission’s Web site (http:// Motions To Intervene, and Protests must also serve a copy of the documents www.ferc.gov) under the ‘‘e-Filing’’ link. February 20, 2004. on that resource agency. k. Portland General Electric Company Take notice that the following j. Description of Application: The filed the Settlement Agreement on hydroelectric application has been filed amendment to the application requests behalf of itself and the U.S. Fish & with the Commission and is available approval of partial transfers of the Wildlife Service, NOAA Fisheries for public inspection: license to substitute as a co-licensee (formerly National Marine Fisheries a. Application Type: Amendment to CFC LLC for CFC and DCSNA for CFC Service), Oregon Department of Joint Application for Approval of LLC. The partial transfers resulted from Environmental Quality, Oregon Transfer of License. a series of mergers. (The initially-filed Department of Fish and Wildlife, b. Project No: 4784–066. application’s request for approval of a Oregon Water Resources Department, c. Date Filed: Application filed partial transfer of the license to Confederated Tribes of Warm Springs December 11, 2003; amendment filed substitute UtilCo SaleCo, LLC, for Reservation of Oregon, Confederated January 30, 2004. UtilCo Group Inc., as a co-licensee was Tribes of Siletz Indians of Oregon, d. Applicants: UtilCo Group Inc.; decided separately to accommodate the Confederated Tribes of the Grand Ronde UtilCo SaleCo, LLC; Topsham Hydro schedule for closing the sale underlying Community of Oregon, American Partners Limited Partnership; that initially-requested partial transfer.) Rivers, Oregon Trout, The Native Fish DaimlerChrysler Services North k. This filing is available for review at Society, and Trout Unlimited. The America LLC (DCSNA), as successor in the Commission in the Public Reference purpose of the Settlement Agreement is interest to Chrysler Capital Corporation Room or may be viewed on the to resolve among the signatories issues (Chrysler Capital), Chrysler Financial Commission’s Web site at http:// regarding the licensing of the Corporation (CFC), and Chrysler www.ferc.gov using the ‘‘FERRIS’’ link. Willamette Falls Project. These parties Financial Company L.L.C. (CFC LLC). Enter the project number excluding the represent the major stakeholders with e. Name and Location of Project: The last three digits (P–4784) in the docket interests affected by the relicensing of Pejepscot Hydroelectric Project is number field to access the document. the Project. All Parties have agreed that located on the Androscoggin River in For assistance, call toll-free 1–866–208– the Settlement Agreement is fair and the town of Topsham, in Sagadahoc, 3676 or e-mail reasonable and in the public interest. Cumberland and Androscoggin [email protected]. For TTY, On behalf of the Parties, PGE requests Counties, Maine. call (202) 502–8659. A copy is also that the Commission approve the f. Filed Pursuant to: Federal Power available for inspection and Settlement Agreement and adopt it as Act, 16 U.S.C. 791(a)–825(r). reproduction at the addresses in item g. part of the new license without material g. Applicant Contacts: For Transferor: above. modification. Victor A. Contract, Orrick, Herrington & l. Individuals desiring to be included l. A copy of the settlement agreement Sutcliffe LLP, 3050 K Street, NW., on the Commission’s mailing list should is available for review at the Washington, DC 20007, (202) 339–8495. so indicate by writing to the Secretary Commission in the Public Reference For Transferee: Brogan Sullivan, of the Commission. Room or may be viewed on the Assistant General Counsel, UtilCo m. Comments, Protests, or Motions to Commission’s Web site at http:// Group Inc. c/o Aquila, Inc., 20 W. Ninth Intervene—Anyone may submit
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comments, a protest, or a motion to Commission) has prepared the final • 0.2 mile of 20-inch-diameter intervene in accordance with the environmental impact statement (EIS) lateral 1 (Sand Dune Lateral) in Kiowa requirements of Rules of Practice and on the natural gas pipeline facilities County, Kansas; Procedure, 18 CFR 385.210, .211, .214. proposed by Cheyenne Plains Gas • 4.2 miles of 30-inch-diameter lateral In determining the appropriate action to Pipeline Company, LLC (CPG) and (South Rattlesnake Creek Lateral) in take, the Commission will consider all Colorado Interstate Gas Company (CIG) Kiowa County, Kansas; protests or other comments filed, but in the above-referenced dockets. The • 3.0 miles of 8-inch-diameter lateral only those who file a motion to proposed project, referred to as the (Cossell Lake Lateral) in Kiowa County, intervene in accordance with the Cheyenne Plains Pipeline Project, is Kansas; • Commission’s Rules may become a located in various counties in Colorado One 2,443-horsepower (hp) jumper party to the proceeding. Any comments, and Kansas. compressor installed within CIG’s protests, or motions to intervene must The final EIS was prepared to satisfy existing compressor station located at its be received on or before the specified the requirements of the National Cheyenne Hub in Weld County, Colorado; comment date for the particular Environmental Policy Act (NEPA). The • application. staff concludes that, if the project is Two 10,310-hp turbine compressors n. Filing and Service of Responsive constructed as modified and with the installed in a new CPG compressor Documents—Any filings must bear in appropriate mitigation measures as station at the Cheyenne Hub; • Nine new interconnects 2 with all capital letters the title recommended, it would have limited existing pipeline systems. These ‘‘COMMENTS’’, ‘‘PROTEST’’, OR adverse environmental impact. The interconnects would include metering ‘‘MOTION TO INTERVENE’’, as information in the final EIS, along with facilities and would consist of two applicable, and the Project Number of the information contained in the receipt points, one each with CIG and the particular application to which the Commission’s Preliminary Wyoming Interstate Company at the filing refers. Any of the above-named Determination on Non-Environmental Cheyenne Hub in Weld County, documents must be filed by providing Issues for the project, will be considered Colorado, and seven delivery points, the original and the number of copies by the Commission when making a final one with Kinder Morgan Interstate provided by the Commission’s decision on the project. Pipeline Company in Scott County, regulations to: The Secretary, Federal The U.S. Department of Agriculture, Kansas, one with Natural Gas Pipeline Energy Regulatory Commission, 888 Forest Service (FS) is participating as a Company of America in Ford County, First Street, NE., Washington, DC 20426. cooperating agency in the preparation of Kansas, and one each with Southern A copy of any motion to intervene must the final EIS because the FS will be Star Central Gas Pipeline, LLC, ANR also be served upon each representative issuing its own Record of Decision Pipeline Company, Northern Natural of the Applicant specified in the (ROD) on whether or not to issue Gas Company, Panhandle Eastern Pipe particular application. Special Use Authorizations for the Line Company, and Kansas Gas Service o. Agency Comments—Federal, State, portion of the pipeline that crosses the Company in Kiowa County, Kansas; and local agencies are invited to file Pawnee National Grassland (PNG). After • Two new gas treatment plants, each comments on the described application. issuance of the FS’ ROD, there is a 45- consisting of an amine and glycol A copy of the application may be day period to appeal the FS’ decision processing train, one at the Cheyenne obtained by agencies directly from the under Title 36 Code of Federal Hub and the other at the Southern Star Applicant. If an agency does not file Regulations (CFR) Part 215, Notice, interconnect; comments within the time specified for Comment and Appeal Procedures for • 32 mainline valves (MLVs), filing comments, it will be presumed to National Forest System Projects and consisting of 1 at the Cheyenne Hub, 4 have no comments. One copy of an Activities. In accordance with Title 36 at interconnects in Kiowa County, agency’s comments must also be sent to CFR 215.13, only individuals and Kansas, and 27 located independently the Applicant’s representatives. organizations who submitted along the mainline and laterals; and substantive written or oral comments • 3 Magalie R. Salas, Two pig launchers, two pig during the comment period on the draft Secretary. receivers, and five pig launchers and EIS for the proposed Cheyenne Plains receivers, each collocated with new [FR Doc. E4–409 Filed 2–25–04; 8:45 am] Pipeline Project (and specifically MLV sites. BILLING CODE 6717–01–P addressed the portion on the PNG) may The final EIS has been placed in the appeal the Regional Forester’s decision public files of the FERC and is available as documented in the ROD. for public inspection in the Public DEPARTMENT OF ENERGY The U.S. Fish and Wildlife Service Reference Room 2A or call (202) 502– Federal Energy Regulatory (FWS) is also a cooperating agency in 8371. Commission the preparation of the final EIS because A limited number of copies of the the project has the potential to affect final EIS are available from the Public [Docket Nos. CP03–302–000, CP03–303– endangered species, migratory birds, Reference Room. In addition, copies of 000, CP03–304–000, PF03–1–000 and CP03– wildlife, and habitat. the final EIS have been mailed to 301–000] The final EIS addresses the potential Federal, state, and local agencies; environmental effects of the Cheyenne Plains Gas Pipeline construction and operation of the 1 A lateral is typically a smaller diameter pipeline Company, LLC and Colorado Interstate following facilities: that takes gas from the main system to deliver it to Gas Company; Notice of Availability of • a customer, local distribution system, or another the Final Environmental Impact A total of 379.8 miles of 36-inch- interstate transmission system. Statement for the Proposed Cheyenne diameter mainline, with 189.0 miles in 2 An interconnect is a connection to another Plains Pipeline Project Colorado (Weld, Morgan, Washington, pipeline system that is used to deliver or receive Yuma, and Kit Carson Counties) and gas. Metering and regulating facilities would February 20, 2004. typically be included at each interconnect. 190.8 miles in Kansas (Sherman, 3 A pig is an internal tool that can be used to The staff of the Federal Energy Wallace, Logan, Scott, Lane, Finney, clean and dry a pipeline and/or to inspect it for Regulatory Commission (FERC or Hodgeman, Ford, and Kiowa Counties); damage or corrosion.
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elected officials; Native American tribes; that Virginia Cellular, LLC has designation purposes, in accordance newspapers; public libraries; television demonstrated that it will offer and with section 214(e)(5) of the Act. We and radio stations; intervenors to the advertise the services supported by the agree to the service area redefinition FERC’s proceeding; and individuals federal universal service support proposed by Virginia Cellular for the who provided scoping comments, mechanisms throughout the designated service areas of Shenandoah Telephone commented on the draft EIS, or service area. The Commission also finds Company (Shenandoah) and MGW requested the final EIS. that the designation of Virginia Cellular Telephone Company (MGW), subject to Additional information about the as an ETC in two non-rural study areas the agreement of the Virginia State project is available from the serves the public interest. Corporation Commission (Virginia Commission’s Office of External Affairs, FOR FURTHER INFORMATION CONTACT: Commission) in accordance with at 1–866–208 FERC (3372) or on the Thomas Buckley, Attorney, Wireline applicable Virginia Commission FERC Internet website (http:// Competition Bureau, requirements. We find that the Virginia www.ferc.gov). Using the ‘‘eLibrary’’, Telecommunications Access Policy Commission’s first-hand knowledge of select ‘‘General Search’’ from the Division, (202) 418–7400. the rural areas in question uniquely eLibrary menu, enter the selected date qualifies it to examine the redefinition SUPPLEMENTARY INFORMATION: This is a proposal and determine whether it range and ‘‘Docket Number’’, and follow summary of the Commission’s should be approved. Because we do not the instructions. You may also search Memorandum Opinion and Order in CC designate Virginia Cellular as an ETC in using the phrase ‘‘Cheyenne Plains’’ in Docket No. 96–45; FCC 03–338 released NTELOS’ study area, we do not redefine the ‘‘Text Search’’ field. For assistance on January 22, 2004. The full text of this with access to eLibrary, the helpline can this service area. document is available for public 3. In response to a request from the be reached at 1–866–208–3676, TTY inspection during regular business (202) 502–8659, or at Commission, the Federal-State Joint hours in the FCC Reference Center, Board on Universal Service (Joint Board) [email protected]. Room CY–A257, 445 Twelfth Street, In addition, the Commission now is currently reviewing: (1) The SW., Washington, DC 20554. offers a free service called eSubscription Commission’s rules relating to the that allows you to keep track of all I. Introduction calculation of high-cost universal service support in areas where a formal issuances and submittals in 1. In this Order, we grant in part and specific dockets. This can reduce the competitive ETC is providing service; deny in part, subject to enumerated (2) the Commission’s rules regarding amount of time you spend researching conditions, the petition of Virginia proceedings by automatically providing support for non-primary lines; and (3) Cellular, LLC (Virginia Cellular) to be the process for designating ETCs. Some you with notification of these filings, designated as an eligible document summaries, and direct links commenters in that proceeding have telecommunications carrier (ETC) raised concerns about the rapid growth to the documents. To register for this throughout its licensed service area in service, go to http://www.ferc.gov/ of high-cost universal service support the Commonwealth of Virginia pursuant and the impact of such growth on esubscribenow.htm. to section 214(e)(6) of the Information concerning the consumers in rural areas. The outcome Communications Act of 1934, as involvement of the FS is available from of that proceeding could potentially amended (the Act). In so doing, we John Oppenlander at (970) 346–5005. impact, among other things, the support conclude that Virginia Cellular, a Information concerning the involvement that Virginia Cellular and other commercial mobile radio service of the FWS is available from Dan competitive ETCs may receive in the (CMRS) carrier, has satisfied the Mulhern at (785) 539–3474 (ext. 109). future and the criteria used for statutory eligibility requirements of continued eligibility to receive universal Magalie R. Salas, section 214(e)(1). Specifically, we service support. Secretary. conclude that Virginia Cellular has 4. While we await a recommended [FR Doc. E4–412 Filed 2–25–04; 8:45 am] demonstrated that it will offer and decision from the Joint Board, we BILLING CODE 6717–01–P advertise the services supported by the acknowledge the need for a more federal universal service support stringent public interest analysis for mechanisms throughout the designated ETC designations in rural telephone FEDERAL COMMUNICATIONS service area. We find that the company service areas. The framework COMMISSION designation of Virginia Cellular as an enunciated in this Order shall apply to ETC in two non-rural study areas serves all ETC designations for rural areas [CC Docket No. 96–45; FCC 03–338] the public interest. We also find that the pending further action by the designation of Virginia Cellular as an Commission. We conclude that the Federal-State Joint Board on Universal ETC in areas served by five of the six value of increased competition, by itself, Service rural telephone companies serves the is not sufficient to satisfy the public AGENCY: Federal Communications public interest and furthers the goals of interest test in rural areas. Instead, in Commission. universal service. As explained, with determining whether designation of a ACTION: Notice. regard to the study area of NTELOS competitive ETC in a rural telephone Telephone Inc. (NTELOS), we do not company’s service area is in the public SUMMARY: In this document, the find that ETC designation would be in interest, we weigh numerous factors, Commission grants in part and denies in the public interest. including the benefits of increased part, subject to enumerated conditions, 2. Because Virginia Cellular is competitive choice, the impact of the petition of Virginia Cellular, LLC to licensed to serve only part of the study multiple designations on the universal be designated as an eligible area of three of six incumbent rural service fund, the unique advantages and telecommunications carrier throughout telephone companies affected by this disadvantages of the competitor’s its licensed service area in the designation, Virginia Cellular has service offering, any commitments made Commonwealth of Virginia, pursuant to requested that the Commission redefine regarding quality of telephone service the Communications Act of 1934, as the service area of each of these rural provided by competing providers, and amended. The Commission concludes telephone companies for ETC the competitive ETC’s ability to provide
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the supported services throughout the impact the support that Virginia directory assistance, and toll limitation designated service area within a Cellular and other ETCs may receive in for qualifying low-income consumers. reasonable time frame. Further, in this the future. This Order is not intended to Virginia Cellular also complies with Order, we impose as ongoing conditions prejudge the outcome of that applicable law and Commission the commitments Virginia Cellular has proceeding. We also note that Virginia directives on providing access to made on the record in this proceeding. Cellular always has the option of emergency services. In addition, These conditions will ensure that relinquishing its ETC designation and although the Commission has not set a Virginia Cellular satisfies its obligations its corresponding benefits and minimum local usage requirement, under section 214 of the Act. We obligations to the extent that it is Virginia Cellular certifies it will comply conclude that these steps are concerned about its long-term ability to with ‘‘any and all minimum local usage appropriate in light of the increased provide supported services in the requirements adopted by the FCC’’ and frequency of petitions for competitive affected rural study areas. it intends to offer a number of local ETC designations and the potential calling plans as part of its universal A. Commission Authority To Perform impact of such designations on service offering. As discussed, Virginia the ETC Designation consumers in rural areas. Cellular has committed to report 6. We find that Virginia Cellular has annually its progress in achieving its II. Discussion demonstrated that the Virginia build-out plans at the same time it 5. After careful review of the record Commission lacks the jurisdiction to submits its annual certification required before us, we find that Virginia Cellular perform the requested ETC designation under §§ 54.313 and 54.314 of the has met all the requirements set forth in and that the Commission has authority Commission’s rules. section 214(e)(1) and (e)(6) to be to consider Virginia Cellular’s petition 8. Virginia Cellular has also made designated as an ETC by this under section 214(e)(6) of the Act. specific commitments to provide service Commission for portions of its licensed Specifically, Virginia Cellular states that to requesting customers in the service service area. First, we find that Virginia it submitted an application for areas that it is designated as an ETC. Cellular has demonstrated that the designation as an ETC with the Virginia Virginia Cellular states that if a request Virginia Commission lacks the Commission, and on April 9, 2002, the is made by a potential customer within jurisdiction to perform the designation Virginia Commission issued an order its existing network, Virginia Cellular and that the Commission therefore may stating that it had not asserted will provide service immediately using consider Virginia Cellular’s petition jurisdiction over CMRS carriers. In its its standard customer equipment. In under section 214(e)(6). Second, we order, the Virginia Commission directed instances where a request comes from a conclude that Virginia Cellular has Virginia Cellular to file for ETC potential customer within Virginia demonstrated that it will offer and designation with the FCC. Based on this Cellular’s licensed service area but advertise the services supported by the statement by the Virginia Commission, outside its existing network coverage, it federal universal service support we find that the Virginia Commission will take a number of steps to provide mechanisms throughout the designated lacks jurisdiction to designate Virginia service that include determining service area upon designation as an ETC Cellular as an ETC and that this whether: (1) The requesting customer’s in accordance with section 214(e)(1). In Commission has authority to perform equipment can be modified or replaced addition, we find that the designation of the requested ETC designation in the to provide service; (2) a roof-mounted Virginia Cellular as an ETC in certain Commonwealth of Virginia pursuant to antenna or other equipment can be areas served by rural telephone section 214(e)(6). deployed to provide service; (3) companies serves the public interest B. Offering and Advertising the adjustments can be made to the nearest and furthers the goals of universal Supported Services cell tower to provide service; (4) there service by providing greater mobility are any other adjustments that can be and a choice of service providers to 7. Offering the Services Designated for made to network or customer facilities consumers in high-cost and rural areas Support. We find that Virginia Cellular to provide service; (5) it can offer resold of Virginia. Pursuant to our authority has demonstrated through the required services from another carrier’s facilities under section 214(e)(6), we therefore certifications and related filings, that it to provide service; and (6) an additional designate Virginia Cellular as an ETC for now offers, or will offer upon cell site, cell extender, or repeater can parts of its licensed service area in the designation as an ETC, the services be employed or can be constructed to Commonwealth of Virginia, as set forth. supported by the federal universal provide service. In addition, if after As explained, however, we do not service support mechanism. As noted in following these steps, Virginia Cellular designate Virginia Cellular as an ETC in its petition, Virginia Cellular is an ‘‘A- still cannot provide service, it will the study area of NTELOS. In areas Band’’ cellular carrier for the Virginia 6 notify the requesting party and include where Virginia Cellular’s proposed Rural Service Area, serving the counties that information in an annual report service areas do not cover the entire of Rockingham, Augusta, Nelson, and filed with the Commission detailing study area of a rural telephone Highland, as well as the cities of how many requests for service were company, Virginia Cellular’s ETC Harrisonburg, Staunton, and unfulfilled for the past year. designation shall be subject to the Waynesboro. Virginia Cellular states 9. Virginia Cellular has further Virginia Commission’s agreement with that it currently provides all of the committed to use universal service our new definition for the rural services and functionalities enumerated support to further improve its universal telephone company service areas. In all in § 54.101(a) of the Commission’s rules service offering by constructing several other areas, as described herein, throughout its cellular service area in new cellular sites in sparsely populated Virginia Cellular’s ETC designation is Virginia. Virginia Cellular certifies that areas within its licensed service area but effective immediately. Finally, we note it has the capability to offer voice-grade outside its existing network coverage. that the outcome of the Commission’s access to the public switched network, Virginia Cellular estimates that it will pending proceeding before the Joint and the functional equivalents to DTMF construct 11 cell sites over the first year Board examining the rules relating to signaling, single-party service, access to and a half following ETC designation. high-cost universal service support in operator services, access to These 11 cell sites will serve a competitive areas could potentially interexchange services, access to population of 157,060. Virginia Cellular
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notes that the parameters of its build-out did not set a minimum local usage network. In addition, the Commission’s plans may evolve over time as it requirement, in the Universal Service rules acknowledge the existence of dead responds to consumer demand. Order, 62 FR 32862, June 17, 1997, it spots. ‘‘Dead spots’’ are defined as 10. The Virginia Rural Telephone determined that ETCs should provide ‘‘[s]mall areas within a service area Companies raise several concerns about some minimum amount of local usage where the field strength is lower than Virginia Cellular’s service offerings. We as part of their ‘‘basic service’’ package the minimum level for reliable service.’’ address each of these concerns, and in of supported services. Virginia Cellular Section 22.99 of the Commission’s rules so doing, we conclude that Virginia states that it will comply with any and states that ‘‘[s]ervice within dead spots Cellular has demonstrated that it will all minimum local usage requirements is presumed.’’ Additionally, the offer the services supported by the adopted by the FCC. It adds that it will Commission’s rules provide that federal universal service support meet the local usage requirements by ‘‘cellular service is considered to be mechanism upon designation as an ETC. including a variety of local usage plans provided in all areas, including dead Initially, we note that the Commission as part of a universal service offering. In spots ***.’’ Because ‘‘dead spots’’ has held that to require a carrier to addition, Virginia Cellular states that its are acknowledged by the Commission’s actually provide the supported services current rate plans include access to the rules, we are not persuaded by the before it is designated an ETC has the local exchange network, and that many Virginia Rural LECs that the possibility effect of prohibiting the ability of plans include a large volume of of dead spots demonstrates that Virginia prospective entrants from providing minutes. Accordingly, we find that Cellular is not willing or capable of telecommunications service. Instead, ‘‘a Virginia Cellular’s commitment to providing acceptable levels of service new entrant can make a reasonable provide local usage is sufficient. throughout its service area. demonstration * * * of its capability 14. We reject the Virginia Rural 17. Offering the Supported Services and commitment to provide universal Telephone Companies’ claim that ETC Using a Carrier’s Own Facilities. service without the actual provision of designation should be denied because Virginia Cellular has demonstrated that the proposed service.’’ Virginia Cellular’s customers will not it satisfies the requirement of section 11. We also reject the argument of the have equal access to interexchange 214(e)(1)(A) that it offer the supported Virginia Rural Telephone Companies carriers. Section 54.101(a)(7) of the rules services using either its own facilities or that Virginia Cellular does not offer all states that one of the supported services a combination of its own facilities and of the services supported by the federal is access to interexchange services, not resale of another carrier’s services. universal service support mechanisms equal access to those services. Virginia Virginia Cellular states that it intends to as required by section 214(e)(1)(A). Cellular states that it provides access to provide the supported services using its Specifically, the Virginia Rural interexchange services. Accordingly, we cellular network infrastructure, which Telephone Companies claim that find sufficient Virginia Cellular’s includes ‘‘the same antenna, cell-site, Virginia Cellular: (1) Has not yet showing that it will offer access to tower, trunking, mobile switching, and upgraded from analog to digital and interexchange services. interconnection facilities used by the until this happens, Virginia Cellular 15. We find that Virginia Cellular’s company to serve its existing cannot effectively implement E–911 or commitment to participate in the conventional mobile cellular service the Communications Assistance for Law Lifeline and Linkup programs is customers.’’ We find that this Enforcement Act (CALEA); (2) offers no sufficient. In its petition, Virginia certification is sufficient to satisfy the local usage; (3) has stated that its Cellular states that it currently has no facilities requirement of section customers will not have equal access to Lifeline customers, and upon 214(e)(1)(A). interexchange carriers; (4) states only designation as an ETC, it will 18. Advertising the Supported that it will participate ‘‘as required’’ participate in Lifeline as required. Services. We conclude that Virginia with respect to Lifeline service; and (5) Virginia Cellular also states that it will Cellular has demonstrated that it has wireless signals that are sporadic or advertise the availability of Lifeline satisfies the requirement of section unavailable in some of the mountainous service to its customers. Although 214(e)(1)(B) to advertise the availability regions that Virginia Cellular proposes Virginia Cellular does not currently of the supported services and the to serve. advertise Lifeline to its customers, we charges therefor using media of general 12. We find that Virginia Cellular’s note that the advertising rules for distribution. Virginia Cellular certifies commitment to provide access to Lifeline and Linkup services apply only that it ‘‘will use media of general emergency services is sufficient. to already-designated ETCs. Thus, we distribution that it currently employs to Virginia Cellular states that it is in find sufficient Virginia Cellular’s advertise its universal service offerings compliance with state and federal 911 commitment to participate in Lifeline throughout the service areas designated and E–911 mandates and is upgrading and Linkup. by the Commission.’’ In addition, from analog to digital technology. 16. Although the Virginia Rural Virginia Cellular details alternative Virginia Cellular states that it is Telephone Companies claim that methods that it will employ to advertise implementing Phase I E–911 services in Virginia Cellular’s wireless signals are the availability of its services. For those areas where local governments sporadic in certain areas, we find that example, Virginia Cellular will provide have developed E–911 functionality and the existence of so-called ‘‘dead spots’’ notices at local unemployment, social that upon designation as an ETC, it will in Virginia Cellular’s network does not security, and welfare offices so that be able to effectively implement E–911. preclude us from designating Virginia unserved consumers can learn about 13. We find sufficient Virginia Cellular as an ETC. The Commission has Virginia Cellular’s service offerings and Cellular’s showing that it will offer already determined that a learn about Lifeline and Linkup minimum local usage as part of its telecommunications carrier’s inability to discounts. Virginia Cellular also universal service offering. Therefore, we demonstrate that it can provide commits to publicize locally the reject the Virginia Rural Telephone ubiquitous service at the time of its construction of all new facilities in Companies’ claim that Virginia Cellular request for designation as an ETC unserved or underserved areas so should be denied ETC designation should not preclude its designation as customers are made aware of improved because it does not currently offer any an ETC. Moreover, as stated, Virginia service. We find that Virginia Cellular’s local usage. Although the Commission Cellular has committed to improve its certification and its additional
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commitments to advertising its service has satisfied the more rigorous public committed to serve residences to the offerings satisfy section 214(e)(1)(B). In interest analysis for the rural study extent that they do not have access to addition, as the Commission has stated areas, it follows that its commitments the public switched network through in prior decisions, because an ETC satisfy the public interest requirements the incumbent telephone company. receives universal service support only for non-rural areas. We also note that no Also, the mobility of Virginia Cellular’s to the extent that it serves customers, we parties oppose Virginia Cellular’s wireless service will provide other believe that strong economic incentives request for ETC designation in the study benefits to consumers. For example, the exist, in addition to the statutory areas of these non-rural telephone mobility of telecommunications assists obligation, for an ETC to advertise its companies. We therefore conclude that consumers in rural areas who often universal service offering in its Virginia Cellular has demonstrated that must drive significant distances to designated service area. its designation as an ETC in the study places of employment, stores, schools, areas of these non-rural telephone and other critical community locations. C. Public Interest Analysis companies, is consistent with the public In addition, the availability of a wireless 19. We conclude that it is ‘‘consistent interest, as required by section 214(e)(6). universal service offering provides with the public interest, convenience, We further note that the Joint Board is access to emergency services that can and necessity’’ to designate Virginia reviewing whether to modify the public mitigate the unique risks of geographic Cellular as an ETC for the portion of its interest analysis used to designate ETCs isolation associated with living in rural requested service area that is served by in both rural and non-rural carrier study communities. Virginia Cellular also the non-rural telephone companies Bell areas under section 214(e) of the Act. submits that, because its local calling Atlantic and GTE South, Inc. We also The outcome of that proceeding could area is larger than those of the conclude that it is in the public interest impact the Commission’s public interest incumbent local exchange carriers it to designate Virginia Cellular as an ETC analysis for future ETC designations in competes against, Virginia Cellular’s in Virginia in the study areas served by non-rural telephone company service customers will be subject to fewer toll five of the six affected rural telephone areas. charges. companies. In determining whether the 21. Rural Study Areas. Based on the 23. We acknowledge arguments made public interest is served, the record before us, we conclude that grant in the record that wireless Commission places the burden of proof of this ETC designation for the telecommunications offerings may be upon the ETC applicant. We conclude requested rural study areas, in part, is subject to dropped calls and poor that Virginia Cellular has satisfied the consistent with the public interest. In coverage. Parties also have noted that burden of proof in establishing that its considering whether designation of wireless carriers often are not subject to universal service offering in these areas Virginia Cellular as an ETC will serve mandatory service quality standards. will provide benefits to rural the public interest, we have considered Virginia Cellular has committed to consumers. We do not designate whether the benefits of an additional mitigate these concerns. Virginia Virginia Cellular as an ETC, however, ETC in the wire centers for which Cellular assures the Commission that it for the study area of NTELOS because Virginia Cellular seeks designation will alleviate dropped calls by using we find that Virginia Cellular has not outweigh any potential harms. We note universal service support to build new satisfied its burden of proof in this that this balancing of benefits and costs towers and facilities to offer better instance. is a fact-specific exercise. In coverage. As evidence of its 20. Non-Rural Study Areas. We determining whether designation of a commitment to high service quality, conclude that it is ‘‘consistent with the competitive ETC in a rural telephone Virginia Cellular has also committed to public interest, convenience, and company’s service area is in the public comply with the Cellular necessity’’ to designate Virginia Cellular interest, we weigh the benefits of Telecommunications Industry as an ETC for the portion of its increased competitive choice, the Association Consumer Code for requested service area that is served by impact of the designation on the Wireless Service, which sets out certain the non-rural telephone companies of universal service fund, the unique principles, disclosures, and practices for Bell Atlantic and GTE South. We note advantages and disadvantages of the the provision of wireless service. In that the Bureau previously has found competitor’s service offering, any addition, Virginia Cellular has designation of additional ETCs in areas commitments made regarding quality of committed to provide the Commission served by non-rural telephone telephone service, and the competitive with the number of consumer companies to be per se in the public ETC’s ability to satisfy its obligation to complaints per 1,000 handsets on an interest based upon a demonstration serve the designated service areas annual basis. Therefore, we find that that the requesting carrier complies with within a reasonable time frame. We Virginia Cellular’s commitment to the statutory eligibility obligations of recognize that as part of its review of the provide better coverage to unserved section 214(e)(1) of the Act. We do not ETC designation process in the pending areas and its other commitments believe that designation of an additional proceeding examining the rules relating discussed herein adequately address ETC in a non-rural telephone company’s to high-cost support in competitive any concerns about the quality of its study area based merely upon a showing areas, the Commission may adopt a wireless service. that the requesting carrier complies with different framework for the public 24. Although we find that grant of this section 214(e)(1) of the Act will interest analysis of ETC applications. ETC designation will not dramatically necessarily be consistent with the This Order does not prejudge the Joint burden the universal service fund, we public interest in every instance. We Board’s deliberations in that proceeding are increasingly concerned about the nevertheless conclude that Virginia and any other public interest framework impact on the universal service fund Cellular’s public interest showing here that the Commission might ultimately due to the rapid growth in high-cost is sufficient based on the detailed adopt. support distributed to competitive commitments Virginia Cellular made to 22. Virginia Cellular’s universal ETCs. Specifically, although ensure that it provides high quality service offering will provide benefits to competitive ETCs only receive a small service throughout the proposed rural customers in situations where they do percentage of all high-cost universal and non-rural service areas; indeed, not have access to a wireline telephone. service support, the amount of high-cost given our finding that Virginia Cellular For instance, Virginia Cellular has support distributed to competitive ETCs
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is growing at a dramatic pace. For seeking to enter only certain portions of density of the remaining wire centers in example, in the first quarter of 2001, these companies’ study areas in order to NTELOS’ study area is approximately three competitive ETCs received creamskim. 33 persons per square mile. Universal approximately $2 million or 0.4 percent 26. At the same time, we recognize service support is calculated on a study- of high-cost support. In the fourth that, for reasons beyond a competitive area-wide basis. Although NTELOS did quarter of 2003, 112 competitive ETCs carrier’s control, the lowest cost portion not take advantage of the Commission’s are projected to receive approximately of a rural study area may be the only disaggregation options to protect against $32 million or 3.7 percent of high-cost portion of the study area that a wireless possible uneconomic entry in its lower- support. This concern has been raised carrier’s license covers. Under these cost area, we find on the facts here that by parties in this proceeding, especially circumstances, granting a carrier ETC designating Virginia Cellular as an ETC as it relates to the long-term designation for only its licensed portion only for the Waynesboro wire center sustainability of universal service high- of the rural study area may have the could potentially significantly cost support. Specifically, commenters same effect on the ILEC as rural undermine NTELOS’ ability to serve its argue that designation of competitive creamskimming. entire study area. The widely disparate ETCs will place significant burdens on 27. We have analyzed the record population densities in NTELOS’ study the federal universal service fund before us in this matter and find that, for area and the status of Waynesboro as without any corresponding benefits. We the study areas of Shenandoah and NTELOS’ sole low-cost, high-density recognize these commenters raise MGW, Virginia Cellular’s designation as wire center could result in such an ETC important issues regarding universal an ETC is unlikely to undercut the designation placing NTELOS at a service support. As discussed, the incumbents’ ability to serve the entire sizeable unfair competitive Commission has asked the Joint Board study area. Our analysis of the disadvantage. In addition, we believe to examine, among other things, the population density of each of the that, if NTELOS had disaggregated, the Commission’s rules relating to high-cost affected wire centers reveals that, for the low costs of service in the Waynesboro universal service support in service study areas of MGW and Shenandoah, wire center would have resulted in little areas in which a competitive ETC is Virginia Cellular will not be serving or no universal service support targeted providing service, as well as the only low-cost areas to the exclusion of to those lines. Therefore, our decision Commission’s rules regarding support high-cost areas. Although there are other not to designate Virginia Cellular as an for second lines. We note that the factors that define high-cost areas, a low ETC in the study area of NTELOS is outcome of the Commission’s pending population density typically indicates a unlikely to impact consumers in the proceeding examining the rules relating high-cost area. Our analysis of Waynesboro wire center because to high-cost support in competitive population density reveals that Virginia Virginia Cellular will make a business Cellular is serving not only the lower areas could potentially impact, among decision on whether to provide service cost, higher density wire centers in the other things, the support that Virginia in that area without regard to the study areas of MGW and Shenandoah. Cellular and other competitive ETCs potential receipt of universal service The population density for the may receive in the future. It is our hope support. Shenandoah wire center for which that the Commission’s pending Virginia Cellular seeks ETC designation D. Designated Service Area rulemaking proceeding also will provide is approximately 4.64 persons per a framework for assessing the overall square mile and the average population 29. Virginia Cellular is designated an impact of competitive ETC designations density for Shenandoah’s remaining ETC in the areas served by the non-rural on the universal service mechanisms. wire centers is approximately 53.62 carriers Bell Atlantic and GTE South, as 25. Additionally, we conclude that, persons per square mile. The average listed in Appendix A. We designate for most of the rural areas in which population density for the MGW wire Virginia Cellular as an ETC throughout Virginia Cellular seeks ETC designation, centers for which Virginia Cellular seeks most of its CMRS licensed service area such designation does not raise the rural ETC designation is approximately 2.30 in the Virginia 6 Rural Service Area. creamskimming and related concerns persons per square mile and the average Virginia Cellular is designated an ETC alleged by commenters. Rural population density for MGW’s in the areas served by the three rural creamskimming occurs when remaining wire centers is approximately telephone companies whose study areas competitors seek to serve only the low- 2.18 persons per square mile. Virginia Cellular is able to serve cost, high revenue customers in a rural 28. We conclude, however, for the completely, as listed in Appendix B. As telephone company’s study area. In this following reasons, that it would not be discussed, and subject to the Virginia case, because the contour of its CMRS in the public interest to designate Commission’s agreement on redefining licensed area differs from the existing Virginia Cellular as an ETC in the study the service areas of MGW and rural telephone companies’ study areas, area of NTELOS. Virginia Cellular’s Shenandoah, we also designate Virginia Virginia Cellular will be unable to licensed CMRS area covers only the Cellular as an ETC for the entire provide facilities-based service to the Waynesboro wire center in NTELOS’ Bergton, McDowell, Williamsville, and entirety of the study areas of three of the study area. Based on our examination of Deerfield wire centers. six affected rural telephone the population densities of the wire 30. We designate Virginia Cellular as companies—Shenandoah, MGW, and centers in NTELOS’ study area, we find an ETC in the entire Deerfield, NTELOS. Generally, a request for ETC that Waynesboro is the lowest-cost, McDowell, and Williamsville wire designation for an area less than the highest-density wire center in the study centers in the study area of MGW. We entire study area of a rural telephone area of NTELOS, and that there is a great note that, although the boundaries of its company might raise concerns that the disparity in density between the CMRS licensed service area in Virginia petitioner intends to creamskim in the Waynesboro wire center and the exclude a small part of MGW’s rural study area. In this case, however, NTELOS wire centers outside Virginia Williamsville wire center, Virginia Virginia Cellular commits to provide Cellular’s service area. The population Cellular has committed nevertheless to universal service throughout its licensed density in the Waynesboro wire center offer service to customers in the entirety service area. It therefore does not appear is approximately 273 persons per square of the Williamsville wire center through that Virginia Cellular is deliberately mile, while the average population a combination of its own facilities and
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resale of either wireless or wireline is smaller than the affected rural convinces us that the proposed services. telephone company study areas, we redefinition will harm the incumbent 31. We also designate Virginia must redefine the service areas of the rural carriers. The high-cost universal Cellular as an ETC for the Bergton wire rural telephone companies in service mechanisms support all lines center in Shenandoah’s study area. We accordance with section 214(e)(5) of the served by ETCs in rural areas. Under the note that the study area of Shenandoah Act. We define the affected service areas Commission’s rules, receipt of high-cost is composed of two non-contiguous only to determine the portions of rural support by Virginia Cellular will not areas. One such area is composed solely service areas in which to designate affect the total amount of high-cost of the Bergton wire center, which falls Virginia Cellular and future competitive support that the incumbent rural within Virginia Cellular’s licensed carriers seeking ETC designation in the telephone company receives. Therefore, service area, and the other area is same rural service areas. Any future to the extent that Virginia Cellular or composed of eight remaining wire competitive carrier seeking ETC any future competitive ETC captures centers, which fall outside of Virginia designation in these redefined rural incumbent rural telephone company Cellular’s licensed service area. We find service areas will be required to lines, provides new lines to currently that, because the Bergton wire center is demonstrate that such designation will unserved customers, or provides second a low-density, high-cost wire center, be in the public interest. In defining the lines to existing wireline subscribers, it concerns about undermining rural telephone companies’ service areas will have no impact on the amount of Shenandoah’s ability to serve the entire to be different than their study areas, we universal service support available to study area are substantially minimized. are required to act in concert with the the incumbent rural telephone We further note that the Commission relevant state commission, ‘‘taking into companies for those lines they continue has previously expressed concern about account the recommendations’’ of the to serve. Similarly, redefining the requiring competitive ETCs to serve Joint Board. The Joint Board’s concerns service areas of the affected rural non-contiguous areas. In the Universal regarding rural telephone company telephone companies will not change Service Order, the Commission service areas as discussed in the 1996 the amount of universal service support concluded that requiring a carrier to Recommended Decision are as follows: that is available to these incumbents. serve a non-contiguous service area as a (1) Minimizing creamskimming; (2) 37. Third, we find that redefining the prerequisite of eligibility might impose recognizing that the 1996 Act places rural telephone company service areas a serious barrier to entry, particularly to rural telephone companies on a as proposed will not require the rural wireless carriers. The Commission different competitive footing from other telephone companies to determine their further concluded that ‘‘imposing LECs; and (3) recognizing the costs on a basis other than the study additional burdens on wireless entrants administrative burden of requiring rural area level. Rather, the redefinition would be particularly harmful in rural telephone companies to calculate costs merely enables competitive ETCs to areas * * *.’’ Accordingly, we find that at something other than a study area serve areas that are smaller than the denying Virginia Cellular ETC status for level. We find that the proposed entire ILEC study area. Our decision to Shenandoah’s Bergton wire center redefinition properly addresses these redefine the service areas does not simply because Virginia Cellular is not concerns. modify the existing rules applicable to licensed to serve the eight remaining 35. First, we conclude that redefining rural telephone companies for wire centers would be inappropriate. the affected rural telephone company calculating costs on a study area basis, Thus, we conclude that it is appropriate service areas at the wire center level for nor, as a practical matter, the manner in to designate Virginia Cellular as an ETC MGW and Shenandoah should not which they will comply with these for the Bergton wire center within result in opportunities for rules. Therefore, we find that the Shenandoah’s study area. creamskimming. Because Virginia concern of the Joint Board that 32. Finally, for the reasons described, Cellular is limited to providing redefining rural service areas would we do not designate Virginia Cellular as facilities-based service only where it is impose additional administrative an ETC in any portion of NTELOS’ licensed by the Commission and burdens on affected rural telephone service area. because Virginia Cellular commits to companies is not at issue here. providing universal service throughout 38. In accordance with § 54.207(d) of E. Redefining Rural Telephone its licensed territory in Virginia, the Commission’s rules, we submit this Company Service Areas concerns regarding creamskimming are order to the Virginia Commission. We 33. We redefine the service areas of minimized. In addition, we have request that the Virginia Commission MGW and Shenandoah pursuant to analyzed the population densities of the treat this Order as a petition to redefine section 214(e)(5). Consistent with prior wire centers Virginia Cellular can and a service area under § 54.207(d)(1) of the rural service area redefinitions, we cannot serve to determine whether the Commission’s rules. Virginia Cellular’s redefine each wire center in the MGW effects of creamskimming would occur. ETC designation in the service areas of and Shenandoah study areas as a We note that we do not propose Shenandoah and MGW is subject to the separate service area. Our decision to redefinition in areas where ETC Virginia Commission’s review and redefine the service areas of these designation would potentially agreement with the redefinition telephone companies is subject to the undermine the incumbent’s ability to proposal herein. We find that the review and final agreement of the serve its entire study area. Therefore, we Virginia Commission is uniquely Virginia Commission in accordance conclude, based on the particular facts qualified to examine the redefinition with applicable Virginia Commission of this case, that there is little likelihood proposal because of its familiarity with requirements. Accordingly, we submit of rural creamskimming effects in the rural service areas in question. Upon our redefinition proposal to the Virginia redefining the service areas of MGW and the effective date of the agreement of the Commission and request that it examine Shenandoah as proposed. Virginia Commission with our such proposal based on its unique 36. Second, our decision to redefine redefinition of the service areas of familiarity with the rural areas in the service areas of the affected rural Shenandoah and MGW, our designation question. telephone companies includes special of Virginia Cellular as an ETC for these 34. In order to designate Virginia consideration for the affected rural areas as set forth herein shall also take Cellular as an ETC in a service area that carriers. Nothing in the record effect. In all other areas for which this
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Order grants ETC status to Virginia where it is designated as an ETC. and (e) of the Commission’s rules, the Cellular, as described herein, such Virginia Cellular will be required to request of Virginia Cellular, LLC to designation is effective immediately. If, provide such records and redefine the service area of NTELOS after its review, the Virginia documentation to the Commission and Telephone Inc. in Virginia is denied. Commission determines that it does not USAC upon request. We further 44. A copy of this Memorandum agree with the redefinition proposal emphasize that if Virginia Cellular fails Opinion and Order shall be transmitted herein, we will reexamine Virginia to fulfill the requirements of the statute, Cellular’s petition with regard to our rules, and the terms of this Order by the Office of the Secretary to the redefining the affected rural service after it begins receiving universal Virginia State Corporation Commission areas. service support, the Commission has and the Universal Service authority to revoke its ETC designation. Administrative Company. F. Regulatory Oversight The Commission also may assess Federal Communications Commission. 39. We note that Virginia Cellular is forfeitures for violations of Commission Marlene H. Dortch, obligated under section 254(e) of the Act rules and orders. to use high-cost support ‘‘only for the Secretary. III. Anti-Drug Abuse Act Certification provision, maintenance, and upgrading Appendix A of facilities and services for which 40. Pursuant to section 5301 of the support is intended’’ and is required Anti-Drug Abuse Act of 1988, no Virginia Non-Rural Wire Centers for under §§ 54.313 and 54.314 of the applicant is eligible for any new, Inclusion in Virginia Cellular’s ETC Service Commission’s rules to certify annually modified, or renewed instrument of Area that it is in compliance with this authorization from the Commission, GTE South, Inc. requirement. Separate and in addition to including authorizations issued Bell Atlantic (Verizon) (Verizon) its annual certification filing under pursuant to section 214 of the Act, §§ 54.313 and 54.314 of our rules, unless the applicant certifies that Staunton Broadway. Virginia Cellular has committed to neither it, nor any party to its (STDRVASD) *. submit records and documentation on application, is subject to a denial of Staunton Edom. an annual basis detailing its progress federal benefits, including Commission (STTNVAST). towards meeting its build-out plans in benefits. Virginia Cellular has provided Staunton Hinton. the service areas it is designated as an a certification consistent with the (STTNVAVE). ETC. Virginia Cellular also has requirements of the Anti-Drug Abuse Craigsville ...... Dayton. committed to become a signatory to the Act of 1988. We find that Virginia Lovingston Keezletown. Cellular Telecommunications Industry Cellular has satisfied the requirements (NLFRVANF). Association’s Consumer Code for of the Anti-Drug Abuse Act of 1988, as Lovingston Harrisonburg. Wireless Service and provide the codified in §§ 1.2001–1.2003 of the (LVTNVALN). number of consumer complaints per Commission’s rules. Lovingston McGaheysville. 1,000 mobile handsets on an annual (WNTRVAWG). basis. In addition, Virginia Cellular will IV. Ordering Clauses Greenwood ...... Bridgewater. annually submit information detailing 41. Pursuant to the authority Pine River ...... Weyerscave. how many requests for service from contained in section 214(e)(6) of the Grottoes. Communications Act, Virginia Cellular, Elkton. potential customers in the designated Amherst. service areas were unfulfilled for the LLC is designated an eligible Gladstone. past year. We require that Virginia telecommunications carrier for specified Cellular submit these additional data to portions of its licensed service area in * Because the wire center locality names are the Commission and USAC on October the Commonwealth of Virginia subject the same in some instances, the Wire Center Codes are listed in parentheses. 1 of each year beginning October 1, to the conditions described herein. 2004. We find that reliance on Virginia 42. Pursuant to the authority Appendix B Cellular’s commitments is reasonable contained in section 214(e)(5) of the and consistent with the public interest Communications Act, § 54.207(d) and Virginia Rural Telephone Company Study and the Act and the Fifth Circuit (e) of the Commission’s rules, the Areas for Inclusion in Virginia Cellular’s ETC Service Area decision in Texas Office of Public Utility request of Virginia Cellular, LLC to Counsel v. FCC. We conclude that redefine the service areas of New Hope Telephone Company fulfillment of these additional reporting Shenandoah Telephone Company and North River Telephone Company requirements will further the MGW Telephone Company in Virginia Highland Telephone Cooperative Commission’s goal of ensuring Virginia is granted, subject to the agreement of Appendix C Cellular satisfies its obligation under the Virginia State Corporation section 214(e) of the Act to provide Commission with the Commission’s Virginia Rural Telephone Company Wire supported services throughout its redefinition of the service areas for these Centers for Inclusion in Virginia Cellular’s designated service area. We adopt the rural telephone companies. Upon the Etc. Service Area commitments that Virginia Cellular has effective date of the agreement of the Shenandoah Telephone Company made as conditions on our approval of Virginia State Corporation Commission Bergton its ETC designation for the with the Commission’s redefinition of MGW Telephone Company Commonwealth of Virginia. We note the service areas for those rural McDowell that the Commission may institute an telephone companies, this designation Williamsville inquiry on its own motion to examine of Virginia Cellular, LLC as an ETC for Deerfield any ETC’s records and documentation to such areas as set forth herein shall also [FR Doc. 04–4266 Filed 2–25–04; 8:45 am] ensure that the high-cost support it take effect. BILLING CODE 6712–01–P receives is being used ‘‘only for the 43. Pursuant to the authority provision, maintenance, and upgrading contained in section 214(e)(5) of the of facilities and services’’ in the areas Communications Act, and § 54.207(d)
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FEDERAL COMMUNICATIONS locations to which the United States is Commission’s resolution of the COMMISSION assigned by the International eligibility issue for three licenses in the Telecommunication Union (‘‘ITU’’) has DBS Order, and will announce a new [FCC 04–8] not been altered by regulatory and start date for the auction. statutory actions taken since DBS Auction of Direct Broadcast Satellite III. Discussion Licenses auctions were last held in 1996. The Commission also declines to impose A. The Commission’s Authority To AGENCY: Federal Communications eligibility restrictions on the three Auction DBS Licenses Commission. available DBS licenses to operate at the 6. The Commission concludes that it ACTION: Notice. western orbit locations of 175° W.L., ° ° has the authority to auction the DBS 166 W.L., and 157 W.L. The licenses included in Auction No. 52, as SUMMARY: The Commission affirms that Commission does not address in the well as any other licenses for DBS its authority to auction licenses for DBS Order the question of whether any channels at the eight orbit locations Direct Broadcast Satellite service eligibility restrictions are appropriate assigned to the United States under the channels at orbit locations to which the for the license to use the two available current ITU Region 2 Band Plan that United States is assigned by the channels at the eastern orbit location of may become available in the future. The International Telecommunication Union 61.5° W.L. but instead defers the Commission concludes that section 647 has not been altered by regulatory and resolution of this matter to a subsequent of the Open-Market Reorganization for statutory actions taken since DBS order. the Betterment of International auctions were last held in 1996. The II. Background Telecommunications Act (‘‘ORBIT Commission also declines to impose Act’’), 47 U.S.C. 765f, which prohibits eligibility restrictions on the three 2. Eight orbit positions were assigned the use of competitive bidding to assign available DBS licenses to operate at the to the United States for DBS, under the orbit locations or spectrum used ‘‘for the western orbit locations of 175° W.L., auspices of the ITU, at the 1983 provision of international or global 166° W.L., and 157° W.L. This action Regional Administrative Radio satellite communications services,’’ will enable the Commission to proceed Conference for the Planning in Region 2 does not prohibit the use of auctions to expeditiously with the auction of these of the Broadcasting-Satellite Service in assign licenses for DBS channels at the three DBS licenses. the Frequency Band 12.2–12.7 GHz and Associated Feeder Links in the eight orbit locations assigned to the DATES: Effective February 26, 2004. Frequency Band 17.3–17.8 GHz. Under United States under the ITU Region 2 FOR FURTHER INFORMATION CONTACT: this Region 2 Band Plan for Ku-band Band Plan. This is because the Diane Conley, Auctions and Spectrum DBS satellites (‘‘ITU Region 2 Band Commission finds that the DBS service Access Division, Wireless Plan’’), which was agreed upon by the authorized under such licenses is not an Telecommunications Bureau, (202) 418– nations present, the orbit slots assigned ‘‘international or global satellite 0786; Douglas Webbink, International to the United States are for coverage of communications service.’’ Under the Bureau, (202) 418–1494. the United States. technical parameters of the ITU Region SUPPLEMENTARY INFORMATION: This is a 3. The Commission first adopted 2 Band Plan, these licenses are designed summary of the Commission’s Auction competitive bidding rules for the DBS to provide service almost exclusively to of Direct Broadcast Satellite Licenses service in 1995. Revision of Rules and the United States, and they must be Order (‘‘DBS Order’’), released on Policies for the Direct Broadcast used to provide a service delivered January 15, 2004. The complete text of Satellite Service, Report and Order, 60 almost exclusively to U.S. consumers. the DBS Order as well as related FR 65587, December 20, 1995. In 2002, 7. The Commission does not read the Commission documents are available for the Commission released Policies and ORBIT Act auction prohibition to bar public inspection and copying during Rules for the Direct Broadcast Satellite the use of the competitive bidding regular business hours at the FCC Service, Report and Order (‘‘Part 100 process for any service that provides Reference Information Center, Portals II, R&O’’), 67 FR 51110, August 7, 2002, in incidental transborder service. 445 12th Street, SW., Room CY–A257, which it streamlined the regulation of Moreover, visibility of areas outside the Washington, DC 20554. The DBS Order DBS and moved the DBS rules from part United States from orbit locations and related Commission documents 100 to part 25. assigned to the United States does not may also be purchased from the 4. On March 3, 2003, the Commission make service provided from these Commission’s duplicating contractor, issued a public notice announcing an locations an international service. For Qualex International, Portals II, 445 auction of DBS licenses (the Auction coverage beyond that described in the 12th Street, SW., Room CY–B402, No. 52 Comment Public Notice, 68 FR ITU Region 2 Band Plan, a modification Washington, DC 20554, telephone 202– 12906, March 18, 2003), in which it to the Plan, including further 863–2893, facsimile 202–863–2898, or sought comment on its conclusion that modifications of allocations currently in via e-mail [email protected]. When the Commission has the authority to the Plan, would be required, and ordering documents from Qualex, please auction the DBS licenses included in modifications of the ITU Region 2 Band provide the appropriate FCC document Auction No. 52 and on a number of Plan are not obtained as a matter of number (for example, FCC 04–8 for the questions regarding whether eligibility routine. The Commission also disagrees DBS Order). The DBS Order and related restrictions are warranted for any of the with the argument that the ORBIT Act documents are also available on the licenses to be offered in Auction No. 52. prohibits auctions of DBS licenses Internet at the Commission’s Web site: 5. Pursuant to its delegated authority, because DBS service is provided on http://wireless.fcc.gov/auctions/52/. the Wireless Telecommunications spectrum that is used for the provision Bureau will resolve all the procedural of non-geostationary satellite orbit fixed- I. Introduction issues relating to Auction No. 52 on satellite service. 1. In the DBS Order, the Commission which the Commission sought comment 8. The Commission also concludes affirms that its authority to auction in the Auction No. 52 Comment Public that, although it removed its own licenses for Direct Broadcast Satellite Notice will adjust the license inventory regulatory obstacles to the provision of (‘‘DBS’’) service channels at orbit of Auction No. 52 to reflect the DBS service outside the United States
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from the U.S. orbit locations in locations to which the United States is SUPPLEMENTARY INFORMATION: The Amendment to the Commission’s assigned under the ITU Region 2 Band Federal Communications Commission Regulatory Policies Governing Domestic Plan, and that this authority has not (FCC) established the WRC–07 Advisory Fixed Satellites and Separate been altered or diminished by the Committee to provide advice, technical International Satellite Systems, Report Commission’s adoption of DISCO I or support and recommendations relating and Order (‘‘DISCO I’’), 11 FCC Rcd the enactment of section 647 of the to the preparation of United States 2429 (1996), that decision had no effect ORBIT Act. The Commission also proposals and positions for the 2007 on DBS operators’ obligation to comply concludes that no eligibility restrictions World Radiocommunication Conference with the ITU Region 2 Band Plan. on the available DBS licenses at the 175° (WRC–07). Therefore, the Commission finds that W.L., 166° W.L., and 157° W.L. orbit In accordance with the Federal DISCO I should not be read to mean that locations are warranted, and it will Advisory Committee Act, Public Law the DBS licenses that it intends to assign maintain its policy of open eligibility for 92–463, as amended, this notice advises by competitive bidding are to be used to these licenses. The Commission reaches interested persons of the second provide an international satellite no conclusions concerning whether it meeting of the WRC–07 Advisory service, or to establish a basis for should impose any eligibility Committee. The WRC–07 Advisory concluding that the auction prohibition restrictions on the license for the two Committee has an open membership. of the ORBIT Act should apply to such unassigned channels at the 61.5° W.L. All interested parties are invited to U.S.-assigned DBS licenses. The orbit location and defers the resolution participate in the Advisory Committee Commission’s conclusion that DBS of that issue to a separate order. and to attend its meetings. The service from the eight orbit locations proposed agenda for the second meeting V. Ordering Clause assigned to the United States is is as follows: 13. Accordingly, it is ordered that, predominantly domestic is consistent Agenda with actual service offerings and does pursuant to sections 4(i), 303(r), and not represent a departure from DISCO I. 309(j) of the Communications Act of Second meeting of the WRC–07 1934, as amended, 47 U.S.C. 154(i), Advisory Committee, Federal B. Eligibility for the Three Available 303(r), and 309(j), the DBS Order is Communications Commission, 445 12th Western DBS Licenses hereby adopted. Street, SW., Room TW–C305, 9. The Commission declines to adopt Federal Communications Commission. Washington, DC 20554, June 8, 2004; 10 any eligibility restrictions for the three Marlene H. Dortch, a.m.–12 noon. available DBS licenses at the 175° W.L., Secretary. 1. Opening remarks. 166° W.L., and 157° W.L. orbit [FR Doc. 04–4267 Filed 2–25–04; 8:45 am] 2. Approval of agenda. locations. In the part 100 proceeding, it 3. Approval of the minutes of the first BILLING CODE 6712–01–P considered a wide range of questions meeting. relating to whether ownership 4. IWG reports and documents relating restrictions of any kind are appropriate FEDERAL COMMUNICATIONS to preliminary views. for the DBS service, and it concluded COMMISSION 5. Future meetings. that generally they were not. 6. Other business. 10. No commenter proposed any Second Meeting of the Advisory Federal Communications Commission. eligibility restrictions for the available Committee for the 2007 World Don Abelson, licenses at the 175° W.L., 166° W.L., and Radiocommunication Conference Chief, International Bureau. 157° W.L. orbit locations. This results in (WRC–07 Advisory Committee) a record that lacks information [FR Doc. 04–4264 Filed 2–25–04; 8:45 am] regarding circumstances that would AGENCY: Federal Communications BILLING CODE 6712–01–P cause the Commission to impose Commission. ACTION: Notice. eligibility restrictions in the DBS service FEDERAL COMMUNICATIONS with respect to these three licenses. SUMMARY: In accordance with the COMMISSION Therefore, based on the record before it, Federal Advisory Committee Act, this the Commission concludes that there is notice advises interested persons that Network Reliability and Interoperability no reason for it to deviate from any of the second meeting of the WRC–07 Council its decisions in the Part 100 R&O as Advisory Committee will be held on they apply to these licenses. AGENCY: Federal Communications 11. On the other hand, the June 8, 2004, at the Federal Commission. Communications Commission. The Commission has received detailed ACTION: Notice of public meeting. purpose of the meeting is to continue comments presenting a number of preparations for the 2007 World SUMMARY: arguments regarding the issue of In accordance with the Radiocommunication Conference. The whether it should adopt eligibility Federal Advisory Committee Act Advisory Committee will consider any restrictions for the available license at (FACA), this notice advises interested preliminary views introduced by the 61.5° W.L. The Commission will persons of the first meeting the Network Advisory Committee’s Informal Working address the matter of eligibility for the Reliability and Interoperability Council Groups. 61.5° W.L. license in a separate order, (Council) under its charter renewed as DATES: which it will issue as soon as it resolves June 8, 2004; 10 a.m.–12 noon. of December 29, 2003. The meeting will the relevant issues that have been raised ADDRESSES: Federal Communications be held at the Federal Communications with respect to that license. Commission, 445 12th Street, SW., Commission in Washington, DC. Room TW–C305, Washington DC 20554. DATES: Tuesday, March 30, 2004 IV. Conclusion FOR FURTHER INFORMATION CONTACT: beginning at 10 a.m. and concluding at 12. For the reasons stated above, the Alexander Roytblat, FCC International 1 p.m. Commission concludes that it has the Bureau, Strategic Analysis and ADDRESSES: Federal Communications authority to auction DBS licenses for the Negotiations Division, at (202) 418– Commission, 445 12th St, SW., Room use of channels at the eight orbit 7501. TW–305, Washington, DC.
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FOR FURTHER INFORMATION CONTACT: Title: Forms Relating to Outside Notice of proposed rulemaking on Jeffery Goldthorp, the Designated Counsel, Expert and Legal Support political committee status. Federal Officer (DFO) at (202) 418–1096 Services Programs. Routine administrative matters. or [email protected]. The TTY Form Numbers: 5000/24, 5000/25, * * * * * number is: (202) 418–2989. 5000/26, 5000/27, 5000/28, 5000/29, DATE AND TIME: Tuesday, March 9, 2004, SUPPLEMENTARY INFORMATION: The 5000/31, 5000/32, 5000/33, 5000/34, at 10 a.m. purpose of the Council is to provide 5000/35, 5000/36, 5200/01, 5210/01, PLACE: 999 E Street, NW., Washington, 5210/02, 5210/03, 5210/03A, 5210/04, recommendations to the FCC and to the DC. communications industry that, if 5210/04A, 5210/06, 5210/06(A), 5210/ implemented, shall under all reasonably 08, 5210/09, 5210/10, 5210/10(A), 5210/ STATUS: This meeting will be closed to foreseeable circumstances assure 11, 5210/12, 5210/12A, 5210/14, and the public. optimal reliability and interoperability 5210/15. ITEMS TO BE DISCUSSED: of wireless, wireline, satellite, cable, OMB Number: 3064–0122. Compliance matters pursuant to 2 and public data networks. Annual Burden: U.S.C. 437g. At this first meeting under the Estimated annual respondents: 4,603. Audits conducted pursuant to 2 Council’s new charter, the Council will Estimated time per response: .50 hour U.S.C. 437g, 438(b), and title 26, U.S.C. discuss the modifications that have been to 1 hour. Matters concerning participation in made to the Council’s charter and how Total annual burden hours: 3,711. civil actions or proceedings or those modifications should be Expiration Date of OMB Clearance: arbitration. addressed, and any additional issues June 30, 2005. Internal personnel rules and that may come before it. SUPPLEMENTARY INFORMATION: The procedures or matters affecting a Members of the general public may collection ensures that outside counsel, particular employee. attend the meeting. The Federal legal services providers and experts that * * * * * communications Commission will contract with the FDIC meet the PERSON TO CONTACT FOR INFORMATION: attempt to accommodate as many eligibility requirements established by Robert Biersack, Acting Press Officer. people as possible. Admittance, Congress and enables the FDIC to Telephone: (202) 694–1220. however, will be limited to the seating monitor contract compliance and available. The public may submit expenditures. Mary W. Dove, written comments before the meeting to DATES: Comments on this collection of Secretary of the Commission. Jeffery Goldthorp, the Commission’s information are welcome and should be [FR Doc. 04–4353 Filed 2–24–04; 11:12 am] Designated Federal Officer for the submitted on or before March 29, 2004 BILLING CODE 6715–01–M Network Reliability and Interoperability to both the OMB reviewer and the FDIC Council, by e-mail contact listed below. ([email protected]) or U.S. mail ADDRESSES: Information about this FEDERAL RESERVE SYSTEM (7–A325, 445 12th St, SW., Washington, submission, including copies of the DC 20554). Real Audio and streaming proposed collection of information, may Agency Information Collection video access to the meeting will be be obtained by calling or writing the Activities: Submission for OMB available at http://www.fcc.gov. FDIC contact listed below. Review; Comment Request Federal Communications Commission. Leneta G. Gregorie, (202) 898–3719, AGENCY: Board of Governors of the Marlene H. Dortch, Legal Division, Federal Deposit Federal Reserve System (Board) Secretary. Insurance Corporation, 550 17th ACTION: Notice of information collection [FR Doc. 04–4263 Filed 2–25–04; 8:45 am] Street, NW., Washington, DC 20429. to be submitted to OMB for review and BILLING CODE 6712–01–P Joseph F. Lackey, Jr., Office of approval under the Paperwork Management and Budget, Office of Reduction Act of 1995. Information and Regulatory Affairs, FEDERAL DEPOSIT INSURANCE New Executive Office Building, Room SUMMARY: In accordance with the CORPORATION 10236, Washington, DC 20503. requirements of the Paperwork Dated: February 20, 2004. Reduction Act of 1995 (44 U.S.C. Agency Information Collection Federal Deposit Insurance Corporation. chapter 35), the Board, the Federal Activities: Submission for OMB Deposit Insurance Corporation (FDIC), Robert E. Feldman, Review; Comment Request and the Office of the Comptroller of the Executive Secretary. Currency (OCC) (the ‘‘agencies’’) may AGENCY: Federal Deposit Insurance [FR Doc. 04–4220 Filed 2–25–04; 8:45 am] Corporation. not conduct or sponsor, and the BILLING CODE 6714–01–P respondent is not required to respond ACTION: Notice of information collection to, an information collection unless it to be submitted to OMB for review and displays a currently valid Office of approval under the Paperwork FEDERAL ELECTION COMMISSION Reduction Act of 1995. Management and Budget (OMB) control number. The Board hereby gives notice Sunshine Act Notices SUMMARY: In accordance with that it plans to submit to the Office of Management and Budget (OMB) on requirements of the Paperwork DATE AND TIME: Thursday, March 4, Reduction Act of 1995 (44 U.S.C. 3501 2004, at 10 a.m. behalf of the agencies a request for et seq.), the FDIC hereby gives notice review of the information collection PLACE: 999 E Street, NW., Washington, that it plans to submit to the Office of described below. DC (ninth floor). Management and Budget (OMB) for On December 5, 2003, the agencies, review and approval the information STATUS: This meeting will be open to the under the auspices of the Federal collection system described below. public. Financial Institutions Examination Type of Review: Revision of a ITEMS TO BE DISCUSSED: Council (FFIEC), requested public currently approved collection. Correction and approval of minutes. comment for 60 days on the revision,
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without extension, of the currently OMB Number: 7100–0032 in 2001. FAS 133 requires all approved information collection: the Frequency of Response: Quarterly derivatives to be measured at fair value Report of Assets and Liabilities of U.S. Affected Public: U.S. branches and and reported on the balance sheet as Branches and Agencies of Foreign Banks agencies of foreign banks assets or liabilities. Because branches (FFIEC 002). The comment period Estimated Number of Respondents: and agencies with less than $100 expired February 3, 2004. 295 million in assets that have derivatives DATES: Comments must be submitted on Estimated Total Annual Responses: now have to regularly determine their or before March 29, 2004. 1,180 fair value for reporting purposes, they Estimated Time per Response: 22.75 ADDRESSES: Interested parties are have the information necessary to burden hours disclose the fair value of their invited to submit written comments to Estimated Total Annual Burden: the agency listed below. All comments, derivatives in Schedule L. Accordingly, 26,845 burden hours the agencies are eliminating this which should refer to the OMB control General Description of Report: This disclosure exemption. The fair value number, will be shared among the information collection is mandatory: 12 data on derivatives will complement the agencies.Written comments, which U.S.C. 3105(b)(2), 1817(a)(1) and (3), data that branches and agencies with should refer to the ‘‘Report of Assets and 3102(b). Except for select sensitive less than $100 million in assets and Liabilities of U.S. Branches and items, this information collection is not currently report on the notional amount Agencies of Foreign Banks, 7100–0032,’’ given confidential treatment (5 U.S.C. of their derivative contracts. should be mailed to Jennifer J. Johnson, 552(b)(8)). Secretary, Board of Governors of the Abstract: On a quarterly basis, all U.S. Schedule M–Due from/Due to Related Federal Reserve System, 20th Street and branches and agencies of foreign banks Institutions in the U.S. and in Foreign Constitution Avenue, N.W., (U.S. branches) are required to file Countries (CONFIDENTIAL) Washington, DC 20551. Please consider detailed schedules of assets and 1. Modified Line Item 12, ‘‘Gross fair submitting your comments through the liabilities in the form of a condition values of derivative contracts,’’ to Board’s web site at report and a variety of supporting remove the following requirement: ‘‘The www.federalreserve.gov/generalinfo/ schedules. This information is used to following items should be completed by foia/ProposedRegs.cfm; by e–mail to fulfill the supervisory and regulatory those branches or agencies with total [email protected]; or requirements of the International assets of dollar;100 million or more.’’ by fax to the Office of the Secretary at Banking Act of 1978. The data are also The rationale for the proposed change is 202/452–3819 or 202/452–3102. Rules used to augment the bank credit, loan, similar to the justification above for the proposed by the Board and other federal and deposit information needed for comparable change to Schedule L. agencies may also be viewed and monetary policy and other public policy commented on at www.regulations.gov. purposes. The Federal Reserve System 2. Added Memoranda items 1.a, All public comments are available from collects and processes this report on ‘‘Gross positive fair value,’’ and 1.b, the Board’s web site at behalf of all three agencies. ‘‘Gross negative fair value’’ to www.federalreserve.gov/generalinfo/ Current Actions: In response to the Memorandum item 1, ‘‘Notional amount foia/ProposedRegs.cfm as submitted, December 5, 2003, notice (68 FR 68082), of all credit derivatives on which the except as necessary for technical the agencies received one comment reporting branch or agency is the reasons. Accordingly, your comments letter from a Federal Reserve district guarantor.’’ The new items will provide will not be edited to remove any bank. The bank supported the proposed a better measure of credit and market identifying or contact information. revisions and suggested some additional risk for credit derivatives entered into Public comments may also be viewed instructional clarifications with regard with related depository institutions, electronically or in paper in Room MP– to repurchase agreements. These particularly for branches and agencies 500 of the Board’s Martin Building (C clarifications will be incorporated as with large positions in such credit and 20th Streets, N.W.) between 9:00 appropriate. derivatives. a.m. and 5:00 p.m. on weekdays. The revisions to the FFIEC 002 have 3. Added Memoranda items 2.a, FOR FURTHER INFORMATION CONTACT: A been approved by the FFIEC as ‘‘Gross positive fair value,’’ and 2.b, draft copy of the proposed FFIEC 002 originally proposed and are summarized ‘‘Gross negative fair value’’ to reporting form may be obtained at the below. The agencies will implement the Memorandum item 2, ‘‘Notional amount FFIEC’s web site (www.ffiec.gov/ changes as of the March 31, 2004, of all credit derivatives on which the forms002.htm). A copy of the proposed reporting date. reporting branch or agency is the revisions to the collection of beneficiary.’’ The rationale for the Schedule L–Derivatives and Off– information may also be requested from proposed change is the same as the Balance–Sheet Items Cindy Ayouch, Board Clearance Officer, justification above for adding items to (202) 452–3829, Division of Research Modified Line Item 12, ‘‘Gross fair Memorandum item 1. values of derivative contracts,’’ to and Statistics, Board of Governors of the Request for Comment Federal Reserve System, 20th and C remove the following requirement: ‘‘The Streets, NW, Washington, DC 20551. following items should be completed by Comments submitted in response to Telecommunications Device for the Deaf those branches or agencies with total this Notice will be shared among the (TDD) users may call (202) 263–4869. assets of $100 million or more.’’ The agencies and will be summarized or SUPPLEMENTARY INFORMATION: exemption from reporting the fair values included in the Board’s request for OMB of derivative contracts for branches and approval. All comments will become a Proposal to revise the following agencies with less than dollar;100 matter of public record. Written currently approved collection of million in assets originated when comments should address the accuracy information: derivatives were considered off–balance of the burden estimates and ways to Report Title: Report of Assets and sheet items and predates FASB minimize burden as well as other Liabilities of U.S. Branches and Statement No. 133, Accounting for relevant aspects of the information Agencies of Foreign Banks. Derivative Instruments and Hedging collection requests. Comments are Form Number: FFIEC 002. Activities (FAS 133), which took effect invited on:
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(a) Whether the proposed collection of holding companies may be obtained health of the American population, we information is necessary for the proper from the National Information Center must change the behaviors of our performance of the agencies’ functions, website at www.ffiec.gov/nic/. children and young adults by reaching including whether the information has Unless otherwise noted, comments them with important health messages.’’ practical utility; regarding each of these applications CDC, working in collaboration with (b) The accuracy of the agencies’ must be received at the Reserve Bank federal partners, is coordinating an estimate of the burden of the indicated or the offices of the Board of effort to plan, implement, and evaluate information collection, including the Governors not later than March 22, a media campaign (Youth Media validity of the methodology and 2004. Campaign or YMC) designed to clearly assumptions used; A. Federal Reserve Bank of Atlanta communicate messages that will help (c) Ways to enhance the quality, (Sue Costello, Vice President) 1000 kids develop habits that foster good utility, and clarity of the information to Peachtree Street, N.E., Atlanta, Georgia health over a lifetime. The campaign is be collected; 30303: based on principles that have been (d) Ways to minimize the burden of 1. GB&T Bancshares, Inc, Gainesville, shown to enhance success, including: the information collection on Georgia; to merge with Southern designing messages based on research; respondents, including through the use Heritage Bancorp, Inc., Oakwood, testing messages with the intended of automated collection techniques or Georgia, and thereby indirectly acquire audiences; involving young people in other forms of information technology; Southern Heritage Bank, Oakwood, all aspects of campaign planning and and Georgia. implementation; enlisting the (e) Estimates of capital or start up involvement and support of parents and costs and costs of operation, Board of Governors of the Federal Reserve System, February 20, 2004. other influencers; tracking the maintenance, and purchase of services campaign’s effectiveness and revising Robert deV. Frierson, to provide information. Campaign messages and strategies as Deputy Secretary of the Board. Board of Governors of the Federal Reserve needed. System, February 20, 2004. [FR Doc. 04–4227 Filed 2–25–04; 8:45 am] In accordance with the original OMB Jennifer J. Johnson BILLING CODE 6210–01–S approval (OMB No. 0920–0582, March Secretary of the Board. 10, 2003), this request will continue to expand and enhance the ongoing [FR Doc. 04–4293 Filed 2–25–04; 8:45 am] DEPARTMENT OF HEALTH AND monitoring of the campaign’s BILLING CODE 6210–01–S HUMAN SERVICES penetration with the target audience. For the campaign to be successful, Centers for Disease Control and FEDERAL RESERVE SYSTEM campaign planners must have Prevention mechanisms to determine the target Formations of, Acquisitions by, and [30Day–17–04] audiences and the reaction to the Mergers of Bank Holding Companies campaign brand and messages as the Proposed Data Collections Submitted campaign evolves. Campaign planners The companies listed in this notice for Public Comment and also need to identify which messages have applied to the Board for approval, Recommendations are likely to have the greatest impact on pursuant to the Bank Holding Company attitudes and desired behaviors. This Act of 1956 (12 U.S.C. 1841 et seq.) The Centers for Disease Control and approval contains 2 surveys: (1) VERB (BHC Act), Regulation Y (12 CFR Part Prevention (CDC) publishes a list of Continuous Tracking Study; and (2) 225), and all other applicable statutes information collection requests under Media Benchmarking Study. and regulations to become a bank review by the Office of Management and The VERB Continuous Tracking Study holding company and/or to acquire the Budget (OMB) in compliance with the has facilitated campaign planners’ assets or the ownership of, control of, or Paperwork Reduction Act (44 U.S.C. ability to continually assess and the power to vote shares of a bank or Chapter 35). To request a copy of these improve the effectiveness of the targeted bank holding company and all of the requests, call the CDC Reports Clearance communication and other marketing banks and nonbanking companies Officer at (404) 498–1210. Send written variables throughout the evolution of owned by the bank holding company, comments to CDC, Desk Officer, Human the campaign. It enables staff to including the companies listed below. Resources and Housing Branch, New determine which media channels are The applications listed below, as well Executive Office Building, Room 10235, most-effective to optimize as other related filings required by the Washington, DC 20503 or by fax to (202) communication variables such as weight Board, are available for immediate 395–6974. Written comments should be levels, frequency and reach inspection at the Federal Reserve Bank received within 30 days of this notice. components, and programming formats indicated. The application also will be Proposed Project: YMC Tracking that will have the greatest effect upon available for inspection at the offices of Study (OMB No. 0920–0582)— communicating the desired message to the Board of Governors. Interested Extension—National Center for Chronic the target audiences. Implementation of persons may express their views in Disease Prevention and Health the survey has provided for efficient writing on the standards enumerated in Promotion (NCCDPHP), Centers for collection of campaign awareness and the BHC Act (12 U.S.C. 1842(c)). If the Disease Control and Prevention (CDC). understanding levels on a continual proposal also involves the acquisition of basis. a nonbanking company, the review also Background The campaign uses a tracking includes whether the acquisition of the In FY 2001, Congress established the methodology with specific time points, nonbanking company complies with the Youth Media Campaign at the Centers using age-targeted samples. Tracking standards in section 4 of the BHC Act for Disease Control and Prevention methods may include, but are not (12 U.S.C. 1843). Unless otherwise (CDC). Specifically, the House limited to telephone surveys, telephone noted, nonbanking activities will be Appropriations Language said: ‘‘The or in-person focus groups, web-based conducted throughout the United States. Committee believes that, if we are to surveys, or intercept interviews with Additional information on all bank have a positive impact on the future tweens (9–13 year olds), parents, other
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teen and adult influencers nationally understanding of the campaign. The resources to the campaign’s marketing and in specified cities. Marketing efforts data collection is a random digit dial efforts mandates that campaign planners have been implemented in selected (RDD) telephone survey of tweens. be able to respond quickly to changes cities, and the campaign planners will Continuous tracking of awareness of the needed in message execution or delivery continue to evaluate which strategies brand and the advertising messages are as is standard practice in the advertising are most effective in local markets. standard tools in advertising and industry. The annualized burden for The Media Benchmark Survey is used marketing. The commitment of this data collection is 2,301 hours. to assess target audience awareness and
Average bur- Number of Number of den per Respondent respondents responses per response respondent (in hours)
Media Benchmark Survey: Screener ...... 3,585 1 1/60 Parent ...... 325 1 2/60 Child ...... 325 1 12/60 Continuous Tracking Survey: Screener ...... 29,076 1 1/60 Parent ...... 7,200 1 2/60 Child ...... 7,200 1 12/60
Dated: February 13, 2004. collect morbidity reports on cholera, revised plan to the Association of State Alvin Hall, M.S., smallpox, plague, and yellow fever from and Territorial Health Officers (ASTHO) Director, Management Analysis and Services U.S. consuls overseas; this information at its meeting in Washington, DC, Office, Centers for Disease Control and was to be used for instituting quarantine October 1950. ASTHO authorized a Prevention. measures to prevent the introduction Conference of State and Territorial [FR Doc. 04–4219 Filed 2–25–04; 8:45 am] and spread of these diseases into the Epidemiologists (CSTE) for the purpose BILLING CODE 4163–18–P United States. In 1879, a specific of determining the diseases that should Congressional appropriation was made be reported by the states to PHS. for the collection and publication of Beginning in 1951, national meetings of DEPARTMENT OF HEALTH AND reports of these notifiable diseases. CSTE were held every two years until HUMAN SERVICES Congress expanded the authority for 1974, then annually thereafter. weekly reporting and publication in In 1961, responsibility for the Centers for Disease Control and 1893 to include data from state and collection of data on nationally Prevention municipal authorities throughout the notifiable diseases and deaths in 122 United States. To increase the U.S. cities was transferred from the [30Day–04–27] uniformity of the data, Congress enacted National Office of Vital Statistics to Proposed Data Collections Submitted a law in 1902 directing the Surgeon CDC. For 37 years the Morbidity and for Public Comment and General of the Public Health Service Mortality Weekly Report (MMWR) has Recommendations (PHS) to provide forms for the collection consistently served as CDC premier and compilation of data and for the communication channel for disease The Centers for Disease Control and publication of reports at the national outbreaks and trends in health and Prevention (CDC) publishes a list of level. health behavior. In collaboration with information collection requests under Reports on notifiable diseases were the Council of State and Territorial review by the Office of Management and received from very few states and cities Epidemiologists (CSTE), CDC has Budget (OMB) in compliance with the prior to 1900, but gradually more states demonstrated the efficiency and Paperwork Reduction Act (44 U.S.C. submitted monthly and annual effectiveness of computer transmission Chapter 35). To request a copy of these summaries. In 1912, state and territorial of data. The data collected electronically requests, call the CDC Reports Clearance health authorities—in conjunction with for publication in the MMWR provides Officer at (404) 498–1210. Send written PHS—recommended immediate information which CDC and State comments to CDC, Desk Officer, Human telegraphic reports of five diseases and epidemiologists use to detail and more Resources and Housing Branch, New monthly reporting by letter of 10 effectively interrupt outbreaks. Executive Office Building, Room 10235, additional diseases, but it was not until Reporting also provides the timely Washington, DC 20503 or by fax to (202) after 1925 that all states reported information needed to measure and 395–6974. Written comments should be regularly. In 1942, the collection, demonstrate the impact of changed received within 30 days of this notice. compilation, and publication of immunization laws or a new therapeutic Proposed Project: Weekly Morbidity morbidity statistics, under the direction measure. Users of data include, but are and Mortality Reports and Annual of the Division of Sanitary Reports and not limited to, congressional offices, Morbidity Series, OMB No. 0920– Statistics, PHS, was transferred to the state and local health agencies, health 0007—Extension—Epidemiology Division of Public Health Methods, care providers, and other health related Program Office (EPO), Centers for PHS. groups. The dissemination of public Disease Control and Prevention (CDC). A PHS study in 1948 led to a revision health information is accomplished of the morbidity reporting procedures, through the MMWR series of Background and in 1949 morbidity reporting publications. The publications consist In 1878, Congress authorized the U.S. activities were transferred to the of the MMWR, the CDC Surveillance Marine Hospital Service (later renamed National Office of Vital Statistics. Summaries, the Recommendations and the U.S. Public Health Service (PHS) to Another committee in PHS presented a Reports, and the Annual Summary of
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Notifiable Diseases. The estimated annualized burden is 4927 hours.
Average time per Annual hour Type of respondents Number of Frequency of response burden respondents response (in hours) (in hours)
Weekly Morbidity Report Respondent Burden
States ...... 50 52 1 2600 Territories ...... 5 52 1@1 156 4@ 30/60 Cities ...... 2 52 1 104
Subtotals ...... 57 ...... 2860
CDC 43.5 Weekly Mortality Report Respondent Burden
City health officers or Vital statistics registrars ...... 122 52 12/60 1269
Annual Summary Respondent Burden
States ...... 50 1 14 700 Territories ...... 5 1 14 70 Cities ...... 2 1 14 28 Subtotals ...... 798
Totals ...... 179 ...... 4927
Dated: February 18, 2004. 395–6974. Written comments should be rate of increase in access to fluoridated Alvin Hall, received within 30 days of this notice. water among those on public water Director, Management Analysis and Services Proposed Project: Building Capacity systems has slowed. In 2000, 65.8 Office, Centers for Disease Control and to Fluoridate: Key Informant Interviews percent of this population had access to Prevention. to Understand Community Water fluoridated water, still far short of the 75 [FR Doc. 04–4230 Filed 2–25–04; 8:45 am] Fluoridation—New—National Center for percent fluoridation target set in both BILLING CODE 4163–18–P Chronic Disease Prevention and Health the Healthy People 2000 and 2010 Promotion (NCCDPHP), Centers for objectives. Disease Control and Prevention (CDC). The purpose of this research is to DEPARTMENT OF HEALTH AND Since the first fluoridation of a public identify and describe the variables that HUMAN SERVICES water system in Grand Rapids, Michigan influence community fluoridation in 1945, fluoridation of community decisions made by public vote and Centers for Disease Control and water supplies has dramatically reduced provide enhanced knowledge that may Prevention the prevalence of dental caries in the be useful to communities considering United States. Scientific evidence fluoridation. [30Day–29–04] compiled over nearly six decades In-person interviews will be demonstrates that adjusting the fluoride conducted with 7 to 13 key participants Proposed Data Collections Submitted concentration of public water systems is in fluoridation referendum campaigns at for Public Comment and a safe, cost-effective, and equitable 8 sites where fluoridation has been Recommendations intervention that benefits everyone in a rejected or accepted within the last given community regardless of financial three years. Key participants in the The Centers for Disease Control and status. campaigns will vary slightly by site. A Prevention (CDC) publishes a list of The percentage of the U.S. population information collection requests under living in areas with fluoridated water total of 80 interviews will be conducted. The expected participants will include: review by the Office of Management and grew steadily from 1945 to the mid- • Budget (OMB) in compliance with the 1970s. Adoption of fluoridation is State or local health department Paperwork Reduction Act (44 U.S.C. ultimately a choice made by community staff • Chapter 35). To request a copy of these decision makers and often is put before Campaign directors • requests, call the CDC Reports Clearance the public for vote as a referendum. In Local elected officials Officer at (404) 498–1210. Send written spite of survey findings that roughly 70 • Outside political consultants comments to CDC, Desk Officer, Human percent of the U.S. population favors • Grassroots leaders Resources and Housing Branch, New fluoridation, referenda since the 1980’s • Media representatives Executive Office Building, Room 10235, have often resulted in community The estimated annualized burden is Washington, DC 20503 or by fax to (202) decisions not to fluoridate. Thus, the 140 hours.
Number of re- Average burden Respondents Number of sponses per per response respondents respondent (in hrs.)
Respondent Screening ...... 43 1 10/60 Political Professionals ...... 16 1 100/60 Civic and Grassroots Leaders ...... 16 1 100/60
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Number of re- Average burden Respondents Number of sponses per per response respondents respondent (in hrs.)
Media Representatives ...... 16 1 100/60 Health care providers ...... 16 1 100/60 Local Officials ...... 16 1 100/60
Dated: February 18, 2004. Resources and Housing Branch, New American, American Indian, Hispanic Alvin Hall, Executive Office Building, Room 10235, American, Asian American, and Pacific Director, Management Analysis and Services Washington, DC 20503 or by fax to (202) Islander. Seventeen communities were Office, Centers for Disease Control and 395–6974. Written comments should be funded in Phase I to construct Prevention. received within 30 days of this notice. Community Action Plans (CAP). In [FR Doc. 04–4231 Filed 2–25–04; 8:45 am] Proposed Project: REACH 2010 Phase II, 26 communities will receive BILLING CODE 4163–18–P Evaluation, OMB No. 0920–0502— funding to implement their CAP. This Extension—National Center for Chronic data collection is for the Phase II Disease Prevention and Health communities. DEPARTMENT OF HEALTH AND Promotion (NCCDPHP), Centers for As part of the President’s Race HUMAN SERVICES Disease Control and Prevention (CDC). Initiative, it is imperative that REACH Centers for Disease Control and The REACH 2010 Demonstration 2010 demonstrate success in reducing Prevention Program is a part of the Department of health disparities among racial and Health and Human Services’ response to ethnic minority populations. Toward [30Day–20–04] the President’s Race Initiative and to the that end, it is of critical importance that Healthy People 2010 goal to eliminate CDC collects uniform survey data from Proposed Data Collections Submitted disparities in the health status of racial each of the 26 communities funded for for Public Comment and and ethnic minorities. The purpose of the Phase II REACH 2010 Demonstration Recommendations REACH 2010 is to demonstrate that Program. The same survey will be The Centers for Disease Control and adequately funded community-based conducted in each community; it will Prevention (CDC) publishes a list of programs which are designed and led by contain questions that are standard information collection requests under the communities they serve can reduce public health performance measures for review by the Office of Management and health disparities in infant mortality, each health priority area. Surveys will Budget (OMB) in compliance with the deficits in breast and cervical cancer be administered by either telephone or Paperwork Reduction Act (44 U.S.C. screening and management, household interview. These surveys will Chapter 35). To request a copy of these cardiovascular diseases, diabetes, HIV/ be administered annually using a requests, call the CDC Reports Clearance AIDS, and deficits in childhood and different sample from each community. Officer at (404) 498–1210. Send written adult immunizations. The communities The total annualized burden for this comments to CDC, Desk Officer, Human served by REACH 2010 include: African data collection is 8,138 hours.
Number of re- Average burden Respondents Number of sponses per per response respondents respondent (in hours)
Introductory Call ...... 29,647 1 2/60 Questionnaire ...... 26,000 1 15/60 Respondent Reliability Assessment ...... 2,600 1 15/60
Dated: February 18, 2004. DEPARTMENT OF HEALTH AND Resources and Housing Branch, New Alvin Hall, HUMAN SERVICES Executive Office Building, Room 10235, Director, Management Analysis and Services Washington, DC 20503 or by fax to (202) Office, Centers for Disease Control and Centers for Disease Control and 395–6974. Written comments should be Prevention. Prevention received within 30 days of this notice. Proposed Project: EEOICPA Special [FR Doc. 04–4232 Filed 2–25–04; 8:45 am] [30Day–03–04] BILLING CODE 4163–18–P Exposure Cohort Petition Forms (42 CFR Proposed Data Collections Submitted part 83)—NEW—National Institute for for Public Comment and Occupational Safety and Health Recommendations (NIOSH), Centers for Disease Control and Prevention (CDC). The Centers for Disease Control and Prevention (CDC) publishes a list of Background information collection requests under On October 30, 2000, the Energy review by the Office of Management and Employees Occupational Illness Budget (OMB) in compliance with the Compensation Program Act of 2000 Paperwork Reduction Act (44 U.S.C. (EEOICPA), 42 U.S.C. 7384–7385 [1994, Chapter 35). To request a copy of these supp. 2001] was enacted. It established requests, call the CDC Reports Clearance a compensation program to provide a Officer at (404) 498–1210. Send written lump sum payment of $150,000 and comments to CDC, Desk Officer, Human medical benefits as compensation to
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covered employees suffering from Advisory Board on Radiation and reconstruction cannot be completed and designated illnesses incurred as a result Worker Health (the ‘‘Board’’) in encourage them to submit the petition. of their exposure to radiation, establishing such findings. On March 7, NIOSH expects the large majority of beryllium, or silica while in the 2003, HHS proposed procedures for petitioners for whom Form B would be performance of duty for the Department adding such classes to the Cohort in a appropriate will also use the form, since of Energy and certain of its vendors, notice of proposed rulemaking at 42 it provides a simple, organized format contractors and subcontractors. This CFR part 83. for addressing the informational legislation also provided for payment of The proposed HHS procedures would requirements of a petition. compensation for certain survivors of authorize a variety of individuals and NIOSH will use the information these covered employees. entities to submit petitions, as specified obtained through the petition for the EEOICPA instructed the President to designate one or more Federal Agencies under § 83.7. Petitioners would be following purposes; to: (a) Identify the to carry out the compensation program. required to provide the information petitioner(s), obtain their contact Accordingly, the President issued specified in § 83.9 to qualify their information, and establish that the Executive Order 13179 (‘‘Providing petitions for a complete evaluation by petitioner(s) is qualified and intends to Compensation to America’s Nuclear HHS and the Board. HHS has developed petition HHS; (b) establish an initial Weapons Workers’’) on December 7, two petition forms to assist the definition of the class of employees 2000 (65 FR 77487), assigning primary petitioners in providing this required being proposed to be considered for responsibility for administration of the information efficiently and completely. addition to the Cohort; (c) determine compensation program to the Petition Form A is a one-page form to whether there is justification to require Department of Labor (DOL). The be used by EEOICPA cancer claimants HHS to evaluate whether or not to executive order directed the Department for whom NIOSH will have attempted to designate the proposed class as an of Health and Human Services (HHS) to conduct dose reconstructions and will addition to the Cohort (such an perform several technical and have determined that available evaluation involves potentially policymaking roles in support of the information is not sufficient to complete extensive data collection, analysis, and DOL program. the dose reconstruction on the majority related deliberations by NIOSH, the Among other duties, the executive of petitioners. The form addresses the Board, and HHS); and, (d) target an order directed HHS to establish and informational requirements specified evaluation by HHS to examine relevant implement procedures for considering under § 83.9(a) and (b). NIOSH expects potential limitations of radiation petitions by classes of nuclear weapons these claimant-petitions will comprise monitoring and/or dosimetry-relevant workers to be added to the ‘‘Special the majority of petitions. Petition Form records and to examine the potential for Exposure Cohort’’ (the ‘‘Cohort’’), B, accompanied by separate related radiation exposures that might various groups of workers selected by instructions, is intended for all other have endangered the health of members Congress whose claims for cancer under petitioners. The form addresses the of the class. Finally, under § 83.16, EEOICPA can be adjudicated without informational requirements specified petitioners may contest the proposed demonstrating that their cancer was ‘‘at under § 83.9(a) and (c). Forms A and B decision of the Secretary to add or deny least as likely as not’’ caused by can be submitted electronically as well adding classes of employees to the radiation doses they incurred in the as in hard copy. Petitioners should be cohort by submitting evidence that the performance of duty. In brief, EEOICPA aware that HHS is not requiring proposed decision relies on a record of authorizes HHS to designate such petitioners to use the forms. Petitioners either factual or procedural errors in the classes of employees for addition to the can choose to submit petitions as letters implementation of these procedures. Cohort when NIOSH lacks sufficient or in other formats, but petitions must NIOSH estimates that the time to information to estimate with sufficient meet the informational requirements prepare and submit such a challenge is accuracy the radiation doses of the referenced above. NIOSH expects, 45 minutes. Because of the uniqueness employees, if HHS also finds that the however, that all petitioners for whom of this submission, NIOSH is not health of members of the class may have Form A would be appropriate will providing a form. The submission been endangered by the radiation dose actually make use of the form, since should be in a letter format. The total the class potentially incurred. HHS NIOSH will provide it to them upon annual burden for this data collection is must also obtain the advice of the determining that their dose 54 hours.
Average bur- Number of Number of re- den per CFR reference Respondents respondents sponses per respondent respondent (in hours)
83.9 ...... Form A ...... 80 1 3/60 83.9 ...... Form B ...... 10 1 5 83.9 ...... Authorization .. 4 1 3/60
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Dated: February 18, 2004. currently planning a study in Georgia to center (Atlanta), urban areas (Macon Alvin Hall, estimate the prevalence of CFS and and Warner Robins), and rural Director, Management Analysis and Services other fatigue illnesses and to determine populations (in counties surrounding Office, Centers for Disease Control and whether or not there are differences in Macon) with well-defined regional Prevention. occurrence of fatigue illness across differences. metropolitan, urban, rural populations [FR Doc. 04–4233 Filed 2–25–04; 8:45 am] • Racial/ethnic differences. The and in racial and ethnic populations. BILLING CODE 4163–18–P prevalence of CFS in other than the In 2001, OMB approved the white population has not been information collection, National definitively measured, although some DEPARTMENT OF HEALTH AND Telephone Survey of Chronic Fatigue studies indicate CFS prevalence in HUMAN SERVICES Syndrome, under OMB Number 0920– minority populations may be higher 0498. In July 2001, CDC conducted a than generally thought. Georgia has Centers for Disease Control and pilot survey to determine feasibility of well-characterized urban and rural as Prevention a national study and to test procedures for this national survey of CFS. The well as white, black, and Hispanic [30Day–31–04] pilot study showed that clinical populations of varying socioeconomic status living in the regions to be studied. Proposed Data Collections Submitted evaluation to confirm classification of CFS was not practical on a national The presence of these populations is for Public Comment and ideal for public health surveys. Taken Recommendations level, and the planned follow-on national survey was not conducted. together, the proposed Georgia survey The Centers for Disease Control and CDC has since modified the concept will produce estimates of the prevalence Prevention (CDC) publishes a list of of the National Survey of CFS by of CFS in metropolitan, urban, and rural information collection requests under limiting data collection to one southern populations and will elucidate racial/ review by the Office of Management and U.S. state (Georgia). This modified ethnic differences in CFS in these Budget (OMB) in compliance with the research is better able to serve the populations. Paperwork Reduction Act (44 U.S.C. objectives of the National Survey of CFS The proposed study replicates the Chapter 35). To request a copy of these and additional CDC objectives. Reasons Sedgwick County Study and the requests, call the CDC Reports Clearance supporting this statement are listed National Pilot Test using similar Officer at (404) 498–1210. Send written below. methodology and data collection comments to CDC, Desk Officer, Human • Logistics. A difficulty in the Pilot instruments. The study begins with a Resources and Housing Branch, New Test was matching subjects and random-digit-dialing telephone survey Executive Office Building, Room 10235, physicians for clinical evaluations to identify fatigued, unwell, and well Washington, DC 20503 or by fax to (202) because subjects were scattered across individuals, followed by detailed 395–6974. Written comments should be the continent. Focusing on a single state telephone interviews to obtain received within 30 days of this notice. allows operation of regional clinics and additional data on participant health Proposed Project: Survey of Chronic greater opportunities for collaboration status. As a result of the telephone Fatigue Syndrome and Chronic between and among CDC, Emory interviews, eligible subjects will be Unwellness in Georgia—New—National University, and consultants. asked to participate in clinical Center for Infectious Diseases (NCID), • Metropolitan, urban, and rural evaluations. CDC will estimate the Centers for Disease Control and differences. Pilot Test results suggest no prevalence of CFS and other fatigue Prevention (CDC). regional differences in the occurrence of illnesses in metropolitan, urban, and Congress commissioned CDC to CFS-like illnesses between and among rural Georgia and in racial and ethnic develop research that estimates the the Midwest, south, west, and northeast, populations. CDC will compare magnitude of chronic fatigue syndrome so concentrating on one state (Georgia) prevalence estimates from this proposed (CFS) in the United States with special should provide more generalized study of the Georgia population to consideration of under-served information. Pilot Test findings estimates obtained for Sedgwick County populations (children and racial/ethnic suggested that further exploration of to ascertain whether or not Sedgwick minorities); describe the clinical urban and rural differences might prove County findings can be generalized to features of CFS; and identify risk factors useful. Again, Georgia well-serves such other populations. The estimated and diagnostic markers. CDC is a study with a major metropolitan annualized burden is 6,257 hours.
Number re- Avg. burden per Respondents Number of sponses per response respondents respondent (in hours)
Screener interview ...... 19,344 1 7/60 Telephone interview ...... 8,000 1 30/60
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Dated: February 18, 2004. 395–6974. Written comments should be payment), and staff (e.g. staffing mix, Alvin Hall, received within 30 days of this notice. turnover, benefits, training, education). Director, Management Analysis and Services Proposed Project: National Nursing The survey provides detailed Office, Centers for Disease Control and Home Survey, OMB No. 0920–0353— information on utilization and staffing Prevention. Reinstatement—National Center for patterns, and quality of care variables [FR Doc. 04–4234 Filed 2–25–04; 8:45 am] Health Statistics (NCHS), Centers for that is needed in order to make accurate BILLING CODE 4163–18–P Disease Control and Prevention (CDC). assessments of the need for and effects Section 306 of the Public Health of changes in the provision and Service Act states that the National financing of long-term care for the DEPARTMENT OF HEALTH AND Center for Health Statistics ‘‘shall elderly. The availability and use of long- HUMAN SERVICES collect statistics on health resources term care services are becoming an * * * [and] utilization of health care, increasingly important issue as the Centers for Disease Control and including utilization of * * * services number of elderly increases and persons Prevention of hospitals, extended care facilities, with disabilities live longer. Equally as home health agencies, and other important is ensuring the adequacy and [30Day–30–04] institutions.’’ The data system availability of the long-term care responsible for collecting this data is the workforce. Data from the NNHS have Proposed Data Collections Submitted National Health Care Survey (NHCS). been used by Federal agencies, for Public Comment and The National Nursing Home Survey professional organizations, private Recommendations (NNHS) is part of the Long-term Care industry, and the media. Component of the NHCS. The NNHS NCHS plans to conduct the next The Centers for Disease Control and was conducted in 1973–74, 1977, 1985, NNHS in March–June 2004 with a Prevention (CDC) publishes a list of 1995, 1997, and 1999. NNHS data repeat of the survey in 2006. This information collection requests under describe a major segment of the long- national survey follows a pretest of review by the Office of Management and term care system and are used forms and procedures conducted in Budget (OMB) in compliance with the extensively for health care research, June–July 2003. The data collection Paperwork Reduction Act (44 U.S.C. health planning and public policy. forms and procedures have been chapter 35). To request a copy of these NNHS provides data on the extensively revised from the previous requests, call the CDC Reports Clearance characteristics of nursing homes (e.g. NNHS. The 2004 NNHS will be based Officer at (404) 498–1210. Send written Medicare and Medicaid certification, on computer-assisted personal interview comments to CDC, Desk Officer, Human ownership, membership in chains/ (CAPI) and computer-assisted telephone Resources and Housing Branch, New HMO/hospital systems), residents (e.g. interview (CATI) methodologies. The Executive Office Building, Room 10235, demographics, functional status, annualized burden hours are estimated Washington, DC 20503 or by fax to (202) services received, diagnoses, sources of to be 13,375.
Average Number of Number of burden per Respondents respondents responses per responses respondent (in hrs.)
Facility Questionnaire ...... 1,500 1 20/60 Nursing Home Staff Questionnaire ...... 1,500 1 50/60 Current Resident Sampling List ...... 1,500 1 20/60 Current Resident Questionnaire ...... 1,500 6 25/60 Discharged Resident Sampling List ...... 1,500 1 15/60 Discharged Resident Questionnaire ...... 1,500 6 25/60 Sampling List of Nursing Assistants ...... 750 1 20/60 Nursing Assistants Questionnaire ...... 750 6 40/60
Dated: February 18, 2004. DEPARTMENT OF HEALTH AND Time and Date: 1 p.m.—3 p.m., March Alvin Hall, HUMAN SERVICES 11, 2004. Director, Management Analysis and Services Place: Teleconference call will Office, Centers for Disease Control and Centers for Disease Control and originate at the CDC, NIOSH, Atlanta, Prevention. Prevention Georgia. Please see SUPPLEMENTARY INFORMATION for details on accessing the [FR Doc. 04–4235 Filed 2–25–04; 8:45 am] National Institute for Occupational teleconference. BILLING CODE 4163–18–P Safety and Health, Advisory Board on Radiation and Worker Health Status: Open to the public, teleconference access limited only by In accordance with section 10(a)(2) of ports available. the Federal Advisory Committee Act Background: The Advisory Board on (Pub. L. 92–463), the Centers for Disease Radiation and Worker Health (‘‘the Control and Prevention (CDC) Board’’) was established under the announces the following committee Energy Employees Occupational Illness meeting. Compensation Program Act (EEOICPA) Name: Advisory Board on Radiation of 2000 to advise the President, through and Worker Health (ABRWH), National the Secretary of Health and Human Institute for Occupational Safety and Services (HHS), on a variety of policy Health (NIOSH). and technical functions required to
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implement and effectively manage the Dated: February 19, 2004. proposed paperwork collections new compensation program. Key Alvin Hall, referenced above, access CMS’s Web site functions of the Board include Director, Management Analysis and Services address at http://cms.hhs.gov/ providing advice on the development of Office, Centers for Disease Control and regulations/pra/default.asp, or E-mail probability of causation guidelines Prevention. your request, including your address, which have been promulgated by HHS [FR Doc. 04–4238 Filed 2–25–04; 8:45 am] phone number, OMB number, and CMS as a final rule, advice on methods of BILLING CODE 4163–19–P document identifier, to dose reconstruction which have also [email protected], or call the Reports been promulgated by HHS as a final Clearance Office on (410) 786–1326. rule, evaluation of the scientific validity DEPARTMENT OF HEALTH AND Written comments and and quality of dose reconstructions HUMAN SERVICES recommendations for the proposed conducted by NIOSH for qualified information collections must be mailed cancer claimants, and advice on Centers for Medicare and Medicaid within 60 days of this notice directly to petitions to add classes of workers to the Services the CMS Paperwork Clearance Officer Special Exposure Cohort. [Document Identifier: CMS–R–214] designated at the following address: In December 2000 the President CMS, Office of Strategic Operations and delegated responsibility for funding, Agency Information Collection Regulatory Affairs, Division of staffing, and operating the Board to Activities: Proposed Collection; Regulations Development and HHS, which subsequently delegated this Comment Request Issuances, Attention: Melissa Musotto, authority to the CDC. NIOSH Room C5–14–03, 7500 Security implements this responsibility for CDC. AGENCY: Centers for Medicare and Boulevard, Baltimore, Maryland 21244– The charter was issued on August 3, Medicaid Services. 1850. 2001, and renewed on August 3, 2003. In compliance with the requirement Dated: February 19, 2004. Purpose: This board is charged with of section 3506(c)(2)(A) of the (a) providing advice to the Secretary, Paperwork Reduction Act of 1995, the John P. Burke III, HHS on the development of guidelines Centers for Medicare and Medicaid Paperwork Reduction Act Team Leader, under Executive Order 13179; (b) Services (CMS) (formerly known as the Office of Strategic Operations and Strategic Health Care Financing Administration Affairs, Division of Regulations Development providing advice to the Secretary, HHS and Issuances. on the scientific validity and quality of (HCFA)), Department of Health and [FR Doc. 04–4215 Filed 2–25–04; 8:45 am] dose reconstruction efforts performed Human Services, is publishing the for this Program; and (c) upon request following summary of proposed BILLING CODE 4120–03–P by the Secretary, HHS, advise the collections for public comment. Interested persons are invited to send Secretary on whether there is a class of DEPARTMENT OF HEALTH AND comments regarding this burden employees at any Department of Energy HUMAN SERVICES facility who were exposed to radiation estimate or any other aspect of this but for whom it is not feasible to collection of information, including any Centers for Medicare and Medicaid estimate their radiation dose, and of the following subjects: (1) The Services whether there is reasonable likelihood necessity and utility of the proposed that such radiation doses may have information collection for the proper [Document Identifier: CMS–R–234] performance of the agency’s functions; endangered the health of members of Agency Information Collection (2) the accuracy of the estimated this class. Activities: Submission for OMB Matters To Be Discussed: The meeting burden; (3) ways to enhance the quality, Review; Comment Request will focus on review of draft site profile utility, and clarity of the information to review procedures that are developed by be collected; and (4) the use of AGENCY: Centers for Medicare and the contractor. automated collection techniques or Medicaid Services. Agenda items are subject to change as other forms of information technology to In compliance with the requirement priorities dictate. minimize the information collection of section 3506(c)(2)(A) of the SUPPLEMENTARY INFORMATION: This burden. Paperwork Reduction Act of 1995, the conference call is scheduled to begin at Type of Information Collection Centers for Medicare and Medicaid 1 p.m. Eastern Time. To access the Request: Extension of a currently Services (CMS) (formerly known as the teleconference you must dial 1–888– approved collection; Title of Health Care Financing Administration 795–2173. To be automatically Information Collection: Independent (HCFA), Department of Health and connected to the call, you will need to Diagnostic Testing Facility and Human Services, is publishing the provide the pass code 46204 to be Supporting Regulations contained in 42 following summary of proposed connected to the call. CFR 410.33; Form No.: CMS–R–214 collections for public comment. FOR FURTHER INFORMATION CONTACT: (OMB# 0938–0721); Use: The Interested persons are invited to send Larry Elliott, Executive Secretary, information collection requirements comments regarding this burden ABRWH, NIOSH, CDC, 4676 Columbia associated with an Independent estimate or any other aspect of this Parkway, Cincinnati, Ohio 45226, Diagnostic Testing Facilities involve collection of information, including any telephone 513/533–6825, fax 513/533– documentation of proficiency of of the following subjects: (1) The 6826. medical personnel and of resources; necessity and utility of the proposed The Director, Management Analysis Frequency: Annually; Affected Public: information collection for the proper and Services Office, has been delegated Business or other for-profit, Federal performance of the agency’s functions; the authority to sign Federal Register government and State, local and tribal (2) the accuracy of the estimated notices pertaining to announcements of government; Number of Respondents: burden; (3) ways to enhance the quality, meetings and other committee 500; Total Annual Responses: 500; Total utility, and clarity of the information to management activities for both CDC and Annual Hours: 42. be collected; and (4) the use of the Agency for Toxic Substances and To obtain copies of the supporting automated collection techniques or Disease Registry. statement and any related forms for the other forms of information technology to
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minimize the information collection DEPARTMENT OF HEALTH AND Section 3506(c)(2)(A) of the PRA (44 burden. HUMAN SERVICES U.S.C. 3506(c)(2)(A)) requires Federal Type of Information Collection agencies to provide a 60-day notice in Food and Drug Administration Request: Extension of a currently the Federal Register concerning each proposed collection of information, approved collection; Title of [Docket No. 2004N–0062] including each proposed extension of an Information Collection: Subpart D— existing collection of information, Private Contracts and Supporting Agency Information Collection Activities; Proposed Collection; before submitting the collection to OMB Regulations in 42 CFR 405.410, 405.430, Comment Request; Color Additive for approval. To comply with this 405.435, 405.440, 405.445, 405.455, Certification Requests and requirement, FDA is publishing notice 410.61, 415.110, and 424.24; Form No.: Recordkeeping of the proposed collection of CMS–R–234 (OMB# 0938–0730); Use: information set forth in this document. Section 4507 of the BBA of 1997 AGENCY: Food and Drug Administration, With respect to the following amended section 1802 of the Social HHS. collection of information, FDA invites Security Act to permit certain ACTION: Notice. comments on these topics: (1) Whether physicians and practitioners to opt-out the proposed collection of information of Medicare and to provide through SUMMARY: The Food and Drug is necessary for the proper performance private contracts services that would Administration (FDA) is announcing an of FDA’s functions, including whether otherwise be covered by Medicare. opportunity for public comment on the the information will have practical proposed collection of certain Under such contracts the mandatory utility; (2) the accuracy of FDA’s information by the agency. Under the claims submission and limiting charge estimate of the burden of the proposed Paperwork Reduction Act of 1995 (the rules of section 1848(g) of the Act would collection of information, including the PRA), Federal agencies are required to not apply. Subpart D and the supporting validity of the methodology and publish notice in the Federal Register assumptions used; (3) ways to enhance regulations contained in 42 CFR concerning each proposed collection of the quality, utility, and clarity of the 405.410, 405.430, 405.435, 405.440, information including each proposed information to be collected; and (4) 405.445, and 405.455, counters the extension of an existing collection of ways to minimize the burden of the effect of certain provisions of Medicare information, and to allow 60 days for collection of information on law that, absent section 4507 of BBA public comment in response to the respondents, including through the use 1997, preclude physicians and notice. This notice solicits comments on of automated collection techniques, practitioners from contracting privately the information collection provisions of when appropriate, and other forms of with Medicare beneficiaries to pay FDA’s regulations governing batch information technology. without regard to Medicare limits; certification of color additives Frequency: Biennially; Affected Public: manufactured for use in foods, drugs, Color Additive Certification Requests and Recordkeeping—21 CFR Part 80 Business or other for-profit; Number of cosmetics, or medical devices in the (OMB Control Number 0910–0216)— Respondents: 26,820; Total Annual United States. Extension Responses: 26,820; Total Annual Hours: DATES: Submit written or electronic 7,197. To obtain copies of the comments on the collection of FDA has regulatory oversight for color supporting statement and any related information by April 26, 2004. additives used in foods, drugs, cosmetics, and medical devices. Section forms for the proposed paperwork ADDRESSES: Submit electronic 721(a) of the Federal Food, Drug, and collections referenced above, access comments on the collection of Cosmetic Act (the act) (21 U.S.C. CMS Web site address at http:// information to: http://www.fda.gov/ 379e(a)) provides that a color additive dockets/ecomments. Submit written cms.hhs.gov/regulations/pra/ shall be deemed to be unsafe unless it default.asp, or E-mail your request, comments on the collection of meets the requirements of a listing including your address, phone number, information to the Division of Dockets regulation, including any requirement OMB number, and CMS document Management (HFA–305), Food and Drug for batch certification, and is used in identifier, to [email protected], or Administration, 5630 Fishers Lane, rm. accordance with the regulation. FDA call the Reports Clearance Office on 1061, Rockville, MD 20852. All lists color additives that have been (410) 786–1326. Written comments and comments should be identified with the shown to be safe for their intended uses recommendations for the proposed docket number found in brackets in the in title 21 of the Code of Federal information collections must be mailed heading of this document. Regulations (CFR). FDA requires batch within 30 days of this notice directly to FOR FURTHER INFORMATION CONTACT: certification for all color additives listed the OMB desk officer: OMB Human Peggy Robbins, Office of Management in 21 CFR part 74 and for all color Resources and Housing Branch, Programs (HFA–250), Food and Drug additives provisionally listed in 21 CFR Attention: Brenda Aguilar, New Administration, 5600 Fishers Lane, part 82. Color additives listed in 21 CFR Executive Office Building, Room 10235, Rockville, MD 20857, 301–827–1223. part 73 are exempted from certification. Washington, DC 20503; Fax (202) 395– SUPPLEMENTARY INFORMATION: Under the The requirements for color additive 6929. PRA (44 U.S.C. 3501–3520), Federal certification are described in part 80 (21 agencies must obtain approval from the CFR part 80). In the certification Dated: February 19, 2004. Office of Management and Budget procedure, a representative sample of a John P. Burke III, (OMB) for each collection of new batch of color additive, Paperwork Reduction Act Team Leader, CMS information they conduct or sponsor. accompanied by a ‘‘request for Reports Clearance Officer, Office of Strategic ‘‘Collection of information’’ is defined certification’’ that provides information Operations and Strategic Affairs, Division of in 44 U.S.C. 3502(3) and 5 CFR about the batch, must be submitted to Regulations Development and Issuances. 1320.3(c) and includes agency requests FDA’s Office of Cosmetics and Colors. [FR Doc. 04–4216 Filed 2–25–04; 8:45 am] or requirements that members of the FDA personnel perform chemical and BILLING CODE 4120–03–P public submit reports, keep records, or other analyses of the representative provide information to a third party. sample and, providing the sample
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satisfies all certification requirements, until at least 2 years after disposal of all The manufacturer’s name and address issue a certification lot number for the of the color additive. and the name and address of the person batch. FDA charges a fee for certification The purpose for collecting this requesting certification are used to based on the batch weight and requires information is to help FDA assure that contact the person responsible should a manufacturers to keep records of the only safe color additives will be used in question arise concerning compliance batch pending and after certification. foods, drugs, cosmetics, and medical with the color additive regulations. Under § 80.21, a request for devices sold in the United States. The Information on storage conditions certification must include: Name of required information is unique to the pending certification is used to evaluate color additive, manufacturer’s batch batch of color additive that is the subject whether a batch of certified color number and weight in pounds, name of a request for certification. The additive is inadvertently or and address of manufacturer, storage manufacturer’s batch number is used for intentionally altered in a manner that conditions, statement of use(s), temporarily identifying a batch of color would make the sample submitted for certification fee, and signature of person additive until FDA issues a certification certification analysis unrepresentative requesting certification. Under § 80.22, a lot number and for identifying a of the batch. FDA checks storage request for certification must include a certified batch during inspections. The information during inspections. sample of the batch of color additive manufacturer’s batch number also aids Information on intended uses for a batch that is the subject of the request. The in tracing the disposal of a certified of color additive is used to assure that sample must be labeled to show: Name batch or a batch that has been refused a batch of certified color additive will be of color additive, manufacturer’s batch certification for noncompliance with the number and quantity, and name and color additive regulations. The used in accordance with the address of person requesting manufacturer’s batch weight is used for requirements of its listing regulation. certification. Under § 80.39, the person assessing the certification fee. The batch The statement of the fee on a to whom a certificate is issued must weight also is used to account for the certification request is used for keep complete records showing the disposal of a batch of certified or accounting purposes so that a person disposal of all the color additive certification-rejected color additive. The requesting certification can be notified covered by the certificate. Such records batch weight can be used in a recall to promptly of any discrepancies. are to be made available upon request to determine whether all unused color FDA estimates the burden of this any accredited representative of FDA additive in the batch has been recalled. collection of information as follows:
TABLE 1.—ESTIMATED ANNUAL REPORTING BURDEN1
21 CFR Annual Frequency per Section No. of Respondents Response Total Annual Responses Hours per Response Total Hours
80.21 23 200 4,603 0.20 921 80.22 23 200 4,603 0.05 230 Total 0.25 1,151 1There are no capital costs or operating and maintenance costs associated with this collection of information.
TABLE 2.—ESTIMATED ANNUAL RECORDKEEPING BURDEN1
21 CFR Annual Frequency per Section No. of Recordkeepers Recordkeeping Total Annual Records Hours per Record Total Hours
80.39 23 200 4,603 0.25 1,151 Total 1,151 1There are no capital costs or operating and maintenance costs associated with this collection of information.
The annual burden estimate for this hour per response is required for DEPARTMENT OF HEALTH AND information collection is 2,302 hours. recordkeeping. HUMAN SERVICES The estimated reporting burden for this Dated: February 19, 2004. information collection is 1,151 hours Food and Drug Administration Jeffrey Shuren, and the estimated recordkeeping burden [Docket No. 2003D–0229] for this information collection is 1,151 Assistant Commissioner for Policy. hours. From fiscal year (FY) 2001 to FY [FR Doc. 04–4247 Filed 2–25–04; 8:45 am] Agency Information Collection 2003, FDA processed an average of BILLING CODE 4160–01–S Activities; Submission for Office of 4,603 responses (requests for Management and Budget Review; certification of batches of color Comment Request; Guidance for additives) per year. There were 23 Industry on Continuous Marketing different respondents, corresponding to Applications: Pilot 2–Scientific an average of approximately 200 Feedback and Interactions During responses from each respondent per Development of Fast Track Products year. Using information from industry Under the Prescription Drug User Fee personnel, FDA estimates that an Act average of 0.25 hour per response is AGENCY: Food and Drug Administration, required for reporting (preparing HHS. certification requests and accompanying ACTION: Notice. sample labels) and an average of 0.25
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SUMMARY: The Food and Drug during drug development and tracking databases enables the agency to Administration (FDA) is announcing application review and proposes monitor progress on activities. that a proposed collection of opportunities for improvement. Under Under the guidance, the agency asks information has been submitted to the the CMA pilot program, Pilot 2, certain applicants to include the following Office of Management and Budget drug and biologic products that have information in the Pilot 2 application: (OMB) for review and clearance under been designated as Fast Track (i.e., • Cover letter prominently labeled the Paperwork Reduction Act of 1995 products intended to treat a serious and/ ‘‘Pilot 2 application;’’ • (the PRA). or life-threatening disease for which IND number; • Date of Fast Track designation; DATES: Fax written comments on the there is an unmet medical need) are • Date of the end-of-phase 1 meeting, collection of information by March 29, eligible to participate in the program. or equivalent meeting, and summary of 2004. Pilot 2 is an exploratory program that will allow FDA to evaluate the impact the outcome; ADDRESSES: OMB is still experiencing • A timeline of milestones from the significant delays in the regular mail, of frequent scientific feedback and interactions with applicants during the drug or biological product development including first class and express mail, program, including projected date of and messenger deliveries are not being investigational new drug application (IND) phase. Under the pilot program, a new drug application (NDA)/ biologic accepted. To ensure that comments on licensing application (BLA) the information collection are received, maximum of one Fast Track product per review division in CDER and CBER will submissions; OMB recommends that written • Overview of the proposed product comments be faxed to the Office of be selected to participate. This guidance provides information regarding the development program for a specified Information and Regulatory Affairs, disease and indication(s), providing OMB, Attn: Fumie Yokota, Desk Officer selection of participant applications for Pilot 2, the formation of agreements information about each of the review for FDA, FAX: 202–395–6974. between FDA and applicants on the IND disciplines (e.g., chemistry/ FOR FURTHER INFORMATION CONTACT: communication process, and other manufacturing/ controls, pharmacology/ Karen Nelson, Office of Management procedural aspects of Pilot 2. FDA began toxicology, clinical, clinical Programs (HFA–250), Food and Drug pharmacology and biopharmaceutics); accepting applications for participation • Administration, 5600 Fishers Lane, in Pilot 2 on October 1, 2003. Rationale for interest in participating Rockville, MD 20857, 301–827–1482. The guidance describes one collection in Pilot 2, specifying the ways in which SUPPLEMENTARY INFORMATION: In of information: Applicants who would development of the subject drug or compliance with 44 U.S.C. 3507, FDA like to participate in Pilot 2 must submit biological product would be improved has submitted the following proposed an application (Pilot 2 application) by frequent scientific feedback and collection of information to OMB for containing certain information outlined interactions with FDA and the potential review and clearance. in the guidance. The purpose of the for such communication to benefit Pilot 2 application is for the applicants public health by improving the Guidance for Industry on Continuous efficiency of the product development Marketing Applications: Pilot 2– to describe how their designated Fast Track product would benefit from program; and Scientific Feedback and Interactions • Draft agreement for proposed During Development of Fast Track enhanced communications between FDA and the applicant during the feedback and interactions with FDA. Products Under the Prescription Drug This information will be used by the User Fee Act (OMB Control Number product development process. FDA’s regulation at § 312.23 (21 CFR agency to determine which Fast Track 0910–0518—Extension) 312.23) states that information provided products are eligible for participation in FDA is requesting OMB approval to the agency as part of an IND must be Pilot 2. Participation in this pilot under the PRA (44 U.S.C. 3507) for the submitted in triplicate and with an program will be voluntary. reporting and recordkeeping appropriate cover form. Form FDA 1571 Based on the number of approvals for requirements contained in the guidance must accompany submissions under Fast Track designations and data for industry entitled ‘‘Continuous INDs. Both 21 CFR part 312 and FDA collected from the review divisions and Marketing Applications: Pilot 2– Form 1571 have a valid OMB control offices within CDER and CBER, FDA Scientific Feedback and Interactions number (OMB control number 0910– estimates that in fiscal year 2002, 109 During Development of Fast Track 0014), which expires January 31, 2006. drug product applications and 46 Products Under PDUFA.’’ This guidance In the guidance document, FDA’s biological products had Fast Track discusses how the agency will Center for Drug Evaluation and Research designation. FDA anticipates that implement a pilot program for frequent (CDER) and Center for Biologics approximately 85 drug product scientific feedback and interactions Evaluation and Research (CBER) ask applicants (respondents) and between FDA and applicants during the that a Pilot 2 application be submitted approximately 29 biological product investigational phase of the as an amendment to the application for applicants (respondents) will submit at development of certain Fast Track drug the underlying product under the least one Pilot 2 application. Based on and biological products. Applicants are requirements of § 312.23; therefore, Pilot information collected from offices being asked to apply to participate in 2 applications should be submitted to within CDER and CBER, the agency the Pilot 2 program. the agency in triplicate with Form FDA further anticipates that the total In conjunction with the June 2002 1571. The agency recommends that a responses, i.e., the total number of reauthorization of the Prescription Drug Pilot 2 application be submitted in this applications received for Pilot 2, will be User Fee Act of 1992 (PDUFA), FDA manner for two reasons: (1) To ensure 90 for drug products and 35 for agreed to meet specific performance that each Pilot 2 application is kept in biological products. The hours per goals (PDUFA Goals). The PDUFA Goals the administrative file with the entire response, which is the estimated include two pilot programs to explore underlying application, and (2) to number of hours that a respondent the continuous marketing application ensure that pertinent information about would spend preparing the information (CMA) concept. The CMA concept the Pilot 2 application is entered into to be submitting in a Pilot 2 application builds on the current practice of the appropriate tracking databases. Use in accordance with the guidance, is interaction between FDA and applicants of the information in the agency’s estimated to be approximately 80 hours.
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Based on FDA’s experience, we expect estimates that applicants will use which expires on March 30, 2004. This it will take respondents this amount of approximately 10,000 hours to complete notice of request is to receive approval time to obtain and draft the information the Pilot 2 applications. in the normal PRA process. to be submitted with a Pilot 2 On September 29, 2003, this guidance application. Therefore, the agency was approved on an emergency basis,
TABLE 1.—ESTIMATED ANNUAL REPORTING BURDEN1
Pilot 2 Applica- No. of Responses per tion No. of Respondents Respondent Total Responses Hours per Response Total Hours
CDER 85 1.06 90 80 7,200 CBER 29 1.20 35 80 2,800 Total 10,000 1 There are no capital costs or operating and maintenance costs associated with this collection of information.
In the Federal Register of November applications or supplements on or after application fees from each person who 20, 2003, (68 FR 65457), FDA September 1, 2003, and FDA may not submits certain animal drug announced the availability of the accept applications for review if all fees applications or supplements on or after guidance and requested comments for have not been paid (section 740(e) of the September 1, 2003 (section 740(a)(1)(A) 60 days on the information collection. act). of the act). The use of normal clearance One comment was received that did not DATES: Fax written comments on the procedures would result in the pertain to the information collection. collection of information provisions by prevention or disruption of this Dated: February 19, 2004. March 10, 2004. FDA is requesting collection of information and the delay Jeffrey Shuren, approval of this emergency processing of fees that must be collected by March 15, 2004. immediately to fund animal drug review Assistant Commissioner for Policy. ADDRESSES: OMB is still experiencing activities in the current fiscal year. [FR Doc. 04–4248 Filed 2–25–04; 8:45 am] significant delays in the regular mail, Therefore, FDA has requested approval BILLING CODE 4160–01–S including first class and express mail, of this emergency processing for this and messenger deliveries are not being proposed collection of information by March 15, 2004. DEPARTMENT OF HEALTH AND accepted. To ensure that comments on HUMAN SERVICES the information collection are received, FDA invites comments on these OMB recommends that written topics: (1) Whether the proposed Food and Drug Administration comments be faxed to the Office of collection of information is necessary Information and Regulatory Affairs, [Docket No. 2004N–0077] for the proper performance of FDA’s OMB, Attn: Fumie Yokota, Desk Officer functions, including whether the for FDA, FAX: 202–395–6974, or Agency Emergency Processing Under information will have practical utility; electronically mail comments to: Office of Management and Budget (2) the accuracy of FDA’s estimate of the [email protected]. All Review; Animal Drug User Fee Cover burden of the proposed collection of comments should be identified with the Sheet information, including the validity of docket number found in brackets in the the methodology and assumptions used; AGENCY: Food and Drug Administration, heading of this document. (3) ways to enhance the quality, utility, HHS. FOR FURTHER INFORMATION CONTACT: and clarity of the information to be ACTION: Notice. Denver Presley, Office of Management collected; and (4) ways to minimize the Programs (HFA–250), Food and Drug burden of the collection of information SUMMARY: The Food and Drug Administration, 5600 Fishers Lane, on respondents, including through the Administration (FDA) is announcing Rockville, MD 20857, 301–827–1472. use of automated collection techniques, that a proposed collection of SUPPLEMENTARY INFORMATION: FDA has when appropriate, and other forms of information has been submitted to the requested emergency processing of this information technology. Office of Management and Budget proposed collection of information Animal Drug User Fee Cover Sheet; (OMB) for emergency processing under under section 3507(j) of the PRA (44 FDA Form 3546 the Paperwork Reduction Act of 1995 U.S.C. 3507(j) and 5 CFR 1320.13). This (the PRA). The proposed collection of information is needed immediately so Under section 740 of the act, as information, Animal Drug User Fee that the agency can use the cover sheet amended by ADUFA (21 U.S.C. 379j- Cover Sheet (cover sheet), will be used to collect information from entities 12), FDA has the authority to assess and to assure that each animal drug user fee submitting animal drug applications. collect for certain animal drug user fees. payment and each animal drug That information is needed to assure Because the submission of user fees application for which payment is made that the application fee payments are concurrently with applications and is appropriately linked to the payment correctly associated with the payer of supplements is required, review of an that is made. FDA is requesting this the fee and with the application for application cannot begin until the fee is emergency processing under the PRA to which payment is made. submitted. Under the new statutory implement new statutory requirements ADUFA was signed into law on provisions (section 740(e) of the act, as of the Animal Drug User Fee Act November 18, 2003 (Public Law 108– amended by ADUFA), animal drug (ADUFA) (section 740(a)(1) of the 130) and the appropriation act enabling applications and supplemental animal Federal Food Drug and Cosmetic Act FDA to collect the newly authorized drug applications for which the required (the act). ADUFA requires FDA to fees was signed into law on January 23, fee has not been paid are considered collect fees from each person who 2004 (Public Law 108–199). ADUFA incomplete and are not to be accepted submits certain new animal drug requires FDA to collect animal drug for review by the agency. The types of
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fees that require a cover sheet are payment is made is appropriately linked would also delay receipt of revenue that certain animal drug application fees and to the payment that is made. The form, is to be used to fund the review of certain supplemental animal drug when completed electronically, will animal drug applications during the application fees. The cover sheet (Form result in the generation of a unique current fiscal year. FDA is requesting FDA 3546) is designed to provide the payment identification number used in this emergency processing under the minimum necessary information to tracking the payment. FDA will use he PRA to implement these new statutory determine whether a fee is required for information collected to initiate requirements of ADUFA (section the review of an application or administrative screening of new animal 740(a)(1) and (e) of the act). FDA supplement, to determine the amount of drug applications and supplements to estimates the burden of this collection the fee required, and to assure that each determine if payment has been received. of information as follows: animal drug user fee payment and each Inability to collect this information animal drug application for which would delay the review process, and
TABLE 1.—ESTIMATED ANNUAL REPORTING BURDEN1
Total An- Section of the act as amended by ADUFA No. of Re- Annual Frequency per Re- nual Re- Hours per Total Hours spondents sponse sponses Response
740(a)(1) FDA Form 3546 (cover sheet) ...... 69 1 time for each application 69 1 69 1 There are no capital costs or operating and maintenance costs associated with this collection of information.
Respondents to this collection of proposed data collection projects status of coal workers by providing information are new animal drug (section 3506(c)(2)(A) of Title 44, United services to minimize the effects of applicants or manufacturers. Based on States Code, as amended by the respiratory and pulmonary impairments FDA’s data base system, there are an Paperwork Reduction Act of 1995, Pub. of coal miners. Grantees provide estimated 140 manufacturers of L. 104–13), the Health Resources and specific diagnostic and treatment products or sponsors of new animal Services Administration (HRSA) procedures required in the management drugs potentially subject to ADUFA. publishes periodic summaries of of problems associated with black lung However, not all manufacturers or proposed projects being developed for disease which improve the quality of sponsors will have any submissions in submission to OMB under the life of the miner and reduces economic a given year and some may have Paperwork Reduction Act of 1995. To costs associated with morbidity and multiple submissions. The total number request more information on the mortality arising from pulmonary of annual responses is based on the proposed project or to obtain a copy of diseases. The purpose of collecting this number of submissions received by FDA the data collection plans and draft data is to provide HRSA with in fiscal year 2003. The Center for instruments, call the HRSA Reports information on how well each grantee is Veterinary Medicine (CVM) estimates 69 Clearance Officer on (301) 443–1129. meeting the needs of active and retired annual responses that include the Comments are invited on: (a) Whether miners in the funded communities. following: 28 new animal drug the proposed collection of information premarket approval applications and 41 is necessary for the proper performance Data from the annual report will supplements. The estimated hours per of the functions of the agency, including provide quantitative information about response are based on past FDA whether the information shall have the programs, specifically: (a) The experience with the various practical utility; (b) the accuracy of the characteristics of the patients they serve submissions, and range from 30 minutes agency’s estimate of the burden of the (gender, age, disability level, occupation to 1 hour. The hours per response are proposed collection of information; (c) type), (b) the characteristics of services based on the average of these estimates. ways to enhance the quality, utility, and provided (medical, non-medical, or Dated: February 23, 2004. clarity of the information to be counseling), and (c) number of patients Jeffrey Shuren, collected; and (d) ways to minimize the served and visits conducted burden of the collection of information Assistant Commissioner for Policy. (encounters). This assessment will on respondents, including through the provide data useful to the program and [FR Doc. 04–4309 Filed 2–23–04; 4:07 pm] use of automated collection techniques BILLING CODE 4160–01–S will enable HRSA to provide data or other forms of information required by Congress under the technology. Government Performance and Results DEPARTMENT OF HEALTH AND Proposed Project: Data Collection Tool Act of 1993. It will also ensure that the HUMAN SERVICES for the Black Lung Clinics Program: In organizations funded have Use Without Approval demonstrated a need for services in Health Resources and Services their communities and that funds are Administration The Bureau of Primary Health Care (BPHC), Health Resources and Services being effectively used to provide Agency Information Collection Administration (HRSA), conducts an services to meet those needs. Activities: Proposed Collection: annual data collection of user The estimated burden is a follows: Comment Request information for the Black Lung Clinics Program. The purpose of the Black Lung In compliance with the requirement Clinics Program is to improve the health for opportunity for public comment on
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Number of Hours per Total burden Form name respondents response hours
Database ...... 15 10 150
Send comments to Susan G. Queen, emergency response skills. Their initial independently and unsupervised as a Ph.D., HRSA Reports Clearance Officer, assignments will be up to three years in clinical social worker; and Room 14–45, Parklawn Building, 5600 duration, after which, should these (7) All clinicians must possess a Fishers Lane, Rockville, MD 20857. clinicians choose to stay in the U.S. current, unrestricted, and valid license Written comments should be received Public Health Service, they will to practice their health profession in at within 60 days of this notice. progress to new assignments. least one of the 50 States, Washington, Dated: February 19, 2004. D.C., the Commonwealth of Puerto Rico, Eligible Applicants the U.S. Virgin Islands, or Guam. Tina M. Cheatham, Clinicians—Applicants must file a Sites—Applicants must be located in Director, Division of Policy Review and U.S. Public Health Service a Health Professional Shortage Area Coordination. Commissioned Corps application and (HPSA) and submit a Proposal for Use [FR Doc. 04–4205 Filed 2–25–04; 8:45 am] meet the requirements for such of a Commissioned Officer 2004. BILLING CODE 4165–15–P commissioning. For example, all Applicants must also submit a clinicians must be U.S. citizens under Recruitment and Retention Assistance 44 years of age (age may be offset by Application, if not yet approved as an DEPARTMENT OF HEALTH AND prior active duty Uniformed Service NHSC site. Sites applying for a HUMAN SERVICES time and/or civil service work physician, family nurse practitioner, Health Resources and Services experience in a Public Health Service physician assistant or registered nurse must be located in a primary medical Administration (PHS) agency at a PHS site at a level commensurate with the duties of a care HPSA; sites applying for a dentist Recruitment of Clinicians To Become commissioned officer), and have served must be located in a dental HPSA; and Commissioned Officers; Recruitment less than 8 years of active duty if the sites applying for a psychiatrist, a of Sites for Assignment of clinician is/was a member of another clinical psychologist, or a clinical social Commissioned Officers Uniformed Service. Also, applicants worker must be located in a mental must meet medical requirements, and health HPSA. All sites to which NHSC AGENCY: Health Resources and Services pass an initial suitability investigation. clinicians are assigned must accept Administration (HRSA), HHS. In addition, prior to the start of their assignment under Medicare, have ACTION: General notice. assignment at an NHSC site, clinicians appropriate agreements with the must meet the following requirements: applicable State entity to participate in SUMMARY: The Health Resources and (1) Physicians must have completed a Medicaid and the State Children’s Services Administration (HRSA) residency in Family Practice, Internal Health Insurance Program, see all announces that applications will be Medicine, combined Internal Medicine patients regardless of their ability to accepted from clinicians seeking to be and Pediatrics, General Psychiatry or pay, and use and post a discounted fee hired as commissioned officers in the Obstetrics and Gynecology and be a plan. Sites must also understand and U.S. Public Health Service and from diplomate of their respective Allopathic accept that these officers will sites seeking the assistance of these or Osteopathic Specialty Boards; periodically be away from their assigned commissioned officers. These (2) Dentists must have passed a state locations as they train for, or respond to, commissioned officers will be primary or regional dental board exam; a regional and/or national health care clinicians who are physicians, (3) Family Nurse Practitioners must emergency. dentists, family nurse practitioners, have national certification by the Application Requests, Dates and physician assistants, clinical American Nurses Credentialing Center Addresses psychologists, and clinical social or the American Academy of Nurse workers. In support of other Presidential Practitioners; Application materials are available for and Department of Health and Human (4) Physician Assistants must have downloading via the Web at http:// Services Initiatives, a limited number of national certification by the National nhsc.bhpr.hrsa.gov or by calling the registered nurses (baccalaureate level) Commission on Certification of National Health Service Corps ‘‘Call will be considered for placement in Physician Assistants; Center’’ at 1–800–221–9393. ambulatory community-based systems (5) Clinical Psychologists must have a Clinicians—The original of the of care. These officers will be assigned doctoral degree in clinical psychology, completed application must be mailed by the National Health Service Corps have a minimum of 1 year of or delivered no later than March 31, (NHSC) to the neediest Health postgraduate supervised clinical 2004 to: Division of Commissioned Professional Shortage Areas throughout experience, have passed the Personnel, ATTN: Recruitment and the Nation. The NHSC will pay the Examination for Professional Practice in Assignment Branch, 5600 Fishers Lane, salaries, moving expenses and benefits Psychology, and be able to practice Room 4A–18, Rockville, MD 20857– for these commissioned officers. independently and unsupervised as a 0001. A copy of the completed These officers will be part of a mobile clinical psychologist; application must be mailed or delivered cadre of health care professionals who, (6) Clinical Social Workers must have no later than September 30, 2004 to: in addition to the services they will a masters degree in social work, have HRSA Commissioned Corps Operations provide to patients at their assigned passed the Association of Social Work Office, Parklawn Building, Room 13A– sites, may be called upon to respond to Board’s (ASWB) Clinical or Advanced 22, 5600 Fishers Lane, Rockville, MD regional and/or national emergencies. licensing exam prior to July 1, 1998 or 20857. Clinicians are encouraged to The NHSC will assist the officers in the ASWB Clinical exam on or after July submit an application early, as acquiring, maintaining and enhancing 1, 1998, and be able to practice applications will be considered as soon
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as they are received. Applications to have a copy of your material if all business is finished. At the Chair’s delivered or postmarked after the distributed to each member of the discretion, members of the public may deadline date or sent to a different committee should reach the Coast Guard make presentations during the meeting. address will be returned to the applicant on or before March 14, 2004. Send If you would like to make an oral and not considered. written material with 25 copies and presentation at a meeting, please notify Sites—Completed applications must requests to make oral presentations to the Executive Director no later than be postmarked or delivered to the NHSC Ensign Ken Rockhold, Commandant (G– March 8, 2004. Written material for by no later than September 30, 2004. MOC–3), U.S. Coast Guard distribution at the meeting should reach Site applications will be evaluated as Headquarters, 2100 Second Street SW., the Coast Guard no later than March 22, soon as they are received at NHSC Washington, DC 20593–0001. This 2004. If you would like a copy of your headquarters. Sites will be deemed notice is available on the Internet at material distributed to each member of qualified based on the quality of the http://dms.dot.gov. the committee in advance of the application submitted and the score of ADDRESSES: CFIVSAC will meet at the meeting, please submit 25 copies to the the HPSA in which they are located. Hotel Galvez, 2024 Seawall Boulevard Executive Director no later than March Preference will be given to NHSC- Galveston, Texas 77550. The Web site 14, 2004. Send written material with 25 approved sites in HPSAs with higher can be found at: http:// copies and requests to make oral scores (the neediest HPSAs). Officers www.galveston.com/accom/galvez.html. presentations to Ensign Ken Rockhold, will be assigned to qualified sites on an FOR FURTHER INFORMATION CONTACT: Commandant (G–MOC–3), U.S. Coast ongoing basis. Sites are encouraged to Lieutenant Ken Vazquez, Assistant to Guard Headquarters, 2100 Second Street apply early so as to have a better chance the CFIVSAC Executive Director, SW., Washington, DC 20593–0001. This of acquiring one of the commissioned telephone (202) 267–0478, fax (202) notice is available on the Internet at officers. The number of qualified sites is 267–0506. Information about the http://dms.dot.gov. expected to exceed the limited supply of CFIVSAC, up to date meeting commissioned officers. Completed site Information on Services for Individuals information, and a listing of the past With Disabilities applications should be mailed or meeting minutes are available at the For information on facilities or delivered to: National Health Service following Web site: http:// services for individuals with disabilities Corps, Parklawn Building, Room 8A–55, www.uscg.mil/hq/g-m/cfvs/cfivac.htm. 5600 Fishers Lane, Rockville, MD or to request special assistance at the 20857. Applications delivered or SUPPLEMENTARY INFORMATION: The meeting, contact the Executive Director postmarked after the deadline date or Commercial Fishing Industry Vessel at the location listed in the ADDRESSES sent to a different address will be Safety Advisory Committee (CFIVSAC) section of this notice as soon as possible returned to the applicant and not will meet to discuss various issues but no later than March 8, 2004. considered. relating to commercial vessel safety in the fishing industry. This meeting is Dated: February 19, 2004. Dated: February 19, 2004. open to the public. Notice of the Joseph J. Angelo, Elizabeth M. Duke, meetings is given under the Federal Director of Standards, Marine Safety, Security Administrator. Advisory Committee Act, 5 U.S.C. App. & Environmental Protection. [FR Doc. 04–4204 Filed 2–25–04; 8:45 am] 2. [FR Doc. 04–4281 Filed 2–25–04; 8:45 am] BILLING CODE 4910–15–P BILLING CODE 4165–15–P Agenda of Meeting The agenda includes the following: DEPARTMENT OF HOMELAND (1) Approval of last meeting’s DEPARTMENT OF INTERIOR SECURITY minutes. (2) Brief from the Coast Guard on the Office of the Secretary Coast Guard Arctic Rose casualty report. The brief will cover lessons learned and Delaware & Lehigh National Heritage [USCG–2004–17134] recommendations. Corridor Commission Meeting (3) Updated status report from the Commercial Fishing Industry Vessel AGENCY: Department of Interior; Office Coast Guard on the commercial fishing Safety Advisory Committee of the Secretary. vessel World Wide Web site and other AGENCY: Coast Guard, DHS. communication issues. ACTION: Notice of meeting. ACTION: (4) Updated report on the Notice of meeting. SUMMARY: This notice announces an implementation of the Personal Digital upcoming meeting of the Delaware & SUMMARY: The Commercial Fishing Assistant Performance Job Aid. Lehigh National Heritage Corridor Industry Vessel Safety Advisory (5) Presentations on substandard Commission. Notice of this meeting is Committee (CFIVSAC) will meet to commercial fishing vessels. required under the Federal Advisory discuss various issues relating to (6) Vessel stability presentation by the Committee Act (Pub. L. 92–463). commercial vessel safety in the fishing Society of Naval Architects and Marine industry. The meetings are open to the Engineers (SNAME). MEETING DATE AND TIME: Friday, March public. (7) Discussions and working group 12, 2004, Time 1:30 p.m. to 4 p.m. DATES: CFIVSAC will meet on March 30 sessions by the subcommittees on Risk- ADDRESSES: Former 1915 Lehighton and 31, 2004, from 8 a.m. to 5 p.m. The based Decision-making examinations, High School, 110 North Third Street, meetings may close early if all business training and drill documentation, and Lehighton PA 18235. is finished. Requests to make oral production of damage control The agenda for the meeting will focus presentations should reach the Coast pamphlets. on implementation of the Management Guard on or before March 8, 2004. Action Plan for the Delaware and Written material for distribution at the Procedural Lehigh National Heritage Corridor and meeting should reach the Coast Guard The meetings are open to the public. State Heritage Park. The Commission on or before March 22, 2004. Requests Please note the meetings may close early was established to assist the
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Commonwealth of Pennsylvania and its endangered species. This notice is DEPARTMENT OF THE INTERIOR political subdivisions in planning and provided pursuant to Section 10(c) of implementing an integrated strategy for the Endangered Species Act of 1973, as Fish and Wildlife Service protecting and promoting cultural, amended (16 U.S.C. 1531, et seq.). historic and natural resources. The Endangered Species Recovery Permit Written data, comments, or requests for Applications Commission reports to the Secretary of copies of these complete applications the Interior and to Congress. should be submitted to the Director AGENCY: Fish and Wildlife Service, SUPPLEMENTARY INFORMATION: The (address above). Interior. Delaware & Lehigh National Heritage Applicant: Steven R. Leigh, Urbana, ACTION: Notice of receipt of permit Corridor Commission was established IL, PRT–079994. applications. by Pub. L. 100–692, November 18, 1988 and extended through Pub. L. 105–355, The applicant requests a permit to SUMMARY: The following applicants have November 13, 1998. import biological samples from mandrill applied for a scientific research permit FOR FURTHER INFORMATION CONTACT: C. (Mandrillus sphinx) collected from a to conduct certain activities with Allen Sachse, Executive Director, semifree-ranging colony in Gabon, for endangered species pursuant to section Delaware & Lehigh National Heritage scientific research. This notification 10(a)(1)(A) of the Endangered Species Corridor Commission, 1 South Third covers activities to be conducted by the Act (16 U.S.C. 1531 et seq.). The U.S. Street, 8th Floor, Easton PA 18042, (610) applicant over a five-year period. Fish and Wildlife Service (‘‘we’’) solicits 923–3548. review and comment from local, State, Applicant: Mitchel Kalmanson, World and Federal agencies, and the public on Dated: February 19, 2004. Wide Exotic Talent Agency, Maitland, the following permit requests. C. Allen Sachse, FL, PRT–079894. DATES: Comments on these permit Executive Director, Delaware & Lehigh The applicant requests a permit to applications must be received on or National Heritage Corridor Commission. export two male and two female before March 29, 2004 to receive our [FR Doc. 04–4241 Filed 2–25–04; 8:45 am] captive-born tigers (Panthera tigris) to consideration. BILLING CODE 6820–PE–M Deep Down Discovery/Ocean World, ADDRESSES: Written data or comments Puerto Plata, Dominican Republic, for should be submitted to the U.S. Fish the purpose of enhancement of the DEPARTMENT OF THE INTERIOR and Wildlife Service, Chief, Endangered species through conservation education. Species, Ecological Services, 911 NE. 11th Avenue, Portland, Oregon 97232– Fish and Wildlife Service Marine Mammals 4181 (fax: 503–231–6243). Please refer Receipt of Applications for Permit The public is invited to comment on to the respective permit number for each application when submitting comments. AGENCY: the following applications for a permit Fish and Wildlife Service, All comments received, including Interior. to conduct certain activities with marine mammals. The applications were names and addresses, will become part ACTION: Notice of receipt of applications of the official administrative record and for permit. submitted to satisfy requirements of the Marine Mammal Protection Act of 1972, may be made available to the public. SUMMARY: The public is invited to as amended (16 U.S.C. 1361 et seq.), FOR FURTHER INFORMATION CONTACT: comment on the following applications and the regulations governing marine Documents and other information to conduct certain activities with mammals (50 CFR Part 18). Written submitted with these applications are available for review, subject to the endangered species and/or marine data, comments, or requests for copies requirements of the Privacy Act and mammals. of the complete applications or requests Freedom of Information Act, by any DATES: for a public hearing on these Written data, comments or party who submits a written request for requests must be received by March 29, applications should be submitted to the a copy of such documents within 30 2004. Director (address above). Anyone days of the date of publication of this ADDRESSES: Documents and other requesting a hearing should give notice to the address above (telephone: information submitted with these specific reasons why a hearing would be 503–231–2063). Please refer to the applications are available for review, appropriate. The holding of such a respective permit number for each subject to the requirements of the hearing is at the discretion of the application when requesting copies of Privacy Act and Freedom of Information Director. documents. Act, by any party who submits a written Applicant: Allen Dearmond, Baton request for a copy of such documents SUPPLEMENTARY INFORMATION: Rouge, LA, PRT–083232 and 083284. Permit No.: TE–081310. within 30 days of the date of publication Applicant: Thomas L. Richards, Los of this notice to: U.S. Fish and Wildlife The applicant requests permits to import two polar bears (Ursus Osos, California. Service, Division of Management The applicant requests a permit to maritimus) sport hunted from the Authority, 4401 North Fairfax Drive, take (locate, handle, measure, and Western Hudson Bay polar bear Room 700, Arlington, Virginia 22203; release) the Morro shoulderband snail fax 703/358–2281. population in Canada for personal use. (Helminthoglypta walkeriana) in FOR FURTHER INFORMATION CONTACT: Dated: February 13, 2004. conjunction with demographic studies Division of Management Authority, Michael S. Moore, in San Luis Obispo County, California, telephone 703/358–2104. Senior Permit Biologist, Branch of Permits, for the purpose of enhancing its SUPPLEMENTARY INFORMATION: Division of Management Authority. survival. Permit No.: TE–081298. [FR Doc. 04–4294 Filed 2–25–04; 8:45 am] Endangered Species Applicant: Daniel H. Weinberg, The public is invited to comment on BILLING CODE 4310–55–P Berkeley, California. the following applications for a permit The applicant requests a permit to to conduct certain activities with take (harass by survey) the Conservancy
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fairy shrimp (Branchinecta conservatio), Counties, California, for the purpose of Dated: February 17, 2004. the longhorn fairy shrimp (Branchinecta enhancing its survival. Paul Schmidt, longiantenna), the Riverside fairy We solicit public review and Assistant Director—Migratory Birds and State shrimp (Streptocephalus wootoni), the comment on each of these recovery Programs. San Diego fairy shrimp (Branchinecta permit applications. [FR Doc. 04–4295 Filed 2–25–04; 8:45 am] sandiegonensis), and the vernal pool BILLING CODE 4310–55–P tadpole shrimp (Lepidurus packardi) in Dated: February 12, 2004. conjunction with surveys throughout Michael Fris, the range of each species in California Acting Manager, California/Nevada DEPARTMENT OF THE INTERIOR and Oregon for the purpose of Operations Office, Region 1, U.S. Fish and enhancing their survival. Wildlife Service. National Park Service [FR Doc. 04–4259 Filed 2–25–04; 8:45 am] Permit No.: TE–081296. Meeting Announcement Applicant: Loafer Creek Management, BILLING CODE 4310–55–P Oroville, California. AGENCY: National Park Service, Interior. The applicant requests a permit to DEPARTMENT OF THE INTERIOR ACTION: Announcement of Denali take (harass by survey) the Conservancy National Park Subsistence Resource fairy shrimp (Branchinecta conservatio), Fish and Wildlife Service Commission meeting. the longhorn fairy shrimp (Branchinecta longiantenna), and the vernal pool North American Wetlands SUMMARY: Notice is hereby given in tadpole shrimp (Lepidurus packardi) in Conservation Council Meeting accordance with the Federal Advisory conjunction with surveys throughout Announcement Committee Act that a meeting of the the range of each species in California Denali National Park Subsistence for the purpose of enhancing their AGENCY: Fish and Wildlife Service, Resource Commission will be held at survival. Interior. Healy, Alaska. The purpose of the Permit No.: TE–081306. meeting will be to review Federal ACTION: Notice of meeting. Applicant: Howard O. Clark, Fresno, Subsistence Board wildlife proposals California. and continue work on National Park The applicant requests a permit to SUMMARY: The North American Service subsistence hunting program take (spotlight, capture, radio collar, Wetlands Conservation Council recommendations including other mark, collect biological samples, and (Council) will meet to select North related subsistence management issues. release) the San Joaquin kit fox (Vulpes American Wetlands Conservation Act The meeting will be open to the public. macrotis mutica) in conjunction with (NAWCA) grant proposals for Any person may file with the scientific research throughout the range recommendation to the Migratory Bird Commission a written statement of the species for the purpose of Conservation Commission concerning the matters to be discussed. enhancing its survival. (Commission). The meeting is open to The Subsistence Resource the public. Permit No.: TE–081529. Commission is authorized under Title Applicant: Sandia National DATES: March 9, 2004, 1–4 pm. VIII, Section 808, of the Alaska National Laboratories, Livermore, California. Interest Lands Conservation Act, Pub. L. ADDRESSES: The meeting will be held at 96–487, and operates in accordance The applicant requests a permit to the Ni Source, 801 East 86th Avenue, take (harass by survey, capture, handle, with the provisions of the Federal Merrillville, Indiana. The Council Advisory Committee Act. and release) the California tiger Coordinator is located at the U.S. Fish DATES: The meeting will be held on salamander Sonoma County distinct and Wildlife Service, 4401 N. Fairfax Friday, March 5, 2004, from 9 a.m. to 5 population segment (Ambystoma Drive, Mail Stop: MBSP 4501–4075, p.m. at the Nord Haven Motel, Healy, californiense) in conjunction with Arlington, Virginia 22203. surveys in Sonoma County, California Alaska. GSA regulations (41 CFR 102– for the purpose of enhancing its FOR FURTHER INFORMATION CONTACT: 3.150) governing advisory committee survival. David A. Smith, Council Coordinator, meetings allow us, in exceptional Permit No.: TE–039161. (703) 358–1784 or [email protected]. circumstances, to give less than 15 days advance notice prior to an advisory Applicant: Lara Tikkanen Reising, La SUPPLEMENTARY INFORMATION: In committee meeting. It is necessary for us Mesa, California. accordance with NAWCA (Pub. L. 101– to publish this notice less than 15 days The permittee requests an amendment 233, 103 Stat. 1968, December 13, 1989, prior to the meeting so that the work of to take (monitor nests) the least Bell’s as amended), the State-private-Federal the committee can be made available for vireo (Vireo bellii pusillus), and take Council meets to consider wetland consideration at the March 9, 2004, (harass by survey and monitor nests) the acquisition, restoration, enhancement, meeting of the Southcentral Regional southwestern willow flycatcher and management projects for Advisory Council meeting. (Empidonax traillii extimus) in recommendation to, and final funding conjunction with demographic studies approval by, the Commission. Proposal FOR FURTHER INFORMATION CONTACT: in San Diego County, California, for the due dates, application instructions, and Hollis Twitchell, Subsistence and purpose of enhancing their survival. eligibility requirements are available Cultural Resources Manager at (907) Permit No.: TE–054011. through the NAWCA Web site at 683–9544 or (907) 455–0673. Applicant: John Green, Riverside, http://birdhabitat.fws.gov. Proposals SUPPLEMENTARY INFORMATION: Notice of California. require a minimum of 50 percent non- this meeting will be published in local The applicant requests a permit to Federal matching funds. Canadian and newspapers and announced on local take (monitor nests) the least Bell’s vireo U.S. Small grant proposals will be radio stations prior to the meeting dates. (Vireo bellii pusillus) in conjunction considered at the Council meeting. The Locations and dates may need to be with demographic studies in San Diego, tentative date for the Commission changed based on weather or local San Bernardino, Orange, and Riverside meeting is June 16, 2004. circumstances.
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The following agenda items will be penalties under section 113(b) of the DEPARTMENT OF JUSTICE discussed: Clean Air Act (‘‘CAA’’) against Simplot 1. Call to order. for violations of permitting and new Notice of Lodging of Consent Decree 2. Roll call and confirmation of source review requirements of the CAA Under the Comprehensive quorum. and the federally enforceable State Environmental Response, 3. Superintendent’s welcome and Implementation Plan for Nevada at Compensation and Liability Act introductions. Simplot’s silica sand processing facility (CERCLA) 4. Approval of minutes from last in Overton, Nevada. The consent decree In accordance with Departmental Commission meeting. requires Simplot to: (1) Install air Policy, 28 U.S.C. 50.7, notice is hereby 5. Additions and corrections to draft pollution control equipment and modify given that on February 11, 2004, a agenda. processes at its facility, (2) modify its proposed Consent Decree in United 6. Public and other agency comments. permits, and (3) pay a civil penalty of States v. Sporting Goods Properties, 7. Old Business. $525,000. Inc., Civil Action No. 3:04 CV 242 a. Cantwell Resident Zone Hunting (PCD), was lodged with the United Plan. The Department of Justice will receive for a period of thirty (30) days from the States District Court for the District of b. Denali Backcountry Management Connecticut. date of this publication comments Plan. In this action, the United States c. North Access and Facilities Studies. relating to the consent decree. sought recovery for natural resource d. Predator-Prey research studies. Comments should be addressed to the damages relating to the release of 8. New Business. Assistant Attorney General, hazardous substances, including lead, a. Federal Subsistence Wildlife Environment and Natural Resources and lead shot, at the site known as the proposals for 2004–2005. Division, P.O. Box 7611, U.S. Remington Gun Club—Lordship Point b. ATV use in Denali. Department of Justice, Washington, DC Gun Club Site, located in Stratford, c. Alaska Board of Game Wildlife 20044–7611 with a copy to Robert Connecticut (‘‘the Site’’). The United Proposals 2004–2005. Mullaney, U.S. Department of Justice, States filed its complaint pursuant to 9. NPS reports and updates. 301 Howard Street, Suite 1050, San section 107(a) of the Comprehensive a. Moose surveys: Kantishna Hills, Francisco, CA 94105, and should refer Environmental Response, Compensation Cantwell areas. to United States v. J. R. Simplot and Liability Act (‘‘CERCLA’’), 42 U.S.C. b. Salmon Surveys. Company, D.J. Ref. #90–5–2–1–06987. 9607(a), seeking recovery of all damages c. Community Harvest Assessments. The consent decree may be examined resulting from injuries to natural d. Visitor Center Interpretative resources related to the Site, and the Displays. at the Office of the United States Attorney, 333 Las Vegas Blvd. South, reasonable costs incurred in assessing e. Nikolai-Telida Village History such injuries. The complaint names Suite 5000, Las Vegas, Nevada, and at Report. defendant sporting Goods Properties, U.S. EPA Region 9, Office of Regional f. October 2003 SRC Chairs Workshop Inc. as the current owner of the Site and Counsel, 75 Hawthorne Street, San Report. as the owner at the time of the release 10. Public and other agency Francisco, California. During the public of hazardous substances. Sporting comments. comment period, the consent decree Goods Properties, Inc. was known as the 11. Set time and place of next Denali may also be examined on the following Remington Arms Company, Inc. before SRC meeting. Department of Justice Web site: http:// November 30, 1993. The proposed 12. Adjournment. www.usdoj.gov/enrd/open.html. A copy Consent Decree resolves the United Draft minutes of the meeting will be of the consent decree may also be States’ natural resource damage claims available for public inspection obtained by mail from the Consent against Sporting Goods Properties, Inc. approximately six weeks after the Decree Library, P.O. Box 7611, U.S. Under the proposed Decree, the settling meeting from: Superintendent, Denali Department of Justice, Washington, DC defendant agrees to pay approximately National Park and Preserve, P.O. Box 9, 20044–7611 or by faxing or e-mailing a $250,000 in compensation for natural Denali Park, AK 99755. request to Tonia Fleetwood resource damages, and reimbursement Dated: February 20, 2004. ([email protected]), fax no. for assessment costs. In addition, the Kathryn C. Collins, (202) 514–0097, phone confirmation settling defendant is required to install Acting Regional Director, Alaska. under (202) 514–1547. In requesting a an indigenous grassland community at [FR Doc. 04–4284 Filed 2–25–04; 8:45 am] copy from the Consent Decree Library, the Site. The Department of Justice will receive BILLING CODE 4312–64–P please enclose a check in the amount of $24.25 (25 cents per page reproduction for a period of thirty (30) days from the cost) payable to the U.S. Treasury. date of this publication comments relating to the proposed Consent Decree. DEPARTMENT OF JUSTICE Ellen M. Mahan, Comments should be addressed to the Notice of Lodging of Consent Decree Assistant Chief, Environmental Enforcement Assistant Attorney General, Under the Clean Air Act Section, Environment and Natural Resources Environment and Natural Resources Division. Division, P.O. Box 7611, U.S. Under 28 CFR 50.7, notice is hereby [FR Doc. 04–4213 Filed 2–25–04; 8:45 am] Department of Justice, Washington, DC given that on February 12, 2004, a BILLING CODE 4410–15–M 20044–7611, and should refer to United proposed consent decree in United States v. Sporting Goods Properties, States v. J.R. Simplot Company, Case Inc., D.J. Ref. 90–11–2–06638. No. CV–S–04–0162–KJD–PAL, was The proposed Consent Decree may be lodged with the United States District examined at the Office of the United Court for the District of Nevada. States Attorney, Connecticut Financial In this action, the United States Center, New Haven, CT. During the sought injunctive relief and civil public comment period, the Consent
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Decree may also be examined on the (7) days in advance of the meeting. Attn: OMB Desk Officer for the following Department of Justice Web Registrations will be accepted on a Employment and Training site, http://www.usdoj.gov/enrd/ space available basis. Access to the Administration (ETA), Office of open.html. A copy of the proposed meeting will not be allowed without Management and Budget, Room 10235, Consent Decree may also be obtained by registration. All attendees will be Washington, DC 20503 202–395–7316 mail from the Consent Decree Library, required to sign in at the meeting (this is not a toll-free number), within P.O. Box 7611, U.S. Department of registration desk. Please bring photo 30 days from the date of this publication Justice, Washington, D.C. 20044–7611 or identification and allow extra time prior in the Federal Register. by faxing or e-mailing a request to Tonia to the meeting. The OMB is particularly interested in Fleetwood ([email protected]), Anyone requiring special comments which: fax no. (202) 514–0097, phone accommodations should notify Mr. • Evaluate whether the proposed confirmation no. (202) 514–1547. In McCreary at least seven (7) days in collection of information is necessary requesting a copy from the Consent advance of the meeting. for the proper performance of the Decree Library, without the Purpose functions of the agency, including attachments, please enclose a check in whether the information will have the amount of $7.25 (25 cents per page The GAC will act as the focal point for practical utility; reproduction cost) payable to the U.S. justice information systems integration • Evaluate the accuracy of the Treasury. activities in order to facilitate the agency’s estimate of the burden of the coordination of technical, funding, and proposed collection of information, Ronald Gluck, legislative strategies in support of the including the validity of the Assistant Chief, Environmental Enforcement Administration’s justice priorities. methodology and assumptions used; Section, Environment and Natural Resources The GAC will guide and monitor the • Division. Enhance the quality, utility, and development of the Global information- clarity of the information to be [FR Doc. 04–4214 Filed 2–25–04; 8:45 am] sharing concept. It will advise the collection; and BILLING CODE 4410–15–M Assistant Attorney General, OJP; the • Minimize the burden of the Attorney General; the President collection of information on those who (through the Attorney General); and DEPARTMENT OF JUSTICE are to respond, including through the local, State, tribal, and Federal use of appropriate automated, policymakers in the executive, Office of Justice Programs electronic, mechanical, or other legislative, and judicial branches. The technological collection techniques or [OJP (OJP) Docket No. 1397] GAC will also advocate for strategies for other forms of information technology, accomplishing a Global information- Meeting of the Global Justice e.g., permitting electronic submission of sharing capability. responses. Information-Sharing Initiative Federal Interested persons whose registrations Advisory Committee Agency: Employment Standards have been accepted may be permitted to Administration. AGENCY: Office of Justice Programs participate in the discussions at the Type of Review: New Collection. (OJP), Justice. discretion of the meeting chairman and Title: Claim for Reimbursement of with approval of the DFE. ACTION: Notice of meeting. Benefit Payments and Claims Expense J. Patrick McCreary, Under the War Hazards Compensation SUMMARY: This is an announcement of a Global DFE Bureau of Justice Assistance, Act. meeting of the Global Justice Office of Justice Programs. OMB Number: 1215–ONEW. Information-Sharing Initiative (Global) [FR Doc. 04–4250 Filed 2–25–04; 8:45 am] Affected Public: Business or other for- Federal Advisory Committee (GAC) to profit. BILLING CODE 4410–18–P discuss the Global Initiative, as Type of Response: Reporting. described at www.it.ojp.gov/global. Frequency: On occasion. DATES: Number of Respondents: 20. The meeting will take place on DEPARTMENT OF LABOR Wednesday, April 21, 2004, from 1 p.m. Annual Responses: 80. to 5 p.m. e.t., and Thursday, April 22, Office of the Secretary Total Burden: 40. 2004, from 8:30 a.m. to 12 Noon e.t. Total Annualized Capital/Startup ADDRESSES: The meeting will take place Submission for OMB Review; Costs: $0. at the Hyatt Regency Reston, Reston Comment Request Total Annual Costs (operating/ Town Center, 1800 Presidents Street, maintaining systems or purchasing February 20, 2004. Reston, VA 20190; Phone: (703) 709– services): $0. The Department of Labor (DOL) has 1234. Description: The information submitted the following public collected is used by the Office of FOR FURTHER INFORMATION CONTACT: J. information collection request (ICR) to Workers’ compensation Programs Patrick McCreary, Global Designated the Office of Management and Budget (OWCP) staff to process requests for Federal Employee (DFE), Bureau of (OMB) for review and approval in reimbursement of WHCA benefit Justice Assistance, Office of Justice accordance with the Paperwork payments and claims expenses Programs, 810 7th Street, Washington, Reduction Act of 1995 (Pub. L. 104–13, submitted by insurance carriers and DC 20531; Phone: (202) 616–0532. 44 U.S.C. Chapter 35). A copy of each self-insureds. The information is also [Note: This is not a toll-free number]; E- ICR, with applicable supporting used by OWCP to decide whether it mail: [email protected]. documentation, may be obtained by should opt to pay ongoing WHCA SUPPLEMENTARY INFORMATION: This contacting the Department of Labor. To benefits directly to the injured worker. meeting is open to the public. Due to obtain documentation, contact Ira Mills security measures, however, members of on 202–693–4122 (this is not a toll-free Ira L. Mills, the public who wish to attend this number) or e-Mail: [email protected]. Departmental Clearance Officer. meeting must register with Mr. J. Patrick Comments should be sent to Office of [FR Doc. 04–4206 Filed 2–25–04; 8:45 am] McCreary at the above address at least Information and Regulatory Affairs, BILLING CODE 4510–CF–M
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DEPARTMENT OF LABOR shareholder-employees. In the absence Comments submitted in response to of this exemption, certain aspects of this notice will be summarized and/or Employee Benefits Security these transactions might be prohibited included in the request for OMB Administration by section 406 of ERISA. approval of the ICR; they will also Recordkeeping requirements become a matter of public record. Proposed Extension of Information incorporated within the class exemption Dated: February 20, 2004. Collection Request Submitted for are intended to protect the interests of Gerald B. Lindrew, Public Comment; Prohibited plan participants and beneficiaries. The Transaction Class Exemption 92–6— disclosure requirements protect plan Deputy Director, Office of Policy and Sale of Individual Life Insurance or Research, Employee Benefits Security participants by putting them on notice Administration. Annuity Contracts by a Plan of the plan’s intention to sell insurance [FR Doc. 04–4244 Filed 2–25–04; 8:45 am] or annuity contracts under which they AGENCY: Employee Benefits Security BILLING CODE 4510–29–P Administration, Department of Labor. are insured, and by giving the participants the right of first refusal to ACTION: Notice. purchase such contracts. DEPARTMENT OF LABOR SUMMARY: The Department of Labor, as II. Review Focus part of its continuing effort to reduce Employee Benefits Security paperwork and respondent burden, The Department of Labor Administration conducts a preclearance consultation (Department) is particularly interested in comments that: Proposed Extension of Information program to provide the general public • and Federal agencies with an Evaluate whether the proposed Collection Request Submitted for opportunity to comment on proposed collection of information is necessary Public Comment; Proposed Extension and continuing collections of for the proper performance of the of Information Collection; Comment functions of the agency, including information in accordance with the Request; Prohibited Transaction Class whether the information will have Paperwork Reduction Act of 1995 (PRA Exemption 85–68—To Permit practical utility; 95). This program helps to ensure that • Employee Benefit Plans To Invest in Evaluate the accuracy of the Customer Notes of Employers requested data can be provided in the agency’s estimate of the burden of the desired format, reporting burden (time proposed collection of information, AGENCY: Employee Benefits Security and financial resources) is minimized, including the validity of the Administration, Department of Labor. collection instruments are clearly methodology and assumptions used; ACTION: Notice. understood, and the impact of collection • Enhance the quality, utility, and requirements on respondents can be clarity of the information to be SUMMARY: The Department of Labor, as properly assessed. Currently, the collected; and part of its continuing effort to reduce Employee Benefits Security • Minimize the burden of the paperwork and respondent burden, Administration is soliciting comments collection of information on those who conducts a preclearance consultation on the proposed extension of Prohibited are to respond, including through the program to provide the general public Transaction Class Exemption 92–6, use of appropriate automated, and Federal agencies with an pertaining to the sale of individual life electronic, mechanical, or other opportunity to comment on proposed insurance or annuity contracts by a technological collection techniques or and continuing collections of plan. other forms of information technology, information in accordance with the A copy of the information collection e.g., permitting electronic submissions Paperwork Reduction Act of 1995 (PRA request (ICR) can be obtained by of responses. 95). This program helps to ensure that contacting the individual shown in the requested data can be provided in the Addresses section of this notice. III. Current Actions desired format, reporting burden (time DATES: Written comments must be The Office of Management and and financial resources) is minimized, submitted to the office shown in the Budget’s (OMB) approval of this ICR collection instruments are clearly Addresses section on or before April 26, will expire on June 30, 2004. After understood, and the impact of collection 2004. considering comments received in requirements on respondents can be ADDRESSES: Gerald B. Lindrew, response to this notice, the Department properly assessed. Currently, the Department of Labor, Employee Benefits intends to submit the ICR to OMB for Employee Benefits Security Security Administration, 200 continuing approval. No change to the Administration is soliciting comments Constitution Avenue NW., Washington, existing ICR is proposed or made at this on the proposed extension of Prohibited DC 20210, (202) 693–8410, FAX (202) time. Transaction Class Exemption 85–68, 693–4745 (these are not toll-free Agency: Employee Benefits Security which permits employee benefit plans numbers). Administration, Department of Labor. to invest in customer notes of Title: Prohibited Transaction Class SUPPLEMENTARY INFORMATION: employers. Exemption 92–6. A copy of the information collection I. Background Type of Review: Extension of a request (ICR) can be obtained by currently approved collection of Prohibited Transaction Class contacting the individual shown in the information. ADDRESSES section of this notice. Exemption 92–6 exempts from the OMB Number: 1210–0063. DATES: prohibited transaction restrictions of the Affected Public: Individuals or Written comments must be Employee Retirement Security Act of households; Business or other for-profit; submitted to the office shown in the 1974 (ERISA) the sale of individual life Not-for-profit institutions. ADDRESSES section on or before April insurance or annuity contracts by a plan Respondents: 8,360. 26, 2004. to participants, relatives of participants, Responses: 8,360. ADDRESSES: Gerald B. Lindrew, employers any of whose employees are Estimated Total Burden Hours: 1,671. Department of Labor, Employee Benefits covered by the plan, other employee Estimated Total Burden Cost Security Administration, 200 benefit plans, owner-employees or (Operating and Maintenance): $3,093. Constitution Avenue NW., Washington,
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DC 20210, (202) 693–8410, FAX (202) III. Current Actions 95). This program helps to ensure that 693–4745 (these are not toll-free The Office of Management and requested data can be provided in the numbers). Budget’s (OMB) approval of this ICR desired format, reporting burden (time and financial resources) is minimized, SUPPLEMENTARY INFORMATION: will expire on July 31, 2004. After considering comments received in collection instruments are clearly I. Background response to this notice, the Department understood, and the impact of collection intends to submit the ICR to OMB for requirements on respondents can be Pursuant to section 408 of ERISA, the continuing approval. No change to the properly assessed. Currently, the Department has authority to grant an existing ICR is proposed or made at this Employee Benefits Security exemption from the prohibitions of time. Administration is soliciting comments sections 406 and 407(a) if it can Agency: Employee Benefits Security on the proposed extension of Prohibited determine that the exemption is Administration, Department of Labor. Transaction Class Exemption 91–55, administratively feasible, in the interest Title: Prohibited Transaction Class pertaining to transactions between of participants and beneficiaries, and Exemption 85–68. individual retirement accounts and protective of the rights of participants Type of Review: Extension of a authorized purchasers of American and beneficiaries of the plan. Prohibited currently approved collection of Eagle coins. Transaction Class Exemption 85–68 information. A copy of the information collection describes the conditions under which a OMB Number: 1210–0094. request (ICR) can be obtained by plan is permitted to acquire customer Affected Public: Individuals or contacting the individual shown in the notes accepted by an employer of households; Business or other for-profit; Addresses section of this notice. employees covered by the plan in the Not-for-profit institutions. DATES: Written comments must be ordinary course of the employer’s Respondents: 525. submitted to the office shown in the primary business activity. The Frequency: On Occasion. Addresses section on or before April 26, exemption covers sales as well as Responses: 1900. 2004. contributions of customer notes by an Average Response Time: [if ADDRESSES: Gerald B. Lindrew, employer to its plan. Specifically, the applicable]: 1 hour. Department of Labor, Employee Benefits exemption requires that the employer Estimated Total Burden Hours: 1900 Security Administration, 200 provide a written guarantee to hours. Constitution Avenue NW., Washington, repurchase a note which becomes more Comments submitted in response to DC 20210, (202) 693–8410, FAX (202) than 60 days delinquent, that such notes this notice will be summarized and/or 693–4745 (these are not toll-free be secured by a perfected security included in the request for OMB numbers). interest in the property financed by the approval of the ICR; they will also note, and that the collateral be insured. become a matter of public record. SUPPLEMENTARY INFORMATION: This ICR requires that records Dated: February 20, 2004. I. Background pertaining to the transaction be Gerald B. Lindrew, Prohibited Transaction Exemption maintained for a period of six years for Deputy Director, Office of Policy and 91–55 permits purchases and sales by the purpose of ensuring that the Research, Employee Benefits Security certain ‘‘individual retirement transactions are protective of the rights Administration. accounts,’’ as defined in Internal of participants and beneficiaries. [FR Doc. 04–4245 Filed 2–25–04; 8:45 am] Revenue Code section 408 (IRAs) of II. Review Focus BILLING CODE 4510–29–P American Eagle bullion coins (‘‘Coins’’) in principal transactions from or to The Department of Labor broker-dealers in Coins that are (Department) is particularly interested DEPARTMENT OF LABOR ‘‘authorized purchasers’’ of Coins in in comments that: bulk quantities from the United States • Evaluate whether the proposed Employee Benefits Security Mint and which are also ‘‘disqualified collection of information is necessary Administration persons,’’ within the meaning of Code section 4975(e)(2), with respect to IRAs. for the proper performance of the Proposed Extension of Information The exemption also describes the functions of the agency, including Collection Request Submitted for circumstances under which an interest- whether the information will have Public Comment; Prohibited free extension of credit in connection practical utility; Transaction Class Exemption 91–55— with such sales and purchases is • Evaluate the accuracy of the Transactions Between Individual permitted. In the absence of an agency’s estimate of the burden of the Retirement Accounts and Authorized exemption, such purchases and sales proposed collection of information, Purchasers of American Eagle Coins including the validity of the and extensions of credit would be methodology and assumptions used; AGENCY: Employee Benefits Security impermissible under the Employee Administration, Department of Labor. Retirement Income Security Act of 1974 • Enhance the quality, utility, and ACTION: Notice. (ERISA). clarity of the information to be The information collection request for collected; and SUMMARY: The Department of Labor, as this exemption includes three • Minimize the burden of the part of its continuing effort to reduce requirements. First, certain information collection of information on those who paperwork and respondent burden, related to covered transactions in Coins are to respond, including through the conducts a preclearance consultation must be disclosed by the authorized use of appropriate automated, program to provide the general public purchaser to persons who direct the electronic, mechanical, or other and Federal agencies with an transaction for the IRA. Currently, it is technological collection techniques or opportunity to comment on proposed standard industry practice that most of other forms of information technology, and continuing collections of this information is provided to persons e.g., permitting electronic submissions information in accordance with the directing investments in an IRA when of responses. Paperwork Reduction Act of 1995 (PRA transactions in Coins occur. The
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exemption also requires that the Type of Review: Extension of a must submit their full name, company disqualified person maintain for a currently approved collection of affiliation (if any), citizenship, place of period of at least six years such records information. birth, and date of birth to NASA as are necessary to allow accredited OMB Number: 1210–0079. Marshall Space Flight Center’s persons, as defined in the exemption, to Affected Public: Individuals or Protective Services Department by determine whether the conditions of the households; Business or other for-profit; March 4, 2004. If above information has transaction have been met. Finally, an Not-for-profit institutions. not been provided in advance, attendees authorized purchaser must provide a Respondents: 2. should expect a minimum delay of two confirmation statement with respect to Responses: 12,800. hours. Persons attending must state each covered transaction to the person Frequency: On occasion. upon entrance to Redstone Arsenal (via who directs the transaction for the IRA. Estimated Total Burden Hours: 554 Gate 9, Rideout Road/Research Park The recordkeeping requirement hours. Blvd) that they are attending the NASA facilitates the Department’s ability to Comments submitted in response to Advisory Council meeting. At which make findings under section 408 of this notice will be summarized and/or time, the driver will be asked to provide ERISA and section 4975(c) of the Code. included in the request for OMB a valid driver’s license, vehicle The confirmation and disclosure approval of the ICR; they will also registration and proof of insurance; and requirements protect a participant or become a matter of public record. each vehicle occupants will be required beneficiary who invests in IRAs and Dated: February 20, 2004. to provide a valid picture identification. transacts in Coins with authorized Gerald B. Lindrew, Directions and passes will be provided upon entrance. Submit information via purchasers by providing the investor or Deputy Director, Office of Policy and the person directing his or her Research, Employee Benefits Security fax to 256–544–2101 or please contact investments with timely information Administration. the Protective Services Department at about the market in Coins and about the [FR Doc. 04–4246 Filed 2–25–04; 8:45 am] 256–544–4310 for further information. It is imperative that the meeting be individual’s account in particular. BILLING CODE 4510–29–P held on these dates to accommodate the II. Review Focus scheduling priorities of the key The Department of Labor participants. Visitors will be requested NATIONAL AERONAUTICS AND to sign a visitor’s register. (Department) is particularly interested SPACE ADMINISTRATION in comments that: Michael F. O’Brien, • [Notice 04–031] Evaluate whether the proposed Assistant Administrator for External collection of information is necessary NASA Advisory Council; Meeting Relations, National Aeronautics and Space for the proper performance of the Administration. functions of the agency, including AGENCY: National Aeronautics and [FR Doc. 04–4303 Filed 2–25–04; 8:45 am] whether the information will have Space Administration. BILLING CODE 7510–01–P practical utility; ACTION: Notice of meeting. • Evaluate the accuracy of the agency’s estimate of the burden of the SUMMARY: In accordance with the NATIONAL AERONAUTICS AND proposed collection of information, Federal Advisory Committee Act, Public SPACE ADMINISTRATION including the validity of the Law 92–463, as amended, the National methodology and assumptions used; Aeronautics and Space Administration [Notice (04–030)] • Enhance the quality, utility, and announces a meeting of the NASA Advisory Council (NAC). President’s Commission on clarity of the information to be Implementation of United States Space DATES: collected; and Tuesday, March 9, 2004, 8 a.m. Exploration Policy; Meeting • Minimize the burden of the to 3:30 p.m; and Wednesday, March 10, collection of information on those who 2004, 8 a.m. to 3 p.m. AGENCY: National Aeronautics and are to respond, including through the ADDRESSES: George C. Marshall Space Space Administration (NASA). use of appropriate automated, Flight Center, National Aeronautics and ACTION: Notice of meeting. electronic, mechanical, or other Space Administration, Building 4200, technological collection techniques or Conference Room P110, Marshall Space SUMMARY: In accordance with the other forms of information technology, Flight Center, AL 35812–0001. Federal Advisory Committee Act, Public e.g., permitting electronic submissions FOR FURTHER INFORMATION CONTACT: Ms. Law 92–463, as amended, the National of responses. Kathy Dakon, National Aeronautics and Aeronautics and Space Administration announces a meeting of the President’s III. Current Actions Space Administration, Washington, DC 20546, 202–358–0732. Commission on Implementation of United States Space Exploration Policy. The Office of Management and SUPPLEMENTARY INFORMATION: The Budget’s (OMB) approval of this ICR meeting will be open to the public up DATES: Wednesday, March 3, 2004, 1 will expire on June 30, 2004. After to the seating capacity of the room. The p.m. to 5 p.m. and March 4, 2004, 9 a.m. considering comments received in agenda for the meeting is as follows: to 6 p.m. response to this notice, the Department • The Vision for Space Exploration ADDRESSES: United States Air Force intends to submit the ICR to OMB for and FY 05 Budget Request; Museum, 1100 Spaatz Street, Wright continuing approval. No change to the • NASA Office of Exploration Patterson AFB, Ohio 45433–7102. (937) existing ICR is proposed or made at this Systems; 255–3286. time. • Update on Return to Flight; FOR FURTHER INFORMATION CONTACT: Mr. Agency: Employee Benefits Security • Information Technology Working Steven Schmidt, Office of the Administration, Department of Labor. Group Activities. Administrator, National Aeronautics Title: Prohibited Transaction Class To expedite attendance to the NASA and Space Administration, Washington, Exemption 91–55. Advisory Council Meeting, attendees DC, (202) 358–1808.
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SUPPLEMENTARY INFORMATION: The For further details with respect to this inflation assumptions used to prepare meeting will be open to the public up action, see the application for the budget of the United States to the seating capacity of the room. The amendment dated June 24, 2003, and Government were changed. These agenda for the meeting is as follows: the licensee’s letter dated February 9, discount rates are found in Appendix C • Competitiveness and prosperity; 2004, which withdrew the application of the revised Circular. The updated • Science and technology; for license amendment. Documents may discount rates are shown below. The • Management and sustainability; • be examined, and/or copied for a fee, at discount rates in Appendix C are to be Education and youth. the NRC’s Public Document Room used for cost-effectiveness analysis, It is not possible to accommodate the (PDR), located at One White Flint North, including lease-purchase analysis, as full notice period because of the short Public File Area O1 F21, 11555 specified in the revised Circular. They time frame in which the Commission is Rockville Pike (first floor), Rockville, do not apply to regulatory analysis. expected to finish its work and write its Maryland. Publicly available records report. Visitors will be requested to sign DATES: The revised discount rates are will be accessible electronically from a visitor’s register. effective immediately and will be in the Agencywide Documents Access and effect through January 2005. Michael F. O’Brien, Management Systems (ADAMS) Public Assistant Administrator for External Electronic Reading Room on the internet FOR FURTHER INFORMATION CONTACT: Relations, National Aeronautics and Space at the NRC Web site, http:// Robert B. Anderson, Office of Economic Administration. www.nrc.gov/reading-rm/adams/html. Policy, Office of Management and [FR Doc. 04–4302 Filed 2–25–04; 8:45 am] Persons who do not have access to Budget, (202) 395–3381. BILLING CODE 7510–01–P ADAMS or who encounter problems in accessing the documents located in James D. Foster, ADAMS, should contact the NRC PDR Associate Director for Economic Policy, Office NUCLEAR REGULATORY Reference staff by telephone at 1–800– of Management and Budget. COMMISSION 397–4209, or 301–415–4737 or by email Appendix C (Revised February 2004) to [email protected]. [Docket No. 50–334] Discount Rates for Cost-Effectiveness, Lease Dated in Rockville, Maryland, this 20th Purchase, and Related Analyses FirstEnergy Nuclear Operating day of February, 2004. Effective Dates. This appendix is updated For the Nuclear Regulatory Commission. Company; Notice of Withdrawal of annually around the time of the President’s Application for Amendment to Facility Timothy G. Colburn, budget submission to Congress. This version Operating License Senior Project Manager, Section 1, Project of the appendix is valid through the end of The U.S. Nuclear Regulatory Directorate I, Division of Licensing Project January 2005. A copy of the updated Management, Office of Nuclear Reactor appendix can be obtained in electronic form Commission (the Commission) has Regulation. granted the request of FirstEnergy through the OMB home page at http:// [FR Doc. E4–408 Filed 2–25–04; 8:45 am] Nuclear Operating Company (the www.whitehouse.gov/omb/circulars/a094/ a94_appx-c.html, the text of the main body licensee) to withdraw its June 24, 2003, BILLING CODE 7590–01–P of the Circular is found at http:// application for proposed amendment to www.whitehouse.gov/omb/circulars/a094/ Facility Operating License No. DPR–66 a094.html, and a table of past years’ rates is for the Beaver Valley Power Station, OFFICE OF MANAGEMENT AND BUDGET located at http://www.whitehouse.gov/omb/ Unit No. 1, located in Beaver County, circulars/a094/DISCHIST–2004.pdf. Updates Pennsylvania. of the appendix are also available upon The proposed amendment would Discount Rates for Cost-Effectiveness Analysis of Federal Programs request from OMB’s Office of Economic have revised the Technical Policy (202–395–3381). Specifications to clarify the steam AGENCY: Office of Management and Nominal Discount Rates. A forecast of generator tube inspection definition and Budget. nominal or market interest rates for 2004 the steam generator tube repair criteria. ACTION: Revisions to Appendix C of based on the economic assumptions from the The Commission had previously OMB Circular A–94. 2005 Budget are presented below. These issued a Notice of Consideration of nominal rates are to be used for discounting Issuance of Amendment published in SUMMARY: The Office of Management nominal flows, which are often encountered the Federal Register on August 5, 2003 and Budget revised Circular A–94 in in lease-purchase analysis. (68 FR 46243). However, by letter dated 1992. The revised Circular specified Nominal Interest Rates on Treasury Notes February 9, 2004, the licensee withdrew certain discount rates to be updated and Bonds of Specified Maturities (in the proposed change. annually when the interest rate and percent)
3-year 5-year 7-year 10-year 30-year
3.0 ...... 3.7 4.2 4.6 5.5
Real Discount Rates. A forecast of real are presented below. These real rates are to Real Interest Rates on Treasury Notes and interest rates from which the inflation be used for discounting real (constant-dollar) Bonds of Specified Maturities (in percent) premium has been removed and based on the flows, as is often required in cost- economic assumptions from the 2005 Budget effectiveness analysis.
3-year 5-year 7-year 10-year 30-year
1.6 ...... 2.1 2.4 2.8 3.5
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Analyses of programs with terms different independent, stable source of funding, SECURITIES AND EXCHANGE from those presented above may use a linear subject to review by the Commission. COMMISSION interpolation. For example, a four-year Under section 109(f), the annual [Securities Act of 1933; Release No. 8390/ project can be evaluated with a rate equal to accounting support fee shall not exceed the average of the three-year and five-year February 20, 2004] rates. Programs with durations longer than 30 the amount of the standard setter’s [Securities Exchange Act of 1934; Release years may use the 30-year interest rate. ‘‘recoverable budget expenses.’’ Section No. 49291/February 20, 2004] [FR Doc. 04–4228 Filed 2–25–04; 8:45 am] 109(h) amends section 13(b)(2) of the Securities Exchange Act of 1934 to Order Approving Public Company BILLING CODE 3110–01–P require issuers to pay the allocable share Accounting Oversight Board Budget of a reasonable annual accounting and Annual Accounting Support Fee support fee or fees, determined in for Calendar Year 2004 SECURITIES AND EXCHANGE accordance with section 109 of the Act. COMMISSION The Sarbanes-Oxley Act of 2002 (the On April 25, 2003, the Commission ‘‘Act’’) established the Public Company Sunshine Act Meeting issued a policy statement concluding Accounting Oversight Board (‘‘PCAOB’’) that the Financial Accounting Standards to oversee the audits of public Federal Register Citation of Previous Board (‘‘FASB’’) and its parent companies and related matters, to Announcement: 69 FR 7988, February organization, the Financial Accounting protect investors, and to further the 20, 2004 Foundation (‘‘FAF’’), satisfied the public interest in the preparation of STATUS: Closed meeting. criteria for an accounting standard- informative, accurate and independent PLACE: 450 Fifth Street, NW., setting body under the Act, and audit reports. The PCAOB is to Washington, DC. recognizing the FASB’s financial accomplish these goals through accounting and reporting standards as DATE AND TIME OF PREVIOUSLY ANNOUNCED registration of public accounting firms ‘‘generally accepted’’ under section 108 MEETING: and standard setting, inspection, and Wednesday, February 25, of the Act.1 As a consequence of that 2004, at 12 noon. disciplinary programs. Section 109 of recognition, the Commission undertook the Act provides that the PCAOB shall CHANGE IN THE MEETING: Cancellation of a review of the FASB’s accounting establish a reasonable annual meeting. support fee for calendar year 2004. In accounting support fee, as may be The closed meeting scheduled for connection with its review, the necessary or appropriate to establish Wednesday, February 25, 2004, has Commission also reviewed the proposed and maintain the PCAOB. Section been cancelled. budget for the FAF and the FASB for 109(h) amends section 13(b)(2) of the For further information please contact calendar year 2004. Securities Exchange Act of 1934 to the Office of the Secretary at (202) 942– Section 109 of the Act also provides require issuers to pay the allocable share 7070. that the standard setting body can have of a reasonable annual accounting Dated: February 23, 2004. additional sources of revenue for its support fee or fees, determined in Jonathan G. Katz, activities, such as earnings from sales of accordance with section 109 of the Act. Secretary. publications, provided that each Under section 109(f), the aggregate [FR Doc. 04–4360 Filed 2–24–04; 11:15 am] additional source of revenue shall not annual accounting support fee shall not BILLING CODE 8010–01–P jeopardize the actual or perceived exceed the PCAOB’s aggregate independence of the standard setter. In ‘‘recoverable budget expenses,’’ which this regard, the Commission also may include operating, capital and SECURITIES AND EXCHANGE considered the interrelation of the accrued items. Section 109(b) of the Act COMMISSION operating budgets of the FAF, the FASB directs the PCAOB to establish a budget and the Government Accounting for each fiscal year in accordance with [Securities Act of 1933; Release No. 8389/ Standards Board (‘‘GASB’’), the FASB’s the PCAOB’s internal procedures, February 20, 2004] sister organization, which sets subject to approval by the Commission. [Securities Exchange Act of 1934; Release accounting standards to be used by state The PCAOB adopted a budget for No. 49290/February 20, 2004] and local government entities. The calendar year 2004 at an open meeting Order Regarding Review of FASB Commission has been advised by the on November 25, 2003, and submitted Accounting Support Fee for 2004 FAF that neither the FAF, the FASB nor that budget to the Commission for Under Section 109 of the Sarbanes- the GASB will accept contributions approval on November 26, 2003. In Oxley Act of 2002 from the accounting profession. accordance with its responsibilities to After its review, the Commission oversee the PCAOB, the Commission The Sarbanes-Oxley Act of 2002 (the determined that the 2004 annual has reviewed the budget proposed by ‘‘Act’’) establishes criteria that must be accounting support fee for the FASB is the PCAOB for 2004 and its aggregate met in order for the accounting consistent with section 109 of the Act. accounting support fee for 2004, which standards established by an accounting Accordingly, will fund the PCAOB’s expenditures. standard-setting body to be recognized It is ordered, pursuant to section 109 During the course of that review, among as ‘‘generally accepted’’ for purposes of of the Act, that the FASB may act in other things, we reviewed and relied the federal securities laws. Section 109 accordance with this determination of upon representations and supporting of the Act provides that all of the budget the Commission. documentation from the PCAOB. The of an accounting standard-setting body Commission did not identify any By the Commission. satisfying these criteria shall be payable proposed disbursements in the budget from an annual accounting support fee Margaret H. McFarland, that are not properly recoverable assessed and collected against each Deputy Secretary. through the annual accounting support issuer, as may be necessary or [FR Doc. 04–4271 Filed 2–25–04; 8:45 am] fee, and the Commission believes that appropriate to pay for the budget and BILLING CODE 8010–01–P the aggregate proposed 2004 annual provide for the expenses of the standard accounting support fee does not exceed setting body, and to provide for an 1 Financial Reporting Release No. 70. the PCAOB’s aggregate recoverable
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budget expenses for 2004. After its RULES OF THE BOSTON STOCK c. A security shall remain in the $ 1 review, the Commission determined EXCHANGE Strike Price Pilot Program until that the PCAOB’s 2004 budget and RULES OF THE BOSTON OPTIONS otherwise designated by BOXR. The $1 annual accounting support fee are EXCHANGE FACILITY Strike Price Pilot Program shall expire consistent with section 109 of the Act. on June 5, 2004. Trading of options contracts on BOX Accordingly, II. Self-Regulatory Organization’s It is ordered, pursuant to section 109 Chapter IV Securities Traded on the Statement of the Purpose of, and of the act, that the PCAOB budget and Boston Options Exchange Facility Statutory Basis for, the Proposed Rule annual accounting support fee for Sec. 6 Series of Options Contracts Change calendar year 2004 are approved. Open for Trading In its filing with the Commission, the By the Commission. (a)–(f) no change BSE included statements concerning the The following rules are in effect until purpose of and basis for the proposed Margaret H. McFarland, June 5, 2004 rule change and discussed any Deputy Secretary. comments it received on the proposed Supplementary Material to Section 6 [FR Doc. 04–4272 Filed 2–25–04; 8:45 am] rule change. The text of these statements BILLING CODE 8010–01–P .01 The interval between strike may be examined at the places specified prices of series of options on individual in Item III below. The BSE has prepared stocks may be $2.50 or greater where the summaries, set forth in sections A, B, SECURITIES AND EXCHANGE strike price is $25 or less, provided and C below, of the most significant COMMISSION however, that BOX may not list $2.50 aspects of such statements. intervals below $20 (e.g. $12.50, $17.50) for any class included within the $1 A. Self-Regulatory Organization’s [Release No. 34–49292; File No. SR–BSE– Statement of the Purpose of, and 2004–01] Strike Price Pilot Program, as detailed below in Supplementary Material .02, if Statutory Basis for, the Proposed Rule Change Self-Regulatory Organizations; Notice the addition of $2.50 intervals would of Filing and Immediate Effectiveness cause the class to have strike price 1. Purpose of Proposed Rule Change by the intervals that are $0.50 apart. The purpose of the proposed rule Boston Stock Exchange, Inc. Exceptions to the strike price intervals change is to amend a section of the Proposing to Initiate a Pilot Program above are set forth in Supplementary Rules of the Boston Options Exchange that Allows the Listing of Strike Prices Material .02 below. (the ‘‘BOX Rules’’) relating to the .02 $1 Strike Price Pilot Program: at One-Point Intervals for Certain a. The interval between strike prices interval between strike prices of series of options on individual stocks. Chapter Stocks Trading under $20 of series of options on individual stocks IV, Securities Traded on the Boston may be $1.00 or greater (‘‘$1 Strike February 20, 2004. Options Exchange Facility, Section 6, Prices’’) provided the strike price is $20 Series of Contracts Open for Trading, of Pursuant to section 19(b)(1) of the or less, but not less than $3. The listing the Box Rules establishes guidelines Securities Exchange Act of 1934 (‘‘Act’’ of $1 strike prices shall be limited to regarding the addition of series for or ‘‘Exchange Act’’),1 and Rule 19b–4 option classes overlying no more than trading on BOX. The BSE proposes to thereunder,2 notice is hereby given that five (5) individual stocks (the ‘‘$1 Strike amend this section of the BOX Rules to on February 19, 2004, the Boston Stock Price Pilot Program’’) as specifically implement a pilot program, which will designated by BOXR. BOXR may list $1 Exchange, Inc. (‘‘BSE’’ or ‘‘Exchange’’) operate until June 5, 2004, and which filed with the Securities and Exchange Strike Prices on any other option classes will allow Boston Options Exchange Commission (‘‘SEC’’ or ‘‘Commission’’) if those classes are specifically Regulation, LLC (‘‘BOXR’’), the wholly the proposed rule change as described designated by other national securities owned subsidiary of the BSE that has in Items I and II below, which Items exchanges that employ a similar $1 been delegated regulatory authority over have been prepared by the Exchange. Strike Price Pilot Program under their BOX,3 to list options on up to five The Commission is publishing this respective rules. underlying equities trading below $20 at b. To be eligible for inclusion into the notice to solicit comments on the one-point intervals and to list $1 strike $1 Strike Price Pilot Program, an proposed rule change from interested prices on any equity option included in underlying security must close below persons. the $1 strike price pilot program of any $20 in the primary market on the other options exchange (‘‘Pilot I. Self-Regulatory Organization’s previous trading day. After a security is Program’’). Statement of the Terms of Substance of added to the $1 Strike Price Pilot Pilot Program: The BSE notes that the Proposed Rule Change Program, BOXR may list $1 Strike Prices stock prices in general have dropped from $3 to $20 that are no more than $5 over the past few years, with many The BSE proposes to initiate a pilot from the closing price of the underlying listings suffering severe declines. As a program (‘‘Pilot Program’’) that will on the preceding day. For example, if result, there has been a proliferation of allow for the listing of options on the underlying security closes at $13, stocks trading below $20. Some of these selected stocks trading below $20 at BOXR may list strike prices from $8 to stocks are among the most widely held one-point intervals. The text of the $18. BOXR may not list series with $1 and actively traded equity securities proposed rule change appears below. intervals within $0.50 of an existing listed on the New York Stock Exchange, Additions are in italics. $2.50 strike price (e.g. $12.50, $17.50) in Inc., the American Stock Exchange LLC * * * * * the same series. Additionally, for an (‘‘Amex’’), and Nasdaq, including, for option class selected for the $1 Strike example, Cisco, Oracle, Lucent, JDS Price Pilot Program, BOXR may not list Uniphase, AT&T, and Motorola. $1 Strike Prices on any series having 1 15 U.S.C. 78s(b)(1). greater than five (5) months until 3 See Securities Exchange Act Release No. 49065 2 17 CFR 240.19b–4. expiration. (January 13, 2004) 69 FR 2768 (January 20, 2004).
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Accordingly, the options overlying these Program, the closing price of the BOX Rules will govern the addition of stocks are among the most actively underlying stock serves as the reference expiration months for $1 strike series. traded options. point for determining which $1 strike Pursuant to this section, BOXR When a stock underlying an option prices BOXR may open for trading. To generally opens up to four expiration trades at a lower price, it requires a minimize the proliferation of options months for each class upon the initial larger percentage gain in the price of the series, BOXR intends to restrict the listing of an options class for trading. stock for an option to become in-the- number of $1 strike prices that may be Thus, for options included in the Pilot money. For example, when a stock added to those strikes that fall within a Program, BOXR will list an additional trades at $10 an investor that wants to $5 range of the price of the underlying expiration month upon expiration of the purchase a slightly out-of-the-money stock. BOXR will not add strike prices near-term month, provided that the call option would have to buy the outside of the $5 range. For example, if underlying stock prices closes below $12.50 call. At these levels, the stock the underlying stock trades at $6, BOXR $20 on Expiration Friday. If the price would need to increase by 25% to could list $1 strike prices from $3 to underlying closes at or above $20 on its reach in-the-money status. A 25% or $11, while if the underlying stock trades primary market on Expiration Friday, higher gain in the price of the at $10, BOXR could list $1 strikes from BOXR will not list an additional month underlying stock is especially large $5 to $15. By restricting the number of of $1 strike price series until the stock given the lessened degree of volatility strike prices that may be listed to a again closes below $20. that has recently accompanied many predetermined $5 range, BOXR believes Procedures for Delisting $1 Strike stocks and options. Accordingly, BOX it will be able to provide investors with Price Intervals: At any time, BOXR may Participants have expressed an interest more flexibility without burdening the cease listing $1 strike prices on existing in listing additional strike prices on Options Price Reporting Authority series by submitting a cessation notice these classes so that they can provide (‘‘OPRA’’) capacity by bringing up strike to The Options Clearing Corporation their customers with greater flexibility prices that are not reasonably related to (‘‘OCC’’).4 As discussed above, if the in achieving their investment strategies. the price of the underlying stock. underlying closes at or above $20 on its For this reason, the Exchange proposes Currently, when an underlying stock primary market on Expiration Friday, to implement the proposed Pilot trades below $25, BOXR may list strike BOXR will not list any additional Program for BOX. prices with $2.50 intervals. For this months with $1 strike prices until the Pilot Program Eligibility: The BSE reason, several classes may have $7.50, stock subsequently closes below $20. If proposes to amend Chapter IV, Section $12.50, and $17.50 strike prices. To the underlying stock does not 6 of the BOX Rules to allow BOXR to further avoid the proliferation of series, subsequently close below $20, thereby list options on selected stocks trading BOXR does not intend to list $1 strike precluding the listing of additional below $20 at one-point intervals, prices at levels that ‘‘bracket’’ existing strike prices and months, the existing $1 provided that the strike prices are $20 $2.50 intervals (e.g., $7 and $8 strikes series eventually will expire. When the or less, but not less than $3. An option around a $7.50 strike). Accordingly, near-term month is the only series would become eligible for inclusion in BOXR does not intend to list $7, $8, available for trading, BOXR may submit the Pilot Program provided that the $12, $13, $17, and $18 levels in an a cessation notice to OCC. Upon underlying stock closed below $20 in its expiration month where there is a submission of that notice, the primary market on the preceding trading corresponding $2.50 level. As the $2.50 underlying stock would no longer count day. Once the underlying stock is part intervals are ‘‘phased-out,’’ as described towards the five option classes available of the Pilot Program, BOXR may below, BOXR will introduce the $1 on BOX pursuant to the Pilot Program, continue to list $1 strike prices provided levels that bracket the phased-out price. thereby allowing BOXR to list options the underlying stock remains below $20. For example, when a $7.50 series on an additional stock at $1 strike price As described more fully below, although expires, BOXR will replace it by issuing intervals. Once BOXR submits the an option class will not be removed a new expiration month with $7 and $8 cessation notice it will not list any automatically from the Pilot Program if strike price intervals. additional months pursuant to the Pilot the underlying stock trades at or above Procedures for Phasing Out $2.50 Program for trading with strikes below $20, BOXR will not add $1 strike prices Strike Price Intervals: When an $20, unless the underlying stock again when the underlying stock closes above individual stock becomes a part of the closes below $20.5 $20. Once the stock closes below $20, it Pilot Program, BOXR will begin to phase OPRA Capacity: BOXR believes that will again be eligible for the addition of out the existing $2.50 strike price OPRA has the capacity to accommodate $1 strike prices. An underlying stock intervals for options on that stock in the increase in the number of series that will remain in the Pilot Program until favor of the $1 strike price intervals. To could be added pursuant to the Pilot BOXR removes it from the Pilot phase-out the $2.50 strike price Program. On a daily basis, the options Program. Options on stocks trading intervals, BOXR first will delist any exchanges use an average of less than under $20 that are not included in the $2.50 series for which there is no open 7,000 messages per second (‘‘mps’’) Pilot Program may continue to trade in interest. Second, BOXR will no longer during peak periods, which is less than $2.50 and $5.00 strike price intervals. add new expiration months at $2.50 Although BOXR may only select up to strike price intervals below $20 when 4 The reasons for submitting a cessation notice are five individual stock options for its Pilot existing months expire. This will cause as follows: (1) Expiration of available $1 strikes (i.e., Program, BOXR will not be precluded the $2.50 strike price intervals below the underlying stock price remains at or above $20); from also listing at $1 strike price $20 to be phased out when the farthest- (2) series proliferation concerns; and (3) delisting intervals equity options included in the because of, among other things, low price, merger, out month with a $2.50 interval expires. or takeover. In any event, with prior notice to BOX $1 strike price programs of other option $1 Strikes for Longer Dated Options: Participants and customers, BOXR will continue to exchanges. BOXR will not list $1 strikes on any have the ability to cease trading any series that has Procedure for Adding $1 Strike Price series of individual equity option become inactive and has no open interest. Intervals: Chapter IV, Section 6 of the classes that have greater than five 5 If the underlying stock trades below $20 after BOXR submits a cessation notice, BOXR could Box Rules will be amended to set forth months until expiration. again list options on that stock at $1 strike prices the standards regarding the addition of Procedures for Adding Expiration provided BOXR included the class as one of its five $1 strike price intervals. Under the Pilot Months: Chapter IV, Section 6(e) of the allowable classes.
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25% of the total system capacity of in furtherance of the purposes of the communications relating to the 32,000 mps. Furthermore, to date, the Act. proposed rule change between the options exchanges have not exceeded Under Rule 19b–4(f)(6)(iii) of the Commission and any person, other than 11,000 mps for any extended period of Act,10 the proposal does not become those that may be withheld from the time. Therefore, the Exchange believes operative for 30 days after the date of its public in accordance with the that implementing the Pilot Program filing, or such shorter time as the provisions of 5 U.S.C. 552, will be would not have a negative impact on Commission may designate if consistent available for inspection and copying at OPRA system capacity. with the protection of investors and the the Commission’s Public Reference public interest. The Exchange has 2. Statutory Basis Room. Copies of such filing will also be requested that the Commission waive available for inspection and copying at The BSE believes that the proposed the 30-day operative date so that the the principal office of the Exchange. All rule change is consistent with section Exchange may remain competitive with submissions should refer to File No. 6 6(b) of the Act in general and furthers other exchanges that currently have SR–BSE–2004–01 and should be 7 similar rules in effect. The proposed the objectives of section 6(b)(5) in submitted by March 18, 2004. particular in that it is designed to rule change is virtually identical to a promote just and equitable principles of CBOE pilot program (‘‘CBOE Pilot’’) that For the Commission, by the Division of trade, to remove impediments to and the Commission approved.11 Notice of Market Regulation, pursuant to delegated perfect the mechanism of a free and the CBOE Pilot was published for authority.14 open market and a national market comment 12 and the Commission Margaret H. McFarland, system, and protect investors and the received one comment letter, which Deputy Secretary. public interest by granting the Exchange supported the CBOE’s proposal. [FR Doc. 04–4269 Filed 2–25–04; 8:45 am] Accordingly, the Commission believes authority to implement a Pilot Program BILLING CODE 8010–01–P to list options under certain that the proposed rule change raises no circumstances at one-point intervals. new issues of regulatory concern. The Commission, consistent with the B. Self-Regulatory Organization’s SECURITIES AND EXCHANGE protection of investors and the public COMMISSION Statement on Burden on Competition interest, has determined to waive the The BSE does not believe that the 30-day operative period,13 and, proposed rule change will impose any therefore, the proposal is effective and [Release No. 34–49287; File No. SR–CBOE– burden on competition. operative upon filing with the 2003–23] Commission. C. Self-Regulatory Organization’s Self-Regulatory Organizations; Notice Statement on Comments on the IV. Solicitation of Comments of Filing of Proposed Rule Change by Proposed Rule Change Received From Interested persons are invited to the Chicago Board Options Exchange, Members, Participants or Others submit written data, views, and Inc., Relating to its Autoquote The BSE has neither solicited nor arguments concerning the foregoing, Triggered Ebook Execution System including whether the proposed rule received comments on the proposed February 19, 2004. rule change. change is consistent with the Act. Persons making written submissions Pursuant to section 19(b)(1) of the III. Date of Effectiveness of the should file six copies thereof with the Securities Exchange Act of 1934 Proposed Rule Change and Timing for Secretary, Securities and Exchange (‘‘Act’’),1 and Rule 19b-4 thereunder,2 Commission Action Commission, 450 Fifth Street, NW., notice is hereby given that on June 2, The foregoing rule change has become Washington, DC 20549–0609. 2003, the Chicago Board Options effective pursuant to section 19(b)(3)(A) Comments may also be submitted Exchange, Inc. (‘‘CBOE’’ or of the Act 8 and subparagraph (f)(6) of electronically at the following e-mail ‘‘Exchange’’), filed with the Securities Rule 19b–49 thereunder because it does address: [email protected]. All and Exchange Commission not: (i) Significantly affect the comment letters should refer to File No. (‘‘Commission’’ or ‘‘SEC’’) the proposed protection of investors or the public SR–BSE–2004–01. This file number rule change as described in Items I, II interest; (ii) impose any significant should be included on the subject line and III below, which Items have been burden on competition; (iii) become if e-mail is used. To help the prepared by CBOE. On September 10, operative for 30 days from the date on Commission process and review your 2003, the Exchange filed Amendment which it was filed, or such shorter time comments more efficiently, comments No. 1 to the proposed rule change.3 On as the Commission may designate; and should be sent in hardcopy or by e-mail December 29, 2003, the Exchange filed the Exchange has given the Commission but not by both methods. Copies of the Amendment No. 2 to the proposed rule submission, all subsequent written notice of its intention to file the change.4 The Commission is publishing amendments, all written statements proposed rule change at least five this notice to solicit comments on the with respect to the proposed rule business days prior to filing. At any proposed rule change from interested change that are filed with the time within 60 days of the filing of such persons. proposed rule change, the Commission Commission, and all written may summarily abrogate such rule 14 10 17 CFR 240.19b–4(f)(6)(iii). 17 CFR 200.30–3(a)(12). 1 change if it appears to the Commission 11 See Securities Exchange Act Release No. 47991 15 U.S.C. 78s(b)(1). that such action is necessary or (June 5, 2003), 68 FR 35243 (June 12, 2003) (order 2 17 CFR 240.19b-4. appropriate in the public interest, for approving File No. SR–CBOE–2001–60). 3 See letter from Steve Youhn, Senior Attorney, the protection of investors, or otherwise 12 See Securities Exchange Act Release No. 47753 CBOE, to Nancy Sanow, Assistant Director, Division (April 29, 2003), 68 FR 23784 (May 5, 2003). of Market Regulation, Commission, dated 13 For purposes only of waiving the 30-day September 9, 2003. 6 15 U.S.C. 78f(b). operative period for this proposal, the Commission 4 See letter from Steve Youhn, Senior Attorney, 7 15 U.S.C. 78f(b)(5). has considered the proposed rule’s impact on CBOE, to Nancy Sanow, Assistant Director, Division 8 15 U.S.C. 78s(b)(3)(A). efficiency, competition, and capital formation. 15 of Market Regulation, Commission, dated December 9 17 CFR 240.19b–4(f)(6). U.S.C. 78c(f). 22, 2003.
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I. Self-Regulatory Organization’s with a book order prior to the time the operation of the Autoquote Triggered Statement of the Terms of Substance of book staff announces to the trading EBook Execution system (‘‘Trigger’’).5 the Proposed Rule Change crowd that the order has been removed Trigger allows orders resting in the book The Exchange proposes to amend from the book by Trigger, the book staff to be automatically executed in the CBOE Rule 6.8(d)(v) governing the will manually endorse the book order to limited situation when the Autoquote operation of its ‘‘Trigger’’ functionality. that member(s). (Exchange or proprietary) bid (offer) for In the event the order in the book is Below is the text of the proposed rule a series would equal or cross the for a larger number of contracts than the change. Proposed new language is Exchange’s best offer (bid) for that series applicable Trigger Volume, the balance italicized. Proposed deletions are in as established by a booked order.6 In of the book order [will] may be executed [brackets]. these instances, Trigger removes from manually by the trading crowd. In the * * * * * limited circumstance where contracts the book and automatically executes and assigns to market makers orders up Chicago Board Options Exchange, Inc. remain in the book after an execution (or partial execution) of a book order up to the RAES eligible order size for that Rules to the applicable Trigger Volume, [and series (‘‘Trigger Volume’’). If the size of * * * * * the disseminated quote] the bid or offer the order in the book exceeds the generated by Autoquote will be one-tick applicable Trigger Volume size, the Chapter VI—Doing Business on the inferior to the price of the book order balance of the booked order is executed Exchange Floor such that the disseminated quote will manually by the trading crowd, in full, Section A: General not [remains] cross[ed] or lock[ed] with at the book price. This Rule governs RAES operations in the Autoquote bid or offer. In these The operation of Trigger results in the all classes of options, except to the instances, or for any series where full size of the booked order being extent otherwise expressly provided in Trigger has not yet been implemented executed, regardless of its size and by the appropriate [Floor Procedure this or other Rules in respect of without regard to the Autoquote Committee] FPC, orders in RAES for specified classes of options. disseminated size. For example, if the options of that series will not be RULE 6.8 automatically executed but instead will order in the book is for 200 contracts be rerouted on ORS to the crowd PAR and the Trigger Volume level is set at 50 (a)–(c) No change. contracts, all 200 contracts in the book (d) Execution on RAES terminal or to another location in the receive execution (50 via Trigger and (i)–(iv) No change. event of system problems or contrary (v) Notwithstanding sub-paragraph firm routing instructions. the balance via open outcry). This has (d)(iv), for classes of options as * * * * * the result of requiring crowds to execute determined by the appropriate Floor orders of a size greater than their II. Self-Regulatory Organization’s Procedure Committee (‘‘FPC’’), for any disseminated firm quote size. To Statement of the Purpose of, and series of options where the bid or offer address this, CBOE proposes to amend Statutory Basis for, the Proposed Rule generated by [the Exchange’s] the Rule to provide that Trigger will Change Autoquote [system (or any] (Exchange or continue to provide automatic execution [approved] proprietary [quote In its filing with the Commission, the up to the Trigger volume level but that generation system used in lieu of the CBOE included statements concerning the crowd may determine to execute Exchange’s Autoquote system]) is equal the purpose of and basis for the manually any remaining balance of the to or crosses the Exchange’s best bid or proposed rule change and discussed any order in open outcry. Any unexecuted offer as established by an order in the comments it received on the proposed balance of the book order in excess of Exchange’s limit order book, orders in rule change. The text of these statements the Trigger Volume level will remain in the book for options of that series will may be examined at the places specified the book (as is the case today) and the be automatically executed against in Item IV below. The CBOE has Autoquote will remain crossed or prepared summaries, set forth in participants on RAES (‘‘Trigger’’) up to locked. This proposal would have the sections A, B, and C below, of the most a size not to exceed the number of effect of giving the crowd the ability to significant aspects of such statements. contracts equal to the applicable execute the remaining contracts (in maximum size of RAES-eligible orders A. Self-Regulatory Organization’s excess of the Trigger Volume level) for that series of options (‘‘Trigger Statement of the Purpose of, and without obligating them to do so. Volume’’). The appropriate [Floor Statutory Basis for, the Proposed Rule For illustrative purposes, consider the Procedure Committee] FPC is Change responsible for determining the Trigger following example: Volume for a particular series of 1. Purpose options. In the event a member in the The Exchange proposes to amend trading crowd verbally initiates a trade Rule 6.8(d)(v), which governs the
Price Size
AQ ...... 1.00 × 1.20 ...... 100 × 100 Book ...... 0.95 × 1.10 ...... 10 × 2500
5 The Commission approved the rule governing 45992 (May 29, 2002), 67 FR 38530 (June 4, 2002) Autoquote bid would lock the book offer at 1.30, the Trigger system in Securities Exchange Act (approving SR–CBOE–2002–12). the disseminated quote will be 1.25 × 1.30, with the Release No. 44462 (June 21, 2001), 66 FR 34495 6 Although Autoquote would cross or lock the 1.25 representing Autoquote and the 1.30 (June 28, 2002) (approving SR–CBOE–00–22) order in the book, the Exchange does not representing the book. Additionally, for Trigger- (‘‘Original Order’’). For a detailed description of the disseminate the crossed or locked market. Instead, situations, the DPM typically sets a default size operation of the Trigger system, see the Original the disseminated bid (offer) will be one tick away (e.g., 10 contracts) that is smaller than the actual Order and Securities Exchange Act Release No. from the book offer (bid). For example, if the disseminated size for non-Trigger situations.
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Price Size
Bestquote ...... 1.00 × 1.10 ...... 100 × 2500
Trigger Vol.: 50 contracts Autoquote does not send and hence not have an obligation to collect and AQ Default Size: 10 contracts CBOE does not disseminate a $1.10 bid, disseminate, a quote that would lock the Assume a move in the underlying CBOE states that there is no firm quote book price. For this reason, the causes AQ to want to move to 1.10 × liability for a 1.10 bid. The disseminated Exchange submits that its proposal 1.30. This activates Trigger (i.e., AQ bid 1.10 offer is still firm. satisfies all of the Exchange’s would lock the book offer—1.10 × 1.10). The operation of Trigger results in the obligations under the Quote Rule. In this instance, Trigger automatically removal of contracts from the book for executes the book order up to the execution by the crowd. Today, the 2. Statutory Basis Trigger Volume level (50 contracts) and whole size of the book order is removed According to CBOE, the proposal assigns the contracts to market makers from the book. This has the result of would continue to ensure that in the crowd. Because the Exchange will forcing the trading crowd to buy (sell) customers receive automatic executions not disseminate a locked market, all 2500 contracts in the book, even if of their booked orders up to the Trigger however, the disseminated quote will be they do not desire to purchase (sell) all Volume level. The proposal is also 1.05—1.10, 10×2450. The 1.10 offer of them and even though their consistent with the Quote Rule in that represents the balance of order in the disseminated size was substantially the CBOE crowd, as the responsible BD, book. The 1.05 bid represents the smaller. While the Quote Rule requires will continue to honor its disseminated Autoquote price and default size. The the responsible BD to be firm for quotes quotes. Therefore, the Exchange believes crowd will have the ability to manually it disseminates, CBOE states that the proposed rule change is consistent execute the remaining contracts at 1.10. nothing in this rule requires an entity to with the Act and the rules and When the balance of the book order purchase (sell) the entire size of the regulations under the Act applicable to trades, the new disseminated Autoquote disseminated quote (i.e., the BD who a national securities exchange and, in price will be 1.10 × 1.30. puts up the quote must be firm, not the particular, the requirements of section The Exchange submits that Rule person who tries to hit it). In fact, 6(b) of the Act.10 Specifically, the 11Ac1–1 under the Act (the ‘‘Quote according to CBOE, this is completely Exchange believes that the proposed Rule’’),7 in its simplest form, requires inconsistent with the Quote Rule, as it rule change is consistent with the the responsible broker or dealer imposes an unfair obligation upon the section 6(b)(5) 11 requirements that the (‘‘responsible BD’’) to be firm for its trading crowd (i.e., to buy (sell) the rules of an exchange be designed to quotes (for price and size). The entire size of the book order) where promote just and equitable principles of Exchange notes that in Trigger there rightly is none. trade, to prevent fraudulent and situations, the responsible BD on the The Exchange notes that the filing manipulative acts and, in general, to Exchange is firm for all of its proposes to amend what it views as an protect investors and the public interest. disseminated quotes. CBOE notes that inequitable operation of Trigger such there are three relevant periods relating that only a number of contracts equal to B. Self-Regulatory Organization’s to Trigger and explains how the the Trigger Volume Size would now be Statement on Burden on Competition operation of Trigger during each period removed. The remainder of the contracts CBOE does not believe that the is consistent with the Quote Rule, as would stay in the book where they may proposed rule change will impose any follows. be executed against by either the crowd burden on competition that is not Immediately Prior to Trigger or any other person that wants to trade necessary or appropriate in furtherance Activation: Prior to the change in the with that order. The proposed change to of purposes of the Act. underlying price that causes a change in the rule language of Rule 6.8(d)(v), C. Self-Regulatory Organization’s the Autoquote price, the Exchange which states ‘‘the balance of the book disseminates a 1.00 × 1.10, 100 × 2500 order may be executed manually by the Statement on Comments on the size market, for which it is firm. The trading crowd’’ clarifies this point. Proposed Rule Change Received From $1.00 bid represents the crowd’s Additionally, CBOE states that, Members, Participants or Others autoquote while the $1.10 offer because CBOE’s own Quote Rule 8 is No written comments were solicited represents an order in the book. based on, and operates in compliance or received with respect to the proposed At the time of Trigger Activation and with, the SEC’s Quote Rule, its proposal rule change. Immediately Thereafter: When a Trigger is also consistent with the SEC’s Quote III. Date of Effectiveness of the situation occurs (i.e., the autoquote bid Rule. The Exchange represents that it is Proposed Rule Change and Timing for would lock the book offer), it is firm for all of the quotes it disseminates. Commission Action important to note that the Exchange Furthermore, the Exchange submits that does NOT disseminate a locked or Rule 11Ac1–1(b)(1)(i)9 requires an Within 35 days of the date of crossed market. Instead of sending a Exchange to, among other things, publication of this notice in the Federal $1.10 bid, autoquote internally ‘‘* * * collect, process and make Register or within such longer period (i) calculates a price that is one tick lower available to quotation vendors the best as the Commission may designate up to than the locked price ($1.05) and then bid, the best offer, and aggregate 90 days of such date if it finds such sends that quote, which the Exchange quotation sizes for each subject security longer period to be appropriate and collects and disseminates to quotation ***’’ In this regard, the Exchange publishes its reasons for so finding or vendors as a firm quote. In this instance, states that it collects and disseminates (ii) as to which the self-regulatory the Exchange’s disseminated offer is all quotes sent to it. Autoquote does not organization consents, the Commission still for the balance of the book order send, and hence CBOE states that it does will: (2450 contracts) at $1.10. Because 8 CBOE Rule 851. 10 15 U.S.C. 78f(b). 7 17 CFR 240.11Ac1–1. 9 17 CFR 240.11Ac1–1(b)(1)(i). 11 15 U.S.C. 78f(b)(5).
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(A) By order approve such proposed SECURITIES AND EXCHANGE Chicago Stock Exchange Rules rule change, or COMMISSION Article XXX (B) Institute proceedings to determine whether the proposed rule change [Release No. 34–49283; File No. SR–CHX– Specialists should be disapproved. 2003–25] * * * * * IV. Solicitation of Comments Self-Regulatory Organizations; Notice Stop Orders of Filing of Proposed Rule Change and RULE 22. A stop order to buy becomes Interested persons are invited to Amendments No. 1 and No. 2 Thereto submit written data, views and a market order when a transaction in by the Chicago Stock Exchange, the security occurs on the Exchange or arguments concerning the foregoing, Incorporated Relating to Stop Order including whether the proposal is another national securities exchange or Handling Rules association at or above the stop price. A consistent with the Act. Persons making stop order to sell becomes a market written submissions should file six February 19, 2004. order when a transaction in the security copies thereof with the Secretary, Pursuant to section 19(b)(1) of the occurs on the Exchange or another Securities and Exchange Commission, Securities Exchange Act of 1934 1 2 national securities exchange at or below 450 Fifth Street, NW., Washington, DC (‘‘Act’’), and Rule 19b–4 thereunder, the stop price. A specialist must not 20549–0609. Comments should be notice is hereby given that on August initiate a transaction for his own submitted electronically at the following 11, 2003, the Chicago Stock Exchange, account in a stock in which he is e-mail address: [email protected]. Incorporated (‘‘CHX’’ or ‘‘Exchange’’) registered that would result in putting All comment letters should refer to File filed with the Securities and Exchange into effect any stop order he may have No. SR–CBOE–2003–23. This file Commission (‘‘Commission’’) the on his book. However, a specialist may number should be included on the proposed rule change as described in be party to the election of a stop order subject line if e-mail is used. To help the Items I, II, and III below, which Items only when his bid or offer made with Commission process and review your have been prepared by the Exchange. the approval of a Floor Official has the comments more efficiently, comments On January 29, 2004, the Exchange filed effect of bettering the market and when Amendment No. 1 to the proposed rule should be sent in hard copy or by e-mail he guarantees that the stop order will be change.3 On February 17, 2004, the but not by both methods. Copies of the executed at the same price as the Exchange filed Amendment No. 2 to the submission, all subsequent electing sale. proposed rule change.4 The Commission amendments, all written statements is publishing this notice to solicit * * * * * with respect to the proposed rule comments on the proposed rule change, II. Self-Regulatory Organization’s change that are filed with the as amended, from interested persons. Statement of the Purpose of, and Commission, and all written I. Self-Regulatory Organization’s Statutory Basis for, the Proposed Rule communications relating to the Change proposed rule change between the Statement of the Terms of Substance of Commission and any person, other than the Proposed Rule Change In its filing with the Commission, the CHX included statements concerning those that may be withheld from the The Exchange proposes to amend the purpose of and basis for the public in accordance with the CHX Article XXX, Rule 22, which proposed rule change, as amended, and provisions of 5 U.S.C. 552, will be governs handling of stop orders. discussed any comments it received available for inspection and copying in Specifically, the proposed rule change regarding the proposal. The text of these the Commission’s Public Reference would add a general provision defining statements may be examined at the Room. Copies of such filing will also be a stop order, in the context of listed places specified in Item IV below. The available for inspection and copying at securities, and confirming that a stop CHX has prepared summaries, set forth the principal office of CBOE. All order, once ‘‘elected’’ by a price in Sections A, B and C below, of the submissions should be submitted by penetration on a national securities most significant aspects of such exchange or association, should be March 18, 2004. statements. treated as a market order for purposes of For the Commission, by the Division of determining the execution price due the Market Regulation, pursuant to delegated A. Self-Regulatory Organization’s authority.12 order. Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Margaret H. McFarland, Below is the text of the proposed rule change, as amended. Proposed new Change Deputy Secretary. language is italicized. [FR Doc. 04–4270 Filed 2–25–04; 8:45 am] 1. Purpose * * * * * BILLING CODE 8010–01–P The proposed rule change, as amended, would amend CHX Article 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. XXX, Rule 22, which governs the 3 See letter from Kathleen M. Boege, Associate handling of stop orders. Specifically, the General Counsel, CHX, to Nancy J. Sanow, Assistant proposed rule change, as amended, Director, Division of Market Regulation would add a general provision defining (‘‘Division’’), Commission, dated January 28, 2004 a stop order, in the context of listed (‘‘Amendment No. 1’’). Amendment No. 1 replaced the originally filed proposal in its entirety. securities, and confirming that a stop 4 See letter from Kathleen M. Boege, Associate order, once ‘‘elected’’ by a price General Counsel, CHX, to Nancy J. Sanow, Assistant penetration on a national securities Director, Division of Market Regulation exchange or association, would be (‘‘Division’’), Commission, dated February 13, 2004 (‘‘Amendment No. 2’’). Amendment No. 2 replaced treated as a market order for purposes of the originally filed proposal, as superceded by determining the execution price due the 12 17 CFR 200.30–3(a)(12). Amendment No. 1, in its entirety. order.
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The Exchange does not currently have 2. Statutory Basis comment letters should refer to File No. a rule that defines a stop order or a rule The CHX believes that the proposed SR–CHX–2003–25. This file number that sets out the required treatment of rule change, as amended, is consistent should be included on the subject line elected stop orders and believes that it with section 6(b) 8 of the Act, in general, if e-mail is used. To help the is appropriate to provide certainty to its and furthers the objectives of section Commission process and review your members and the investors that they 6(b)(5) 9 of the Act, in particular, in that comments more efficiently, comments serve by putting such a rule in place.5 it is designed to prevent fraudulent and should be sent in hardcopy or by e-mail Under the Exchange’s proposal, stop manipulative acts and practices, to but not by both methods. Copies of the orders would no longer be executed in promote just and equitable principles of submission, all subsequent amendments, all written statements accordance with the Exchange’s ‘‘next, trade, to foster cooperation and with respect to the proposed rule no better’’ policy. Rather, a stop order coordination with persons engaged in regulating, clearing, settling, processing change that are filed with the would be defined as an order that Commission, and all written becomes a market order once the price information with respect to, and facilitating transactions in securities, to communications relating to the of the stop order is equaled or proposed rule change between the remove impediments to and perfect the penetrated on a national securities Commission and any person, other than 6 mechanism of a free and open market exchange or association. The Exchange those that may be withheld from the and a national market system, and, in represents that this proposed handling public in accordance with the general, to protect investors and the of a stop order is in line with the rules provisions of 5 U.S.C. 552, will be public interest. of other markets, including the New available for inspection and copying at York Stock Exchange, Inc., the B. Self-Regulatory Organization’s the Commission’s Public Reference American Stock Exchange LLC, and the Statement of Burden on Competition Room. Copies of such filing will also be Pacific Exchange, Inc. and provides an The Exchange believes that no burden available for inspection and copying at appropriate fill for stop orders sent to will be placed on competition as a result the principal office of the Exchange. All the Exchange for execution.7 of the proposed rule change. submissions should refer to the File No. SR–CHX–2003–25 and should be C. Self-Regulatory Organization’s 5 Although the Exchange does not currently have submitted by March 18, 2004. Statement on Comments Regarding the a rule defining stop orders, the Exchange has For the Commission, by the Division of operated under a long-standing policy relating to Proposed Rule Change Received From Market Regulation, pursuant to delegated stop orders; the standing policy provides that a stop Members, Participants or Others authority.10 order in a listed security that is routed to the CHX (and then elected by a primary market print at the No written comments were solicited Margaret H. McFarland, stop price) is given a ‘‘next, no better’’ execution, or received with respect to the proposed Deputy Secretary. meaning that the order must be executed at the next rule change. [FR Doc. 04–4223 Filed 2–25–04; 8:45 am] execution price on the primary market. If the next primary market execution is at a price better than III. Date of Effectiveness of the BILLING CODE 8010–01–P the election price, the order may be executed at the Proposed Rule Change and Timing for election price. Otherwise stated, if the next primary Commission Action market execution is at a better price than the SECURITIES AND EXCHANGE election price, the CHX specialist has the discretion Within 35 days of the date of COMMISSION to provide either the election price or the better publication of this notice in the Federal price. Register or within such longer period (i) [Release No. 34–49286; File No. SR–NASD– 6 On the CHX, market orders are executed in 2004–004] accordance with CHX Article XX, Rule 37, which as the Commission may designate up to requires that (a) market orders executed 90 days of such date if its finds such Self-Regulatory Organizations; Notice automatically be executed at the national best bid longer period to be appropriate and or offer in effect at the time the order was received; of Filing and Immediate Effectiveness and (b) market orders executed manually be publishes its reasons for so finding or of Proposed Rule Change and executed by the specialist in his principal capacity (ii) as to which the Exchange consents, Amendment No. 1 Thereto by the at the national best bid or offer in effect at the time the Commission will: National Association of Securities the order was received, or, if the specialist elects A. By order approve such proposed Dealers, Inc. Regarding Listing Fee to act as agent for the order, at the best available rule change, or price in the national marketplace, using order Waivers Under the NASD Rule 4500 routing systems where appropriate. If the B. Institute proceedings to determine Series With Regard to Certain Dual Commission approves this proposed rule change, whether the proposed rule change Listing and Transfer Situations elected stop orders would be executed in should be disapproved. accordance with the provisions of CHX Article XX, February 19, 2004. Rule 37. An elected stop order would be eligible for IV. Solicitation of Comments automatic execution if it were within the auto ex Pursuant to section 19(b)(1) of the size threshold designated by the specialist in Interested persons are invited to Securities Exchange Act of 1934 accordance with CHX Article XX, Rule 37(b)(1). submit written data, views and (‘‘Act’’),1 and Rule 19b–4 thereunder,2 7 See, e.g., NYSE Rule 13 (‘‘A stop order to buy arguments concerning the foregoing, notice is hereby given that on January becomes a market order when a transaction in the including whether the proposed rule 12, 2004, the National Association of security occurs at or above the stop price after the change, as amended, is consistent with order is represented in the Trading Crowd. A stop Securities Dealers, Inc. (‘‘NASD’’), order to sell becomes a market order when a the Act. Persons making written through its subsidiary, The Nasdaq transaction in the security occurs at or below the submissions should file six copies Stock Market, Inc. (‘‘Nasdaq’’), filed stop price after the order is represented in the thereof with the Secretary, Securities with the Securities and Exchange Trading Crowd’’); Amex Rule 131 (same text as and Exchange Commission, 450 Fifth NYSE Rule 13); and Archipelago Exchange Facility Commission (‘‘Commission’’) the Rule 7.31(‘‘A stop order to buy becomes a market Street, NW., Washington, DC 20549– proposed rule change as described in order when a transaction in the security occurs on 0609. Comments may also be submitted items I, II, and III below, which items the Corporation or on another national securities electronically at the following e-mail have been prepared by Nasdaq. Nasdaq exchange or association at or above the stop price. address: [email protected]. All A Stop Order to sell becomes a market order when a transaction in the security occurs on the 10 17 CFR 200.30–3(a)(12). Corporation or on another national securities 8 15 U.S.C. 78f(b). 1 15 U.S.C. 78s(b)(1). exchange or association at or below the stop price’’). 9 15 U.S.C. 78f(b)(5). 2 17 CFR 240.19b–4.
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amended the proposed rule change on of additional shares fees under Rules January 12, 2004, the date of this filing, February 13, 2004.3 Nasdaq filed the 4510(a)–(d) and Rules 4520(a)–(c) for a through the end of 2004. proposed rule change pursuant to one year period from the date of listing Nasdaq has determined to take this section 19(b)(3)(A)(i) of the Act,4 and on Nasdaq for any NYSE listed security action because it believes that is Rule 19b–4(f)(1) thereunder,5 as one that dually lists on Nasdaq between equitable and reasonable to provide a constituting a stated policy, practice, or January 12, 2004, and December 31, window, following the repeal of NYSE interpretation with respect to the 2004. Nasdaq shall not charge entry fees Rule 500, for NYSE issuers to dual list meaning, administration, or under Rules 4510(a) and 4520(a) for any on Nasdaq or transfer to Nasdaq without enforcement of an existing rule, which NYSE listed security that transfers its subjecting them to fees in addition to renders the proposed rule change listing from the NYSE to Nasdaq those fees that they have paid to the effective upon filing with the between January 12, 2004, and NYSE. In addition, consistent with Commission. The Commission is December 31, 2004. section 11A(a)(1)(C)(ii) under the Act,7 Nasdaq believes this action will publishing this notice to solicit * * * * * comments on the proposed rule change, promote fair competition between as amended, from interested persons. II. Self-Regulatory Organization’s exchange markets and markets other Statement of the Purpose of, and than exchange markets, which benefits I. Self-Regulatory Organization’s Statutory Basis for, the Proposed Rule the investing public. Specifically, Statement of the Terms of Substance of Change Nasdaq believes this interpretation the Proposed Rule Change should facilitate dual listing and Nasdaq proposes to provide In its filing with the Commission, transfer of NYSE listed securities under interpretive guidance with respect to Nasdaq included statements concerning an equitable and reasonable fee NASD Rules 4510(a)(5), 4510(b)(4), the purpose of and basis for the schedule for a limited period of time. 4510(c)(2), 4510(d)(3), 4520(a)(3), proposed rule change. The text of these Consequently, NYSE listed companies 4520(b)(4), and 4520(c)(3) regarding the statements may be examined at the can more easily determine the benefits waiver of listing fees in situations places specified in item IV below. of a listing on Nasdaq—a proposition involving the dual listing or transfer of Nasdaq has prepared summaries, set that was not practically available until New York Stock Exchange (‘‘NYSE’’) forth in sections A, B, and C below, of NYSE Rule 500 was recently repealed. listed securities occurring from January the most significant aspects of such Nasdaq believes these benefits will 12, 2004, to December 31, 2004. statements. include increased liquidity, faster Below is the text of the proposed rule executions, and narrower spreads due to A. Self-Regulatory Organization’s change. Proposed new language is in Nasdaq’s competitive market maker Statement of the Purpose of, and italics; proposed deletions are in system. In addition, these companies Statutory Basis for, the Proposed Rule brackets. can demonstrate to investors that they Change * * * * * meet Nasdaq’s governance 1. Purpose requirements. Nasdaq confirms that this 4500 ISSUER LISTING FEES interpretation will not impact its IM–4500–1 No change. NASD Rules 4510(a)(5), 4510(b)(4), resource commitment to regulatory IM–4500–2 No change. 4510(c)(2), 4510(d)(3), 4520(a)(3), oversight of the listing process, or its IM–4500–3 Waiver of Fees in 4520(b)(4), and 4520(c)(3) provide other regulatory programs. Situations Involving the Dual Listing or Nasdaq with the discretion to waive all Transfer of New York Stock Exchange or part of its listing fees prescribed in 2. Statutory Basis (‘‘NYSE’’) Listed Securities this Rule 4500 series. NYSE Rule 500 Nasdaq believes that the proposed Rules 4510(a)(5), 4510(b)(4), has recently been repealed, and this has rule change is consistent with the 4510(c)(2), 4510(d)(3), 4520(a)(3), removed a significant barrier to NYSE provisions of section 15A(b)(5) 8 and 4520(b)(4), and 4520(c)(3) provide companies that may have wanted to list 15A(b)(6) 9 of the Act. Section 15A(b)(5) Nasdaq with the discretion to waive all on other markets.6 Given the recent requires the equitable allocation of or part of its listing fees prescribed in repeal of NYSE Rule 500, and pursuant reasonable fees and charges among this Rule 4500 series. Nasdaq shall not to the authority under Nasdaq rules, members and other users of facilities charge entry fees, annual fees, or listing Nasdaq has determined to permit dual operated or controlled by a national listing of any NYSE listed security on securities association. Nasdaq believes 3 See February 12, 2004, letter from Sara Nelson Nasdaq without charging Nasdaq entry that this proposal is an equitable Bloom, Associate General Counsel, Nasdaq, to fees, annual fees, or listing of additional allocation of reasonable fees because Katherine A. England, Assistant Director, Division of Market Regulation, Commission (‘‘Amendment shares fees for a period of one year from NYSE listed companies are now able to No. 1’’). In Amendment No. 1, Nasdaq (1) changed the effective date of the dual listing on list on other markets without having to date references from January 9, 2004, to January 12, Nasdaq (provided that, if a dually listed contend with the significant restrictions 2004, to reflect the date on which the proposed rule issuer determines following the previously imposed by the NYSE, and change was filed with the Commission; (2) amended the ‘‘Purpose’’ section of the filing to expiration of this period to transfer the proposed rule provides for listing reflect that Nasdaq will assess the entry fee or a listing to Nasdaq, the entry fee or a fee waivers to address the financial portion thereof if a dually listed issuer determines, portion thereof will be assessed upon burdens that would otherwise be placed following the expiration of the initial one-year such transfer). Nasdaq also has upon these companies that have already period, to transfer listing to Nasdaq; and (3) confirmed that the proposed interpretation will not determined to permit transfer of any paid fees to the NYSE and would impact Nasdaq’s resource commitment to regulatory NYSE listed security from the NYSE to otherwise be required to pay duplicative oversight of the listing process or Nasdaq’s other Nasdaq without charging Nasdaq entry fees. Nasdaq believes that the proposed regulatory programs. For purposes of calculating the fees. Waivers would be available for rule change is consistent with the 60-day abrogation period, the Commission considers the period to have commenced on dual listing or transfers occurring from provisions of section 15A(b)(6) of the February 13, 2004, the date Nasdaq filed Amendment No. 1. 6 See Securities Exchange Act Release No. 48720 7 15 U.S.C. 78k–1(a)(1)(C)(ii). 4 15 U.S.C. 78s(b)(3)(A)(i). (October 30, 2003), 68 FR 62645 (November 5, 8 15 U.S.C. 78o–3(b)(5). 5 17 CFR 240.19b–4(f)(1). 2003)(SR–NYSE–2003–23) (approval order). 9 15 U.S.C. 78o–3(b)(6).
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Act because it is designed to prevent SR–NASD–2004–004. This file number will foster democracy, human rights, fraudulent acts and practices, to should be included on the subject line freedom of information, judicial promote just and equitable principles of if e-mail is used. To help the independence, criminal and civil rule of trade, and to protect investors and the Commission process and review law, civil society, freedom of the press, public interest because it will facilitate comments more efficiently, comments and media reform in the People’s dual listing and transfer of NYSE listed should be sent in hardcopy or by e-mail Republic of China. Statements should securities for a limited period of time, but not by both methods. Copies of the include the following information: so that NYSE listed companies can more submission, all subsequent (1) Brief description of the easily determine the benefits of listing amendments, all written statements organization; on Nasdaq. Nasdaq also believes the with respect to the proposed rule (2) Project objectives, activities and proposal will promote fair competition change that are filed with the the desired outcomes. between markets, which benefits the Commission, and all written Recipients should not submit a budget investing public. communications relating to the at this time, but responses should proposed rule change between the B. Self-Regulatory Organization’s indicate approximate project totals. Commission and any person, other than Statement on Burden on Competition Additional Information: The Bureau’s those that may be withheld from the Human Rights and Democracy Fund Nasdaq does not believe that the public in accordance with the (HRDF) supports innovative, cutting- proposed rule change will result in any provisions of 5 U.S.C. 552, will be edge programs that uphold democratic burden on competition that is not available for inspection and copying in principles, support and strengthen necessary or appropriate in furtherance the Commission’s Public Reference democratic institutions, promote human of the purposes of the Act, as amended. Room. Copies of such filing will also be rights, and build civil society in C. Self-Regulatory Organization’s available for inspection and copying at countries and regions of the world that Statement on Comments on the the principal office of the NASD. All are geo-strategically important to the Proposed Rule Change Received From submissions should refer to file number U.S. HRDF funds projects that have an Members, Participants, or Others SR–NASD–2004–004 and should be immediate impact but that have submitted by March 18, 2004. potential for continued funding beyond Nasdaq neither solicited nor received HRDF resources. HRDF projects must written comments with respect to the For the Commission, by the Division of Market Regulation, pursuant to delegated not duplicate or simply add to efforts by proposed rule change. authority.13 other entities. III. Date of Effectiveness of the Margaret H. McFarland, DRL is interested in funding projects Proposed Rule Change and Timing for Deputy Secretary. to begin no earlier than September 30, Commission Action [FR Doc. 04–4268 Filed 2–25–04; 8:45 am] 2004 and not to exceed two years in duration. Twelve- to eighteen-month The foregoing proposal has become BILLING CODE 8010–01–P programs will be the preferred award effective pursuant to section period. The bulk of project activities 19(b)(3)(A)(i) of the Act,10 and Rule must take place in-country; U.S-based 19b–4(f)(1) 11 thereunder, in that it DEPARTMENT OF STATE activities or exchange projects are not constitutes a stated policy and [Public Notice 4632] encouraged. Projects that draw on interpretation with respect to the resources from greater China will be meaning of an existing rule. Bureau of Democracy, Human Rights At any time within 60 days of the considered, but the majority of activities and Labor Call for Statements of should address the PRC and Hong Kong filing of the proposed rule change,12 the Interest: Democracy, Human Rights, Commission may summarily abrogate directly. Projects that have a strong and the Rule of Law in the People’s academic or research focus will not be such rule change if it appears to the Republic of China Commission that such action is highly considered. DRL will not fund necessary or appropriate in the public SUMMARY: The Office for the Promotion health, technology, environmental, or interest, for the protection of investors, of Human Rights and Democracy of the scientific projects unless they have an or otherwise in furtherance of the Bureau of Democracy, Human Rights explicit democracy, human rights, or purposes of the Act. and Labor (DRL) announces a call for rule of law component. Projects that statements of interest from organizations focus on commercial law or economic IV. Solicitation of Comments interested in being invited to submit development will not be highly Interested persons are invited to proposals for projects on promoting considered. submit written data, views, and democracy, human rights and the rule of Pending availability of funds, arguments concerning the foregoing, law in China. This is an initial approximately $10,500,000 is expected including whether the proposed rule solicitation to ascertain organizations to be available under the Economic change is consistent with the Act. that may be interested in doing projects Support Funds through the HRDF for Persons making written submissions in China and does not constitute a projects that address DRL objectives in should file six copies thereof with the request for proposals. Organizations China. The Bureau anticipates making Secretary, Securities and Exchange invited to submit proposals will have an awards in amounts of $250,000– Commission, 450 Fifth Street, NW., opportunity to expand on their $850,000 to support program and Washington, DC 20549–0609. statements at a later date. administrative costs required to Comments may also be submitted Statements of Interest: The Bureau of implement these programs. electronically at the following e-mail Democracy, Human Rights and Labor Applicant/Organization Criteria: address: [email protected]. All (DRL) invites organizations to submit Organizations submitting statements comment letters should refer to File No. statements of interest of no more than should meet the following criteria: two pages outlining program concepts • Be a U.S. non-profit organization 10 15 U.S.C. 78s(b)(3)(A)(i). and capacity to manage projects that meeting the provisions described in 11 17 CFR 240.19b–4(f)(1). Internal Revenue Code section 26 U.S.C. 12 See note 3 supra. 13 17 CFR 200.30–3(a)(12). 501(c)(3).
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• Have demonstrated experience Dated: February 23, 2004. dispose of the property. The airport administering successful projects in Lorne W. Craner, owner wishes to transfer ownership of China or in similar challenging program Assistant Secretary for Democracy, Human the parcel to the City of Madison, environments. (Organizations that have Rights and Labor, Department of State. Wisconsin. Approval does not not previously received and [FR Doc. 04–4376 Filed 2–25–04; 8:45 am] constitute a commitment by the FAA to successfully administered U.S. BILLING CODE 4710–18–P financially assist in the disposal of the government grant funds will be subject subject airport property nor a to additional scrutiny before being determination of eligibility for grant-in- invited to submit a proposal.) DEPARTMENT OF TRANSPORTATION aid funding from the FAA. • Have existing, or the capacity to Federal Aviation Administration In accordance with section 47107(h) develop, active partnerships with in- of title 49, United States Code, this country organization(s). Public Notice for Waiver of notice is required to be published in the • Organizations may form consortia Aeronautical Land-Use Assurance: Federal Register 30 days before and submit a combined statement of Dane County Regional Airport, modifying the land-use assurance that interest. Madison, WI requires the property to be used for an aeronautical purpose. Review Process: The Bureau will AGENCY: Federal Aviation acknowledge receipt of all submissions. Administration, DOT. DATES: Comments must be received on Following a review of all submissions, ACTION: Notice of intent of waiver with or before March 29, 2004. organizations may be invited to submit respect to land. FOR FURTHER INFORMATION CONTACT: Mr. full proposals. Invitations will be based Daniel J. Millenacker, Program Manager, on subjective evaluation of how the SUMMARY: The Federal Aviation Federal Aviation Administration, project meets the criteria outlined, U.S. Administration (FAA) is considering a foreign policy objectives, and priority proposal to authorize the even exchange Airports District Office, 6020 28th needs of DRL. of a parcel of airport property for an Avenue South, Room 102, Minneapolis, adjacent parcel owned by the City of MN 55450–2706. Telephone Number Deadline and Submission Madison, WI. Parcels to be exchanged (612) 713–4350/FAX Number (612) 713– Instructions: Applicants should submit comprise 0.958 acres located in the 4364. Documents reflecting this FAA statements of interest by overnight northwest environs of the airport. The action may be reviewed at this location, express services such as Federal Express airport-owned parcel is not needed for or at Dane County Regional Airport, or DHL to: the U.S. Department of State, aeronautical use as currently identified Office of Airport Manager, 4000 Bureau of Democracy, Human Rights on the Airport Layout Plan. International Lane, Madison, WI. and Labor, Room 7802, 2201 C Street, The acreage comprising the airport- NW., Washington, DC 20520. Due to owned parcel was originally acquired in SUPPLEMENTARY INFORMATION: Following slow mail processing within the 1983 under Grant No. AIP 3–55–0036– is a legal description of the subject Department of State, we do not 02. The proposed use of this parcel is airport property to be released at Dane recommend submitting proposals via to provide replacement acreage for the County Regional Airport in Madison, the U.S. postal system. Faxed ‘‘taking,’’ or use of 0.958 acres of City Wisconsin, and described as follows: documents will not be accepted at any of Madison-owned property which has A parcel of land located in the SE1/ time. All submissions must be received been determined to be encumbered by 4–SE1/4 of Section 18, T8N, R10E, at the Bureau of Democracy, Human both Department of Transportation Township of Burke, Dane County, Rights and Labor by 5 p.m. eastern (DOT) Section 4(f), and Land and Water Wisconsin, described as: Commencing standard time (E.S.T.) on Friday, March Conservation Fund (LWCF) Act Section at the Southeast corner of said Section 12, 2004. 6(f). Use of the City of Madison-owned 18, thence N0° 47′47″ E, 1327.46 feet, DOT Section 4(f) and LWCF Section along the East line of said SE1/4 to the Note: Due to new security restrictions, we 6(f)-encumbered parcel is necessary to Northeast corner of said SE1/4–SE1/4; are no longer able to accept hand-delivered accommodate realignment of a rail line thence N89° 40′40″ W, 241.03 feet along or courier-delivered proposals. to a location outside of the Runway 13 the North line of said SE1/4–SE1/4 to Additional Information: This Call for runway safety and object free areas, and ° Runway 13 and 18 approach surfaces. the point of beginning; thence S35 Statements of Interest will also appear 29′18″ W, 48.07 feet; N89° 40′40″ W, on the Bureau’s Web site at http:// Improvements to the runway safety and object free areas and approach surfaces 1048.55 feet to the West line of said www.state.gov/g/drl/ under Human SE1/4–SE1/4; thence N0° 40′29″ E, Rights and Democracy Fund and on are to be accomplished through an airport capital improvement project. 39.30 feet, along said West line to the http://www.grants.gov. The airport property to be exchanged Northwest corner of said SE1/4–SE1/4; ° ′ ″ Note: Beginning in 2005, DRL will no will serve as mitigation for the ‘‘taking’’ thence S89 40 40 E, 1076.00 feet along longer publish solicitations in the Federal of the City of Madison-owned DOT the North line of said SE1/4–SE1/4, to Register. DRL will publish its solicitations Section 4(f) and LWCF Section 6(f)- the point of beginning. Parcel contains only on http://www.grants.gov and the encumbered parcel. An environmental 0.958 acres, more or less. Bureau Web site. assessment was prepared to address Issued in Minneapolis, MN on February 5, environmental impacts associated with 2004. FOR FURTHER INFORMATION CONTACT: The the proposed runway safety area and Nancy Nistler, Office for the Promotion of Human approach surface capital improvement Rights and Democracy of the Bureau of project. The airport sensor has Manager, Minneapolis Airports District Democracy, Human Rights and Labor, concluded that the subject airport land Office, FAA, Great Lakes Region. DRL/PHD. Please specify Rana Siu, is not needed for expansion of airport [FR Doc. 04–4291 Filed 2–25–04; 8:45 am] (202) 647–0984, on all inquiries and facilities. There are no impacts to the BILLING CODE 4910–13–M correspondence. airport by allowing the airport to
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DEPARTMENT OF TRANSPORTATION such programs to be developed in submitted to the FAA Airports District consultation with interested and Office in Orlando, Florida. Federal Aviation Administration affected parties including local The Martin County Board of County communities, government agencies, Commissioners submitted to the FAA Approval of Noise Compatibility airport users, and FAA personnel. on May 23, 2003, the noise exposure Program; Martin County Airport/ Each airport noise compatibility maps, descriptions, and other Witham Field, Stuart, FL program developed in accordance with documentation produced during the Federal Aviation Regulations (FAR) part AGENCY: Federal Aviation noise compatibility planning study Administration, DOT. 150 is a local program, not a Federal conducted from July 2000, through Program. The FAA does not substitute November 2003. The Martin County ACTION: Notice. its judgment for that of the airport Airport/Witham Field noise exposure SUMMARY: The Federal Aviation proprietor with respect to which maps were determined by FAA to be in Administration (FAA) announces its measure should be recommended for compliance with applicable findings on the noise compatibility action. The FAA’s approval or requirements on July 30, 2003. Notice of program submitted by the Martin disapproval of FAR part 150 program this determination was published in the County Board of County Commissioners recommendations is measured Federal Register on August 11, 2003. under the provisions of title I of the according to the standards expressed in The Martin County Airport/Witham Aviation Safety and Noise Abatement part 150 and the Act, and is limited to Field study contains a proposed noise the following determinations: Act of 1979 (Pub. L. 96–193) and 14 CFR compatibility program comprised of a. the noise compatibility program part 150. These findings are made in actions designed for phased was developed in accordance with the implementation by airport management recognition of the description of Federal provisions and procedures of FAR part and nonfederal responsibilities in and adjacent jurisdictions from the date 150; of study completion to the year 2007. It Senate Report No. 96–52 (1980). On July b. Program measures are reasonably 30, 2003, the FAA determined that the was requested that FAA evaluate and consistent with achieving the goals of approve this material as a noise noise exposure maps submitted by the reducing existing noncompatible land Martin County Board of County compatibility program as described in uses around the airport and preventing Section 104(b) of the Act. The FAA Commissioners under Federal Aviation the introduction of additional Regulations (FAR) part 150 were in began its review of the program on July noncompatible land uses; 30, 2003, and was required by a compliance with applicable c. Program measures would not create provision of the Act to approve or requirements. On January 26, 2004, the an undue burden on interstate or foreign disapprove the program within 180-days Administrator approved the Martin commerce, unjustly discriminate against (other than the use of new flight County/Witham Field noise types or classes of aeronautical users, procedures for noise control). Failure to compatibility program. Most of the violate the terms of airport grant approve or disapprove such program recommendations of the program were agreements, or intrude into areas within the 180-day period shall be approved. preempted by the Federal Government; deemed to be an approval of such EFFECTIVE DATE: The effective date of the and d. Program measures relating to the program. FAA’s approval of the Martin County The submitted program contained Airport/Witham Field noise use of flight procedures can be implemented within the period covered twenty-one (21) proposed actions for compatibility program is January 26, noise mitigation on and off the airport. 2004. by the program without derogating safety, adversely affecting the efficient The FAA completed its review and FOR FURTHER INFORMATION CONTACT: use and management of the navigable determined that the procedural and Bonnie Baskin, Federal Aviation airspace and air traffic control systems, substantive requirements of the Act and Administration, Orlando Airports or adversely affecting other powers and FAR Part 150 have been satisfied. The District Office, 5950 Hazeltine National responsibilities of the Administrator overall program, therefore, was Dr., Suite 400, Orlando, Florida 32822, prescribed by law. approved by the Administrator effective (407) 812–6331, Extension 130. Specific limitations with respect to January 26, 2004. Documents reflecting this FAA action FAA’s approval of an airport noise Out right approval was granted for may be reviewed at this same location. compatibility program are delineated in seventeen (17) of the twenty-one (21) SUPPLEMENTARY INFORMATION: This FAR part 150, § 150.5. Approval is not specific program elements. Three (3) notice announces that the FAA has a determination concerning the elements were disapproved for the given its overall approval to the noise acceptability of land uses under Federal, purposes of part 150, and one (1) compatibility program for Martin State, or local law. Approval does not by element was partially approved. The County Airport/Witham Field, effective itself constitute an FAA implementing approval action was for the following January 26, 2004. action. A request for Federal action or program measures: Under section 104(a) of the Aviation approval to implement specific noise Operational Measures Safety and Noise Abatement Act of 1979 compatibility measures may be (hereinafter referred to as ‘‘the Act’’), an required, and an FAA decision on the OPS1 Preferential Runway Use airport operator who has previously request may require an environmental This measure calls for the preferential submitted a noise exposure map may assessment of the proposed action. use of Runway 12 during calm winds submit to the FAA a noise compatibility Approval does not constitute a (approximately 10% of the time) to program which sets forth the measures commitment by the FAA to financially reduce the population within the taken or proposed by the airport assist in the implementation of the highest noise impact areas. This operator for the reduction of existing program nor a determination that all measure increases the population noncompatible land uses and measures covered by the program are within the 60–65 DNL by 90, and prevention of additional noncompatible eligible for grant-in-aid funding from the decreases the population within the 65– land uses within the area covered by the FAA. Where Federal funding is sought, 70 DNL by 48. (NCP, pages 5–7 and 5– noise exposure maps. The Act requires requests for project grants must be 8; Final version dated November 4,
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2003, pages 5–6 and 5–7; Response to OPS4 Voluntary Touch-and-Go Limits (NCP, pages 5–12 thru 5–13; Final FAA Comments, page 2; Exhibit OPS1; This measure provides a voluntary revision dated November 4, 2003, pages and Table 5.1) ban on Touch-and-go’s at night (10 p.m. 5–12 and 5–13; Response to FAA FAA Action: Disapproved for to 7 a.m.) Monday thru Saturday and all Comments, page 6; Exhibit OPS6; and purposes of FAR part 150. This measure day Sunday and on major holidays. This Table 5.1) FAA Action: Approved as voluntary does not satisfy FAR part 150 approval measure discourages touch-and-go when a pilot requests the turn, when operations consistent with existing criteria because it does not provide an traffic, weather, and airspace safety and overall reduction in numbers of noise- procedures, and includes 24 hours on efficiency conditions permit ATC to impacted population. Sundays, New Year’s, Thanksgiving, approve the request. Current airspace and Christmas holidays. This measure OPS2 Ban of Stage 1 Aircraft constraints to the north and south of decreases the population within the 65– Martin County significantly curtail the This measure recommends 70 DNL contour by 22, and decreases use of this procedure. As airspace conducting the necessary study and the population within the DNL 60–65 allocations are adjusted by Air Traffic, analysis to facilitate the future dB 31. (NCP, pages 5–10; Final revision the NCP may be updated to analyze prohibition of Stage 1 aircraft from dated November 4, 2003, page 5–10; additional compliance with this using Martin County Airport. (NCP, Response to FAA Comments, page 4; measure. page 5–8; Final revision dated Exhibit OPS4; and Table 5.1) FAA Action: Approved as a voluntary OPS7 Voluntary Takeoff and Landing November 4, 2003, pages 5–7 and 5–8; Procedures Table LU.1; Response to FAA measure. The NCP analysis assumes 100% compliance based on current Comments, page 3; Exhibits OPS2; Table This measure recommends the use of compliance rates. This measure must be 5.1) NBAA or manufacturer noise abatement accomplished with continued pilot takeoff and landing procedures by jet FAA Action: Disapproved for education and will not include aircraft operators. Air carrier aircraft purposes of FAR part 150. The analysis mandatory enforcement. will be asked to use AC 91–53A close- contained in the NCP states that in departure procedures. (NCP, page 5– implementing a ban on Stage 1 aircraft OPS5 Runway 12 Voluntary Noise Abatement Departure Flight Track 13; Final revision dated November 4, would not impact the noise contour 2003, page 5–13; Response to FAA used for comparison in this study (2007, This measure is the voluntary use of Comments, page 7; and Tables 5.1) with and without program measures). straight-out departure track for jet FAA Action: Disapproved pending Also, the FAA notes that Measure LU1, aircraft departing Runway 12. This submission of additional information to described below, may allow measure decreases the population make an informed analysis. This construction of new residences within within the 60–65 DNL by 64, and measure relates to flight procedures the DNL contour selected by the airport increases the population within the 65– under 49 U.S.C. 47504(b). Information sponsor as locally significant (i.e., DNL 70 DNL by 5. (NCP, pages 5–11 thru 5– required to complete FAA action on this 60–65 dB). Local actions to permit new 12; Final revision dated November 4, measure includes calculating the incompatible construction in a DNL 2003, pages 5–10 and 5–11; Response to estimated benefits to noise-sensitive contour selected by the airport sponsor FAA Comments, pages 5–6; Exhibits land uses near the airport. This as locally significant would not be OPS5; and Table 5.1) information can be provided using reasonably consistent with achieving FAA Action: Approved as voluntary either the DNL noise contour or using the goal of reducing noncompatible land when a pilot requests to proceed to the supplemental metrics such as describing uses and preventing the introduction of ocean before making a turn, when the benefits with versus without the additional noncompatible uses (49 traffic, weather, and airspace safety and measure, on a single event basis. U.S.C. 47504(b)(1)(B), and part 150 efficiency conditions permit ATC to The effectiveness of noise abatement § 150.35(b)(1)). Also, to approve a approve the request. This measure procedures will vary on an airport-by- measure under part 150, it must not be assumes an average of one operation per airport basis. There are three basic unjustly discriminatory (§ 150.35(b)(1)). day will utilize this voluntary measure. takeoff profiles—near, distant, and While this measure does increase by a standard. Given variations in aircraft OPS3 Voluntary Stage 2 Aircraft Night- small number the residents in the 65– performance, it is possible for one time Curfew 70 DNL contour, it reduces the aircraft type to use one type of This measure is to discourage Stage 2 population included in the 60–65 DNL procedure and another aircraft to use a operations between the hours of 10 p.m. contour, providing a net decrease in different procedure to achieve noise and 7 a.m. This measure would decrease people exposed to noise. Current reduction over the same community. airspace constraints to the north and the population within the 60–65 DNL by The techniques used to determine the south of Martin County significantly 96 people and decreases the population noise benefits of changes in approach curtail the use of this procedure. As within the 65–70 DNL by 68. (NCP, settings are still under study in the U.S. airspace allocations are adjusted by Air pages 5–10; Final revision dated Traffic, the NCP may be updated to OPS8 Install Flight Tracking System November 4, 2003, pages 5–10; analyze additional compliance with this This measure is to install equipment Response to FAA Comments, page 4; measure. to record the actual flight tracks of each Exhibit OPS3; and Table 5.1) operation to help monitor the FAA Action: Approved as a voluntary OPS6 Runway 30 Voluntary Noise effectiveness of NCP measures and to measure. The NCP analysis assumes a Abatement Departure Flight Track assist Martin County in the high rage of compliance with this This measure includes a voluntary left determination of the future need to measure based on current compliance turn to 285 degrees for jet aircraft update the noise exposure maps. The rates. This measure is proposed to be departing Runway 30. This measure results will be used to encourage accomplished with continued pilot decreases the population within the 60– voluntary use of the noise abatement education. There will be no mandatory 65 DNL by 48 and decreases the flight tracks, and will not be used for enforcement. population within the 65–70 DNL by 76. mandatory enforcement. (NCP, pages 5–
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13 and 5–14; Final revision dated mandatory enforcement of any noise-sensitive uses. Other November 4, 2003, page 5–13; Response voluntary measure. nonresidential commercial development to FAA Comments, pages 7 and 8; and would require sound attenuation. These OPS11 Engine Run-up Procedures and Table 5.1) designations are approved. Facilities FAA Action: Approved. The flight We note that LU7 suggests an tracking system must technically be able This measure is to continue the intention to limit new land uses in to interface with the FAA equipment existing program limiting maintenance Zones A and B to compatible uses; and operations, and must comply with run-ups to the hours between 7 a.m. and however, residences are not specifically FAA data download requirements. 10 p.m., whenever possible, and to mentioned in the description of Eligibility for Federal funding and scope study potential new locations for run-up prohibited land uses in Zone B, and are of the proposed project will be areas. This measure has the potential to assumed to be permitted in that zone’s determined at the time of application. reduce ground level noise prior to DNL 60–65 dB noise contour. To the For purposes of aviation safety, this takeoff and landing. (NCP, pages 5–14. extent that Zone B is intended to permit approval does not extend to the use of and 5–15; Final revision dated new residential land uses, this monitoring equipment for enforcement November 4, 2003, page 5–15; Response designation is disapproved for purposes purposes by in-situ measurement of any to FAA Comments, page 9; Table 5.1; of part 150. It would not be reasonably pre-set noise thresholds and shall not be and, Supplemental graphics Figure 5.1 consistent with achieving the goal of used for mandatory enforcement of any ‘‘Potential Berm Sites and Operational reducing noncompatible land uses and voluntary measure. Run-Up Locations’’) preventing the introduction of OPS9 Pilot Information Program FAA Action: Approved to continue additional noncompatible uses (40 the current procedure as a voluntary This measure is to educate, inform, U.S.C. 4750(b)(1)(B)) to allow new measure. Approved for further study of residences within the DNL 60–65 dB and notify pilots and airport users of the additional run-up locations. measures included in the NCP with the noise contour since the local goal of increasing user participation in OPS12 Noise Barriers government has adopted the DNL 60–65 dB standard as locally significant. the program. (NCP, page 5–14; Final This measure will study potential Neither would it be consistent with the revision dated November 4, 2003, page benefits of the construction of noise FAA’s land use mitigation policy 5–14; and Table 5.1) barriers to reduce the impact of aircraft published in 1998. Future mitigation of FAA Action: Approved in concept. ground noise. This measure has the any noise-sensitive development that The methods to publicize this noise potential to reduce ground level noise occurs after October 1, 1998, will not be compatibility program are approved. prior to takeoff and landing. (NCP, pages eligible for part 150 approval under the Prior to release, each publicity measure 5–15 and 5–16; Final revision dated FAA’s 1998 policy. Disapproval under must be approved for wording and November 4, 2003, pages 5–15; part 150 does not prevent the local content by the appropriate FAA office, Response to FAA Comments, page 9; planning jurisdictions from carrying out and should clearly state that the noise and Table 5.1; Supplemental graphics their own land use plans to meet local abatement measures are voluntary, and Figure 5.1 ‘‘Potential Berm Sites and needs. that pilots, while encouraged to request Operational Run-Up Locations’’) the noise abatement departure heading, FAA Action: Approved for further LU2 Real Estate Disclosure are always required to follow the study. directions provided by air traffic This measure is to disclose properties control. Land Use Measures located within the 60 DNL and higher noise contours to notify purchasers of OPS10 Monitor Air Traffic Control LU1 Noise Zoning where the property is located within the Frequencies This measure is to establish Overlay NEM contours. It will also notify them This measure will record and review Districts within the County and City of the possibilities of aircraft noise and Air Traffic and pilot radio frequencies to Zoning Ordinances. Zone A will include overflights. (NCP revision, pages 5–20 monitor effectiveness of NCP measures 65 DNL and greater, and Zone B will and 5–21 and Appendix H, pages 12–13; and operations during hours when the include 60 to 65 DNL. This measure is Response to FAA Comments, page 10; tower is closed. (NCP, pages 5–14 and to ensure that areas presently zoned as and Table 5.2) 5–15; Final revision dated November 4, compatible remain, and change non- FAA Action: Approved. 2003, page 5–14; Response to FAA compatible to compatible. (NCP Comments, page 8; and Table 5.1) revision, pages 5–17 through 5–20, and LU3 Site Plan Review FAA Action: Approved. This measure Appendix H, pages 10–12; Response to would involve purchasing over-the- FAA Comments, page 10; Table 5.2; Using the Intergovernmental counter radio-receiving equipment that and, Revised Table LU.1) Coordination Element of the is generally available to the public. The FAA Action: Approved in part, Comprehensive Plan, this measure stated purpose is to determine how disapproved in part. This is a contemplates developing a policy to effective the noise abatement measures preventive land use measure and is allow the airport to participate in site are. Information will be used to educate within the authority of the local land plan review. All proposed site plans for the pilots and community about the use planning jurisdictions. property within the DNL 60–65 dB program, and will be used to assist in The narrative at pages 5–19 and 5–20 noise contour for 2007 will be reviewed. addressing citizen complaints. describe the zones as follows. Zone A An interlocal agreement may be Eligibility for Federal funding and scope would prohibit new noise sensitive required before this action can be of the proposed project will be development within the DNL 65 dB and implemented. This measure also is determined at the time of application. greater noise contour, including intended to ensure consistency with For purposes of aviation safety, this residential development. Nonresidential measure LU1. (NCP revision page 5–21, approval does not extend to the use of commercial development would require and Appendix H, page 13; Response to monitoring equipment for enforcement sound attenuation. Zone B would FAA Comments, page 10; and Table 5.2) purposes and shall not be used for prohibit schools, childcare, and similar FAA Action: Approved.
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LU4 Citizens Noise Committee NCP Chapter 5, Table LU.1). The FAA uses within those noise levels defined This measure is to establish a notes that the adopted guidelines allow as significant by the airport operator. committee for the purpose of monitoring construction of non-compatible uses FAA will not approve mitigation of the effectiveness and implementation of within those noise levels defined as noise-sensitive structures built after the NCP measures and to conduct ‘‘significant’’ by the airport operator. October 1, 1998. The FAA will not approve mitigation of public education. The committee will noise-sensitive structures built after LU9 Voluntary Aviation Easement make recommendations to the Board of October 1, 1998. Acquisition Program County Commissioners. It will assist the This measure allows for the purchase airport staff with the monitoring of the LU7 Redevelopment Program of easements within the 60–65 DNL and NCP measures, community involvement This measure encourages re- 65–70 DNL noise contours to ensure and pilot education. (NCP revision, page development of acquired or vacant continued land use compatibility of 5–21, and Appendix H, page 14; and property to a compatible use within the properties where the County has taken Table 5.2) 60–65 DNL and 65–70 DNL noise other actions to mitigate noise within FAA Action: Approved. contours. This includes properties the DNL 60 dB noise contour. A LU5 Florida Statute 333, Airport acquired under LU6. If the property property owner, in exchange for sound Zoning were resold, it would be subject to insulation, may grant an easement as aviation easements attached to the deed outlined in LU8 above. Easements may This measure will incorporate to ensure long-term compatibility. The provisions consistent with Florida also be purchased from property owners Federal Uniform Relocation Act will be who are eligible but choose not to Statute 333, Airport Zoning Regulations satisfied for acquisitions with Federal to enhance land-use compatibility in the participate in a sound insulation funds. (NCP revision, page 5–22; program. Easements may also be placed airport environs. By adopting this Response to FAA Comments, page 12; measure, the City and County will on a property acquired under LU6 or and Tables 5.2) LU7. (NCP revision, page 5–23; and recognize the statute’s provisions and FAA Action: Approved to prepare a incorporate it in whole or by reference Table 5.2) redevelopment plan for property FAA Action: Approved. The specific in their comprehensive plans and land acquired as part of this Record of identification of structures development codes. (NCP revisions, Approval. recommended for inclusion in the pages 5–21 and 5–22; Response to FAA program and specific definition of the Comments, page 11; and Table 52.) LU8 Voluntary Sound Insulation scope of the program will be required FAA Action: Approved. Program prior to approval for Federal funding. LU6 Voluntary Land Acquisition This measure proposes to develop a These determinations are set forth in voluntary sound insulation program for detail in a Record of Approval endorsed This measure is for voluntary existing sensitive receptors within the acquisition or sales assistance within by the Administrator on January 26, 60–65 DNL and 65–70 DNL noise 2004. The Record of Approval, as well the 60–65 DNL and 65–70 DNL noise contours. Existing structures will be contours. The sponsor will either as other evaluation materials and the renovated to include required NLR documents comprising the submittal, purchase and relocate eligible residents standards. A priority system will be in impacted areas or eligible property are available for review at the FAA established that includes mitigation for office listed above and at the owners will be offered sales assistance structures in the highest noise levels if direct purchase and relocation is not administrative office of the Martin first. (NCP revision, page 5–23; County. acceptable to the owner. This program Response to FAA Comments, page 12; will comply with the Federal Uniform and Tables 5.2) Issued in Orlando, Florida, on February 10, Relocation Act. (NCP revision, page 5– FAA Action: Approved. The specific 2004. 22, Appendix H, page 15; Response to identification of structures Matthew J. Thys, FAA Comments, page 11; and Table 5.2) recommended for inclusion in the Acting Manager, Orlando, Airports District FAA Action: Approved. The specific program and specific definition of the Office. identification of structures scope of the program will be required [FR Doc. 04–4192 Filed 2–25–04; 8:45 am] recommended for inclusion in the prior to approval for Federal funding. BILLING CODE 4910–13–M program and specific definition of the The FAA Federal guidelines state that scope of the program will be required impacts at noise levels of DNL 65 dB prior to approval for Federal funding. and greater are ‘‘significant’’ and lesser DEPARTMENT OF TRANSPORTATION The FAA Federal guidelines state that noise levels of DNL 55 to 64 dB are impacts at noise levels of DNL 65 dB ‘‘moderately’’ impacted, (see compatible Federal Aviation Administration and greater are ‘‘significant’’ and lesser land use guidelines in Table 1 of FAR Noise Exposure Map Notice; noise levels of DNL 55 to 64 dB are Part 150). Properties located at levels Georgetown Municipal Airport, ‘‘moderately’’ impacted, (see compatible less than the Federal ‘‘significant’’ Georgetown, TX land use guidelines in Table 1 of FAR criterion, such as the DNL 60 dB part 150). Properties located at levels identified as locally significant by the AGENCY: Federal Aviation less than the Federal ‘‘significant’’ airport sponsor, will receive a much Administration, DOT. criterion, such as the DNL 60 dB lower priority for Federal financial ACTION: Notice. identified as locally significant by the assistance. airport sponsor, will receive a much The airport operator has adopted a SUMMARY: The Federal Aviation lower priority for Federal financial local deviation from the Federal Administration (FAA) announces its assistance. compatible land use guidelines determination that the noise exposure The airport operator has adopted a published in FAR part 150, Table 1 (see maps submitted by the city of local deviation from the Federal land revised NCP Chapter 5, Table LU.1). The Georgetown for the Georgetown use compatibility guidelines published FAA notes that the adopted guidelines Municipal Airport under the provisions in FAR part 150, Table 1 (see revised allow construction of non-compatible of 49 U.S.C. 47501 et seq. (Aviation
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Safety and Noise Abatement Act) and 14 FAA’s determination on an airport DEPARTMENT OF TRANSPORTATION CFR part 150 are in compliance with operator’s noise exposure maps is applicable requirements. limited to a finding that the maps were Federal Aviation Administration developed in accordance with the EFFECTIVE DATE: The effective date of the Finding of No Significant Impact. FAA’s determination on the noise procedures contained in appendix A of exposure maps is January 26, 2004. FAR part 150. Such determination does AGENCY: Federal Aviation FOR FURTHER INFORMATION CONTACT: not constitute approval of the Administration (FAA), Department of applicant’s data, information or plans, Transportation (DOT). Mr. Paul Blackford, Program Manager, or a commitment to approve a noise ACTION Federal Aviation Administration, : Finding of no significant Texas Airports Development Office, compatibility program or to fund the impact. implementation of that program. If ASW–650, 2601 Meacham Boulevard, SUMMARY: The Federal Aviation Fort Worth, Texas 76193–0650, questions arise concerning the precise relationship of specific properties to Administration (FAA) prepared an Telephone: (817) 222–5607. Environmental Assessment (EA) to noise exposure contours depicted on a Mr. Travis McLain, P.O. Box 409, evaluate the East Kern Airport District noise exposure map submitted under Georgetown, Texas 78627, (512) 930– (EKAD) proposal to operate a section 47503 of the Act, it should be 3666. commercial launch facility at the Ms. Michelle Hannah, Texas noted that the FAA is not involved in Mojave Airport in Mojave, California. Department of Transportation, any way in determining the relative The EA also evaluated the potential Aviation Division, 125 East 11th locations of specific properties with environmental impacts of launches of Street, Austin, Texas 78701–2483, regard to the depicted noise contours, or two types of horizontally launched (512) 416–4500. in interpreting the noise exposure maps suborbital vehicles (Concept A and SUPPLEMENTARY INFORMATION: This to resolve questions concerning, for Concept B) proposed to be launched notice announces that the FAA finds example, which properties should be from the Mojave Airport. The EKAD that the noise exposure maps submitted covered by the provisions of section owns and operates the Mojave Airport for Georgetown Municipal Airport are in 47506 of the Act. These functions are and must comply with the California compliance with applicable inseparable from the ultimate land use Environmental Quality Act (CEQA) to requirements of part 150, effective control and planning responsibilities of operate a launch facility at the Mojave January 26, 2004. Under 49 U.S.C. local government. These local Airport. The EKAD was responsible for 47503 of the Aviation Safety and Noise responsibilities are not changed in any complying with the responsibilities of Abatement Act (hereinafter referred to way under part 150 or through FAA’s CEQA. In addition to the launch site as ‘‘the Act’’), an airport operator may review of noise exposure maps. operator license application from EKAD, submit to the FAA noise exposure maps Therefore, the responsibility for the Scaled Composites, LLC, is requesting a which meet applicable regulations and detailed overlaying of noise exposure launch specific license and proposes to which depict nonprojected aircraft contours onto the map depicting conduct up to six licensed launches in operations, and the ways in which such properties on the surface rests 2004 of the SpaceShipOne launch operations will affect such maps. The exclusively with the airport operator vehicle. This launch vehicle is similar Act requires such maps to be developed that submitted those maps, or with to the Concept A vehicle described and in consultation with interested and those public agencies and planning analyzed in the EA. After reviewing and analyzing currently available data and affected parties in the local community, agencies with which consultation is information on existing conditions, government agencies, and persons using required under section 47503 of the Act. the airport. An airport operator who has project impacts, and measures to The FAA has relied on the certification submitted noise exposure maps that are mitigate those impacts, the FAA, Office by the airport operator, under § 150.21 found by FAA to be in compliance with of the Associate Administrator for of FAR part 150, that the statutorily the requirements of Federal Aviation Commercial Space Transportation (AST) Regulations (FAR) part 150, required consultation has been has determined that licensing the promulgated pursuant to the Act, may accomplished. operation of the proposed launch site submit a noise compatibility program Copies of the full noise exposure map and issuing a launch specific license for for FAA approval which sets forth the documentation and of the FAA’s up to six launches of the SpaceShipOne measures the operator has taken or evaluation of the maps are available for launch vehicle would not significantly proposes to take to reduce existing non- examination at the following locations: affect the quality of the human compatible uses and prevent the Federal Aviation Administration, 2601 environment within the meaning of the introduction of additional non- Meacham Boulevard, Fort Worth, Texas; National Environmental Policy Act compatible uses. city of Georgetown, P.O. Box 409, (NEPA). Therefore the preparation of an The FAA has completed its review of Georgetown, Texas. Questions may be Environmental Impact Statement (EIS) the noise exposure maps and directed to the individual named above is not required and AST is issuing a accompanying documentation under the heading FOR FURTHER Finding of No Significant Impact (FONSI). The FAA made this submitted by the city of Georgetown. INFORMATION CONTACT. The documentation that constitutes the determination in accordance with all ‘‘noise exposure maps’’ as defined in Issued in Fort Worth, Texas, January 26, applicable environmental laws. § 150.7 of part 150 includes: Exhibits 1, 2004. FOR A COPY OF THE FINDING OF NO 2, 3A, 3E–3G, and Tracks 4A, 4B, 4D Naomi L. Saunders, SIGNIFICANT IMPACT REGARDING EKAD and 4E. The FAA has determined that Manager, Airports Division. LAUNCH OPERATIONS AND SCALED these noise exposure maps and [FR Doc. 04–4196 Filed 2–25–04; 8:45 am] COMPOSITES LAUNCH SPECIFIC LICENSE accompanying documentation are in BILLING CODE 4910–13–M CONTACT: Ms. Michon Washington, FAA compliance with applicable Environmental Specialist, Mojave requirements. This determination is Airport EA, c/o ICF Consulting, 9300 effective on January 26, 2004. Lee Highway, Fairfax, VA 22031 or refer
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to the following Internet address: http:/ EA as the basis for environmental lead agency for CEQA. On December 16, /ast.faa.gov. determinations of the impacts of these 2003 the EKAD adopted a Negative DATES: The Draft EA was released for launches to support licensing decisions Declaration for the proposed action public comment on October 31, 2003. In for the launch of specific launch pursuant to the CEQA. addition, the FAA held a public hearing vehicles from the Mojave Airport. Alternatives Considered: Alternatives on December 10, 2003 in Mojave, Proposed launch operations currently analyzed in the EA included (1) the California to collect comments from the include launches of two types of launch proposed action, issuing a launch site public. All comments received before vehicles. The first type referred to in the operator license to the EKAD for the December 12, 2003 were considered in EA as Concept A includes air-drop operation of a launch site at Mojave the preparation of the Final EA. designs where two vehicles, an airplane Airport for Concept A and Concept B Proposed Actions: Operation of a non- and launch vehicle are mated together launch vehicles, (2) issuing a launch site Federal launch site in the United States, and the airplane carries the launch operator license to the EKAD for the such as EKAD’s proposed operation of vehicle to a predetermined altitude Mojave Airport for Concept A launch a launch site at the Mojave Airport, in where the launch vehicle is dropped vehicles only, (3) issuing a launch site Mojave, California, and launches of and its rocket engines ignite. The operator license to EKAD for the Mojave launch vehicles, such as Scaled SpaceShipOne vehicle is similar to the Airport for Concept B launch vehicles Composites’ proposed launches of the Concept A vehicle described and only, and (4) the no action alternative. SpaceShipOne vehicle from the Mojave analyzed in the EA. The second type of Under the No Action Alternative, the launch vehicle, referred to in the EA as Airport must be licensed by the FAA FAA would not issue a launch site Concept B, includes horizontally pursuant to 49 U.S.C. Sections 70101– operator license to EKAD for launches launched vehicles, which use rocket 70119, formerly the Commercial Space of Concept A and Concept B launch power to take off from a standard Launch Act. Licensing the operation of vehicles from the Mojave Airport. No aviation runway. The EA addresses the a launch site and a launch vehicle are launches of Concept A or Concept B overall impacts to the environment of Federal actions requiring environmental launch vehicles would take place from the proposed operations anticipated for analyses by the FAA in accordance with the Mojave Airport. The Airport would a five-year launch site license term to NEPA, 1969, 42 U.S.C. Sec. 4321 et seq. continue to operate as a general aviation include the launch and landing of Upon receipt of complete license airport and predicted environmental Concept A and B launch vehicles at the applications, AST must determine impacts from the proposed action would Mojave Airport and testing rocket not occur. whether to issue a license to EKAD to engines that would be incorporated into operate a launch site at the Mojave Concept A and B launch vehicles. Environmental Impacts Airport and whether to issue a launch The FAA and the U.S. Air Force Safety and Health specific license to Scaled Composites (USAF) are involved in the proposed for up to six launches of the action. The FAA is the lead Federal A hazard analysis is a necessary part SpaceShipOne launch vehicle from the agency for the NEPA process and is of the Mission and Safety Review for the Mojave Airport. An environmental responsible for licensing and regulating FAA licensing determination to assess determination is required for the EKAD’s launch operations under 49 the possible hazards associated with evaluation of license applications. U.S.C. Subtitle IX-Commercial Space proposed ground, flight, and landing The launch site would be located at Transportation, ch. 701, Commercial operations. Launches of Concept A and the Mojave Airport. No construction Space Launch Activities. The Air Force B vehicles (including SpaceShipOne) activities are proposed as part of this Flight Test Center (AFFTC) is the host from the Mojave Airport would require action. Existing infrastructure including organization at Edwards Air Force Base, launch specific licenses from the FAA hangars and runways would be used to which is located 48 kilometers (30 and each launch applicant (including support launch and landing operations miles) east of the Mojave Airport. The Scaled Composites) would be required at the proposed launch site. Existing AFFTC manages the special use airspace to conduct risk analyses based on the rocket test stands may also be used for designated as Restricted Area R–2515 proposed mission profiles. The Mission static testing of rocket engines. (contained within the R–2508 Complex), and Safety Review will consider these The proposed EKAD launch site which would be the primary operating analyses, and, therefore, they were not operator license would be for the area for the vehicles launched from the discussed in detail in this EA. However, purpose of operating a facility to launch Mojave Airport. Commercial and private analysis of the safety and health horizontally launched, suborbital agencies that operate aircraft in the R– implications of launch related rockets. Under the proposed action, the 2508 Complex maintain appropriate operations and activities that have the FAA would issue a launch site operator Letters of Agreement (LOA) with both potential for environmental impact were license to the EKAD for the Mojave the R–2508 Complex Control Board and considered in this EA. Airport for the purpose of operating a the AFFTC for operation in their Ground operations involved in facility to launch horizontally launched, respective areas. In addition, USAF servicing and preparing launch vehicles suborbital rockets. In addition, the aircraft may use Mojave Airport for typically involve industrial activities, EKAD may offer other services for some missions. The AFFTC also which were evaluated for potential commercial launch vehicle operates the airfield, which would serve impact on the environment. There are manufacturing, and other testing and as the primary emergency landing site various hazards associated with these manufacturing activities. These services for the launch vehicles. These entities activities including and other testing and manufacturing also have a responsibility for the • Spill/fire/explosion of propellant/ activities are unrelated to, and are not environment and assets on the ground, fuel storage, transport, handling, and authorized by the Launch Site Operator which have the potential to be affected loading; License. Launch providers would be by launches. Therefore, the FAA • Traffic accidents due to increased responsible for obtaining launch requested and the USAF agreed to activity on and off site; and licenses from the FAA to conduct participate as a cooperating agency in • Occupational mechanical accidents. launches at the Mojave Airport. The the preparation of NEPA analysis for There would be some vapors of FAA may use the analyses in the Final this proposed action. The EKAD is the various propellants released from
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propellant storage/transfer operations fund, license) unless the activity will estimate aircraft emissions, emission through evaporative losses. However, conform to the Environmental factors (e.g., pounds released per such vapors would be vented outside Protection Agency-approved State takeoff/landing cycle) found in the EPA and at a height that would provide Implementation Plan for the region. document Compilation of Air Pollutant adequate protection for personnel, This is called a conformity Emission Factors for the T–38 aircraft buildings and the environment. Also, determination or analysis. A conformity were used. The takeoff/landing cycle the total quantity of emissions would analysis may involve performing air includes idle, takeoff, climb out to 914 not occur as a large acute (short-term) quality modeling and implementing meters (3,000 feet), descent starting at exposure, but would occur as a slow measures to mitigate the air quality 914 meters (3,000 feet), approach, and vapor release over a long period of time. impacts. The Federal government is landing. There is also the concern of spills of exempt from the requirement to perform The analysis considered emissions in propellants during handling and loading a conformity analysis if two conditions two categories, above 914 meters (3,000 operations and subsequent fire or are met. feet) and below 914 meters (3,000 feet). explosion. However, the Mojave Airport • The ongoing activities do not The 914 meter (3,000 feet) altitude is an has established practices and produce emissions above the de appropriate cutoff because the Federal procedures to handle the spills and minimis levels specified in the rule. government uses 914 meters (3,000 feet) releases of propellants. • The Federal action must not be and below for contributions of Increased road traffic that would considered a regionally significant emissions to the ambient air quality and result from conducting the proposed action. A Federal action is considered for de minimis calculations. Annual launch operations at the Mojave Airport regionally significant when the total emissions from the carrier aircraft for a would only add a few cars/trucks above emissions from the action equal or maximum of six flights would be 225.1 existing traffic loads. However, the exceed 10 percent of the air quality kilograms (496.3 pounds) of CO, 3.3 increase in the number of shipments of control area’s emissions inventory for kilograms (7.3 pounds) of nitrogen hazardous materials should not any criteria pollutant. oxides (NOX), 28.3 kilograms (62.5 significantly increase the number of Air analyses indicated that nitrogen pounds) of volatile organic compounds traffic accidents on the roadways oxides (NOX) and volatile organic (VOCs), and 1.7 kilograms (3.7 pounds) around the Mojave Airport. compound (VOC) emissions are 0.01 of sulfur dioxide (SOX). Because NOX On-site work associated with the metric tons (0.01 tons) per year and 2.2 and VOC emissions from the carrier conduct of launch operations would be metric tons (2.4 tons) per year, aircraft are not above the de minimis similar to that associated with industrial respectively. These would not be above level of 45.4 metric tons (50 tons) per chemical operations. Exposure to the de minimis level of 45.4 metric tons year, there is no need for a Federal mechanical accidents should not differ (50 tons) per year. In addition, the total conformity analysis. significantly from current levels for the emissions from the proposed action Emissions from the launch vehicle Mojave Airport because the number of represent 0.0001 percent of the area’s would occur from the combustion of operations associated with the conduct emissions inventory for NOX and 0.05 N2O and HTPB. For each flight, there of launch operations would be relatively percent of the area’s emissions would be an estimated 1,295 kilograms small given the number of operations inventory for VOC, and therefore, are (2,855 pounds) of N2O and 228 airport wide. not regionally significant. Based on kilograms (503 pounds) of HTPB. The In a catastrophic accident, it would be these data, there is no need for a Federal emissions would begin at an altitude of likely that the crew would be seriously conformity analysis and no significant between 16 to 20 kilometers (10 to 12 injured or killed. At the Airport, the on- impacts to air quality are anticipated. miles) (troposphere and beginning of site fire department would respond and The National Ambient Air Quality stratosphere). The emissions are based secure the site, but would stay clear of Standard (NAAQS) for NOX and VOC on propellant emission factors similar to the immediate area until the danger of for areas in severe non-attainment is 25 those used in the Navy FA–18E/F EA. explosions diminishes. It is expected tons per year. Therefore, for emissions These emission factors are refined that any fires resulting from a failure resulting from the proposed action, because the launch vehicle proposes to there would be no exceedances of the could be fought by the fire department. use N2O and HTPB rather than Additional off-site emergency response NAAQS from the proposed action and perchlorate and HTPB as in the Navy capability could also be used if an NAAQS assessment would not be EA. Thus, it was assumed that necessary. required to evaluate the potential for • N2O fully decomposes to oxygen significant air quality impacts under Air Quality and nitrogen, NEPA. • The oxygen fully reacts with the Air emissions may be generated For Concept A vehicles (including hydrogen in the HTPB to form water, during launch/landing operations, pre- SpaceShipOne), the EA addressed the • The oxygen reacts with the carbon and post-launch ground operations, and impacts to air quality from both the in HTPB to produce roughly ten times accidents. The proposed action does not carrier aircraft and the mated suborbital as much carbon monoxide (CO) as include any changes to the physical launch vehicle. The aircraft would have carbon dioxide (CO2) (similar to FA– structure of the airport (e.g., runway) or turbojet engines using Jet A–1 fuel. The 18E/F EA), and any construction activities; therefore Concept A launch vehicle would use a • The nitrogen is released as nitrogen there are no construction vehicles or hybrid rocket engine with nitrous oxide gas (N2). associated emissions and no (N2O) and hydroxyl-terminated To estimate the total emissions, the construction-related dust or airborne polybutadiene (HTPB) as propellants. emissions fractions were multiplied by particles. The air quality at the Mojave There would be emissions from both the the total amount of propellant used Airport in Eastern Kern County is in carrier aircraft and the launch vehicle (1,523 kilograms [3,358 pounds]) and Federal non-attainment (serious) and components. To make emissions the number of flights expected per year. State non-attainment (moderate) for calculations for the carrier aircraft, it is In a year with a maximum of six flights ozone, and non-attainment for PM10 assumed the aircraft would most closely the emissions would be 274 kilograms (California standards only). A Federal resemble the T–38 Tiger aircraft which (604 pounds) of CO2, 1,828 kilograms agency cannot support an action (e.g., uses two J85–GE–5F engines. To (4,030 pounds) of CO, 2,011 kilograms
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(4,433 pounds) of water, and 4,935 Also, the emission products should not meters (4,000 feet) would be a candidate kilograms (10,880 pounds) of N2. The expose the population to objectionable for an emergency landing location. propellant is fully expended above 914 odors of types that do not already exist Although the designated abort sites meters (3,000 feet); therefore, there are from airport operations (e.g., fuel and include areas where sensitive habitat no propellant combustion emissions for exhaust odors). and species may be present, it is the proposed vehicle during landing. unlikely that an emergency landing Airspace There are also emissions from the would occur at these sites, and therefore carrier aircraft above 914 meters. No significant impacts to Mojave significant impacts to vegetation found Although these emissions were Airport airspace would occur as a result at these sites would not be anticipated. considered, it was generally assumed of the proposed action. Conducting a that aircraft emissions from the six maximum of six launches of the Wildlife proposed flights per year would be SpaceShipOne vehicle over a 12-month The proposed action would use a relatively small compared to a total of period would have no significant designated runway at Mojave Airport for 18,301 aircraft flights occurring impacts on airspace. Conducting six launches and landings of Concept A and annually from the Mojave Airport. launches per year would result in a 0.03 B launch vehicles. The runways are Emissions can also occur from percent increase in activity at the routinely used for take-offs and landings support equipment used during ground Mojave Airport. Increased operations of other aircraft, and no construction operations. This could include various including all Concept A and B launches activities would be required to support trucks and equipment, although there (up to 56 flights per year by 2008) for launch operations. As a result, no loss would be relatively few used and the proposed activity would represent of habitat would be anticipated. therefore few emissions would be an increase of 0.3 percent over the Because no construction activities are expected to result from their use. There current annual flight rate at the Airport. planned, no significant adverse effects, would also be air emissions from fueling This increase would not exceed the either directly or through habitat the carrier aircraft and storage of capabilities of the Mojave Airport modifications, on any species identified additional fuels. Each flight of the facilities and control tower and would as a candidate, sensitive, or special carrier aircraft would consume 2,903 not result in a significantly higher status species would be anticipated. The kilograms (6,400 pounds) of Jet-A fuel. probability of in-flight mishaps. No desert tortoise which is a U.S. Fish and This would equal 21,804 liters (5,760 significant impacts to off-site airspace Wildlife Service federally-listed, gallons) per year based on 1.25 liters per would occur as a result of the proposed threatened wildlife species, has kilogram (0.15 gallons per pound) and action. The proposed action would historically occurred throughout the six flights per year. Fuel use at the occur almost exclusively in the R–2508 region of influence and has limited Mojave Airport during the 12-month Complex. The Mojave Airport and potential to occur almost anywhere period from July 2002 to June 2003 was several of its tenants have LOAs with 7,933,837 liters (2,095,898 gallons). An within the Mojave Specific Plan area. the R–2508 Complex Control Board and Critical habitat for the desert tortoise additional 21,804 liters (5,760 gallons) the managers of individual restricted of fuel per year represents a small has been designated in the region of areas within the R–2508 Complex to influence and the FAA initiated increase in annual Jet-A usage at the operate within the various individual airport and, therefore, the emissions informal consultation with the U.S. Fish restricted areas (including R–2515). Any and Wildlife Service under section 7 of from storage and dispensing as a result flights into the R–2508 Complex that are of activities related to proposed launch the Endangered Species Act. After part of the proposed action that would review of potential impacts, the FAA operations would not be significant. create a significant impact to military Because the emissions from the determined and the U.S. Fish and activities would be prohibited by the launch vehicle would originate far Wildlife concurred, that the proposed scheduling and controlling agencies. above the applicable altitude (914 action, including the launch of Concept Thus, the proposed action would not meters [3,000 feet]) for the Federal or A vehicles (such as SpaceShipOne) or result in long-term changes to military California ambient air quality standards, Concept B vehicles is not likely to operations or training within restricted these emissions are not evaluated using adversely affect federally listed airspace. these air ambient quality standards. threatened or endangered species or Under Federal law, it would be Biological Resources critical habitat. As a protective measure necessary to conduct a conformity for desert tortoise that may be within analysis for criteria pollutants that do Vegetation the Mojave Airport fence, the U.S. Fish not meet Federal attainment standards. The proposed action would use a and Wildlife Service requested that the Eastern Kern County is in serious non- designated runway at Mojave Airport for FAA survey the runway prior to take-off attainment for ozone under Federal launches and landings of Concept A and and landing of suborbital vehicles. If a attainment standards. Therefore, if B launch vehicles. The runways are desert tortoise were discovered at the annual emissions of ozone precursors routinely used for take-offs and landings airport, personnel would follow (VOC or NOX) were above certain de by other aircraft, and no construction appropriate U.S. Fish and Wildlife minimis levels, it would be necessary to activities would be required to support Service and California Department of conduct a conformity analysis. launch operations. Because no Fish and Game protocols. Emissions analysis showed that NOX development activities are planned, The breakup of the launch vehicles and VOC emissions would not exceed adverse effects to vegetation, including during a crash and subsequent recovery de minimis levels of 45.4 metric tons (50 Joshua trees and creosote scrub, would activities could directly impact tons) per year. Based on emissions not be anticipated. biological resources in the Region of originating below 914 meters (3,000 In the unlikely event of an emergency Influence through ground disturbance. feet) there is no need for a Federal landing, the pilot would attempt to Also, if falling debris hit specific species conformity analysis. None of the reach the primary abort site at the main on the ground, those resources would emissions are expected to expose the runway at Edwards Air Force Base. likely be destroyed. However, because it nearby population or sensitive receptors However, any airport within gliding is unlikely that a crash would occur, to substantial pollutant concentrations. range with a runway of at least 1,219 impacts to biological resources as a
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result of vehicle crash would not be crash is extremely low, it is unlikely pressure and reduced temperature is anticipated. that debris or residual propellant would needed. Specially designed storage Noise impacts generated by launch significantly impact geology. tanks would be used for storing N2O. vehicles at the Mojave Airport, The proposed action would have less Scaled Composites would use a Mobile including sonic booms, could elicit a than significant or no impact on soils. Nitrous Oxide Delivery System short-term startle response in wildlife In terms of ground clouds from the (MONODS). but no long-term adverse impacts would combustion of propellants, Concept A MONODS was designed and built as be expected. In general, noise levels vehicles (including SpaceShipOne) a portable N2O storage unit that could would be significantly less than those would have no impacts because the only be used to fill the launch vehicle. produced by existing aircraft vehicles in emission source at the ground level MONODS includes a 6,435-liter (1,700- the region, and launches would occur would be from the carrier aircraft. gallon) tank, generator and heating/ infrequently over the course of a year. However, Concept B vehicles use liquid cooling unit. The storage vessel is Therefore, these short-term noise propellants, which would create a constructed of materials that meet the impacts would be less than significant. ground cloud consisting of carbon American Society of Testing and monoxide, carbon dioxide, hydrogen, Materials specification SA–240–304 for Cultural Resources and water. The ground cloud would stainless steel. It meets the American No airport modifications or disperse as the vehicle moves along the Society of Mechanical Engineers Code construction activities are currently runway. Additionally, Concept B launch and is registered with the National planned to support the proposed action. vehicles would use a liquid propellant, Board of Pressure Vessels. Concept A and B vehicles (including which creates a ground cloud with HTPB is a solid propellant that is SpaceShipOne) would use a designated fewer impacts to soils than caused by manufactured and placed in a Case, runway at the Mojave Airport for the burning of solid rocket propellants. Throat and Nozzle (CTN) motor offsite. launches and landings. The runways are The breakup of Concept A or B The CTN would therefore arrive at the routinely used for takeoffs and landings vehicles (including SpaceShipOne) Mojave Airport fully fueled. The solid of other aircraft and no construction during a crash and subsequent recovery propellant is stable and non-reactive activities would be required. Potential activities could directly impact soils. until ignited. Overall, there would be no impacts to cultural resources would be Residual propellant in the damaged or significant Hazardous Materials and associated generally with the noise destroyed launch vehicle could be Hazardous Waste Management impacts produced during flights and could absorbed by the soils affecting soil anticipated from the launch of include physical damage to buildings, quality in the impact area. Because the SpaceShipOne launch vehicles from the structures or rock features through probability of a crash is extremely low, Mojave Airport. accident or vibration, visual or audible and cleanup of reportable quantities is Land Use impacts to the setting of cultural required under the Comprehensive resources, and disturbance of traditional Environmental Response Compensation No significant impacts to land use activities, such as religious ceremonies and Liability Act, it is not expected that would occur as a result of the proposed or subsistence hunting. Impacts to debris or residual propellant would action. The Mojave Airport is a highly cultural resources from airspace use significantly impact soils. developed, urbanized, non-sensitive would most likely be related to area, and habitat and nature alterations in setting from visual or Hazardous Materials and Hazardous conservation plans are not applicable to aural disturbance, and the extremely Waste Management the airport. The proposed action would remote possibility of debris falling. The For both Concept A and B vehicles be to conduct horizontal launches and probability of damage to National (including SpaceshipOne), the primary landings on established runways of Historic Register listed or eligible sites hazardous materials used would be vehicles similar in size, power, and is small. No construction activities propellants. Propellants used for noise level to aircraft already using the would occur as part of the proposed Concept A launch vehicles (including airport. Therefore, no significant change action, and no adverse effects on SpaceShipOne) are relatively inert and would occur in airport activities. The National Register sites would be they would be stored at the Airport. For proposed action does not include any anticipated. The FAA consulted with Concept B, the kerosene and/or alcohol construction, additions, or the California State Historic would have similar hazardous modifications to the airport facilities Preservation Officer to initiate informal characteristics to the jet fuel currently that would physically divide an consultation under Section 106 of the used at Mojave Airport. All fuels and established community. Therefore, the National Historic Preservation Act. The other hazardous materials would be proposed action would not result in a FAA determined that the proposed stored and used in compliance with the conflict with an applicable land use, project would have no adverse effect on regulations applicable to their storage habitat conservation, or natural cultural resources. The California State and use, and already in place at Mojave community conservation plan. Historic Preservation Officer concurred Airport. No adverse impacts would be No significant impacts to land use in with the FAA’s determination and anticipated from these additional the off-site Region of Influence would consultation under Section 106 was hazardous materials or subsequent occur as a result of the proposed action. concluded. hazardous waste disposal. The Concept A and B launch vehicles The SpaceShipOne vehicle would be (including SpaceShipOne) would use Geology and Soils fueled by a hybrid rocket motor using Runway 12–30, which serves large The breakup of the launch vehicles liquid N2O and solid HTPB. Jet-A fuel airline carrier jet aircraft and high during a crash and subsequent recovery would be used to fuel the carrier aircraft performance military and non-military activities could directly impact geology. from takeoff on the ground until jet aircraft. This runway has a The force associated with falling debris reaching 15,240 meters (50,000 feet) northwest-southeast orientation that might create craters. The specific impact where the rocket motor would be routes aircraft over commercial, to geology would depend on the force at ignited. industrial, and resource management which the debris impacts the ground. To compress gaseous N2O to liquid land uses and away from sensitive land However, because the probability of a form, a combination of elevated uses in the Mojave community such as
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residential areas and school areas. of 10 daytime sonic booms at an levels in the Mojave community Because the proposed vehicles are overpressure of 4.88 kilograms per associated with sonic booms would be similar in size, power, and noise level square meter (1 pound per square foot) less than 65 dBA Ldn and less than 65 to the aircraft currently using the everyday for a year would yield an dBA CNEL. The entire Mojave airport, any impacts on land uses in the outdoor accumulated noise level equal community including sensitive Mojave community due to the proposed to an Ldn of 65 dBA. This result aids in receptors currently experiences sonic action would be equal to or less than the defining the maximum daily allowance boom noise exposure from air- and impacts of the existing activities. Noise for the number of daytime sonic boom spacecraft landing at Edwards AFB. The impacts on sensitive land uses are events (10 events per day) to reach the proposed action would not constitute a discussed in the Noise analysis. The Ldn 65 dBA noise standard limit. This significant increase in noise level to the proposed action would not include any assumes the estimated sonic boom community. off-site construction or modification of overpressure is within the same order of Annoyance created by sonic booms is existing buildings or facilities, and magnitude, 4.88 kilograms per square a function of boom intensity, number of therefore would not physically divide meters (1 pound per square foot), as booms per time period, attitude of the any established communities. No those to be generated by the proposed population, and the activity in which conflicts with any applicable land use Concept A and B vehicles. people were engaged in at the time of plans or habitat or nature conservation The Ldn of 65 dBA is the accepted the boom. There is no precise plans for the Mojave community would outdoor noise level related to relationship between the parameters. A occur as a result of the proposed action. transportation that has been adopted by noise study found that 10 percent of the State of California and Kern County. subjects exposed to 10 to 15 booms per Noise In addition, a Community Noise day were annoyed at an overpressure of Approximately 1,226 jet aircraft Equivalent Level (CNEL) noise standard one pound per square foot and that this takeoff and land at the Mojave Airport of 65 dB, applied for sensitive land uses reached nearly 100 percent at three annually. The jet engines of the Concept such as residential and school areas, is pounds per square foot. However, A carrier vehicle are similar in size and also a required noise standard by the people may be more sensitive when power to jet aircraft that operate at the local authorities. Note the Ldn is similar exposed to numerous booms per day, Mojave Airport. Noise levels at the to CNEL. Both measures are the average while prior experience with sonic airport from the Concept A carrier noise level over a 24-hour period, yet booms (such as people who live on an vehicle would be less than or equal to each applies a separate variation on Air Force Base) seems to lower noise levels produced by afterburning penalties for nighttime noise levels. Ldn sensitivity. Other studies indicate that jet aircraft currently using the Mojave adds a 10 dB penalty for noises there is a wide range in estimating Airport. The launch vehicles would occurring between 10 p.m. and 7 a.m. percent annoyed ranging from 10 land unpowered, therefore noise levels the following morning. CNEL adds a 5 percent to 70 percent at one pound per for landing would be insignificant and dB penalty to noises occurring between square foot and 55 percent to were not considered further in the noise 7 p.m. and 10 p.m., and adds a 10 dB approximately 100 percent at three analysis. Because the Mojave Airport penalty to noises occurring between 10 pounds per square foot. currently experiences high intensity p.m. and 7 a.m. the following morning. Socioeconomic Impacts and noise levels of 90 dB due to military jet (Kern County, 2003d) flights and stationary rocket testing, and However, the current proposed action Environmental Justice because the additional high intensity would occur only during daytime hours. Since no new development would be noise level would be insignificant, With no nighttime decibel penalties required to support the proposed action, impacts to noise levels during launches applicable, the Ldn and the CNEL would and only existing personnel would be at the Mojave Airport would be be equivalent measurements. As a used to conduct launch activities, the insignificant. result, an Ldn of 65 dBA for 10 daytime proposed action would not induce The Mojave community currently sonic booms per day for a year would substantial population growth in the experiences high noise levels from be equivalent to a CNEL of 65 dBA for community of Mojave. The proposed military jet takeoffs and landings and the proposed conditions. action would not be expected to stationary rocket tests. Sensitive Under the proposed action, it is displace people or decrease the receptors in the Mojave community expected the maximum overpressures population in the community of Mojave such as schools and residential areas would be on the order of 4.88 kilograms and therefore no impacts to population already experience high intensity noise per square meter (1 pound per square would be expected from the proposed levels above 90 dBA. An additional 4.4 foot), yet operations would occur at a action. minutes per week of high intensity lower frequency number of events (but The proposed action would not noise levels would not cause significant only 1.1 sonic booms per week). require new construction or create new impacts to sensitive receptors and Therefore, the sonic boom noise impact employment positions at the Mojave would not elevate the average noise of the proposed action is estimated to be Airport. The proposed action would not level above the acceptable levels of 65 below the accepted Ldn and CNEL 65 result in any jobs being eliminated at CNEL or 65 Ldn. (Kern County, 2003c) dBA noise limits given the approximate the Mojave Airport and therefore no The predicted overpressure for sonic factor of sixty-four times fewer expected impacts to employment are expected booms produced by Concept A and B number of sonic boom events estimated. from the proposed action. Any increase vehicles (including SpaceShipOne) At present, the Mojave Airport currently in the number of people accessing flying at approximately 21,341 to 24,390 experiences sonic boom noise exposure Mojave as a result of the proposed meters (70,000 to 80,000 feet) above from supersonic military jets and action would be limited to launch mean sea level would be approximately supersonic Space Shuttle testing at participants and launch spectators. 5.86 kilograms per square meter (1.2 Edwards AFB. These visitors would most likely spend pounds per square foot). Launches from The additional noise level associated only one day in Mojave to watch or the Mojave Airport would only occur with the launches of Concept A and B participate in launches. It was assumed during daytime hours. As a previous vehicles would be an insignificant that each launch of Concept A and B DoD study has shown, the noise effects increase to the community. The noise launch vehicles would add three
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passenger vehicles to the area and each Approximately 1,295 kilograms (2,855 the generation of additional storm water vehicle would contain one to two pounds) of N2O are required per launch. or of additional sources of pollutants people. The maximum number of flights Each delivery truck would transport that could be washed away during storm for Concept A would be six launches 11,340 kilograms (25,000 pounds) of events. The existing storm water system per year, which would add 18 passenger N2O to the Mojave Airport. Under the and permit would be adequate for the vehicles to the area per year. The proposed flight schedule, the maximum proposed action. The proposed action maximum number of flights for Concept number of launches would be six per would not make any changes to the B would be 50 flights a year, which year; therefore, one delivery truck per amount of impermeable surface area and would add 150 passenger vehicles to the year would supply the required N2O. would therefore have no impact on the area per year. Existing roads could Approximately 2,903 kilograms (6,400 existing off-site storm water system. easily handle this level of passenger pounds) of Jet-A fuel are required per Therefore, the capacity of the current traffic and therefore additional launch. Each delivery truck would storm water system would be adequate transportation infrastructure would not transport 28,122 kilograms (62,000 to accommodate the proposed action. be required. In addition, because these pounds) of Jet-A fuel to the Mojave Because no construction or expansion to visitors would only be spending a short Airport; therefore one truck a year the existing facilities would occur, the amount of time in Mojave, they are not would be needed to supply the required proposed action would not substantially expected to significantly impact the Jet-A fuel. One truck per flight would be deplete ground water supplies either on- local service industry. Therefore, there needed to bring the motor containing or off-site or interfere with ground water would be no significant socioeconomic the solid propellant, HTPB, to the recharge such that there would be a net impact to the community of Mojave Mojave Airport; therefore six trucks per deficit in aquifer volume or a lowering from the proposed action. year would be needed to deliver the of the local ground water table. In the Since no construction activities required HTPB. A maximum of eight event of a catastrophic accident would be required to issue a launch site delivery trucks would be required to unburned propellant could impact operator license to EKAD for the Mojave supply propellants for the ground water. However, the small size Airport and only existing personnel SpaceShipOne launch vehicles per year. of the proposed vehicles and the low would be used to conduct launch The Mojave Airport estimates that there probability of a catastrophic event activities, the proposed action would are currently 264 propellant truck would make the impacts insignificant. not have an impact on the health or deliveries annually. The Mojave Airport In the event of a catastrophic environment of minority or low-income is located at the crossroads of major accident, debris and wreckage could populations located at or near the north-south and east-west roadways. impact drainage patterns or storm water airport. Noise levels from the proposed The small number of additional flows. But, the small size of the launch vehicles would be significantly passenger vehicles and delivery trucks proposed vehicles and the low less than those experienced from anticipated as part of the proposed probability of a catastrophic event existing vehicles in the region, would action would not increase traffic would make the impacts insignificant. occur infrequently over the course of a congestion or cause a decline in the Extensive emergency response and year, and already occur as part of level of service. clean-up procedures would further existing activities in the region. reduce the magnitude and duration of Therefore, no impacts to environmental Visual Resources any impacts. justice communities are expected from The design of the proposed launch Cumulative Impacts the proposed action. vehicles would resemble traditional airplanes in flight, and the visual The proposed action would not Transportation landscape already includes aircraft in exceed de minimis levels for criteria Under the proposed action no flight. The proposed action would not pollutants and the percent of the air additional employees would be hired by create a new source of substantial light quality control area’s emissions the Mojave Airport or potential launch or glare to adversely affect day or inventory for any criteria pollutant. participants at the airport. Any increase nighttime views in the area, so the Total CO2 emissions from all sources in in the number of automobiles accessing visual dominance would be ‘‘Not the U.S. were 5,159 million metric tons Mojave Airport would be limited to Noticeable.’’ Both proposed launch (5,687 million tons) in 1994. The launch participants and launch vehicle concepts would leave visual proposed action would account for an spectators. Existing access roads could contrails, but they would be similar in increase of only a fraction (less than easily handle an increase in passenger visual impact to contrails from existing 0.000002%) of these CO2 emissions. traffic without a change in level of operations. Because this area is already Consequently, the total expected CO2 service designation of a significant used for aircraft takeoffs and landings, emissions from the proposed action change in the volume to capacity ratio. the visual sensitivity is low. The would be insignificant. There would be The proposed action would not result in proposed action would not substantially no emissions that directly affect ozone inadequate emergency access or parking degrade the existing visual character or depletion. No significant cumulative capacity at the Mojave Airport or within quality of the site and its surroundings impacts to air quality are expected. the Mojave community. The proposed and would have no adverse effect on a Because of the volume of air traffic action would not conflict with adopted scenic vista or scenic resources, as there that uses this area already and the plans, policies, or programs supporting are none in the area. structured scheduling procedures in alternative transportation. place for joint-use of the R–2508 Under the proposed action, additional Water Resources Complex, the proposed action would propellants would be delivered to the Because no construction or expansion have no significant cumulative effects Mojave Airport to support the flights of to the existing facilities would occur, on airspace. the proposed launch vehicles. the proposed action would not cause In the EA for the Orbital Reentry Propellants to be delivered for the impacts to existing drainage patterns Corridor for Generic Unmanned Lifting SpaceShipOne vehicle would include that would result in increased erosion, Entry Vehicle Landing at Edwards AFB, N2O and HTPB for the launch vehicle siltation, or on-site or off-site flooding. the USAF considered up to 12 flights and Jet-A fuel for the carrier vehicle. The proposed action would not involve per year. Currently an average of two
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military jet aircraft take off and/or land Determination taxiways, the installation of an at the Mojave Airport per day. These An analysis of the proposed action instrument landing system, and related military aircraft can produce sonic has concluded that there are no land acquisition; and other related booms. Even in the worst case scenario, significant short-term or long-term development. These projects are i.e., one launch from the Mojave effects to the environment or proposed to improve safety, efficiency, Airport, one launch of the proposed surrounding populations. After careful and accommodate growing aviation Unmanned Lifting Entry Vehicle from and thorough consideration of the facts demand at the Airport. These actions were identified in the San Antonio Edwards AFB, and two jet aircraft take herein, the undersigned finds that the International Airport Master Plan Study. offs or landings from the Mojave proposed Federal action is consistent The EIS will also consider the Airport, there would not be more than with existing national environmental 10 sonic booms generated per day in the potential uses of approximately 180 policies and objectives set forth in acres of Airport owned land. The 180 Region of Influence. Therefore, there Section 101(a) of the National would be no significant cumulative acres is located in the far north portion Environmental Policy Act of 1969 of the Airport, north of Starcrest and impacts to noise from the proposed (NEPA) and that it will not significantly action. bound by Wetmore Road and Wurzbach affect the quality of the human Parkway, which is not contiguous with No significant cumulative impacts to environment or otherwise include any the Airport. Potential land uses include biological, cultural, geologic, mineral, condition requiring consultation warehousing, large commercial or visual and aesthetic, or water resources pursuant to Section 102(2)(c) of NEPA. similar uses. would occur as a result of the proposed Therefore, an EIS for the proposed The EIS will evaluate the feasibility of action. No significant cumulative action is not required. certain air traffic or procedural actions impacts would result from hazardous Issued in Washington, DC on February 18, recommended in the Airport’s Federal materials or hazardous waste used or 2004. Aviation Regulation (FAR) part 150 produced as a result of the proposed Patricia Grace Smith, Noise Compatibility Program Update action. No significant cumulative Associate Administrator for Commercial including: a Preferential Runway Use impacts to land use, socioeconomics, Space Transportation. Program for Runways 12L/30R, 12R/30L environmental justice, or transportation [FR Doc. 04–4176 Filed 2–25–04; 8:45 am] and 3/21; Runway 12R/30L and Runway would occur as a result of the proposed BILLING CODE 4910–13–P 3/21 intersection removal that would be action. offset by an approximately 400 ft. extension to the northwest; the Detailed analyses of safety and related ° issues would be addressed in the FAA’s DEPARTMENT OF TRANSPORTATION establishment of a 15 right turn on Mission and Safety Review prior to departure from Runway 3; and the Federal Aviation Administration issuing a launch license. However, establishment of a departure corridor for safety and health analyses of operations Runway 21 over Highway 281 for Environmental Impact Statement: San southbound aircraft. These procedural that have the potential for Antonio International Airport, San actions will be evaluated as part of the environmental impact were considered Antonio, TX EIS for feasibility regarding effects on in the EA and were determined to have AGENCY: Federal Aviation safety, efficiency, and capacity. no significant cumulative impacts on To ensure that the full range of issues Administration (FAA), DOT. the environment. related to the proposed projects are Although the proposed action would ACTION: Notice of intent. addressed and that all significant issues support and facilitate limited growth, it SUMMARY: The Federal Aviation are identified, the Federal Aviation would not induce growth. Additionally, Administration announces that it will Administration intends to consult and there would be no specific future prepare an Environmental Impact coordinate with Federal, State, and local development activities currently known Statement (EIS) for implementation of agencies having jurisdiction by law or that would be dependent on the projects proposed at San Antonio specific expertise with respect to any proposed action. Therefore no International Airport. environmental impacts associated with significant cumulative secondary the proposed projects. In order to notify FOR FURTHER INFORMATION CONTACT: impacts are expected to result from the the general public of the scoping proposed action. Responsible Official: Mr. Paul process, a notice will be placed in a Blackford, Environmental Specialist, newspaper having general circulation in No Action Alternative Federal Aviation Administration, the project area describing the proposed Southwest Region, Texas Airports projects and their purpose. The Under the No Action Alternative, the Development Office, 2601 Meacham FAA would not issue a launch site newspaper notice will inform the public Blvd., Ft. Worth, Texas 76137–4298. that scoping meetings will be held to operator license to the EKAD for the Telephone (817) 222–5607. operation of a launch site at the Mojave gain their input concerning the SUPPLEMENTARY INFORMATION: The proposed projects at the following Airport or issue a launch license to Federal Aviation Administration will Scaled Composites for up to six locations: prepare and consider an EIS for • March 23, 2004, from 6:30 to 8:30 launches of SpaceShipOne from the implementation of proposed projects at Mojave Airport. Scaled Composites p.m., Doubletree Hotel (to be held in San Antonio International Airport. Salon I and II), 37 NE. Loop 410, San could continue to conduct aviation- Major development projects to be Antonio, Texas 78216; related activities that do not require a assessed in the EIS include a 1,500 ft. • March 24, 2004, from 6:30 to 8:30 launch license. extension of Runway 3/21 to a runway p.m., Northern Hills Country Club, The predicted environmental effects length of approximately 9,000 ft; the 13202 Scarsdale, San Antonio, Texas of the Proposed Action would not occur. reconstruction and upgrade of Runway 78217. The existing on- and off-site conditions 12L/30R from general aviation to Federal, State and local agencies will at the Mojave Airport would remain aircarrier dimensions of approximately be notified of the Agency meeting via unchanged. 8,500 ft. by 150 ft. as well as associated letter. The Agency scoping meeting will
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be held at 10 a.m., March 23, 2004, at regulations. Public notice will be given Management, Room PL–401, 400 the Airport Conference room A, of the time and place of the scoping Seventh Street, SW., Washington, DC Terminal 1, Mezzanine Level, at San meetings and hearing. The scoping 20590. Please identify the proposed Antonio International Airport. process will be open to determine all of collection of information for which a Issued in Ft. Worth, Texas on February 12, the issues. The draft environmental comment is provided by addressing its 2004. document will be available for public OMB Clearance Number. You may also Naomi L. Saunders, and agency review and comment prior submit your comments to the docket Manager, Airports Division. to the public hearing. electronically. Documents may be filed [FR Doc. 04–4292 Filed 2–25–04; 8:45 am] To ensure that the full range of issues electronically by logging onto the related to this proposed action are Docket Management System Web site at BILLING CODE 4910–13–M addressed and all significant issues http://dms.dot.gov. Click on ‘‘Help & identified, comments and suggestions Information’’ or ‘‘Help/Info’’ to obtain DEPARTMENT OF TRANSPORTATION are invited from all interested parties. instructions for filing the document Comments or questions concerning this electronically. Federal Highway Administration proposed action and the EIS should be You may call Docket Management at directed to FHWA at the address 202–366–9324. You may visit the Environmental Impact Statement: provided above. Docket from 10 a.m. to 5 p.m., Monday Cache County, UT (Catalog of Federal Domestic Assistance through Friday. Program Number 20.205, Highway Planning AGENCY: Federal Highway FOR FURTHER INFORMATION CONTACT: For Administration (FHWA), DOT. and Construction. The regulations implementing Executive Order 12372 questions contact Michael Kido in the ACTION: Notice of intent. regarding intergovernmental consultation on Office of the Chief Counsel at the National Highway Traffic Safety SUMMARY: The FHWA is issuing this Federal programs and activities apply to this notice of intent to advise the public that program.) Administration, telephone (202) 366– an Environmental Impact Statement will Issued on: January 22, 2004. 5263. Please identify the relevant collection of information by referring to be prepared for a proposed highway Jeffrey Berna, its OMB Clearance Number. project in Cache County, Utah. Environmental Specialist, Salt Lake City, FOR FURTHER INFORMATION CONTACT: Jeff Utah. SUPPLEMENTARY INFORMATION: Under the Berna, FHWA, Utah Division, 2520 West [FR Doc. 04–4260 Filed 2–25–04; 8:45 am] Paperwork Reduction Act of 1995, 4700 South, Suite 9A, Salt Lake City, BILLING CODE 4910–22–M before an agency submits a proposed UT 84118, Telephone: (801) 963–0182 collection of information to OMB for or Kelly Barrett, Project Manager, Utah approval, it must publish a document in Department of Transportation, Region DEPARTMENT OF TRANSPORTATION the Federal Register providing a 60-day One Office, 169 Wall Street, Ogden, UT comment period and otherwise consult 84112, Telephone: (801) 620–1684. National Highway Traffic Safety with members of the public and affected SUPPLEMENTARY INFORMATION: FHWA, in Administration agencies concerning each proposed cooperation with the Utah Department [Docket No. NHTSA–2001–9779; Notice 2] collection of information. The OMB has of Transportation (UDOT) will prepare promulgated regulations describing an Environmental Impact Statement Reports, Forms and Record Keeping what must be included in such a (EIS) to address the proposed Requirements, Agency Information document. Under OMB’s regulations (at construction of an approximately 3-mile Collection Activity Under OMB Review 5 CFR 1320.8(d)), an agency must ask segment of new transportation corridor for public comment on the following: AGENCY: from 1400 North in North Logan City to National Highway Traffic (i) Whether the proposed collection of 3700 North in Hyde Park City, between Safety Administration (NHTSA), DOT. information is necessary for the proper U.S. Highway 91 and 400 East in Cache ACTION: Notice. performance of the functions of the County, Utah. The Cache Metropolitan agency, including whether the SUMMARY: Before a Federal agency can Planning Organization in its June 2000 information will have practical utility; collect certain information from the long range Transportation Master Plan public, the agency must receive (ii) The accuracy of the agency’s identified this corridor as an important approval from the Office of Management estimate of the burden of the proposed future transportation system for the and Budget (‘‘OMB’’). Under procedures collection of information, including the Cache Valley. The EIS will evaluate no- established by the Paperwork Reduction validity of the methodology and build and build alternatives to address Act of 1995 (44 U.S.C. 3501 et seq.), assumptions used; the need for a proposed action to before seeking OMB approval, Federal (iii) How to enhance the quality, provide for existing and projected traffic agencies must solicit public comment utility, and clarity of the information to demand along this corridor. Reasonable on proposed collections of information, be collected; and alternatives within the study area will including extensions and reinstatements be fully considered in compliance with (iv) How to minimize the burden of of previously approved collections. In National Environmental Policy Act the collection of information on those compliance with the Paperwork regulations. who are to respond, including the use Letters describing the proposed action Reduction Act of 1995, this notice of appropriate automated, electronic, and soliciting comments will be sent to describes one collection of information mechanical, or other technological appropriate Federal, State and local for which NHTSA intends to seek OMB collection techniques or other forms of agencies, and to private organizations approval. information technology, e.g., permitting and citizens who express interest in this DATES: Comments must be submitted on electronic submission of responses. project. Public scoping meetings will be or before April 26, 2004. In compliance with these held in spring 2004 in the project area. ADDRESSES: Comments must refer to the requirements, NHTSA asks public Additionally, a public hearing will be docket number cited at the beginning of comment on the following proposed held in accordance with FHWA this notice and be submitted to Docket collection of information:
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Criminal Penalty Safe Harbor Provision Collection of Information—This DEPARTMENT OF TRANSPORTATION Type of Request—Extension of collection of information applies to any clearance. person who seeks a ‘‘safe harbor’’ from Research and Special Programs OMB Clearance Number—2127–0609. potential criminal liability for Administration Form Number—This collection of knowingly and willfully acting with the information uses no standard forms. specific intention of misleading the Office of Hazardous Materials Safety; Requested Expiration Date of Secretary by an act or omission that Notice of Application for Exemptions Approval—Three (3) years from the date violates section 1001 of title 18 with of approval of the collection. respect to the reporting requirements of AGENCY: Research and Special Programs Summary of the Collection of 49 U.S.C. 30166, regarding a safety- Administration, DOT. Information—Each person seeking safe related defect in motor vehicles or ACTION: List of applications for harbor protection from criminal motor vehicle equipment that caused exemption. penalties under 49 U.S.C. 30170 related death or serious bodily injury to an to an improper report or failure to report individual. Thus, the collection of is required to submit the following information applies to the SUMMARY: In accordance with the information to NHTSA: (1) A signed and manufacturers, and any officers or procedures governing the application dated document that identifies (a) each employees thereof, who respond or have for, and the processing of, exemptions previous improper report and each a duty to respond to an information from the Department of Transportation’s failure to report as required under 49 provision requirement pursuant to 49 Hazardous Materials Regulations (49 U.S.C. 30166, including a regulation, U.S.C. 30166 or a regulation, CFR part 107, subpart B), notice is requirement, request or order issued requirement, request or order issued hereby given that the Office of thereunder, for which protection is thereunder. Hazardous Materials Safety has received sought and (b) the specific predicate We believe that there will be very few the application described herein. Each under which the improper or omitted criminal prosecutions under section mode of transportation for which a report should have been provided; and 30170, given its elements. In the past particular exemption is requested is (2) the complete and correct information three years since the safe harbor related indicated by a number in the ‘‘Nature of that was required to be submitted but rule has been in place, the agency has Application’’ portion of the table below was improperly submitted or was not not received any reports. Accordingly, it as follows: 1—Motor vehicle, 2—Rail previously submitted, including is not likely to be a substantial freight, 3—Cargo vessel, 4—Cargo relevant documents that were not motivating force for a submission of a aircraft only, 5—Passenger-carrying previously submitted to NHTSA or, if proper report. We estimate that no more aircraft. the person cannot do so, provide a than one such person a year would detailed description of that information invoke this new collection of DATES: Comments must be received on and/or the content of those documents information, and we do not anticipate or before March 29, 2004. and the reason why the individual receiving more than one report a year Address Comments To: Record cannot provide them to NHTSA. See 49 from any particular person. Center, Research and Special Programs U.S.C. 30170(a)(2) and 49 CFR 578.7. Estimate of the Total Annual Administration, U.S. Department of See also, 66 FR 38380 (July 24, 2001) Reporting and Recordkeeping Burdens Transportation, Washington, DC 20590. (safe harbor final rule) and 65 FR 81414 Resulting from the Collection of (Dec. 26, 2000) (safe harbor interim final Information—2 hours. Comments should refer to the rule). As stated before, we estimate that no application number and be submitted in Description of the Need for the more than one person a year would be triplicate. If Confirmation of receipt of Information and Use of the subject to this new collection of comments is desired, include a self- Information—This information information. Incrementally, we estimate addressed stamped postcard showing collection was mandated by Section 5 of that on average it will take no longer the exemption number. the Transportation Recall Enhancement, than two hours for a person to compile FOR FURTHER INFORMATION CONTACT: Accountability and Documentation Act, and submit the information we are Copies of the applications are available codified at 49 U.S.C. 30170(a)(2). The requiring to be reported. Therefore, the information collected will provide total burden hours on the public per for inspection in the Records Center, NHTSA with information the agency year is estimated to be a maximum of Nassif Building, 400 7th Street, SW., should have received previously and two hours. Washington, DC or at http:// will also promptly provide the agency Since nothing in the rule requires www.dms.dot.gov. with correct information to do its those persons who submit reports This notice of receipt of applications analyses, such as, for example, pursuant to this rule to keep copies of for modification of exemption is conducting tests or drawing conclusions any records or reports submitted to us, published in accordance with part 107 about possible safety-related defects. recordkeeping costs imposed would be of the Federal hazardous materials NHTSA anticipates using this zero hours and zero costs. transportation law (49 U.S.C. 5117(b); information to help it to accomplish its Authority: 44 U.S.C. 3506; delegation of 49 CFR 1.53(b)). statutory assignment of identifying authority at 49 CFR 1.50. safety-related defects in motor vehicles Issued in Washington, DC, on February 20, and motor vehicle equipment and, when Issued on: February 20, 2004. 2004. appropriate, seeking safety recalls. Jacqueline Glassman, R. Ryan Posten, Description of the Likely Respondents, Chief Counsel. Exemptions Program Officer, Office of Including Estimated Number and [FR Doc. 04–4278 Filed 2–25–04; 8:45 am] Hazardous Materials Exemptions & Proposed Frequency of Response to the BILLING CODE 4910–59–P Approvals.
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NEW EXEMPTION
Application No. Docket No. Applicant Regulation(s) affected Nature of exemption thereof
13357–N ...... Indiana Michigan Power 49 CFR 173.403; 173.427 To authorize the transportation in commerce of four Company, Buchanan, steam generators containing Class 7 radioactive MI. material. (modes 1, 2). 13401–N ...... Northern States Power 49 CFR 173.403; 173.427 To authorize the transportation in commerce of two Company dba XCEL steam generators containing Class 7 radioactive Energy Services, Inc., material. Welch, MN. 13423–N ...... E.I. DuPont de Nemours 49 CFR 173.40(e) ...... To authorize the transportation in commerce of Divi- & Company, Inc., Wil- sion 6.1 toxic liquid in DOT-specification cylinders mington, DE. that have been manifolded or interconnected. (mode 1). 13424–N ...... Air Products and Chemi- 49 CFR 177.834(i)(3) ...... To authorize cargo tanks to remain connected while cals, Inc., St. Gabriel, standing without the physical presence of an LA. unloader. (mode 1). 13425–N ...... MDS Nordion, Ottawa, 49 CFR 173.471 ...... To authorize the transportation in commerce of ON. Class 7 hazardous materials for disposal con- tained in specially designed equipment. (mode 1). 13426–N ...... Capintec, Inc., Pittsburgh, 49 CFR 173.302; 175.3 ... To authorize the transportation in commerce of non- PA. DOT specification containers for use in trans- porting Argon, Division 2.2. (modes 1, 4, 5). 13441–N ...... Eastman Kodak Company 49 CFR 173.6(a)(1)(ii), To authorize the transportation in commerce of lim- HSE—Hazmat Trans- 173.6(d). ited quantities of waste materials in amounts that portation Services, exceed the quantity limitations specified under the Rochester, NY. material of trade exception as defined in 49 CFR. (mode 1). 13443–N ...... Koch Materials Company, 49 CFR 173.24(c); To authorize the transportation in commerce of alter- Wichita, KS. 173.202; 173.203; native shipping containers to be used for non-bulk 177.834(h); 173.28(a) quantities of chemical additives used in the manu- and (b). facture of asphalt products. (mode 1). 13444–N ...... Halliburton Energy Serv- 49 CFR 173.201; To authorize the manufacture, mark, sale and use of ices, Inc., Duncan, OK. 173.302; 173.304; a non-DOT specification cylinder for the transpor- 178.35(e); 178.36. tation of well site oil/natural gas samples. (modes 1, 2, 3, 4). 13445–N ...... U.S. Department of En- 49 CFR 173.211; 173.244 To authorize the one-time one-way transportation in ergy, Richland, WA. commerce of a specially designed device con- taining Sodium, Division 4.3 for recycling pur- poses. (mode 1).
[FR Doc. 04–4282 Filed 2–25–04; 8:45 am] application described herein. This Comments should refer to the BILLING CODE 4909–60–M notice is abbreviated to expedite application number and be submitted in docketing and public notice. Because triplicate. If confirmation of receipt of the sections affected, modes of comments is desired, include a self- DEPARTMENT OF TRANSPORTATION transportation, and the nature of addressed stamped postcard showing application have been shown in earlier the exemption number. Research and Special Programs Federal Register publications, they are FOR FURTHER INFORMATION CONTACT: Administration not repeated here. Request of Copies of the applications are available modifications of exemptions (e.g., to for inspection in the Records Center, Office of Hazardous Materials Safety provide for additional hazardous Nassif Building, 400 7th Street, SW., Notice of Applications for Modification materials, packaging design changes, Washington, DC or at http:// of Exemption additional mode of transportation, etc.) dms.dot.gov. AGENCY: Research and Special Programs are described in footnotes to the Administration, DOT. application number. Application This notice of receipt of applications for modification of exemption is ACTION: numbers with the suffix ‘‘M’’ denote a List of applications for published in accordance with part 107 modification of exemption. modification request. These applications have been separated from of the Federal hazardous materials SUMMARY: In accordance with the the new application for exemption to transportation law (49 U.S.C. 5117(b); procedures governing the application facilitate processing. 49 CFR 1.53(b)). for, and the processing of, exemptions DATES: Comments must be received on Issued in Washington, DC, on February 20, from the Department of Transportation’s or before March 12, 2004. 2004. Hazardous Material Regulations (40 CFR Address Comments To: Record R. Ryan Posten, part 107, subpart B), notice is hereby Center, Research and Special Programs Exemptions Program Officer, Office of given that the Office of Hazardous Administration, U.S. Department of Hazardous Materials Exemptions & Materials Safety has received the Transportation, Washington, DC 20590. Approvals.
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MODIFICATION EXEMPTIONS
Modifica- Application Docket No. Applicant tion of ex- Nature of exemption thereof No. emption
6530–M ...... Air Products and Chemicals, 6530 ...... To modify the exemption to authorize the transportation of a Di- Inc., Allentown, PA. vision 2.2 material in a DOT Specification 3A, 3AA, 3AX, or 3AAX steel cylinder. 7946–M ...... Imaging & Sensing Technology 7946 ...... To modify the exemption to authorize a volume increase be- Corporation, Horseheads, NY. yond 45 cubic inches with a corresponding decrease in pres- sure (charge) of the non-DOT specification, non-refillable packaging described as a radiation detector assembly. 7954–M ...... Air Products and Chemicals, 7954 ...... To modify the exemption to authorize an update of the pressure Inc., Allentown, PA. relief device, manifolding and pressure requirements for the transportation of Division 2.2 and 2.3 materials in DOT Speci- fication cylinders. 8228–M ...... U.S. Department of Justice 8228 ...... To modify the exemption to authorize the transportation of small (FBI), Quantico, VA. quantities of unapproved explosive substances or articles to local government laboratories. 11054–M ...... Welker Engineering Company, 11054 ..... To modify the exemption to increase the rated working pressure Sugar Land, TX. from 1800psi to 2160psi and the hydrostatic test pressure to 3600psi for the CP–5 non-DOT specification cylinder. 11329–M ...... DEGESCH AMERICA, INC., 11329 ..... To modify the exemption to authorize two additional outer pack- Weyers Cave, VA. agings for the transportation of Division 4.3 and 6.1 materials. 11624–M ...... Envirotech Systems, Inc., 11624 ..... To modify the exemption to authorize the transportation of Lynnwood, WA. waste materials from conditionally exempt small quantity gen- erators and categorically exempt household hazardous waste generators that do not meet the definition of ‘‘hazardous waste’’. 12613–M RSPA–01–8702 NOVA Chemicals Corporation, 12613 ..... To modify the exemption to authorize the transportation of an Red Deer, AB. additional Class 3 material in a DOT Specification 112J340W tank car. 12988–M RSPA–02– Air Products and Chemicals, 12988 ..... To modify the exemption to authorize a design change of the 12215. Inc., Allentown, PA. non-DOT specification cynlinder. 12938–M RSPA–02– Northrop Grumman Space 12938 ..... To modify the exemption to authorize the transportation of a Di- 11912. Technology (Former Grantee: vision 2.1 and additional Division 2.2 material in non-DOT TRW, Inc.), Redondo Beach, specification containers and DOT Specification cylinders in- CA. stalled in the EOS–PM (AQUA) Satellite or attached to the EOS Satellite Transporter. 13207–M RSPA–03– BEI Hawaii, Honolulu, HI ...... 13207 ..... To modify the exemption to authorize the use of two additional 15068. IM 101 tanks for the transportation of a Class 8 material. 13246–M RSPA–03– McLane Company, Inc., Tem- 13246 ..... To modify the exemption to authorize the use of additional plas- 15625. ple, TX. tic outer packagings for the transportation of a Division 2.1 material.
[FR Doc. 04–4283 Filed 2–25–04; 8:45 am] Section IV.D), and must meet all Emerging CDFI Assistance (SECA); (ii) BILLING CODE 4909–60–M eligibility and other requirements and Category II/Core & Sustainable CDFIs deadlines, as applicable, set forth in this Assistance (Core); and (iii) Category III/ NOFA. Financial Leverage and Market Executive Summary: This NOFA is Expansion Assistance (FLOW). DEPARTMENT OF THE TREASURY issued in connection with the FY 2004 funding round of the Financial I. Funding Opportunity Description Community Development Financial Assistance (FA) Component of the Through this NOFA, the Fund intends Institutions Fund Community Development Financial to target its resources by providing (i) Funding Opportunity Title: Notice of Institutions (CDFI) Program. Through FA awards to CDFIs that will use FA Funds Availability (NOFA) Inviting the FA Component, the Community award proceeds to achieve the Applications for the FY 2004 Funding Development Financial Institutions Programmatic Priorities, in the rank Round of the Financial Assistance Fund (the Fund) provides FA awards order set forth below, and (ii) TA grants Component of the Community and technical assistance (TA) grants to to build awardee capacity to serve Development Financial Institutions CDFIs that have comprehensive Target Markets. Program business plans for creating A. Programmatic Priorities: Please demonstrable community development note that Programmatic Priorities 1–4 Announcement Type: Initial impact through the deployment of are listed in order of priority for awards; announcement of funding opportunity. capital within their respective target the related activities are not in listed in Catalog of Federal Domestic markets for community development priority order. Applicants may apply Assistance (CDFA) Number: 21.020. purposes. Through this NOFA, the Fund and be considered for funding for more Dates: Applications must be received makes funding available through three than one type of Programmatic Priority by 5 p.m. ET on April 28, 2004 (see categories: (i) Category I/Small and and activity.
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Programmatic priority Activities
Priority 1 ...... • Affordable Housing in Housing Hot Zones and/or for Other Targeted Populations. • Economic Development (other than Community Organization Support) in Economic Devel- opment Hot Zones and/or for Other Targeted Populations. • Community Development Financial Services in Economic Development Hot Zones and/or Housing Hot Zones. Priority 2 ...... • Affordable Housing in Economic Development Hot Zones and/or other Investment Areas, and/or for Low-Income Targeted Populations. • Economic Development (other than Community Organization Support) in other Investment Areas and/or for Low-Income Targeted Populations. • Community Development Financial Services for Low-Income Targeted Populations and/or Other Targeted Populations. Priority 3 ...... • Community Development Financial Services in Investment Areas (other than Hot Zones). • Community Organization Support. Priority 4 ...... • Other activities as requested by the applicant and deemed appropriate by the Fund.
B. CDFI Program Regulations: The microenterprises, and commercial real the right to fund, in whole or in part, interim rule governing the CDFI estate other than Community Facilities, any, all, or none of the applications Program can be found at 12 CFR part (ii) related Development Services, and submitted in response to this NOFA. 1805 and provides guidance on (iii) Community Organization Support. The Fund reserves the right to re- evaluation criteria and other (vii) Financial Services: see 12 CFR allocate funds from the amount that is requirements of the CDFI Program. The 1805.104(u). anticipated to be available under this Fund expects to issue a revised interim (viii) Hot Zones (and the Fund’s NOFA to other Fund programs. rule in the very near future. The Fund methodology for Hot Zone designation) B. Types of Awards: An applicant encourages applicants to review the are subsets of Investment Areas and are may submit an application either for FA interim rule and its revision, when identified at the Fund’s Web site at only, or for FA and a TA grant, under published. http://www.cdfifundhelp.gov. For this NOFA. While the FA Component C. Definitions: All defined terms in purposes of this NOFA, Hot Zones offers TA grants in conjunction with FA this NOFA shall have the meanings include Economic Development Hot awards, entities seeking TA grants only ascribed to them in the interim rule. For Zones, Housing Hot Zones, and a should apply for funds through the purposes of this NOFA, certain terms in combination thereof. Technical Assistance Component of the the Programmatic Priority chart above (ix) Investment Areas: see 12 CFR CDFI Program. The FY 2003 NOFA for are defined as following: 1805.104(cc). the Technical Assistance Component (i) Affordable Housing includes (x) Low-Income Targeted Populations: was published in the Federal Register activities that: (A) Promote the supply of see 12 CFR 1805.104(dd) and (ii). on February 4, 2003 (68 FR 5735). housing through the provision of pre- (xi) Other Targeted Populations 1. FA Awards: (a) Types of FA awards: development financing, construction include identifiable groups of FA may be provided by the Fund and rehabilitation financing, and related individuals in the applicant’s service through an equity investment Development Services, and/or (B) area for which there exists a strong basis (including, in the case of certain Insured increase homeownership through the in evidence that they lack access to Credit Unions, secondary capital provision of first mortgage financing, loans, Equity Investments and/or accounts), a grant, loan, deposit, credit subordinated mortgages (for home Financial Services (for further union shares, or any combination purchase and rehabilitation), and description, see Eligibility section, thereof. The Fund reserves the right, in related Development Services. below). its sole discretion: (i) To provide FA in (ii) Community Development II. Award Information a form and amount other than that Financial Services include Financial which is requested by an applicant; (ii) Services, financial education and other A. Award Information: Subject to to offer TA for specified purposes, even Development Services, appropriate funding availability, the Fund expects if the applicant has not requested TA; consumer loans, and re-financing of that it may award approximately $45 and/or (iii) to condition the awarding of predatory loans. million in appropriated funds under FA on the applicant agreeing to use TA (iii) Community Facilities: see 12 CFR this NOFA. The Fund reserves the right for specified purposes. 1805.104(j). to award in excess of $45 million in (b) For any Category I/SECA applicant (iv) Community Organization Support appropriated funds under this NOFA that does not meet certain minimum includes: Financial Products (see 12 provided that the funds are available evaluation criteria and thus is ineligible CFR 1805.104(t)) related to the and the Fund deems it appropriate. for a FA award, the Fund may offer, in acquisition, construction, development, Under this NOFA, the Fund anticipates its sole discretion, the opportunity for or rehabilitation of Community making awards (i) up to and including the applicant to submit certain Facilities; business loans to non-profit $300,000 per award for Category I/SECA additional documentation organizations; and related Development CDFIs; (ii) up to and including demonstrating the need for a TA-only Services, to non-profit organizations. $1,000,000 per award for Category II/ award from the TA Component, which (v) Development Services: see 12 CFR Core CDFIs; and (iii) up to and the Fund may provide in amounts and 1805.104(r). including $2,000,000 per award for for uses the Fund deems appropriate, (vi) Economic Development includes: Category III/FLOW CDFIs. The Fund, in subject to funding availability. Activities that support the creation and its sole discretion, reserves the right to 2. TA Grants: TA awards are in the retention of jobs and the growth of award amounts in excess of or less than form of grants. The Fund reserves the businesses through (i) loans, Equity the anticipated maximum award right, in its sole discretion, to provide a Investments and other similar financing amount if the Fund deems it TA grant for uses and amounts other to for-profit small businesses, appropriate. Further, the Fund reserves than that which are requested by an
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applicant. Applicants for TA grants connectivity; and (iv) acquiring training available on the Fund’s Web site at under this NOFA shall describe the for staff or management. http://www.cdfifund.gov. type(s) of TA requested, when the TA The Fund will not consider requests C. Notice of Award; Assistance will be acquired, the provider(s) of the for TA grants under this NOFA for Agreement: Each awardee under this TA, the cost of the TA, and a narrative expenses that, in the determination of NOFA must sign a Notice of Award (for description of how the TA will enhance the Fund, are deemed to be ongoing further information, see Section VI.A, their capacity to provide greater operating expenses rather than non- below) and an Assistance Agreement community development impact. recurring expenses. The Fund will (see Section VI.B, below) prior to Capacity enhancements may address a consider requests for use of TA to pay disbursement by the Fund of award range of activities including, but not for staff salary only when the applicant proceeds. The Notice of Award and the limited to, improvement of demonstrates, to the Fund’s satisfaction, Assistance Agreement contain the terms underwriting and portfolio that: (i) The staff salary relates directly and conditions of the award. management, development of outreach to building the applicant’s capacity to III. Eligibility Information and training strategies to enhance serve its target market; (ii) the proposed product delivery, and tools that allow staff time to be paid for by the TA grant A. Eligible Applicants: The interim the applicant to assess the impact of its will be used for a non-recurring activity rule specifies the eligibility activities in its community. that will build the applicant’s capacity requirements that each applicant must Eligible types of TA grant uses to achieve its objectives as set forth in meet in order to be eligible to apply for include, but are not limited to, the its Comprehensive Business Plan; (iii) assistance under this NOFA. The following: (i) Acquiring consulting the proposed capacity-building activity following sets forth additional detail services; (ii) paying staff salary for the would otherwise be contracted to a and certain additional dates that relate limited purposes of completing tasks consultant or not be undertaken; and to the submission of applications under and/or fulfilling functions that are (iv) the staff person assigned to the this NOFA: otherwise eligible TA grant uses under proposed task has the competence to 1. Applicant Categories: The FA this NOFA; (iii) acquiring/enhancing successfully complete the activity. Component is designed to address the technology items, including computer Further guidance on the limited uses of capitalization and liquidity needs of hardware, software and Internet TA grants for staff salary expenditures is three types of CDFIs:
Applicant category Criteria What can it apply for?
Category I: Small and Emerging CDFIs Assist- A Category I/SECA applicant is a CDFI that: A Category I/SECA applicant may request up ance (SECA). Has total assets as of December 31, 2003 as to and including $300,000 in FA or FA/TA. follows: • Insured Depository Institutions and Deposi- tory Institution Holding Companies: up to $100 million • Insured Credit Unions: up to $10 million • Venture capital funds: up to $10 million • Other CDFIs: up to $5 million OR Did not begin operations prior to April 15, 2001 AND Prior to the date of application under this NOFA, has not been selected to receive any award(s) under the CDFI Program that total in the aggregate an amount greater than $300,000 Category II: Core & Sustainable CDFIs Assist- A Category II/Core applicant is a CDFI that A Category II/Core applicant may request up ance (Core). has total assets as of December 31, 2003 to and including $1 million in FA or FA/TA. as follows: • Insured Depository Institutions and Deposi- tory Institution Holding Companies: up to $500 million • Insured Credit Unions: up to $25 million • Other CDFIs: up to $25 million Category III: Financial Leverage and Market A Category III/FLOW applicant is a CDFI that A Category III/FLOW applicant may request Expansion Assistance (FLOW). has total assets as of December 31, 2003 up to and including $2 million in FA or FA/ as follows: TA. • Insured Depository Institutions and Deposi- tory Institution Holding Companies: $500 million and greater • Insured Credit Unions: $25 million and greater • Other CDFIs: $25 million and greater
An applicant of any size or age can Category. Applicants will be evaluated awardee pool that reflects a blend of apply for a higher amount of funding by and ranked with all other applicants; emerging and mature CDFIs of varying applying in a higher-numbered however, in an effort to achieve an asset sizes, the Fund will evaluate
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Category I/SECA applicants using more or shares common management officials equal to or greater than five percent of flexible review standards. with the applicant (as determined by the the total prior BEA Program award(s) 2. CDFI Certification: For purposes of Fund), is a prior Fund awardee under that remains undisbursed more than NOFA, an application for an award will any Fund program and is not current on three (3) years after the date that the not be considered unless: its reporting requirements, set forth in Fund signed an award agreement with (a) The applicant is already certified the previously executed assistance or the awardee, and (ii) in the case of prior as a CDFI, with a certification expiration award agreement(s), as of the CDFI Program or other Fund program date on or after December 31, 2004. application deadline of this NOFA. award(s), any balance of award funds Please note: The Fund provided a (d) The Fund will not consider an equal to or greater than five percent of number of CDFIs with certifications application submitted by an applicant the total prior award(s) that remains expiring in 2003 and 2004 with that is a previous Fund awardee under undisbursed more than two (2) years notification that their certification had any Fund program if the applicant has after the effective date of an assistance been extended. The Fund will consider received (or receives at any time prior agreement with the Fund. In the case the extended certification date (the later to entering into an assistance agreement where another entity Controls the date) to determine whether those CDFIs under this NOFA) written notification applicant, is Controlled by the applicant meet this eligibility requirement; or from the Fund that it is in default of a or shares common management officials (b) The Fund receives from an previously executed assistance with the applicant (as determined by the applicant a complete CDFI certification agreement(s) and/or it has been barred Fund), is a prior Fund awardee under application no later than March 31, from applying to the Fund for this any Fund program, and has a balance of 2004, evidencing that the applicant can funding round. Additionally, prior undisbursed funds under said prior be certified as a CDFI. Applicants may awardees whose awards terminated in award(s), as of the application deadline obtain CDFI certification applications default status during the period from of this NOFA, the Fund will include the through the Fund’s Web site at http:// October 1, 2002 through September 30, combined awards of the applicant and www.cdfifund.gov. Applications for 2003, will be found to be ineligible its affiliates when calculating the certification must be submitted as under this NOFA. Prior awardees whose amount of undisbursed funds. instructed in the application form. awards terminated in default status (f) Accordingly, applicants that are 3. Prior Awardees: Applicants must be prior October 1, 2002 may be eligible prior awardees under any Fund program aware that success in a prior round of under this NOFA if other eligibility are advised to: (i) Comply with any of the Fund’s programs is not requirements are met. Further, an entity requirements specified in award and/or indicative of success under this NOFA. is not eligible to apply for an award assistance agreement(s), and (ii) contact Previous awardees are eligible to apply pursuant to this NOFA if another entity the Fund to ensure that all necessary under this NOFA, except as follows: that Controls the applicant, is actions are underway for the (a) Any entity that has received a Controlled by the applicant or shares disbursement of any outstanding Notice of Award from the Fund for a common management officials with the balance of a prior award(s). All prior funding round of the CDFI applicant (as determined by the Fund), outstanding reports, compliance or Program, Native American CDFI is a prior Fund awardee under any Fund disbursement questions should be Technical Assistance (NACTA) program, has received (or receives at directed to the Grants Management and Program, or Native American CDFI any time prior to entering into an Compliance Manager by e-mail at Development (NACD) Program funding assistance agreement under this NOFA) [email protected]; by telephone at round, but that has not submitted a written notification from the Fund that (202) 622–8226; by facsimile at (202) CDFI certification application nor been it is in default of a previously executed 622–6453; or by mail to CDFI Fund, 601 certified as a CDFI, is not eligible to assistance agreement(s) and/or it has 13th Street, NW., Suite 200 South, receive funding under this NOFA (see been barred from applying to the Fund Washington, DC 20005. The Fund will CDFI Certification section, above). for this funding round, and/or has an respond to applicants’ reporting, (b) The Fund is generally prohibited award(s) that terminated in default compliance or disbursement questions from obligating more than $5 million in status during the period from October 1, between the hours of 9 a.m. and 5 p.m. assistance, in the aggregate, to any one 2002 through September 30, 2003. ET, starting the date of the publication organization and its Subsidiaries and (e) The Fund will not consider an of this NOFA through April 26, 2004 (2 Affiliates during any three-year period. application submitted by an applicant days before the application deadline). For the purposes of this NOFA, the that is a prior Fund awardee under any The Fund will not respond to three-year period extends back from the Fund program if the applicant has a applicants’ reporting, compliance or date of obligation under the NOFA. The balance of undisbursed funds (defined disbursement phone calls or e-mail Fund will deem the date of the Fund’s below) under said prior award(s), as of inquiries that are received after 5 p.m. obligation of assistance to an the application deadline of this NOFA. on April 26, 2004 until after the funding organization as evidenced by the date Further, an entity is not eligible to apply application deadline of April 28, 2004. that the Fund has signed the Notice of for an award pursuant to this NOFA if 4. Eligibility Appeals. Any applicant Award issued to an awardee. another entity that Controls the that is found to be ineligible for funding (c) The Fund will not consider an applicant, is Controlled by the applicant through this NOFA on the grounds of application submitted by an applicant or shares common management officials late reports or undisbursed balances, that is a prior Fund awardee under any with the applicant (as determined by the and that believes that such factual Fund program if the applicant is not Fund), is a prior Fund awardee under determination was made in error, may current on its reporting requirements, any Fund program, and has a balance of appeal said decision by notifying the set forth in the previously executed undisbursed funds under said prior Fund’s Grants Management and assistance or award agreement(s), as of award(s), as of the application deadline Compliance Manager in writing or by e- the application deadline of this NOFA. of this NOFA. For the purposes of this mail (at [email protected], Further, an entity is not eligible to apply section, ‘‘undisbursed funds’’ is defined Attention: GMC Manager). Such appeals for an award pursuant to this NOFA if as: (i) In the case of prior Bank must be received by the Fund within another entity that Controls the Enterprise Award (BEA) Program five business days of the date of the applicant, is Controlled by the applicant award(s), any balance of award funds declination letter and must provide
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documented evidence to contradict the For purposes of this NOFA, the Fund affiliated entity received funds in the Fund’s finding. Only one such appeal will use the following definitions, set same amount and in the same form from per applicant may be made. forth in the Office of Management and an eligible, non-affiliated source within 5. Limitation on FA Awards: An Budget (OMB) Notice, Revisions to the the eligible matching funds window, applicant may receive only one FA Standards for the Classification of described below. award through either the FA Component Federal Data on Race and Ethnicity 2. Matching Funds Requirements Per or the Native American CDFI Assistance (October 30, 1997): Category: Due to funding constraints (NACA) Program. A FA Component (a) American Indian, Native American and the desire to quickly deploy Fund applicant, its subsidiaries or affiliates or Alaska Native: A person having dollars, the Fund will not consider for also may apply for and receive: (i) A tax origins in any of the original peoples of FA funding any applicant that does not credit allocation through the New North and South America (including demonstrate any matching funds Markets Tax Credit (NMTC) Program, Central America) and who maintains committed or in-hand as of the but only to the extent that the activities tribal affiliation or community application deadline under this NOFA. approved for FA Component awards are attachment; Specifically, FA applicants must meet different from those activities for which (b) Black or African American: A the following matching funds the applicant receives a NMTC Program person having origins in any of the requirements: allocation; (ii) an award through the black racial groups of Africa (terms such (a) Category I/SECA applicants: The BEA Program (subject to certain as ‘‘Haitian’’ or ‘‘Negro’’ can be used in Fund expects Category I/SECA limitations; refer to the revised interim addition to ‘‘Black or African applicants to demonstrate no less than rule at 12 CFR 1805.102); and (iii) an American’’); 30 percent of matching funds requested award through the TA Component of the (c) Hispanic or Latino: A person of as in-hand or firmly committed as of the CDFI Program, the NACTA Program Cuban, Mexican, or Puerto Rican, South application deadline. Matching funds and/or the NACD Program, but only to or Central American or other Spanish in-hand (received) or firm commitments the extent that the activities approved culture or origin, regardless of race (the for matching funds made, on or after for a FA award are different from those term ‘‘Spanish origin’’ can be used in January 1, 2002, and on or before April for which the applicant receives a TA, addition to ‘‘Hispanic or Latino’’); and 30, 2005, will be considered when NACTA and/or NACD award. (d) Native Hawaiian or Other Pacific determining matching funds eligibility. 6. Other Targeted Populations: Other Islander: a person having origins in any The Fund reserves the right to rescind Targeted Populations are defined as of the original peoples of Hawaii, Guam, all or a portion of a FA award and re- identifiable groups of individuals in the Samoa or other Pacific Islands. allocate the rescinded award amount to applicant’s service area for which there For further detail, please visit the other qualified applicant(s), if an exists a strong basis in evidence that Fund’s Web site at http:// applicant fails to obtain in-hand the they lack access to loans, Equity www.cdfifund.gov, under Certification/ required matching funds by April 30, Investments and/or Financial Services. Supplemental Information. 2005 (with required documentation of The Fund has determined that there is B. Matching Funds: 1. Matching such receipt received by the Fund not strong basis in evidence that the Funds Requirements in General: later than May 13, 2005), or to grant an following groups of individuals lack Applicants responding to this NOFA extension of such matching funds access to loans, Equity Investments and/ must obtain non-Federal matching deadline for specific applicants selected or Financial Services on a national funds from sources other than the to receive FA, if the Fund deems it level: Blacks or African Americans, Federal government on the basis of not appropriate. For any applicant that Native Americans or American Indians, less than one dollar for each dollar of demonstrates that it has less than 100 and Hispanics or Latinos. In addition, FA provided by the Fund (matching percent of matching funds in-hand or for purposes of this NOFA, the Fund has funds are not required for TA grants). firmly committed as of the application determined that there is a strong basis Matching funds must be at least deadline, the Fund will evaluate the in evidence that Alaska Natives residing comparable in form and value to the FA applicant’s ability to raise the remaining in Alaska, and Native Hawaiians or provided by the Fund (for example, if an matching funds by April 30, 2005. Other Pacific Islanders residing in applicant seeks a FA grant from the (b) Category II/Core and Category III/ Hawaii or other Pacific Islands, lack Fund, the applicant must obtain FLOW applicants: The Fund expects adequate access to loans, Equity matching funds through grant(s) from that FA award amounts will not exceed Investments or Financial Services. An non-Federal sources that are at least 100 percent of matching funds applicant designating any of the above- equal to the amount requested from the demonstrated in the application as in- cited Other Targeted Populations is not Fund). Funds used by an applicant as hand or firmly committed as of the required to provide additional narrative matching funds for a prior award under application deadline. Matching funds explaining the Other Targeted the CDFI Program or under another in-hand (received) or firm commitments Population’s lack of adequate access to Federal grant or award program cannot for matching funds made, on or after loans, Equity Investments or Financial be used to satisfy the matching funds January 1, 2002, and on or before April Services. Additionally, the Fund requirement of this NOFA. If an 30, 2005, will be considered when recognizes that there may be other such applicant seeks to use as matching determining matching funds eligibility. groups for which there is strong basis in funds monies received from an The Fund reserves the right to rescind evidence that they lack access to loans, organization that was a prior awardee all or a portion of a FA award and re- Equity Investments and/or Financial under the CDFI Program, the Fund will allocate the rescinded award amount to Services. Such groups may be deem such funds to be Federal funds, other qualified applicant(s), if an identified, and evidence of such lack of unless the funding entity establishes to applicant fails to obtain in-hand the access may be provided, in the Market the reasonable satisfaction of the Fund, required matching funds by April 30, Need section of the application that such funds do not consist, in whole 2005 (with required documentation of associated with this NOFA, and the or in part, of CDFI Program funds or such receipt received by the Fund not application for CDFI certification (if not other Federal funds. An applicant using later than May 13, 2005), or to grant an identified in the Target Market of a matching funds from an affiliated entity extension of such matching funds currently certified CDFI). must be able to demonstrate that the deadline for specific applicants selected
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to receive FA, if the Fund deems it application. Please note that, pursuant grant exceptions or waivers for late appropriate. to OMB guidance (68 FR 38402), each delivery of documents including, but 3. For purposes of this NOFA, applicant must provide, as part of its not limited to, late delivery that is ‘‘matching funds in-hand’’ means that application submission, a Dun and caused by third parties such as the U.S. the applicant has actually received the Bradstreet Data Universal Numbering mail, couriers or overnight delivery matching funds and has documentation System (DUNS) number. In addition, services. (such as a copy of a check) to evidence each application must include a valid a. Paper applications must be such receipt; ‘‘firm commitment for and current Employer Identification received in their entirety by this time matching funds’’ means that the Number, issued by the Internal Revenue and date, including an original signature applicant has entered into or received a Service. Incomplete applications will be page, a letter or other documentation legally binding commitment from the rejected and returned to the sender. from the Internal Revenue Service matching funds source that the C. Form of Application Submission: confirming the applicant’s Employer matching funds have been committed to Applicants may submit applications Identification Number (EIN), and all be disbursed to the applicant and the under this NOFA either electronically or other required paper attachments. applicant has documentation (such as a in paper form. In order to expedite b. Electronic applications must be copy of a loan agreement, promissory application review, the Fund expects received by this date and time. In note or grant agreement) to evidence applicants to submit applications addition, applicants that submit such firm commitment. electronically (via an Internet-based electronic applications must separately 4. Please note that the revised interim application) in accordance with the (by mail or other courier/delivery rule allows an insured credit union to instructions provided on the Fund’s service) submit an original signature use retained earnings to serve as Web site. Submission of an electronic page, a letter or other documentation matching funds for a FA grant in an application will facilitate the processing from the Internal Revenue Service amount equal to: (i) The increase in and review of applications and the confirming the applicant’s Employer retained earnings that have occurred selection of awardees. Applications sent Identification Number (EIN), and all over the applicant’s most recent fiscal by facsimile or by e-mail will not be other required paper attachments not year; (ii) the annual average of such accepted. later than 5 p.m. ET on May 5, 2004. See increases that have occurred over the 1. Electronic Applications: Electronic application instructions, provided in the applicant’s three most recent fiscal applications must be submitted solely electronic application, for further detail. years; or (iii) the entire retained by using the format made available at Applications and other required earnings that have been accumulated the Fund’s Web site. Applicants need documents and other attachments since the inception of the applicant or access to Internet Explorer 5.5 or higher received after these dates and times will such other financial measure as may be or Netscape Navigator 6.0 or higher and be rejected and returned to the sender. specified by the Fund. For purposes of at least a 56Kbps Internet connection in E. Intergovernmental Review: Not this NOFA, if option (iii) is used, the order to meet the electronic application applicable. applicant must increase its member submission requirements. Additional F. Funding Restrictions: For allowable and/ or non-member shares or total information, including instructions uses of FA award proceeds, please see loans outstanding by an amount that is relating to the submission of signature the interim rule, 12 CFR 1805.301. equal to the amount of retained earnings forms and supporting information, is set Please see Section I.A, above, for the that is committed as matching funds. forth in further detail in the electronic Programmatic Priorities of this NOFA. This amount must be raised by April 30, application. G. Other Submission Requirements: 2005. 2. Paper Applications: If an applicant 1. Addresses: Paper applications must is unable to submit an electronic be sent to: CDFI Fund Grants IV. Application and Submission application, it must submit to the Fund Management and Compliance Manager, Information a request for a paper application and the FA Component, Bureau of Public Debt, A. Address to Request Application request must be received by the Fund by 200 Third Street, Room 10, Parkersburg, Package: Applicants may submit March 31, 2004. The request must WV 26101. The telephone number to be applications under this NOFA either contain the applicant’s name; the name used in conjunction with overnight electronically or in paper form. Shortly and phone number of a contact person; delivery or mailings to this address is following the publication of this NOFA, a mailing address (a street address for (304) 480–5450. Applications and the Fund will make available the FY courier or overnight service deliveries); attachments will not be accepted at the 2004 electronic application on its Web and an explanation of why the applicant Fund’s offices in Washington, DC. site at http://www.cdfifund.gov. Paper cannot complete the electronic Applications and attachments received applications may be obtained through application. The request for a paper in the Fund’s offices will be rejected the Fund in the manner described in application should be directed to the and returned to the sender. Electronic Section IV.C.2, below. Fund’s Program Operations Manager applications must be submitted solely B. Content Application Submission: and must be sent by e-mail to by using the Fund’s website and must Detailed application content [email protected] or by be sent in accordance with the requirements are found in the facsimile to (202) 622–6453. submission instructions provided in the application related to this NOFA. D. Application Submission Dates and electronic application form. Applicants must submit all materials Times: 1. Application Deadlines: The described in and required by the deadline for receipt of applications is 5 V. Application Review Information application. Electronic applications p.m. ET on April 28, 2004. Applications A. Criteria: The Fund will evaluate must be submitted solely by using the and other required documents and other each application, assigning points and format made available at the Fund’s attachments received after these dates numeric scores with respect to the Web site. Additional information, and times will be rejected and returned following three criteria categories: including instructions relating to the to the sender. Please note that the 1. Market Need and Community submission of signature forms and document submission deadlines in this Development Performance (comprising supporting information, is set forth in NOFA and/or the funding application 50 percent of possible points), including further detail in the electronic are strictly enforced. The Fund will not an evaluation of:
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(a) Market need: the applicant’s Low-Income people or underserved rating that is higher than a ‘‘3’’ or for understanding of its market context and communities. which its Appropriate Federal Banking its current and prospective customers, (d) Additional considerations: Agency indicates it has safety and the extent of economic distress within (i) Category III/FLOW applicants will soundness concerns, unless the the designated Investment Area(s) be evaluated on their plans to leverage Appropriate Federal Banking Agency (including Hot Zones) or the extent of greater private sector resources directly asserts, in writing, that (i) an upgrade to need within the designated Targeted or indirectly in support of their lending a CAMEL 3 rating or better (or other Population(s), the extent of need for and investing activities (such as through improvement in status) is imminent and Equity Investments, loans, Development funding a loan loss reserve or credit (ii) such upgrade is expected to occur Services, and Financial Services within enhancement), or into their Target not later than September 30, 2004 or the designated Target Market, and the Markets, or develop and effectively within such other time frame deemed extent of demand within the Target provide innovative financial products acceptable by the Fund. Market for the applicant’s products and and services that address the capital B. Review and Selection Process: All services; needs of markets that are particularly applications will be reviewed for (b) Programmatic Priorities: the extent underserved by traditional financial eligibility and completeness. To be to which the applicant demonstrates services institutions. complete, the application must contain, that it will target its activities to the (ii) In the case of an applicant that has at a minimum, all information described Fund’s Programmatic Priorities. previously received funding from the as required in the application form. An Pursuant to the ranking of Programmatic Fund through the BEA Program, CDFI incomplete application will be rejected Priorities, highly qualified applicants, Program, the NACD Program or the as incomplete and returned to the meaning those with passing scores in NACTA Program, the Fund will sender. the other sections of the application, consider the extent and effectiveness to If determined to be eligible and that propose to conduct Priority 1 which the applicant has used previous complete, the Fund will conduct the activities, will receive higher scores in assistance from the Fund and the substantive review of each application the Market Need and Community community development impact that in accordance with the criteria and Development Performance section than will be created with new Fund procedures described in the CDFI comparable applicants that propose to assistance over and above benefits Program regulations, this NOFA and the conduct Priority 2 activities; those that created by previous Fund assistance. application. First, the Fund will propose to conduct Priority 2 activities (iii) The Fund will take into determine whether the applicant has a will receive higher scores than those consideration the Community need for capital (for Financial Products, that propose to conduct Priority 3 Reinvestment Act (CRA) rating of any reserves, Development Services, or activities; and those that propose to applicant that is an Insured Depository Financial Services), based on the conduct Priority 3 activities will receive Institution or Depository Institution applicant’s projections of capital higher scores than those that propose to Holding Company. The Fund will not available and activities projected. conduct Priority 4 activities; approve a Financial Assistance award to Applicants not projecting a need for (c) Community development any applicant that does not currently capital will not be considered for FA. performance/impact: (i) The applicant’s have at least a ‘‘Satisfactory’’ CRA Next, the Fund will determine whether track record and the likelihood of its rating. the applicant has matching funds in- projections for community development 2. Management and Underwriting hand and/or firmly committed. If there impact, including the extent to which (comprising 25 percent of possible are no matching funds documented as the applicant will concentrate its points), including an evaluation of: in-hand or firmly committed, the activities on serving its Target Market, (a) Portfolio quality: the applicant’s applicant will not be considered for FA. and the extent to which the activities underwriting and portfolio quality; In the case of an applicant that has proposed in the Comprehensive (b) Management controls: including previously received funding from the Business Plan will expand economic risk mitigation strategies; and Fund through any Fund program, the opportunities or promote community (c) Management team: the capacity, Fund will consider and will deduct development within the designated skills and experience of the applicant’s points for: (i) The applicant’s Target Market (including achieving the management team as appropriate to noncompliance with any active award Fund’s Programmatic Priorities); (ii) deliver the proposed products and or award that terminated in calendar product design and strategy, including services and manage compliance with year 2003, in meeting its performance an assessment of the applicant’s the Fund’s reporting requirements. goals, financial soundness covenants (if products and services, marketing and 3. Financial Health and Viability applicable), reporting deadlines and outreach efforts, and delivery strategy (comprising 25 percent of possible other requirements set forth in the (including the applicant’s track record points), including an evaluation of: assistance or award agreement(s) with in community development and serving (a) Financial track record: The the Fund during the applicant’s two the target market); (iii) the extent to applicant’s liquidity and other elements complete fiscal years prior to the which the applicant will provide of financial strength, including earnings, application deadline of this NOFA products that meet key community capital adequacy, and deployment of (generally FY 2002 and 2003); and (ii) development needs (such as low-down- resources; the applicant’s failure to make timely payment mortgage products for Low- (b) Financial projections: the loan payments to the Fund during the Income homebuyers and provision of applicant’s projected financial health, applicant’s two complete fiscal years financial services to individuals including its ability to raise operating prior to the application deadline of this previously lacking such services); (iv) support from sources other than the NOFA. Additionally, the Fund may take likely effectiveness of the proposed use Fund and its capitalization strategy; and into account performance on any prior of Fund dollars; and (v) the degree to (c) Safety and Soundness: The Fund assistance agreement as part of the which the applicant’s strategy is integral will not approve FA to any Insured overall assessment of the applicant’s to Federal community development Credit Union (other than a State-insured ability to carry out its Comprehensive initiatives (for example, Empowerment credit union) or Insured Depository Business Plan. All outstanding reports Zones) particularly targeted to benefit Institution applicant that has a CAMEL or compliance questions should be
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directed to the Grants Management and appropriate; if said changes materially NOFA will generally have three-year Compliance Manager by e-mail at affect the Fund’s award decisions, the performance periods. [email protected]; by telephone at Fund will provide information The Fund reserves the right, in its sole (202) 622–8226; by facsimile at (202) regarding the changes through the discretion, to rescind its award if the 622–6453; or by mail to CDFI Fund, 601 Fund’s website. awardee fails to return the Assistance 13th Street, NW., Suite 200 South, Agreement, signed by the authorized VI. Award Administration Information Washington, DC 20005. The Fund will representative of the awardee, and/or respond to reporting or compliance A. Notice of Award: The Fund will provide the Fund with any other questions between the hours of 9 a.m. signify its selection of an applicant as an requested documentation, within the and 5 p.m. ET, starting the date of the awardee by delivering a signed Notice of deadlines set by the Fund. publication of this NOFA through April Award to the applicant. The Notice of In addition to entering into an 26, 2004 (2 days before the application Award will contain the general terms Assistance Agreement, each awardee deadline). The Fund will not respond to and conditions underlying the Fund’s that receives an award either (i) in the reporting or compliance phone calls or provision of assistance including, but form of a loan, Equity Investment, credit e-mail inquiries that are received after 5 not limited to, the requirement that an union shares/deposits, or secondary p.m. on April 26, 2004 until after the awardee and the Fund enter into an capital, in any amount, or (ii) a FA grant funding application deadline of April Assistance Agreement. The applicant in an amount greater than $500,000, 28, 2004. must execute the Notice of Award and must furnish to the Fund an opinion The Fund shall consider the return it to the Fund. By executing a from its legal counsel, the content of institutional and geographic diversity of Notice of Award, the awardee agrees which will be specified in the applicants in making its funding that, if prior to entering into an Assistance Agreement, to include, determinations. Assistance Agreement with the Fund, among other matters, an opinion that Fund reviewers will evaluate and information comes to the attention of the awardee: (A) Is duly formed and in score each application and make the Fund that either adversely affects good standing in the jurisdiction in recommendations for funding to the the awardee’s eligibility for an award, or which it was formed and/or operates; Fund’s selecting official. As part of the adversely affects the Fund’s evaluation (B) has the authority to enter into the substantive review process, applicants of the awardee’s application, or Assistance Agreement and undertake may receive a telephone interview or an indicates fraud or mismanagement on the activities that are specified therein; on-site visit by Fund reviewers for the the part of the awardee, the Fund may, and (C) has no pending or threatened purpose of obtaining clarifying or in its discretion and without advance litigation that would materially affect its confirming application information. notice to the awardee, terminate the ability to enter into and carry out the During the review process, the applicant Notice of Award or take such other activities specified in the Assistance may be required to submit additional actions as it deems appropriate. Agreement. All other awardees must information about its application in Moreover, by executing a Notice of provide the Fund with a good standing order to assist the Fund in its final Award, an awardee agrees that, if prior certificate (or equivalent evaluation process. Such requests must to entering into an Assistance documentation) from their state (or be responded to within the time Agreement with the Fund, the Fund jurisdiction) of incorporation. parameters set by the Fund. determines that the awardee is in C. Administrative and Policy The Fund’s selecting official will default of any previous Assistance Requirements: (a) Performance Rating: make a final funding determination Agreement entered into with the Fund, PLUM: In order to better manage its based on the applicant’s file, reviewer the Fund may, in its discretion and portfolio of awards, the Fund is scores and recommendations, and the without advance notice to the awardee, developing a performance rating system, amount of funds available. In the case either terminate the Notice of Award or called PLUM, which will rate each CDFI of Insured CDFIs, the selecting official take such other actions as it deems according to its overall financial will take into consideration the views of appropriate. The Fund reserves the strength and potential for creating the Appropriate Federal Banking right, in its sole discretion, to rescind its community development impact. Agencies; in the case of State-insured award if the awardee fails to return the Initially, PLUM will serve as the Fund’s credit unions, the Fund may consult Notice of Award, signed by the internal portfolio risk rating tool. PLUM with the appropriate State banking authorized representative of the will cover four areas: Performance agencies (or comparable entity). Each awardee, along with any other requested effectiveness/community development applicant will be informed of the Fund’s documentation, within the deadline set impact; Leverage, liquidity and award decision either through a Notice by the Fund. solvency; Underwriting (including of Award if selected for an award (see B. Assistance Agreement: Each portfolio quality); and Management. The Notice of Award section, below) or a applicant that is selected to receive an Fund currently is conducting the declination letter, if not selected for an award under this NOFA must enter into analyses needed to identify appropriate award, which may be for reasons of an Assistance Agreement with the Fund peer groups and target ranges for each application incompleteness, ineligibility prior to disbursement of award indicator. In order that additional data or substantive issues. All applicants that proceeds. The Assistance Agreement can be collected for the Fund’s analyses, are not selected for awards based on will set forth certain required terms and indicators within the above four areas substantive issues will be given the conditions of the award, which will have been incorporated into the FY opportunity to obtain feedback on the include, but not be limited to, (i) the 2004 Financial Assistance Component strengths and weaknesses of their amount of the award; (ii) the type of application. Each CDFI will have access applications. This feedback will be award; (iii) the approved uses of the to its own PLUM rating. provided in a format and within a award; (iv) the approved Target Market (b) Fees: The Fund reserves the right, timeframe to be determined by the to which the funded activity must be in accordance with applicable Federal Fund, based on available resources. targeted; (v) performance goals and law and if authorized, to charge award The Fund reserves the right to change measures; and (vi) reporting reservation and/or compliance its eligibility and evaluation criteria and requirements for all awardees. monitoring fees to all entities receiving procedures, if the Fund deems it Assistance Agreements under this CDFI Program awards. Prior to imposing
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any such fee, the Fund will publish applicable, recipients of Federal funds Suite 200 South, Washington, DC 20005. additional information concerning the ‘‘must be able to account for the receipt, These are not toll free numbers. nature and amount of the fee. obligation, and expenditure of funds.’’ VIII. Information Sessions and D. Reporting: (a) Reporting Further, OMB Circular A–110 states that Outreach Requirements: The Fund will collect ‘‘Recipients shall maintain advances of information, on at least an annual basis, Federal funds in interest bearing In connection with the Fiscal Year from all CDFI Program awardees accounts unless (1), (2), or (3) apply: 2004 funding rounds of its programs, including, but not limited to, an Annual (1) The recipient receives less than the Fund may conduct Information Report that comprises the following $120,000 in Federal awards per year; Sessions to disseminate information to components: (i) Financial Report; (ii) (2) The best reasonably available organizations contemplating applying Performance Goals Report/Annual interest bearing account would not be to, and other organizations interested in Survey; (iii) Financial Status Report (for expected to earn interest in excess of learning about, the Fund’s programs. TA awardees); (iv) Uses of Financial $250 per year on Federal cash advances; For further information on the Fund’s Assistance and Matching Funds Report; or Information Sessions, dates and and (v) Explanation of Noncompliance (3) The depository would require an locations, or to register online to attend (as applicable). Awardees are average or minimum balance so high an Information Session, please visit the responsible for the timely and complete that it would not be feasible within the Fund’s Web site at http:// submission of the Annual Report, even expected Federal and non-Federal cash www.cdfifund.gov or call the Fund at if all or a portion of the documents resources.’’ The Fund will provide (202) 622–9046. actually are completed by another entity guidance to awardees outlining the Authority: 12 U.S.C. 4703, 4703 note, 4704, or signatory to the Assistance format and content of the information to 4706, 4707, 4717; 12 CFR part 1805. Agreement. If such other entities or be provided on an annual basis, signatories are required to provide Dated: February 23, 2004. outlining and describing how the funds Tony T. Brown, Annual Surveys or Financial Reports, or were used. other documentation that the Fund may Director, Community Development Financial require, the awardee is responsible for VII. Agency Contacts Institutions Fund. [FR Doc. 04–4301 Filed 2–25–04; 8:45 am] ensuring that the information is The Fund will respond to questions submitted timely and complete. The and provide support concerning this BILLING CODE 4810–70–U Fund reserves the right to contact such NOFA and the funding application additional signatories to the Assistance between the hours of 9 a.m. and 5 p.m. DEPARTMENT OF THE TREASURY Agreement and require that additional ET, starting the date of the publication information and documentation be of this NOFA through April 26, 2004 (2 provided. The Fund will use such Internal Revenue Service days before the application deadline). information to monitor each awardee’s The Fund will not respond to questions Proposed Collection; Comment compliance with the requirements set or provide support concerning the Request for Form 970 forth in the Assistance Agreement and application that are received after 5 p.m. to assess the impact of the CDFI ET on April 26, 2004, until after the AGENCY: Internal Revenue Service (IRS), Program. The Performance Goals funding application deadline of April Treasury. Report/Annual Survey must be 28, 2004. ACTION: Notice and request for submitted through the Fund’s new web- comments. based data collection system, the A. Information Technology Support: Technical support can be obtained by Community Investment Impact System SUMMARY: The Department of the calling (202) 622–2455 or by e-mail at (CIIS). All other components of the Treasury, as part of its continuing effort [email protected]. People who Annual Report may be submitted to the to reduce paperwork and respondent have visual or mobility impairments Fund in paper form. CIIS is currently burden, invites the general public and that prevent them from creating Hot under development and is expected to other Federal agencies to take this Zone or Investment Area maps using the be operational in April 2004. The Fund opportunity to comment on proposed Fund’s website should call (202) 622– reserves the right, in its sole discretion, and/or continuing information 2455 for assistance. These are not toll to modify these reporting requirements collections, as required by the free numbers. if it determines it to be appropriate and Paperwork Reduction Act of 1995, B. Programmatic Support: If you have necessary; however, such reporting Public Law 104–13(44 U.S.C. any questions about the programmatic requirements will be modified only after 3506(c)(2)(A)). Currently, the IRS is requirements of this NOFA, contact the notice to awardees. soliciting comments concerning Form Fund’s Program Operations Manager by (b) Accounting: The Fund will require 970, Application To Use LIFO Inventory e-mail at [email protected], by each awardee that receives FA and TA Method. under this NOFA to account for and telephone at 202/622–6355, by facsimile DATES: Written comments should be track the use of said FA and TA awards. at (202) 622–7754, or by mail at CDFI received on or before April 26, 2004 to This means that for every dollar of FA Fund, 601 13th Street, NW., Suite 200 be assured of consideration. and TA received from the Fund, the South, Washington, DC 20005. These awardee will be required to inform the are not toll-free numbers. ADDRESSES: Direct all written comments Fund of its uses. This may require C. Administrative Support: If you to Glenn Kirkland Internal Revenue awardees to establish separate have any questions regarding the Service, room 6411, 1111 Constitution administrative and accounting controls, administrative requirements of this Avenue NW., Washington, DC 20224. subject to the applicable OMB Circulars. NOFA, contact the Fund’s Grants FOR FURTHER INFORMATION CONTACT: OMB Circular A–110 (Uniform Management and Compliance Manager Requests for additional information or Administrative Requirements for Grants by e-mail at [email protected], by copies of the form and instructions and Agreements with Institutions of telephone at (202) 622–8226, by should be directed to Larnice Mack at Higher Education, Hospitals and Other facsimile at (202) 622–6453, or by mail Internal Revenue Service, room 6407, Non-Profit Organizations) states that, as at CDFI Fund, 601 13th Street, NW., 1111 Constitution Avenue NW.,
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Washington, DC 20224, or at (202) 622– tax return information are confidential, ACTION: Notice. 3179, or through the Internet at as required by 26 U.S.C. 6103. SUMMARY: ([email protected]). Request for Comments: Comments An open meeting of the E- submitted in response to this notice will Filing Issue Committee will be SUPPLEMENTARY INFORMATION: conducted (via teleconference). The Title: Application To Use LIFO be summarized and/or included in the request for OMB approval. All Taxpayer Advocacy Panel is soliciting Inventory Method. public comment, ideas, and suggestions OMB Number: 1545–0042. comments will become a matter of public record. Comments are invited on: on improving customer service at the Form Number: Form 970. (a) Whether the collection of Internal Revenue Service. Abstract: Form 970 is filed by information is necessary for the proper DATES: The meeting will be held individuals, partnerships, trusts, estates, performance of the functions of the Thursday, March 11, 2004, from 3 to 4 or corporations to elect to use the last- agency, including whether the p.m., eastern standard time. in first-out (LIFO) inventory method or information shall have practical utility; FOR FURTHER INFORMATION CONTACT: to extend the LIFO method to additional (b) the accuracy of the agency’s estimate Mary Ann Delzer at 1–888–912–1227, or goods. The IRS uses Form 970 to of the burden of the collection of (414) 297–1604. determine if the election was properly information; (c) ways to enhance the made. Current Actions: There are no SUPPLEMENTARY INFORMATION: Notice is quality, utility, and clarity of the changes being made to the form at this hereby given pursuant to Section information to be collected; (d) ways to time. 10(a)(2) of the Federal Advisory minimize the burden of the collection of Committee Act, 5 U.S.C. App. (1988) Type of Review: Extension of a information on respondents, including currently approved collection. that an open meeting of the Taxpayer through the use of automated collection Advocacy Panel, E-Filing Issue Affected Public: Business or other for- techniques or other forms of information Committee will be held Thursday, profit organizations and individuals or technology; and (e) estimates of capital March 11, 2004, from 3 to 4 p.m., households. or start-up costs and costs of operation, Eastern standard time via a telephone Estimated Number of Respondents: maintenance, and purchase of services conference call. You can submit written 3000. to provide information. comments to the panel by faxing to Estimated Time Per Respondent: 13 (414) 297–1623, or by mail to Taxpayer hours, 55 minutes. Approved: February 18, 2004. Glenn Kirkland, Advocacy Panel, Stop 1006MIL, 310 Estimated Total Annual Burden West Wisconsin Avenue, Milwaukee, Hours: 41,730. IRS Reports Clearance Officer. [FR Doc. 04–4288 Filed 2–25–04; 8:45 am] WI 53203–2221, or on the Web site at The following paragraph applies to all http://www.improveirs.org. Public of the collections of information covered BILLING CODE 4830–01–P comments will also be welcome during by this notice: the meeting. Please contact Mary Ann An agency may not conduct or DEPARTMENT OF THE TREASURY Delzer at 1–888–912–1227 or (414) 297– sponsor, and a person is not required to 1604 for dial-in information. respond to, a collection of information Internal Revenue Service The agenda will include the unless the collection of information following: Various IRS issues. displays a valid OMB control number. Open Meeting of the Taxpayer Dated: February 20, 2004. Books or records relating to a collection Advocacy Panel, E-Filing Issue Bernard Coston, of information must be retained as long Committee. as their contents may become material Director, Taxpayer Advocacy Panel. in the administration of any internal AGENCY: Internal Revenue Service (IRS) [FR Doc. 04–4287 Filed 2–25–04; 8:45 am] revenue law. Generally, tax returns and Treasury. BILLING CODE 4830–01–P
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Corrections Federal Register Vol. 69, No. 38
Thursday, February 26, 2004
This section of the FEDERAL REGISTER DEPARTMENT OF HEALTH AND Tuesday, February 17, 2004 make the contains editorial corrections of previously HUMAN SERVICES following correction: published Presidential, Rule, Proposed Rule, On page 7492, in the first column, in and Notice documents. These corrections are Food and Drug Administration the first paragragh, in the 13th and 14th prepared by the Office of the Federal lines ‘‘[insert date 6 months after date of Register. Agency prepared corrections are [Docket No. 2003N–0016] issued as signed documents and appear in publication in the Federal Register]’’ the appropriate document categories Medical Devices; Revised MedWatch should read ‘‘August 17, 2004.’’ elsewhere in the issue. Forms; Availability [FR Doc. C4–3333 Filed 2–25–04; 8:45 am] Correction BILLING CODE 1505–01–D In notice document 04–3333 beginning on page 7490 in the issue of
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Part II
Department of Energy Federal Energy Regulatory Commission
18 CFR Parts 141, 260, et al. Quarterly Financial Reporting and Revisions to the Annual Reports; Final Rule
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DEPARTMENT OF ENERGY Commission, 888 First Street, NE., licensees,1 natural gas companies,2 and Washington DC 20426, (202) 502– oil pipeline companies,3 by establishing Federal Energy Regulatory 6287. new quarterly financial reporting for Commission Christopher Bublitz (Technical jurisdictional entities. Additionally, the Information), Office of Administrative Commission proposed changes to the 18 CFR Parts 141, 260, 357, and 375 Litigation, Federal Energy Regulatory FERC Annual Report Forms 1, 1–F, 2, 2– [Docket No. RM03–8–000] Commission, 888 First Street, NE., A, and 6 by adding new reporting Washington DC 20426, (202) 502– requirements, updating the corporate Quarterly Financial Reporting and 8542. officer’s certification requirements and Revisions to the Annual Reports Julia Lake (Legal Information), Office of accelerating the filing dates for all filers the General Council, Federal Energy of the FERC Annual Reports.4 The February 11, 2004. Regulatory Commission, 888 First proposed changes to the FERC Annual AGENCY: Federal Energy Regulatory Street, NE., Washington DC 20426, Reports were made primarily to achieve Commission. (202) 502–8370. symmetry in these areas with the ACTION: Final rule. SUPPLEMENTARY INFORMATION: requirements for the proposed quarterly financial reports. SUMMARY: The Federal Energy Table of Contents Regulatory Commission (FERC or 2. After carefully considering the I. Introduction comments received, the Commission Commission) is amending its financial II. Background reporting regulations to establish new has determined that a Final Rule III. Discussion revising its financial reporting quarterly financial reporting for A. General respondents that file FERC Annual B. Quarterly Financial Reports regulations should be issued. The Reports. The Commission is updating its 1. Basic Set of Financial Statements purpose of this Final Rule is to improve financial annual reporting requirements 2. Other Selected Financial Information the usefulness and transparency of to add new schedules on ancillary 3. Management Discussion and Analysis financial information provided to the services, electric transmission peak 4. Notes to the Financial Statements Commission. The Final Rule contains 5. Filing Dates for the Quarterly Financial loads, and is updating the statistical significant modifications from the Reports Notice of Proposed Rulemaking (NOPR) classifications reported on certain 6. Certified Public Accountant Review 5 schedules. The Commission is also based upon comments received. These Letter changes should greatly reduce the updating the corporate officer’s 7. Exemption Requests certification for the FERC Annual C. Updates to the FERC Annual Reports administrative burden cited by filers of Reports, modifying filing dates, 1. Filing Dates for the FERC Annual the quarterly financial reports, and the allowing respondents to submit the CPA Reports FERC Annual Reports, while providing certification electronically, and 2. Ancillary Services the Commission with greater eliminating the cash management 3. Electric Transmission Peak Loads transparency of financial information 4. Statistical Classifications notification requirement. from these respondents. The increased 5. Selected Fourth Quarter Data in FERC frequency and transparency of financial This Final Rule will improve the Annual Reports usefulness and transparency of financial reporting will help the Commission D. Corporate Officer Certification identify and evaluate emerging trends, information submitted to the 1. Quarterly Financial Reports Commission. The increased frequency 2. FERC Annual Reports business conditions and financial issues of financial reporting will help the E. Miscellaneous Matters affecting regulated entities. Commission identify and evaluate 1. Fiscal Year Reporting II. Background emerging trends, business conditions 2. Expand Data Collection in FERC Annual and financial issues affecting reporting Reports 3. Financial accounting and reporting 3. Requests for a Technical Conference provides needed information entities. Additionally, the information F. Elimination of the Cash Management contained in the quarterly financial Notification Reports concerning a company’s past reports will identify the economic IV. Regulatory Flexibilty Act Certification performance and its future prospects. effects of significant transactions and V. Environmental Impact Statement Without reliable financial statements events, allow more timely evaluations of VI. Information Collection Statement prepared in accordance with the the adequacy of existing cost-based VII. Document Availability Commission’s Uniform Systems of rates, and aid in the development of VIII. Effective Date and Congressional Accounts and related regulations, the needed changes to existing regulatory Notification Commission would be unable to initiatives. Finally, more frequent and Regulatory Text accurately determine the costs that Appendix A—List of Commenters relate to a particular time period, transparent financial reporting resulting Appendix B—Quarterly Financial Reports from this Final Rule will help the Appendix C—New Schedules Added to the Commission achieve its goal of vigilant Annual Reports 1 Part 141 Statements and Reports (Schedules). oversight over reporting entities. See 18 CFR Part 141. Before Commissioners: Pat Wood, III, 2 Part 260 Statements and Reports (Schedules). EFFECTIVE DATE: The rule will become Chairman; Nora Mead Brownell, Joseph See 18 CFR Part 260. effective March 29, 2004. T. Kelliher, and Suedeen G. Kelly. 3 Part 357 Annual Special or Periodic Reports: FOR FURTHER INFORMATION CONTACT: Carriers Subject to Part 1 of the Interstate Commerce Mark Klose (Project Manager), Office of I. Introduction Act. See 18 CFR Part 357. 4 The FERC Annual Reports bear the following the Executive Director, Federal Energy 1.The Federal Energy Regulatory OMB approval control numbers: Form 1 has OMB Regulatory Commission, 888 First Commission is amending its financial approval number 1902–0021; Form 1–F has OMB Street, NE., Washington DC 20426, reporting regulations. In a Notice of approval number 1092–0029; Form 2 has OMB (202) 502–8283. Proposed Rulemaking issued on June approval number 1902–0028; Form 2–A has OMB approval number 1902–0030; and Form 6 has OMB Julie Kuhns (Technical Information), 26, 2003, the Commission proposed to approval number 1092–0022. Office of the Executive Director, amend its financial reporting 5 68 FR 40339 (July 7, 2003), IV FERC Stats. & Federal Energy Regulatory regulations for public utilities and Regs. ¶ 32,571 (June 26, 2003).
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service, or line of business.6 III. Discussion annual data in the FERC Annual Additionally, it would be difficult to Reports. A. General determine whether a given entity has 1. Basic Set of Financial Statements previously been given the opportunity 7. The Commission received 74 to recover its costs through rates, or to comments from users and jurisdictional 11. The basic financial statements compare how the financial performance entities that file FERC Annual Reports.7 proposed to be included in the quarterly and results of operations of one Users of the FERC Annual Reports were financial reports were the Comparative regulated entity relates to that of generally supportive of the Balance Sheet, the Statement of Income another. Commission’s proposal to require more and Retained Earnings, the Statement of timely, relevant, reliable, and Cash Flows, and the Statement of Other 4. The need for current and better transparent financial reporting from Comprehensive Income and Hedging disclosures in financial statements jurisdictional entities while respondents Activities. drives the increasing demand for timely, raised major concerns about the Comments Received relevant and reliable financial additional administrative burden they information. In order to improve the would experience to gather, review, 12. State regulatory bodies and others timeliness and the transparency of the certify and submit the required that rely on the accounting information financial information for FERC information within the proposed time to develop and monitor the rates paid jurisdictional entities, the Commission frames. After careful consideration of all for services are generally supportive of proposed the filing of quarterly financial the comments received, the Commission the changes in reporting, and view the reports by respondents that file FERC is adopting quarterly financial reporting proposal as essential for the Annual Report Forms 1, 1–F, 2, 2–A, or and changes to the FERC Annual Commission to achieve its stated 6. Additionally, to strengthen the Reports as proposed in the NOPR, with purpose of providing more vigilant reliability of the information, the certain modifications and clarifications oversight though more timely reporting Commission proposed to update its as discussed below. The Commission is of financial information. Additionally, corporate officer certification contained confident that the Final Rule strikes the these commenters state that while a in the financial reports. appropriate balance between the number of state utility regulatory 5. The two new financial reports administrative burden placed on commissions have quarterly and even proposed in the NOPR were the FERC respondents and the benefits achieved monthly financial reporting Form No. 3–Q, Quarterly Financial through more frequent, transparent, and requirements, the Commissions Report of Electric Companies, Licensees, reliable reporting of financial proposal provides more consistent and and Natural Gas Companies, and the information. standardized reporting, and provides FERC Form No. 6–Q, Quarterly the needed financial information from B. Quarterly Financial Reports Financial Report of Oil Pipeline FERC-jurisdictional entities at a level of Companies. These two new quarterly 8. Under the proposed rule, a detail that is not obtainable from other financial reports would act as a jurisdictional entity filing a FERC sources.8 NARUC agrees with FERC that supplement to the existing FERC Annual Report would be required to file while some jurisdictional entities may Annual Reports by collecting basic a basic set of financial statements on a file similar information with the U. S. financial information and certain quarterly basis prepared in accordance Securities and Exchange Commission financial related information from with the Commission’s Uniform (SEC), the level of detail concerning jurisdictional entities. Systems of Accounts and related assets, liabilities, stockholders equity regulations. Additionally, as part of 6. Additionally, as part of the along with the revenues, expenses, collecting a basic set of financial Commission effort to update its gains, and losses is different for FERC statements on a quarterly basis, the financial reporting regulations, the and SEC reporting. Finally, NARUC Commission proposed to collect certain NOPR proposed changes to the FERC believes the FERC proposal improves information on matters that respondents Annual Report Forms 1, 1–F, 2, 2–A, the financial reporting by public report on an annual basis. utilities on a jurisdictional basis that is and 6. The proposed changes to the 9. For the reasons discussed below, FERC Annual Reports included the most useful to FERC and the different the Commission will require the State commissions. reporting of selected fourth quarter submission of a basic set of financial financial data, adding a new 13. Comments filed by AOPL and statements and other selected data to be INGAA concerning the administrative management discussion and analysis included in the quarterly financial (MD&A) schedule, adding new burden jurisdictional entities would reports. The Commission will also incur if required to comply with certain schedules to collect data on ancillary modify the proposed filing dates, the services and electric transmission peak aspects of the proposal included requirements for the notes to the statistics that also support the view that load, updating the statistical financial statements, and the corporate classifications, allowing respondents to financial information is not readily officer certification statement. available from public sources such as submit the annual CPA certification 10. The Commission will not include electronically, updating the corporate the SEC. AOPL states that of the 194 oil as part of the Final Rule the requirement pipeline companies with tariffs on file officer certification, and modifying the that respondents include an MD&A filing dates. at the FERC, only three file reports schedule, or the requirement that under SEC rules. AOPL states that an respondents submit a copy of a CPA equal number of pipelines are privately 6 Part 101 Uniform System of Accounts review letter if they had the FERC Prescribed for Public Utilities and Licensees Subject held and have no SEC reporting to the Provisions of the Federal Power Act. See 18 quarterly report reviewed by their requirements. And the remainder fall CFR part 101 (2003). Part 201 Uniform System of external accountant. Finally, the somewhere in between, supporting one Accounts Prescribed for Natural Gas Companies Commission will not include the or more direct or indirect parents having Subject to the Provisions of the Natural Gas Act. See requirement that respondents report 18 CFR Part 352 (2003). Part 352 Uniform System SEC reporting requirements. INGAA of Accounts Prescribed for Oil Pipeline Companies fourth quarter data separately from the Subject to the Provisions of the Interstate Commerce 8 See APGA at 2 and 3; ISO/RTO Council at 2 and Act. See 18 CFR Part 352 (2003). 7 See Appendix A for List of Commenters. 3; Missouri PSC at 3 and NARUC at 2.
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states that only 20 percent of their Comprehensive Income and Hedging in the NOPR by requiring the reporting members are SEC filers. Activities. of key information that they believe 17. The information contained in the materially affects equity, financing, Commission Response quarterly financial reports will identify business structure or the operations of 14. As the commenters correctly the economic effects of significant the regulated entity. Examples of the observe, the financial information transactions and events, allow staff to information commenters recommend required by the Commission may not be evaluate the adequacy of existing cost- reporting include acquisitions, readily available from other public based rates, and aid in the development divestures and abandonments, new sources because many FERC of needed changes to existing regulatory financing arrangements, hedges and jurisdictional entities do not file initiatives. This information will derivatives, and pipeline shutdowns.12 financial statements with the SEC. For strengthen the Commission’s ongoing Commission Response example, a company may be exempt activities in identifying emerging trends, from SEC reporting if it has no and in identifying the impacts that new 21. Congress granted the Commission registered securities on a national accounting standards, or changes in authority to prescribe periodic financial securities exchange, or if its total assets existing accounting standards, have on and non-financial reporting.13 All are less than $10 million with a class of respondents. jurisdictional entities subject to the equity securities held by less than 500 Commission’s accounting and financial persons. Additionally, a company may 2. Other Selected Financial Information reporting regulations are required to not file financial information with the 18. In addition to requiring keep their books and records in such a SEC if it is privately held, or if it is a respondents to file a basic set of manner as to permit the preparation of cooperative. financial statements, the NOPR financial and operating statements 15. Additionally, those companies proposed that certain detailed directly from such records at the end of that do make public filings may information be filed with the each accounting period according to the consolidate their regulated and Commission. The information sought in prescribed accounts. Furthermore, the unregulated operations, or report the the supplementary schedules was not accounting period prescribed by the data in such a manner that is not new information, rather it is the same Uniform Systems of Accounts is a consistent with the Commission’s information already submitted by calendar month.14 Consequently, the Uniform Systems of Accounts and respondents on an annual basis in the Commission’s existing regulations related regulations. There may be FERC Annual Reports. The require jurisdictional entities to have differences in the manner in which supplementary information includes accounting and financial reporting certain transactions and events are revenues and the related quantities of systems in place to readily prepare displayed for stockholder reporting and product sold or transported, the account financial and operating statements to the Commission. These reporting balances for various operating and summarized on a monthly basis. differences may result from differences maintenance expenses, selected plant Therefore, it should not be unduly in reporting classifications prescribed cost data, and information concerning burdensome for these entities to prepare by the Commission’s Uniform Systems the nature of regulatory assets and and report on account activity on a of Accounts, as well as the detailed liabilities being created or amortized monthly, quarterly, or annual basis schedules and related disclosure during the period. when required to do so by this requirements contained in the FERC Commission. Annual Reports.9 These differences Comments Received 22. The supplemental schedules arise from the Commission’s need to 19. While some commenters support provide important details regarding the develop and monitor cost based rates, the proposal, many do not believe this types and sources of revenues, the analyze costs of different services and level of account detail is needed. They category and types of costs incurred, the classes of assets, and to compare costs urge the Commission to remove the assets and utility investments made by across lines of business. supporting financial and related the respondent, significant new 16. Based upon the comments information. Some commenters state borrowings incurred during the period, received, it is abundantly clear that the that the information is difficult to as well as information about the financial information filed with this collect within a quarterly deadline and establishment and disposition of Commission represents, in most cases, not necessary to monitor trends within regulatory assets and liabilities during the only source of financial data the industry on an interim basis.10 Some the period. The reporting of this presented in a format and detail suitable comment that, due to the filing dates, detailed information allows for the Commission to exercise its duties some of the amounts will need to be Commission staff to better understand and responsibilities under the Federal estimated because the actual data will emerging trends experienced by the Power, Natural Gas, and Interstate not be available until after the filing respondents, and the economic impact Commerce Acts. Therefore, the deadline.11 Chevron states that certain that significant transactions, events, and Commission will require jurisdictional information of liquid volumes regulatory initiatives have on regulated entities to supplement their FERC transported by type, the specifics of its Annual Reports with the filing of state of origin and its destination would 12 See, e.g., AOPL at 26. quarterly financial reports as proposed be difficult to compile on a quarterly 13 Authority granted to the Commission pursuant in the NOPR. The basic financial basis because it does not currently to sections 4, 304 and 309 of the Federal Power Act, statements to be included in the Sections 10(a) and 16 of the Natural Gas Act, and maintain this information in a format Section 20 of the Interstate Commerce Act. See 16 quarterly financial reports are the that readily lends itself to quarterly U.S.C. 797, 825c and 825h; 15 U.S.C. 717i(a) and Comparative Balance Sheet, the reporting. 717o; and 49 App. U.S.C. 1–85 (1988). Statement of Income and Retained 20. Finally, some commenters suggest 14 See 18 CFR Parts 101 and 201, General Earnings, the Statement of Cash Flows, alternatives to the schedules proposed Instruction 3(c) and 4, for the accounting period and financial statement requirements of public and the Statement of Other utilities and licensees, and natural gas companies, 10 See, e.g., Arizona at 5; Detroit Ed at 4; EEI at and 18 CFR Part 352, General Instruction 1–3, for 9 See, e.g., AOPL’s Appendix C; EEI at 8 and 9; 12; Entergy at 3 and MidAmerica at 2. the accounting period and financial statement NiSource at 19 and Shell Pipeline’s Attachment A. 11 See Arizona at 5 and EEI at 12. requirements of oil pipeline companies.
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operations. Additionally, this level of Comments Received be in a position to assure respondents detailed reporting helps ensure that 25. APGA supports the objectives and that they have full safe harbor emerging financial trends are not believes that the MD&A could achieve protection similar to that which applies masked due to the consolidation of them. APGA views the MD&A schedule to SEC registrants. various account balances. Finally, this at a jurisdictional entity level as 29. Some commenters that currently level of detail along with the related critically important, and also suggests file SEC reports request that they be notes contained in the reports will allow that the Commission include a permitted to submit MD&A prepared the Commission to better monitor the requirement that jurisdictional entities under SEC guidance in their FERC adequacy of cost based rates on a more file a notification with the Commission annual and quarterly financial reports.18 timely basis, and to monitor the when a material change has occurred. Others also seek clarification on the respondents’ overall compliance with 26. However, the vast majority of the definition of materiality and request that Commission regulations. comments received on the form and the Commission adopt the SEC 23. The collection of selected or content of the MD&A schedule urge the definition of materiality. They state that fragmented data, as urged by some Commission to eliminate, or modify, the a difference in levels of materially could commenters, will not provide a proposed requirement. Most lead to different MD&A prepared for the complete financial picture of how commenters express concern for SEC and FERC. These material potential litigation that could arise with differences could lead to potential certain events or transactions have 19 impacted the financial condition or such forward looking statements along litigation. Some commenters also results of operations of the jurisdictional with the significant administrative request that the MD&A content be burden companies might incur if they modified to focus on historical events entity. Nor will reporting changes for 20 only a selected or isolated set of are required to complete the MD&A and be less speculative. transactions or events provide the schedule as proposed in the NOPR.15 30. Other commenters urge that at the Commission with the means to view the 27. Many commenters argue that the very least, the format of the MD&A in matter in a complete financial context. SEC has substantial ‘‘safe harbor’’ rules the proposal be modified. These Selected reporting will not allow for the that provide protection to companies commenters seek clarification on the comparability of those economic effects from potential litigation risks associated specific 17 proposed items in the MD&A among others within the same industry, with disclosing this type of information. section. They question the value of the or provide reasonable assurance that These commenters urge the Commission proposed information, while others emerging trends affecting the adopt safe harbor rules similar to those request that the MD&A schedule be 16 more free flowing.21 PSEG questions if respondents will be reported. Finally, of the SEC. the 17 items are intended as general under the alternative approach, it will 28. Commenters that urge the guidance to preparing the MD&A, or if be extremely difficult to create an Commission to adopt a safe harbor they are required by each filer. PSEG exhaustive listing of transactions or provision state that under the Private also requests that the quarterly MD&A events that should be reported, or what Securities Litigation Reform Act of 1995 be treated as an update to the annual particular aspects of any particular (PSLRA), the SEC provides a safe harbor MD&A and only require significant or transaction or event should be from liability for forward-looking 17 material changes from the FERC Annual disclosed. Therefore, the Commission information. They argue that absent Report be reported, similar to the declines to adopt the commenter’s statutory protection, SEC registrants quarterly MD&A filed with the SEC. alternative approach to the making corporate disclosures might be Other commenters express concern that supplemental schedules. subject to damage claims if, and when, their forward-looking statements failed the proposed MD&A, in the proposed 3. Management Discussion and Analysis to correspond to actual results, and that format, goes beyond the SEC MD&A the types of information that would be requirements. These commenters point 24. The Commission proposed to elicited in the MD&A reporting out that the SEC requires only material include a new schedule to the quarterly requirement appear to be precisely the changes to be reported quarterly in and annual reports entitled types of statements for which a safe MD&A.22 AEP refers to the SEC method Management’s Discussion and Analysis harbor is needed. They state that for reporting MD&A as familiar and with of Financial Condition and Results of Congress and the SEC recognize how extensive guidelines. Entergy requests Operation (commonly referred to as the future looking statements can be highly the Commission eliminate the ‘‘boiler ‘‘MD&A’’). This schedule would contain charged and subject to plate’’ approach to MD&A. a forward looking discussion regarding misinterpretation, and that Congress 31. Although commenters recognize the probable impact of current and viewed it necessary to enact statutory the need for information at the future events on the respondent’s protection for such disclosures. These jurisdictional level,23 some privately- operations. In order to add reporting commenters further argue that it is not held companies express concern structure to the free flowing written clear whether any of the protections because they currently do not prepare disclosure format used in the SEC applicable to SEC registrants under the reports, the proposal included a listing PSLRA would be enjoyed by FERC 18 See NU at 7; Old Dominion at 7; EEI at 11 and of 17 items common to FERC jurisdictional entities that are not SEC NRECA at 9. jurisdictional entities that should be registrants. Finally, they argue that, 19 See, e.g., AEP at 2; KeySpan at 9; Gulf South addressed if that matter was significant at 8; Shell Gas at 7 and 8; NiSource at 16 and Shell before imposing the MD&A Pipeline at 2. to the company with the additional requirements, the Commission should 20 See Plains at 5; AEP at 2; Duke at 4; SCE at instruction for respondents to discuss 7; INGAA at 10; Gulfterra at 6 and 7; EEI at 18 and any other significant events not listed 15 See, e.g., INGAA at 2; AOPL at 20 and EEI at Southern at 2. that could potentially positively or 5. 21 See PSEG at 11; AEP at 2; National Grid at 6 negatively impact the company. Finally, 16 See, e.g., BP at 7; AOPL at 22; Kinder Morgan and Entergy at 3. at 12; PSEG at 11; INGAA at 16 through 19 and 22 See, e.g., PacifiCorp at 11–12; Duke at 5; SCE as noted in the NOPR, the MD&A is a Southern at 2. at 4; Shell Pipeline at 12; INGAA at 22 and EEI at required disclosure for publicly traded 17 SeePrivate Securities Litigation Reform Act of 5. companies pursuant to SEC regulations. 1995, Pub. L. 104–67, 109 Stat. 737 (1996). 23 See APGA at 5 and NARUC at 2 and 3.
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an MD&A.24 Oil industry commenters respondents to file notes to the such matters must be provided even also express concern regarding the financials statements which are though a significant change since year potential for revealing confidential consistent with those provided in their end may not have occurred. shipper data in MD&A.25 Commenters SEC Form 10–K.29 40. The use of abbreviated notes will also indicate that the MD&A, as minimize duplicate disclosures, reduce Commission Response proposed by the Commission, may the administrative burden cited by some create unintended administrative 35. The notes to the financial commenters, and ensure that the interim burden in its present form.26 statements are an extension of the basic information presented in the financial Additionally, there are a few financial statements and are integrally statements is not misleading. Finally, to commenters that believe the MD&A, in related to them. The notes enable users the extent that the notes to the financial the proposed format, overlaps with that of the data to understand the nature of statements relating to the respondents of the SEC, and is unnecessary.27 the amounts presented in the financial appearing in the annual report to statements and better interpret its stockholders are applicable and furnish Commission Response meaning. the required data, such notes may be 32. Based upon the comments 36. Consequently, the Commission included in the quarterly financial received, the Commission will not will require respondents include notes reports. include the MD&A schedule in the to the financial statements in their quarterly financial reports or in the quarterly financial reports. However, the 5. Filing Dates for the Quarterly FERC Annual Reports. Although the Commission will adopt the commenters’ Financial Reports Commission recognizes the benefits of recommendation that respondents be 41. The Commission proposed that obtaining similar information at a permitted to file abbreviated notes to the jurisdictional entities would submit the jurisdictional entity level from all financial statements in their quarterly quarterly financial reports using a public and non-public jurisdictional financial reports. phase-in approach. The phase-in entities that file financial information 37. The use of abbreviated notes will approach would start in 2004 with the with the Commission, the potential be equivalent to the requirements for reports filed 45 days after the end of the litigation and confidentiality issues that interim reporting established by the quarter, and accelerate the filing date to may arise, in addition to the various SEC.30 Under these requirements, filers 35 days after the end of the quarter by administrative burden issues raised by of the FERC quarterly financial reports September 2005. This phase-in the commenters of both privately held must include disclosures in the approach, and related filing dates, and publicly held companies, appear to accompanying notes sufficient so as to would have been applicable to all outweigh the benefits derived from make the interim information not respondents. obtaining such information as proposed misleading. in the NOPR. 38. Quarterly financial reporting is a Comments Received 4. Notes to the Financial Statements supplement to the FERC Annual 42. Most commenters urge the Reports, and it presumes the users of the Commission to provide ‘‘breathing 33. The NOPR proposed the inclusion quarterly financial reports have read the room’’ between the filing dates of the of notes to the financial statements in audited financial statements from the SEC quarterly reports and the filings accordance with current accounting preceding year, including the notes to dates of the FERC quarterly reports. principles. Additionally, the NOPR the annual financial statements. Commenters recommend extensions required respondents to provide Therefore, footnote disclosure which ranging from 20 days to 60 days, or information on certain subjects that are would substantially duplicate the longer, after the applicable SEC also reported in the FERC Annual disclosures contained in the most recent quarterly filing dates. Commenters state Reports. These subjects included the FERC Annual Report may be omitted. that extending the deadline will reduce reporting of pension plan details, However, disclosure must be provided administrative burden, allow more restrictions on retained earnings, where events subsequent to the end of productive use of staff, and result in significant refunds, and other items that the most recent year have occurred better quality of reporting by allowing have been reported in the respondent’s which have a material effect on the filers a reasonable period of time to prior year FERC Annual Report. respondent. gather the appropriate information and Comments Received 39. Equivalent to the SEC footnote properly prepare the quarterly reports.31 34. Some commenters suggest that the disclosure requirements, the Some commenters also urge the Commission eliminate the requirement Commission will require respondents to Commission to provide a temporary to provide notes to the financials, while include in their notes significant filing extension for the initial 2004 others urge the Commission to require changes since the most recently reporting year to give respondents extra completed year in such items as: time to establish procedures and work only a condensed or abbreviated set of 32 quarterly financial notes that discuss accounting principles and practices; through learning curves. These material changes occurring since the estimates inherent in the preparation of commenters state that only SEC filers prior FERC Annual Report filing.28 the financial statements; status of long- that meet certain criteria must file on an Others urge the Commission to permit term contracts; capitalization including accelerated basis, and that the significant new borrowings or Commission’s proposal will result in 24 See AOPL at. 7; Williston Basin at 6 and modifications of existing financing smaller companies filing financial KeySpan at 11. agreements; and changes resulting from statements with the FERC before they 25 See AOPL at 21; Plains at 5; Kinder Morgan at business combinations or dispositions. are required to file with the SEC. 13; Williston Basin at 6; Gulfterra at 7 and BP at And similar to the SEC requirements for Finally, Iroquois echoes in its comments 7. interim reporting, where material the SEC’s view that while larger 26 See PSEG at 6; Colonial at 4 and Portland General at 2. contingencies exist, the disclosure of companies may have more complex 27 See ConEd at 1; MidAmerican at 2; Arizona at 5; Pepco at 1 and Entergy at 1. 29 See, e.g., EEI at 4; FirstEnergy at 4 and Iroquois 31 See, e.g., AEP at 3; Arizona at 8; AOPL at 16; 28 See, e.g., AEP at 2; Cinergy at 4 and Entergy at 4. Cinergy at 5; EEI at 7 and INGAA at 24. at 3. 30 See SEC Regulation S–X, Rule 10–01(a)(5). 32 See, e.g., Arizona at 8 and EEI at 7.
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operations, they also are more likely respondent to prepare that information within 70 days after the end of the than smaller companies to have the without undue burden. As noted by quarter. These modifications to the infrastructure and resources to report on many commenters, the SEC has only filing dates proposed in the NOPR an accelerated basis. accelerated the filing dates for large should relieve most of the Commission Response public companies that meet certain administrative burden cited by criteria while others may continue to jurisdictional entities caused by 43. Based upon the comments file their reports using the existing filing identical FERC and SEC filing dates for received, the Commission will modify dates.33 quarterly financial reporting. the proposed filing dates so that respondents may properly prepare, 45. Therefore, beginning in 2005 46. Additionally, the Commission will review, and certify the quarterly major public utilities and licensees, and provide additional relief during the financial reports filed with the major natural gas companies will be initial year of reporting, as urged by Commission. The modifications made to required to file their quarterly reports 60 some commenters. A temporary filing the proposed filings dates will provide days after the end of the quarter. extension will be provided for the for greater precision in the data reported Nonmajor public utilities and nonmajor quarterly filings made in 2004 in order without imposing an undue burden on natural gas companies, and all oil to provide respondents additional time respondents. pipeline companies will be given to establish the necessary procedures to 44. It is important to balance the additional time to file their quarterly report financial information on a Commission’s need for financial financial reports. These respondents quarterly basis as shown in the table information with the ability of the will file their quarterly financial reports below:
Filing dates for major electric Filing dates for nonmajor elec- Filing dates for all respondents tric, nonmajor natural gas, and Quarterly period as proposed in the NOPR and natural gas respondents in all oil pipeline respondents in final rule final rule
1 ...... 1/1/2004—3/31/2004 ...... May 15, 2004 ...... July 9, 2004 ...... July 23, 2004. 2 ...... 4/1/2004—6/30/2004 ...... August 14, 2004 ...... September 8, 2004 ...... September 22, 2004. 3 ...... 7/1/2004—9/30/2004 ...... November 14, 2004 ...... December 9, 2004 ...... December 23, 2004. 4 ...... 1/1/2005—3/31/2005 ...... May 10, 2005 ...... May 31, 2005 ...... June 13, 2005. 5 ...... 4/1/2005—6/30/2005 ...... August 9, 2005 ...... August 29, 2005 ...... September 12, 2005. 6 ...... 7/1/2005—9/30/2005 ...... November 9, 2005 ...... November 29, 2005 ...... December 13, 2005. 7 ...... Subsequent Quarters ...... 35 days after the end of the 60 days after the end of the 70 days after the end of the of quarter. quarter.. the quarter.
47. Finally, in order to reduce the registrant to obtain an external review of Commission Response administrative burden incurred by interim financial information but does 51. The Commission will not require respondents during the initial reporting not require a letter evidencing such a respondents to have the quarterly year, the Commission will only require review unless the company states in the financial report reviewed by a CPA, nor that current year data be included in the filing that the financial information was will it require respondents to submit a quarterly financial reports filed during reviewed by an independent CPA.35 copy of the CPA review letter or report 2004. Respondents will not be required 50. External accounting firms state if one is issued by an external to report prior year’s quarterly amounts accountant. As previously stated in this in these filings. that there is no provision under the American Institute of Certified Public Final Rule, quarterly financial reports 6. Certified Public Accountant Review Accountants (AICPA) Professional are considered to be supplements to the Letter Standards that govern the roles and respondent’s FERC Annual Report. As such, the Chief Financial Officer will 48. In the NOPR, the Commission responsibilities of the independent accountant in reviewing a set of interim attest to the quarterly and annual explains that it is not requiring the financial reports. Additionally, the financial statements prepared under quarterly financial report to be reviewed FERC Annual Reports, as a general another comprehensive basis of by the respondent’s certified public matter, are audited by the respondents’ accountant (CPA). However, the NOPR accounting (OCBOA) for a SEC external accountants, and respondents states that if a company has its quarterly registrant, or non-SEC registrant, unless are required, under the Commission’s financial report reviewed, it must the non-SEC registrant is making a filing existing regulations, to submit a copy of provide a copy of the CPA review report with a regulatory agency in preparation the auditor’s report to the Commission. to the Commission. for a public offering or listing. They Therefore, the Commission finds that an suggest that the Commission consider Comments Received appropriate balance is struck between working with the Public Company the reliability of the data and the 49. Some commenters agree with the Accounting Oversight Board in administrative costs respondents incur proposal requiring the submission of a promulgating reporting standards for to provide the data to the Commission. CPA review letter only when an external performing interim reviews on financial 7. Exemption Requests accountant reviews the Commission’s statements prepared on an OCBOA quarterly financial report and provides basis, and they are willing to assist 52. The Commission received the respondent with a report.34 Others Commission staff in this effort.36 numerous requests from respondents to state that the Commission should use be exempt from filing a quarterly the SEC approach which requires a financial report. Most respondents urge
33 See, e.g., Portland General at 5; FirstEnergy at 34 See APGA at 6 and ITC at 2. 36 See D&T at 3 and PWC at 2 and 3. 6, MidAmerica at 2 and INGAA at 24. 35 See EEI at 20 and PSEG at 14.
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the Commission to waive the filing quarterly financial reporting. It states dates for the quarterly financial reports requirements due to the administrative that they have an almost de minimis which will reduce the staffing resources burden caused by the content and value of physical assets and have no needed to compile the data within the accelerated filing dates proposed in the ownership interest in the utility required timeframes. Therefore, the NOPR. As more fully discussed below, infrastructures that are under Commission will not provide blanket the Commission is of the view that operational control. Therefore, the waivers or exemptions for respondents. blanket exemptions or waivers are not significantly smaller capital Respondents must supplement their necessary due to the modifications and requirements of an ISO or RTO will be FERC Annual Reports with the quarterly changes made to the proposal in the provided by non-public sources such as financial reports as provided for in this administrative service charges to its Final Rule. Therefore, as provided in the Final Rule. NOPR and contained in this Final Rule, market participants, bank financing respondents that file a FERC Annual lines or private-placement debt 59. Finally, the Commission’s staff Report No. 1, 1–F, 2, 2–A, or 6 are instruments.40 has participated in informal meetings required to file quarterly financial 56. The ISO/RTO Council argues that held to discuss potential accounting reports. However, a jurisdictional entity there is no public ownership and that its changes needed to the current with a waiver from filing a FERC members are formed as not-for-profit regulatory accounting framework Annual Report No. 1, 1–F, 2, 2–A, or 6 corporations or otherwise operate on a resulting from the formation of ISOs and is exempt from filing quarterly financial revenue neutral basis under its RTOs. It continues to monitor the reports. respective state or provincial laws. It development of these entities in an states that none of the Joint ISO/RTOs effort to provide timely accounting Comments Received are authorized to, nor have, issued to guidance addressing their issues.44 The 53. Some public utilities and natural the public any shares of ownership Commission appreciates the ISO/RTO gas companies urge the Commission to interest in their entities, and none are Council’s offer to fully support an effort grant exemptions from the quarterly affiliated with any company that has to update the Uniform System of 41 financial reporting requirements due to done so. It also states that ISOs/RTOs Accounts to better accommodate their the administrative burden, and are service organizations whose unique utility business model, and staff recommend the Commission exempt principle revenue streams typically will continue to work with these entities respondents that file FERC Annual come from cost-of-service based service and continue its efforts in this Report Nos. 1–F and 2–A from the charges from their market participants developing area. quarterly reporting requirement.37 which are either specifically approved 54. Some commenters suggest an by this Commission or are derived from C. Updates to the FERC Annual Reports exemption for FERC respondents with Commission authorized formula rates.42 revenues under various amounts, or an 57. Finally, it states that the 60. As part of updating the FERC exemption for those that do not file Commission’s Uniform System of Annual Reports, the Commission financial statements with the SEC.38 Accounts does not in most cases proposed to accelerate the filing dates. MPSC urges the Commission to waive translate well for effectively reporting Additionally, the Commission proposed the reporting requirements for those that financial and transactional results of to add new schedules in the FERC do not have a significant energy ISO and RTO operations. It urges the Annual Report Nos. 1 and 1–F in order presence or who are not involved in Commission to re-institute its previous to collect information on the amount of generation, power marketing, and effort to develop a uniform chart of ancillary services purchased and sold trading. National Grid suggests that accounts that will be more applicable to during the year, and to update the companies within an affiliated group of ISO/RTO operations and states that the statistical classifications resulting from companies be exempt if they represent jurisdictional members of the ISO/RTO the use of the transmission system by less than 10 percent of the affiliated Council are prepared to fully support and for others to reflect open access group’s consolidated operating such an effort and contribute whatever transmission established under Order revenues, gross plant assets, and resources are required to complete such No. 888.45 The Commission also number of utility customers, or an effort.43 proposed to modify certain schedules considering using a threshold that Commission Response that report revenues and expenses so exempts entities in the bottom 10 percent as measured by operating 58. Due to the modifications and that these schedules will report fourth revenues, gross plant, or using other changes made to the NOPR, the quarter activity for certain account measures. Certain electric cooperatives Commission has significantly reduced balances or utility functions. Based urge the Commission to exempt electric most of the administrative burden cited upon the comments received the distribution cooperatives from any final by the commenters as the primary Commission will modify certain aspects rule because they are not major justification for blanket exceptions from of the proposal as discussed below. participants in the capital markets and filing a quarterly financial report. For state this rule will be a hardship.39 example, the Commission has 44 For example, on October 1, 2001, the Chief 55. The ISO/RTO Council focuses on eliminated the MD&A requirement from Accountant issued Accounting Release No. 16, the increased administrative burden that both the quarterly financial reports and Operating and Administrating an Electric Power Exchange. This accounting release provided will be imposed if an MD&A, the FERC Annual Reports, and will guidance to the electric industry on the proper accelerated filing dates, and expanded accept abbreviated notes to the quarterly accounting and reporting for revenues and expenses corporate officer certification are financial reports. Additionally, the Final incurred to operate and administer a power required, and therefore urge the Rule provides additional relief for exchange. 45 Commission to exempt them from respondents by modifying the filing See Promoting Wholesale Competition Through Open Access Non-discriminatory Transmission Services by Public Utilities; Recovery of Stranded 40 37 See, e.g., AGA at 3 and INGAA at 25. See ISO/RTO Council at 8. Costs by Public Utilities and Transmitting Utilities, 38 See AEP at 3 and 4; EEI at 5 and Southern at 41 Id. at 9. Order No. 888, 61 FR 21540 (May 10, 1996), FERC 3. 42 Id. at 11. Stats. & Regs., Regulations Preambles (Jan. 1991– 39 See, e.g., Connexus at 19 and Inland at 2. 43 Id. at 8. June 1996), ¶ 31,036 (Apr. 24, 1996).
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1. Filing Dates for the FERC Annual FERC Annual Report deadline creates proposed in the NOPR. The Commission Reports an additional burden for external will modify its existing filing dates for 61. The Commission proposed to accountants who must provide an the FERC Annual Reports to provide for accelerate the filing dates for the FERC auditor’s opinion on the FERC Annual additional time to prepare and file the Annual Reports so that financial Report. FERC Annual Reports. information will be obtained from all 63. Oil pipeline companies assert that, 65. In order to ease the administrative respondents on a more timely basis, and under Section 20 of the Interstate burden on respondents, the Commission thereby increasing its transparency and Commerce Act, they have three months will not include the proposed new usefulness. The Commission proposed after the close of the reporting year to schedules on ancillary services and that all respondents use the same file their FERC Annual Reports with the other statistical classifications for the accelerated filing dates adopted by the Commission, and that many have found 2003 FERC Annual Reports that will be SEC. it difficult to meet the current filing filed in 2004. Additionally, the date.47 Kinder Morgan states that many Commission will modify the filing dates Comments Received pipelines routinely file for an extension for the FERC Annual Reports as 62. APGA supports the proposal and of time to file because it has become proposed in the NOPR. Finally, the suggests that due to advances in difficult to meet the current March 31 Commission will provide for a collecting and reporting an even shorter deadline. temporary filing extension for the 2004 time frame may be appropriate. FERC Annual Report to give Commission Response However, most commenters recommend respondents additional time to establish that the existing filing dates remain, or 64. Based upon the comments the necessary procedures to report the even be extended, in order to give them received concerning the additional data required by this Final Rule. These additional time between the filing of the administrative burden that respondents new dates and other modifications to SEC 10–K reports and FERC Annual will incur to implement the new the NOPR will relieve most of the Reports.46 These commenters cite corporate officer certification, and other administrative burden cited by the significant administrative burden they reporting requirements contained in this respondents and their external will incur to prepare, review, and certify Final Rule, the Commission will not accountants. The table below details the the FERC Annual Reports. Additionally require FERC Annual Reports to be filed filing dates for the Annual Report Forms D&T states that the acceleration of the on the same accelerated dates as 1, 1–F, 2, 2–A, and 6.
Calendar year ending Proposed in NOPR Final rule
1 ...... December 31, 2004 ...... March 1, 2005 ...... April 25, 2005. 2 ...... Each Year Thereafter ...... March 1 ...... April 18.
66. The modified filing dates for the argues that such information will help 3. Electric Transmission Peak Loads FERC Annual Reports will reduce the State commissions better monitor public 71. The Commission proposed a new administrative burden cited by utilities’ compliance with open access respondents by eliminating schedule in the FERC Annual Report transmission tariffs. Two commenters Nos. 1, 1–F, and in the quarterly simultaneous SEC 10–K and FERC seek clarification concerning whether Annual Report filings. Additionally, the financial reports that would collect the data elements must be reported in information concerning the new filing date will provide oil pipeline dollars or megawatt hours.48 companies with additional time to file transmission system including the their FERC Annual Reports and thereby Commission Response respondent’s own use of its reduce the number of extension requests transmission system. This information made by these respondents. 69. The Commission clarifies that the will aid the Commission in evaluating units of the data elements on the the adequacy of existing traditional cost- 2. Ancillary Services ancillary service schedule are to be based rates. 67. The Commission proposed to add reported in both dollars and the billing Comments Received a new schedule in the FERC Annual determinants reflecting usage. 72. EEI indicates the electric Report Nos. 1 and 1–F that details the 70. For ratemaking and monitoring transmission peak load schedule cannot amount of ancillary services purchased regulated transmission services, the be prepared within the timeframe that and sold during the year. The Commission requires information from FERC is proposing, and the use of Commission explained in the NOPR that respondents on the dollar amounts for this schedule was needed because these estimates will be required. Additionally, both expense and revenues associated the breakdown of the system peak load services and related amounts have been with these services, as well as the usage- reported in an inconsistent manner by into statistical classifications will tend related billing determinants associated most respondents. The proposed to be subjective because there is no with these purchase and sales schedule would standardize the form guidance on methodology which will and content of the data collected. transactions. Therefore, the Commission result in inconsistent submissions by will clarify the instructions and make FERC respondents. Comments Received the necessary modifications to the Commission Response 68. NARUC strongly supports the schedule for respondents to report both proposal to collect financial information dollars and usage-related billing 73. As previously mentioned, the on the amount of ancillary services determinants associated with these Commission is modifying the filing purchased and sold during the year and services. dates for the FERC Annual Reports and
46 See, e.g., AEP at 3; AGA at 5; Cinergy at 5; EEI 47 See Chevron at 3; Gulf South at 6; and Kinder 48 See Arizona at 8 and EEI at 23. at 7; PSEG at 10; and San Diego at 4. Morgan at 15.
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the quarterly financial reports. The additional statistical classifications D. Corporate Officer Certification changes in the filings dates should reflect service categories available under 82. Under the Commission’s existing provide respondents with sufficient the pro-forma Open Access certification procedures, a company time to collect and report the required Transmission Tariff. officer must sign a certification stating information. 78. Clearly, the volume of data will that he or she has examined the FERC 74. Also, the Commission notes that vary by respondent. However, in cases Annual Report and to the best of his or monthly transmission system peak loads of actual extreme volume, aggregation of her knowledge and belief, the are measurable, not subjective. As data by logical criteria may be statements contained in the FERC guidance on methodology, the acceptable if the method of aggregation Annual Report are true. The Commission clarifies that each of these is clearly footnoted. In all cases, the Commission proposed to update the peak loads are the Monthly respondent should keep a complete corporate officer certification language Transmission System Peak as defined in electronic copy of the disaggregated contained in the FERC Annual Report, the pro-forma Open Access data. and to include the updated language in Transmission Tariff. The value in the the quarterly financial reports. The new statistical classifications listed below 5. Selected Fourth Quarter Data in FERC Annual Reports corporate officer certification was the monthly peak should reflect each proposed in response to recent changes classification’s contribution to the firm 79. The Commission proposed to in corporate governance practices. This Monthly Transmission System Peak. In break out certain fourth quarter account update was proposed to improve the this regard, the Commission clarifies data for certain income statement reliability of the financial information that the line labeled ‘‘Non-Firm accounts reported in the FERC Annual filed with the Commission. Service’’ will be deleted, because non- Reports. The Commission proposed that 83. A recent review of the FERC firm service does not contribute to firm the revenue and expense account data Annual Reports filed for the calendar peak load. The Commission also be shown in two new columns, one year 2002 indicated inconsistencies in clarifies this schedule will be included column for the current quarter and a the level of management certifying the in the quarterly financial reports and the second column for the same quarter of reports.51 The level of management that FERC Annual Report Nos. 1 and 1–F. If the previous year. certify the FERC Annual Reports ranged a respondent finds the use of estimates from assistant controllers, controllers, is necessary to complete the schedule, Comments Received chief financial officers, or individuals at the respondent must indicate this fact 80. Some commenters urge the a higher level within the organization. on the schedule and fully describe the Commission to eliminate the Therefore, in order to provide estimation methodology in a footnote. requirement to separately display fourth uniformity of accountability for 4. Statistical Classifications quarter data in the FERC Annual jurisdictional entities, the Commission proposed that the principal executive 75. As part of the revisions to the Reports. They argue that the officer of the jurisdictional entity and FERC Annual Report Nos. 1 and 1–F, requirement is more onerous than the the principal financial officer of the the Commission proposed to update the SEC’s requirement since the SEC jurisdictional entity, and or persons statistical classifications for the requires only three quarters and one performing similar functions for the Schedule of Transmission of Electricity annual report, and there is no SEC jurisdictional entity certify the annual for Others, and for the Schedule of requirement to analyze the fourth and quarterly financial reports. The Transmission by Others, to reflect open quarter separately. They also state that certification required these corporate access transmission established by the FERC Annual Report should officers to state they reviewed the Order No. 888.49 coincide with SEC reporting requirements for selected quarterly report, were responsible for the content Comments Received financial data to be presented in the of the report, and were responsible for 76. EEI states that the changes add financial notes.50 establishing, maintaining, and new statistical classifications. EEI evaluating internal controls and Commission Response interprets the report to require a procedures. separate line for each customer, for each 81. The Commission will not adopt Comments Received type of service taken, and for each the proposal requiring respondents to 84. In general, none of the transmission path used. EEI requests separately report certain fourth quarter commenters object to the Commission guidance for netting groups of income statement data in the FERC continuing to require corporate officers customers, or for materiality thresholds, Annual Reports. Pursuant to this Final to certify the FERC Annual Report or and contend that a literal interpretation Rule, the Commission will require quarterly financial report. APGA of the proposal could result in respondents to file three quarterly specifically describes the corporate thousands of lines of data. financial reports and a FERC Annual officer certification as a necessity, and Report that reports on the account Commission Response specifically supports the content of the balances and activity for the entire year. certification. However, many 77. The Commission notes that The Commission’s existing information commenters express concern over collection of the data fields on this page technology has the ability to generate various aspects of the proposed has been required in the FERC Annual any needed internal special reports corporate officer’s certification. These Report No. 1 for years, and that the new, detailing selected fourth quarter activity comments range from the administrative for the purpose of review and 49 Under the Uniform System of Accounts evaluation. Therefore, the Commission prescribed for Public Utilities and Licensees, 51 See, e.g., AEP Generating Company, FERC revenues from transmission of electricity of others finds that there is no need to burden Annual Report No.1; Alliance Pipeline, L.P., FERC over transmission facilities of the respondent are respondents with separately displaying Annual Report No. 2; Belle Forche Pipeline recorded in Account 456, Other electric revenues, fourth quarter data in the FERC Annual Company, FERC Annual Report No. 6; Guardian and amounts payable to others for the transmission Reports. Pipeline, LLC, FERC Annual Report No. 2; Kansas of the respondent’s electricity over transmission Gas and Electric Company, FERC Annual Report facilities owned by others are recorded in Account No. 1 and Seminole Creek, Ltd., FERC Annual 565, Transmission of electricity by others. 50 See, e.g., DE at 5; FPL at 6 and Gulfterra at 4. Report No. 6.
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burden associated with the level of accumulated and communicated to the reports. The Commission views the corporate officers who are required to issuer’s management, as appropriate to officer certification requirement as an certify the financial report, to the allow timely decisions regarding important part in the corporate content of the corporate officer’s disclosure. In addition, PacifiCorp refers governance process. Since the CFO is certification statement. These to Section 404 of the Sarbanes-Oxley generally the corporate executive that commenters request the Commission Act, annual reports for investors contain directs all of the financial aspects of a continue to use the current certification an internal control report describing the company, the Commission views this or to make certain modifications to the responsibility of management for level of management as the appropriate NOPR to clarify the certification establishing and maintaining an individual to attest to the financial requirements.52 adequate internal control structure and information contained in the report. 85. Commenters urging the procedures for financial reporting and Senior level management involvement Commission to retain the current an assessment of the effectiveness of the in the preparation and review of the certification language argue that controls. quarterly financial reports and the FERC applying the Sarbanes-Oxley corporate 87. Additionally, Gulf South seeks Annual Reports is essential to the officer certification standards to FERC clarification of the specific officers process of respondents providing Annual and quarterly financial reports required to certify the FERC annual and reliable financial information to the would be a misapplication of the quarterly financial reports. Gulf South Commission. Sarbanes-Oxley standards because the states that the specific certification 91. As more fully discussed below, Sarbanes-Oxley standards are intended language is confusing and requests that the Commission will use its existing to protect public investors.53 Other the Commission clarify the language. corporate officer certification in the commenters request that the Some commenters request a definition quarterly financial reports, and will use Commission keep the current corporate for a materiality standard for the the more expansive corporate officer officer certification because some of the corporate officer certification.56 Still certification statement as proposed in language used in the proposed corporate other commenters describe the the NOPR, with certain modifications, officer certification statement does not corporate officer certification as in the FERC Annual Reports. duplicative of the SEC corporate officer apply to FERC respondents that are not 1. Quarterly Financial Reports publicly traded entities. Specifically, certification, and some commenters these commenters argue that references request the Commission to use the 92. As previously mentioned, the in the proposed corporate officer current SEC corporate officer Commission proposed the same 57 certification to audit committees and certification. expansive corporate officer certification subsidiaries are inappropriate for 88. Additionally, some commenters be used for both the quarterly financial express specific concern about the certain FERC respondents.54 AOPL report, and the FERC Annual Report. administrative burden associated with states that most wholly-owned However, the Commission agrees with the corporate officer certification. subsidiaries or privately held companies commenters that using the existing Specifically, commenters argue that do not have an Audit Committee or corporate officer certification statement since the FERC annual and quarterly equivalent position. AOPL argues that for the quarterly financial report will financial reports contain so much more in order to make such a certification, alleviate the administrative burden cited detail than a GAAP or SEC financial FERC respondents that are wholly- by commenters while still maintaining a report, the burden on the corporate owned subsidiaries or privately held level of reliability appropriate for officers to certify the FERC Annual and companies will need to establish a quarterly financial reports. The quarterly financial reports is clearly position equivalent to an Audit Commission will use the following unreasonable.58 Other commenters Committee and to educate members of corporate officer certification in the express concern about the costs quarterly financial reports. The Chief such an Audit Committee about the associated with educating officers about Uniform System of Accounts and FERC Financial Office will sign the the accounting rules under Uniform certification. reporting requirements. System of Accounts.59 86. Other commenters request the 89. PacifiCorp requests the corporate I have examined this report and to the best Commission to use ‘‘disclosure controls officer certification statement be of my knowledge, information, and belief all and procedures’’ instead of ‘‘internal clarified to refer only to the statements of fact contained in this report are controls.’’ 55 Hampshire is concerned correct statements of the business affairs of respondent’s overall financial condition the respondent and the financial statements, because the NOPR uses the terms and risk. PacifiCorp argues that it will ‘‘internal controls’’ and ‘‘disclosure and other financial information contained in be unduly burdensome for the this report, conform in all material respects controls and procedures’’ Commission to require certification of to the Uniform System of Accounts. interchangeably. PacifiCorp seeks individual account balances. clarification on the definition of internal 2. FERC Annual Reports Commission Response controls that is used in the proposed 93. The Commission is modifying the corporate officer certification statement. 90. In order to strengthen the corporate officer certification as PacifiCorp defines ‘‘disclosure controls reliability of the financial data proposed in the NOPR for the FERC and procedures’’ as controls and submitted to the Commission in the Annual Report based upon the procedures designed to ensure that FERC Annual Reports and quarterly comments received. As discussed information required to be disclosed in financial reports, the Chief Financial below, the Commission will define reports under the Securities Exchange Officer or an individual performing that internal accounting control for purposes Act of 1934 (’’Exchange Act’’) is function will be required to certify these of its corporate officer certification, require only the chief financial officer to 52 See, e.g., BP at 9; Plains at 6 and 7; AOPL at 56 See Williams at 4 and NiSource at 17. certify the report, make specific 12; Kinder Morgan at 14; PacifiCorp at 9 and 10; 57 See, e.g., INGAA at 26; Arizona at 7 and Kinder reference to the Commission’s Uniform INGAA at 26; EEI at 5. Morgan at 14. 53 See EEI at 20. 58 See, e.g., INGAA at 26; Plains at 6; Kinder Systems of Accounts, and make other 54 See AOPL at 12 and Hampshire at 5. Morgan at 14 and Shell Pipeline at 13. minor changes to the certification 55 See PacifiCorp at 10 and Hampshire at 5. 59 See Plains at 6 and Shell Pipeline at 13. language.
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94. In order to provide clarification, the NOPR, and it is not a requirement which could adversely affect the the Commission will replace the phrase of this Final Rule. Apparently there was respondent’s ability to record, process, ‘‘internal controls’’ with ‘‘internal some confusion among commenters due summarize and report financial data and accounting controls.’’ The Commission’s to the language used in the NOPR issued have identified for the respondent’s auditors any material weaknesses in disclosure use of ‘‘internal accounting controls’’ in by the Commission on June 26, 2003, controls and procedures and any fraud, the corporate officer certification will and the SEC’s Release on Management’s whether or not material, that involves refer to the accounting policies, Internal Control Report issued on June management or other employees who have a procedures, and systems that are 5, 2003. This SEC Release required significant role in the respondent’s internal sufficient to provide reasonable companies to file an internal control accounting controls. assurance that the financial statement report containing a management I have indicated in this report whether or schedules contained in the quarterly opinion on their internal controls. not there were significant changes in internal and annual reports conform in all 99. The Commission is also accounting controls and procedures or in eliminating the requirement to have other factors that could significantly affect material aspects with the Commission’s internal accounting controls and procedures Uniform System of Accounts and multiple officers certify the quarterly subsequent to the date of my most recent related regulations. and annual reports. The Commission evaluation, including any corrective actions 95. The Commission is of the view will only require the updated with regard to significant deficiencies and that respondents should have sufficient certification for the financial statements material weaknesses. accounting controls in place at a level and notes to the financial statements. In addition, I have examined the remaining acceptable in order to provide The Commission will keep the current schedules contained in this report, to the best reasonable assurance that the financial certification language to address matters of my knowledge, information, and belief all reported in the other schedules statements of fact contained in this report are information contained in the report correct statements of the business affairs of conforms in all material respects with contained in the FERC Annual Reports. the respondent and the financial statements, the Commission’s Uniform Systems of 100. The corporate officer certification and other financial information contained in Accounts and related regulations. While contained in the FERC Annual Reports this report, conform in all material respects the Commission notes that this may add will read as follows: to the Uniform System of Accounts. some additional burden for respondents, The undersigned officer certifies that: E. Miscellaneous Matters the Commission views the certification I have read this FERC Annual Financial as a necessity in order to ensure the Report: 1. Fiscal Year Reporting Based on my knowledge this report does reliability of the information presented 101. PacifiCorp urges the Commission in the report. not contain any untrue statement of material fact or omit to state a material fact necessary to adopt the same fiscal annual and 96. The Commission agrees with quarterly reporting requirements commenters that it may be unduly to make the statements made, in light of the circumstances such statements were made, implemented by the SEC. PacifiCorp burdensome to require multiple not misleading with respect to the period requests that the Commission clarify corporate officers to certify the FERC covered by this report. that it will recognize fiscal year Annual Reports and quarterly financial Based on my knowledge the financial reporting. It also requests the reports. Therefore, the Commission will statements, and other financial information Commission allow such entities to file only require the CFO or a person (Comparative Balance Sheet, Statement of their FERC quarterly financial reports performing similar functions to certify Income for the Year, Statement of Retained Earnings for the Year, Statement of Cash after the end of each fiscal quarter the reports. The Commission notes that because it asserts that having parallel many CFOs already certify the FERC Flows, Statement of Accumulated Comprehensive Income and Hedging filing schemes and timelines with the Annual Report and, therefore, requiring Activities, and Notes to the Financial SEC will ease administrative burden on this level of management to certify the Statements) included in this report conform utilities filing financial reports with reports should not present an undue in all material respects with the both the Commission and the SEC. 60 burden on respondents. Commission’s Uniform System of Accounts, Finally, PacifiCorp is concerned that if 97. The Commission will not use as of, and for, the periods presented in this the Commission does not allow fiscal identical SEC language for its corporate report. I am responsible for establishing and year reporters to file on a fiscal year officer certification requirements. The basis, they will violate SEC fair SEC’s corporate officer certification is maintaining internal accounting controls as defined by the Commission. I have designed disclosure rules. They argue that under based upon the Exchange Act and such internal accounting controls to ensure the NOPR’s filing dates they will be subsequent SEC regulations. As that material information relating to the filing fourth quarter earnings under the previously noted in this Final Rule, respondent and its subsidiaries, to the extent FERC requirements before they are many FERC jurisdictional companies that the respondent has subsidiaries, is made required to do so under the SEC rules. are not subject to SEC regulations. known to me by others within those entities, 102. The Commission does not permit Additionally, the SEC corporate officer particularly during the period in which this fiscal year respondents to file FERC certification addresses financial report is being prepared. I have evaluated the effectiveness of the internal accounting Annual Reports on a fiscal year basis. statements prepared in accordance with The Commission requires these generally accepted accounting controls as of a date within 90 days prior to the period in this report (evaluation date). I respondents to file on a calendar year in principles (GAAP) while the FERC have presented in this report my conclusions order to maintain a uniform basis of Annual Reports are based on the about the effectiveness of the internal information collected from respondents Commission’s Uniform System of accounting controls based on my evaluation filing the FERC Annual Report and Accounts. as of the evaluation date. quarterly financial reports for purposes 98. The Commission will clarify that I have disclosed, based on my most recent of compiling data and making it did not propose that respondents file evaluation, to the respondent’s auditors and comparisons. Therefore, the financial a management internal control report in the audit committee or persons performing similar functions, to the extent that the information reported in the quarterly financial reports must be synchronized 60 See, e.g., Avista Corp., FERC Annual Report respondent has an audit committee or No. 1; MIGC, Inc. FERC Annual Report No. 2 and persons performing similar functions, that all with the FERC Annual Reports which Rocky Mountain Pipeline System LLP, FERC significant deficiencies in the design or are presented on a calendar year to date Annual Report No. 6. operation of internal accounting controls basis. Finally, in light of the
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modifications to the quarterly and new reporting requirements. To this events or transactions causing the annual report filing dates in this Final end, the Commission directs staff to proprietary capital ratio to drop below Rule, the Commission finds that FERC determine if any improvements should thirty percent, along with the respondents will not be reporting be made to the new quarterly and respondent’s plans, if any, to regain at financial information ahead of the annual financial reporting requirements. least a thirty percent proprietary capital filings made with the SEC and therefore This review will be undertaken after a ratio, and the extent to which the entity fiscal year FERC respondents will not full reporting cycle, and notice and has amounts loaned or advanced to its violate the SEC’s fair disclosure rules. comment, with a staff report to the parent, subsidiary or affiliate through its Commission. cash management program(s) must be 2. Expand Data Collection in FERC reported in the Important Changes Annual Reports F. Elimination of the Cash Management During the Quarter, and Important 103. The Commission also received Notification Reports Changes During the Year schedule requests from some commenters to 106. On October 23, 2003, the contained in the respective quarterly expand the content of data and Commission in Order No. 634–A, issued financial reports, and FERC Annual information collected in the FERC a Final Rule on the regulation of cash Reports. 63 Annual Report Nos. 2 and 2A. These management practices. As part of IV. Regulatory Flexibility Act commenters urge the Commission to Order No. 634–A the Commission Certification expand the financial information requires respondents participating in collected on such items as cash management programs, and who 109. The Regulatory Flexibility Act of miscellaneous current and accrued are not electric cooperatives, to 1980 (RFA) requires agencies to prepare liabilities, revenues from gathering, determine on a quarterly basis the certain statements, descriptions, and transmission and storage, miscellaneous percentage of their capital structure that analyses of proposed rules that will general expenses, outside services constitutes proprietary capital, and in have a significant economic impact on 64 employed, and to increase the record the event the ratio is less than thirty a substantial number of small entities. retention and availability of percent the entity must notify the The Commission is not required to make transactional activity. These Commission within 45 days after the such analyses if a rule would not have commenters also urge the Commission end of each calendar quarter. such an effect. to change the FERC Annual Reports to 107. Respondents are required to 110. The Commission concludes that include information on the respondent’s describe the significant events or this Final Rule would not have such an rate base, costs, and revenues, and transactions causing the entity’s impact on small entities. Most provide additional disclosures on proprietary capital to drop below thirty companies regulated by the Commission do not fall within the RFA’s definition capital structure.61 The Commission percent, and the extent to which the of a small entity, and the data required will not act on these recommendations entity has amounts loaned or money by this rule are already being captured in the Final Rule because these changes advanced to its parent, subsidiary, or by their accounting systems. However, if are outside the scope of the proposal. affiliated companies through its cash the recordkeeping requirements management program(s) must be 3. Requests for a Technical Conference represent an undue burden on small reported, along with plans, if any, to businesses, the entity affected may seek 104. Some commenters urge the regain at least a thirty percent a waiver from the Commission. Commission to schedule a technical proprietary capital. Finally, the conference to allow for further dialogue respondent must notify the Commission V. Environmental Impact Statement and industry participation before within 45 days after the end of the 111. The Commission is required to 62 issuing a Final Rule. However, the calendar quarter when the entity’s prepare an Environmental Assessment comments submitted by FERC proprietary capital subsequently returns or an Environmental Impact Statement jurisdictional entities, industry to, or exceeds, thirty percent. for any action that may have a associations, state regulatory bodies, 108. The Commission finds the significant adverse effect on the human and others were detailed and quarterly financial reports in this Final environment.65 The Commission comprehensive. The Final Rule contains Rule provide the Commission with the excludes certain actions not having a significant modifications from the financial information necessary to significant effect on the human NOPR based upon the comments determine the extent to which a FERC- environment from the requirement to received. Therefore, the Commission jurisdictional entity’s proprietary capital prepare an environmental impact declines to hold a technical conference is less than thirty percent at the end of statement.66 No environmental before issuing the Final Rule. If each quarter. Therefore, in order to consideration is raised by the respondents have questions regarding minimize the reporting burden on FERC promulgation of a rule that is procedural reporting matters contained in this Final jurisdictional entities, the Commission or does not substantially change the Rule, they should submit those will eliminate the separate filing effect of legislation or regulations being questions to the Chief Accountant as requirement contained in §§ 141.500, amended.67 This Final Rule updates provided for in the Commission’s 260.400, and 357.500 of the parts 141, 260, 357 and 375 of the Uniform Systems of Accounts, and Commission’s regulations. The Commission’s regulations and does not related regulations. Commission finds that the informational substantially change the effect of the 105. This Final Rule is the result of an requirements concerning the significant underlying legislation or the regulations exhaustive and collaborative process being revised or eliminated. among all stakeholders. The 63 See Regulation of Cash Management Practices, RM02–14–000, NOPR issued on August 1, 2002, 67 Commission believes it is appropriate to 64 FR 51150 (Aug. 7, 2002), IV FERC Stats. & Regs. See 5 U.S.C. 601–612 (2000). assess the adequacy and costs of these ¶ 32,561 (Aug. 1, 2002), Interim Order No. 634 65 See Order No. 486, Regulations Implementing issued on July 8, 2003, 68 FR 40500 (July 8, 2003), the National Environmental Policy Act, 52 FR 61 See Missouri PSC at 5 through 8 and IC’s III FERC Stats. & Regs. ¶ 31,145 (June 26, 2003) and 47897 (Dec. 17, 1987), FERC Stats. & Regs. Attachment. Order No. 634–A issued on October 23, 2003, 68 FR Preambles 1986–1990 ¶ 30,783 (1987). 62 See, e.g., AOPL at 27 and 28; EEI at 6; 61993 (Oct. 31, 2003), III FERC Stats. & Regs. 66 See 18 CFR 380.4 (2003). FirstEnergy at 7 and ISO/RTO Council at 17. ¶ 31,152 (Oct. 23, 2003). 67 See 18 CFR 380.4(a)(2)(ii) (2003).
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Accordingly, no environmental would result from respondents dates of the annual reports and the consideration is necessary. completing the MD&A schedule, proposed filing dates for the quarterly preparing notes to the quarterly reports. Most commenters state that it VI. Information Collection Statement financial statements, performing the would take additional staffing to 112. The Office of Management and necessary review procedures for the concurrently prepare quarterly and Budget’s (OMB) regulations require corporate officers certification, and annual reports for the SEC and for the approval of certain information filing the reports within the prescribed FERC. While not providing specific collection requirements imposed by time frames. As more fully discussed burden hours resulting from the 68 agency rules. Upon approval of a below, the modifications made to the proposed filing dates of the quarterly collection of information, OMB will original proposal should result in a and annual reports, INGAA state that by assign an OMB control number and substantial decrease in the changing the filing deadlines forty expiration date. Respondents subject to administrative burden placed on percent of their compliance costs would the filing requirements of this Final jurisdictional entities. be reduced. Rule will not be penalized for failing to respond to these collections of Comments Received Commission Response information unless the collections of 115. Many commenters disagree with information display a valid OMB the Commission’s administrative burden 119. The modifications made in this control number. In accordance with estimate citing the time required to Final Rule will significantly reduce or Section 3560(d) of the Paperwork prepare an MD&A, as proposed in the eliminate the administrative burden Reduction Act of 1995,69 the NOPR, to prepare a complete set of cited by commenters. The elimination of information collection requirements in notes to the financial statements, and to the requirement for respondents to the rulemaking were submitted to OMB obtain multiple corporate officers’ prepare an MD&A schedule as proposed for review. certifications, and the additional staffing in the NOPR, and the use of abbreviated 113. As the Commission states in the needed to compile, prepare, and file the notes the financial statements that only NOPR, the compliance burden of this reports within the time frames specified. discuss significant changes from the Final Rule will be minimal for 116. INGAA states that the prior year’s notes, will significantly jurisdictional entities because it is preparation of an MD&A and the notes reduce or eliminate the alleged standard accounting practice for to the financial statements, as proposed administrative burden on respondents. companies to compile and summarize in the NOPR, would account for over 50 120. Additionally, in response to the accounting transactions on a monthly percent of the projected cost of administrative burden raised by basis under the Commission’s existing compliance with rule. AOPL states that respondents due to concurrent SEC and accounting regulations. Additionally, it for privately held companies that do not FERC filing dates, the Commission is is standard accounting and reporting currently prepare an MD&A schedule extending the filing dates for FERC practice for publicly-held corporations the quarterly burden would be 220 Annual Reports and quarterly financial to prepare financial statements on hours with an additional 80 hours reports as proposed in the NOPR. quarterly and annual basis for their added to the annual report. Finally, the Final Rule modifies the stockholders and the SEC. Privately- 117. Additionally, many commenters corporate officer certification statement, held companies also prepare quarterly expressed concern about the proposed and only requires the Chief Financial financial statements so that their Corporate Officer Certification. EEI Officer to certify the quarterly and financial condition and results of states that the internal officer annual reports. operations may be understood by certification would take an average of selected creditors and their owners. The 13.3 hours for the quarterly reports and 121. As a result of these Commission projected that the total 13.6 hours for the FERC Annual modifications, the Commission number of hours that each respondent Reports. However, SCE estimated that it estimates that the reporting would require to complete the quarterly would take their company 50 hours to requirements for the quarterly financial reports is approximately 72 hours per complete the corporate officer’s report Nos. 3–Q and 6–Q, and increased year. certification. reporting requirements for the FERC 114. The Commission estimated in the 118. Finally, commenters express Annual Report Nos. 1, 1–F, 2, 2–A, and NOPR that most of the administrative concern over the administrative burden 6 contained in this Final Rule are as burden associated with the proposal resulting from accelerating the filing follows:
Number of Number of Data collection form respondents hours Filing periods Total annual hours
(a) (b) (c) (d) (e)=(b)×(c)×(d)
1 ...... FERC Form 3–Q ...... 353 150 3 158,850 2 ...... FERC Form 6–Q ...... 159 150 3 71,550 3 ...... FERC Form 1 ...... 216 75 1 16,200 4 ...... FERC Form 1–F ...... 27 75 1 2,025 5 ...... FERC Form 2 ...... 57 75 1 4,275 6 ...... FERC Form 2–A ...... 53 75 1 3,975 7 ...... FERC Form 6 ...... 159 75 1 11,925
8 ...... Totals ...... 268,800
68 See 5 U.S.C. 601–612 (2000). 69 See 44 U.S.C. 3507(d) (2000).
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Total Annual Hours for Collection: the meaning of Section 251 of the Small § 141.2 FERC Form No. 1–F, Annual report (Est. Reporting + Recordkeeping, [if Business Regulatory Enforcement for Nonmajor public utilities and licensees. appropriate)) = 268,800. Fairness Act of 1996.70 The Commission * * * * * 122. In conclusion, the Final Rule will submit the Final Rule to both (b) Filing requirements. *** (2) When to file. (i) The annual report contains significant changes to the houses of Congress and the General 71 for the year ending December 31, 2004, NOPR and thereby has significantly Accounting Office. must be filed on April 25, 2005. reduced the administrative burden cited List of Subjects (ii) The annual report for each year by the commenters. However, thereafter must be filed on April 18. respondents will incur some additional 18 CFR Part 141 ■ administrative burden in providing Electric power, Reporting and 4. Section 141.400 is added to read as supplemental financial information to recordkeeping requirements. follows: the Commission as a result of this Final 18 CFR Part 260 § 141.400 FERC Form No. 3–Q, Quarterly Rule. As recent events regarding the financial report of electric utilities, impact of inappropriate accounting and Natural gas, Reporting and licensees, and natural gas companies. financial reporting and recent changes recordkeeping requirements. (a) Prescription. The quarterly report in corporate governance practices have 18 CFR Part 357 of electric utilities, licensees, and clearly demonstrated, the additional natural gas companies, designated as administrative burden placed on Pipelines, Reporting and FERC Form No. 3–Q, is prescribed for respondents is far outweighed by the recordkeeping requirements. the reporting quarter ending March 31, benefits the Commission will obtain 18 CFR Part 375 2004, and each quarter thereafter. from receiving financial information (b) Filing requirements. (1) Who must from respondents that that is Authority delegations (Government file—(i) Generally. Each electric utility transparent, timely, relevant, and agencies), Seals and insignia, Sunshine (as defined in part 101 of subchapter C reliable. Act. of this chapter) and other entity, i.e. By the Commission. VII. Document Availability each corporation, person, or licensee as Magalie R. Salas, defined in Section 3 of the Federal 123. In addition to publishing the full Secretary. Power Act (16 U.S.C. 792 et. seq.), text of this document in the Federal ■ including any agency or instrumentality Register, the Commission provides all In consideration of the foregoing, the Commission amends parts 141, 260, 357, engaged in generation, transmission, interested persons an opportunity to distribution, or sale of electric energy, view and/or print the contents of this and 375, Chapter I, Title 18, Code of Federal Regulations, as follows. however produced, throughout the document via the Internet through United States and its possessions, FERC’s Web site (http://www.ferc.gov) PART 141—STATEMENTS AND having sales or transmission service, and in FERC’s Public Reference Room REPORTS (SCHEDULES) whether or not the jurisdiction of the during normal business hours (8:30 a.m. Commission is otherwise involved, to 5 p.m. Eastern time) at 888 First ■ 1. The authority citation for part 141 must prepare and file with the Street, NE., Room 2A, Washington DC continues to read as follows: Commission FERC Form No. 3–Q 20426. Authority: 15 U.S.C. 79; 16 U.S.C. 791a- pursuant to the General Instructions set 124. From FERC’s Web site on the 828c, 2601–2645; 31 U.S.C. 9701; 42 U.S.C. out in that form. Internet, this information is available in 7101–7352. (ii) Exceptions. This report form is not the eLibrary (formerly FERRIS). The full ■ 2. In § 141.1, paragraph (b) (2) is prescribed for any agency, authority or text of this document is available on revised to read as follows: instrumentality of the United States, nor eLibrary in PDF and Microsoft Word is it prescribed for municipalities as format for viewing, printing, and/or § 141.1 FERC Form No. 1, Annual report of defined in section 3 of the Federal downloading. To access this document Major electric utilities, licensees, and Power Act; (i.e. a city, county, irrigation others. in eLibrary, type the docket number district, or other political subdivision or excluding the last three digits of this * * * * * agency of a State competent under the document in the docket number field (b) Filing requirements. *** laws thereof to carry on the business of and follow other directions on the (2) When to file and what to file. (i) developing, transmitting, utilizing, or search page. The annual report for the year ending distributing power). 125. User assistance is available for December 31, 2004, must be filed on (2) Each major public utility and eLibrary and other aspects of the FERC’s April 25, 2005. licensee must file the quarterly financial Web site during normal business hours. (ii) The annual report for each year report form as follows: For assistance, contact FERC Online thereafter must be filed on April 18. (i) The quarterly financial report for Support at (iii) This report must be filed with the the period January 1 through March 31, [email protected] or toll Federal Energy Regulatory Commission 2004, must be filed on or before July 9, free at (866) 208–3676, or for TTY, as prescribed in § 385.2011 of this 2004. contact (202) 502–8659. chapter and as indicated in the General (ii) The quarterly financial report for Instructions set out in this form, and the period April 1 through June 30, VIII. Effective Date and Congressional must be properly completed and 2004, must be filed on or before Notificiation verified. Filing on electronic media September 8, 2004. 126. This Final Rule will take effect pursuant to § 385.2011 of this chapter is (iii) The quarterly financial report for March 29, 2004. The Commission has required. the period July 1 through September 30, determined with the concurrence of the ■ 3. In § 141.2, paragraph (b) (2) is 2004, must be filed on or before Administrator of the Office of revised as follows: December 9, 2004. Information and Regulatory Affairs of (iv) Subsequent quarterly financial the Office of Management and Budget, 70 See 5 U.S.C. 804(2) (2000). reports must be filed within 60 days that this rule is not a major rule within 71 See 5 U.S.C. 801(a)(1)(A) (2000). from the end of the reporting quarter.
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(3) Nonmajor public utilities and (3) Newly established entities must (2) Each Major natural gas company licensees must file the quarterly use projected data to determine whether must file this quarterly financial report financial report form as follows: FERC Form No. 2 must be filed. form as follows: (i) The quarterly financial report for (4) The form must be filed in (i) The quarterly financial report for the period January 1 through March 31, electronic format only, as indicated in the period January 1 through March 31, 2004, must be filed on or before June 23, the general instructions set out in that 2004, must be filed on or before July 9, 2004. form. The format for the electronic filing 2004. (ii) The quarterly financial report for can be obtained at the Federal Energy (ii) The quarterly financial report for the period April 1 through June 30, Regulatory Commission, Division of the period April 1 through June 30, 2004, must be filed on or before Information Services, Public Reference 2004, must be filed on or before September 22, 2004. and Files Maintenance Branch, September 8, 2004. (iii) The quarterly financial report for Washington, DC 20426. One copy of the (iii) The quarterly financial report for the period July 1 through September 30, report must be retained by the the period July 1 through September 30, 2004, must be filed on or before respondent in its files. 2004, must be filed on or before December 23, 2004. ■ 8. In § 260.2, paragraph (b) is revised December 9, 2004. (iv) Subsequent quarterly financial to read as follows: (iv) Subsequent quarterly financial reports must be filed within 70 days reports must be filed within 60 days from the end of the reporting quarter. § 260.2 FERC Form No. 2–A, Annual from the end of the reporting quarter. reports for Nonmajor natural gas (3) Each Nonmajor natural gas (4) This report must be filed as companies. prescribed in § 385.2011 of this chapter company must file a quarterly financial and as indicated in the General * * * * * report as follows: (b) Filing requirements. Each natural (i) The quarterly financial report for Instructions set out in the quarterly gas company, as defined by the Natural the period January 1 through March 31, financial report form, and must be Gas Act, not meeting the filing threshold 2004, must be filed on or before July 23, properly completed and verified. Filing for FERC Form No. 2, but having total 2004. on electronic media pursuant to gas sales or volume transactions (ii) The quarterly financial report for § 385.2011 of this chapter will be exceeding 200,000 Dth in each of the the period April 1 through June 30, required commencing with the quarterly three previous calendar years, must 2004, must be filed on or before financial report ending March 31, 2004, prepare and file with the Commission, September 22, 2004. due on or before July 9, 2004 for major as follows: (iii) The quarterly financial report for public utilities and licensees, and due (1) The annual report for the year the period July 1 through September 30, on or before July 23, 2004 for nonmajor ending December 2004 must be filed on 2004, must be filed on or before public utilities and licensees. April 25, 2005. December 23, 2004. ■ 5. In § 141.500, paragraphs (b), (c) and (2) The annual report for each year (iv) Subsequent quarterly financial (d) are removed, the paragraph thereafter must be filed on April 18 of reports must be filed within 70 days designation for paragraph (a) is removed, the subsequent year. from the end of the reporting quarter. and the section heading is revised to read (3) Newly established entities must (4) This report must be filed as as set forth below: use projected data to determine whether prescribed in § 385.2011 of this chapter FERC Form No. 2–A must be filed. as indicated in the General Instructions § 141.500 Cash management programs. (4) The form must be filed in set out in the quarterly financial report electronic format only, as indicated in form, and must be properly completed PART 260—STATEMENTS AND the General Instructions set out in that and verified. Filing on electronic media REPORTS (SCHEDULES) form. The format for the electronic filing pursuant to § 385.2011 of this chapter ■ 6. The authority citation for part 260 can be obtained at the Federal Energy will be required commencing with the continues to read as follows: Regulatory Commission, Division of quarterly financial report ending March Information Services, Public Reference 31, 2004, due on or before July 9, 2004 Authority: 15 U.S.C. 717–717w, 3301– and Files Maintenance Branch, for major natural gas companies, and 3432; 42 U.S.C. 7101–7352. Washington, DC 20426. One copy of the due on or before July 23, 2004 for ■ 7. In § 260.1, paragraph (b) is revised report must be retained by the nonmajor natural gas companies. One as follows: respondent in its files. copy of the report must be retained by § 260.1 FERC Form No. 2, Annual report ■ 9. Section 260.300 is added to read as the respondent in its files. for Major natural gas companies. follows: ■ 10. In § 260.400, paragraphs (b), (c) and * * * * * (d) are removed, the paragraph § 260.300 FERC Form No. 3–Q, Quarterly designation for paragraph (a) is removed, (b) Filing requirements. Each natural financial report of electric utilities, gas company, as defined by the Natural licensees, and natural gas companies. and the section heading is revised to read as set forth below: Gas Act (15 U.S.C. 717, et seq.) which (a) Prescription. The quarterly report is a major company (a natural gas for electric utilities, licensees, and § 260.400 Cash management programs. company whose combined gas natural gas companies, designated transported or stored for a fee exceed 50 herein as FERC Form No. 3–Q, is PART 357—ANNUAL SPECIAL OR million Dth in each of the three prescribed for the reporting quarter PERIODIC REPORTS: CARRIERS previous calendar years) must prepare ending March 31, 2004, and each SUBJECT TO PART I OF THE and file with the Commission, as quarter thereafter. INTERSTATE COMMERCE ACT follows: (b) Filing requirements. (1) Who must (1) The annual report for the year file. Each natural gas company, (as ■ 11. The authority citation for part 357 ending December 2004 must be filed on defined in the Natural Gas Act (15 continues to read as follows: April 25, 2005. U.S.C. 717, et. seq.) must prepare and Authority: 42 U.S.C. 7101–7352; 49 U.S.C. (2) The annual report for each year file with the Commission a FERC Form 60502; 49 App. U.S.C. 1–85 (1988). thereafter must be filed on April 18 of No. 3–Q pursuant to the General ■ 12. In § 357.2, paragraph (b) is revised the subsequent year. Instructions set out in that form. to read as follows:
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§ 357.2 FERC Form No. 6, Annual report of (ii) The quarterly financial report for Authority: 5 U.S.C. 551–557; 15 U.S.C. oil pipeline companies. the period April 1 through June 30, 717–717w, 3301–3432; 16 U.S.C. 791–825r, * * * * * 2004, must be filed on or before 2601–2645; 42 U.S.C. 7101–7352. (b) When to file. (1) The annual report September 22, 2004. ■ 16. In § 375.303, paragraphs (d) and (e) for the year ending December 31, 2004, (iii) The quarterly financial report for are added to read as follows: must be filed on April 25, 2005. the period July 1 through September 30, (2) The annual report for each year 2004, must be filed on or before § 375.303 Delegations to the Chief thereafter must be filed on April 18 of December 23, 2004. Accountant. the subsequent year. (iv) Subsequent quarterly financial * * * * * * * * * * reports must be filed within 70 days ■ 13. Section 357.4 is added to read as from the end of the reporting quarter. (d) Accept for filing Quarterly follows: (v) This report must be filed as Financial Report Form Nos. 3–Q and 6– prescribed in § 385.2011 of this chapter Q if such filings are in compliance with § 357.4 FERC Form No. 6–Q, Quarterly and as indicated in the General Commission orders or decisions, and report of oil pipeline companies. Instructions set out in the quarterly when appropriate, notify the party of (a) Prescription. The quarterly report form, and must be properly such acceptance. financial report form of oil pipeline completed and verified. Filing on Issue and sign deficiency letters if the companies, designated as FERC Form electronic media pursuant to § 385.2011 No. 6–Q, is prescribed for the reporting filing fails to comply with applicable of this chapter will be required statutory requirements, and with all quarter ending March 31, 2004, and commencing with the reporting quarter each quarter thereafter. applicable Commission rules, ending March 31, 2004, due on or before regulations, and orders for which a (b) Filing requirements. (1) Who must July 23, 2004. waiver has not been granted. file. Each oil pipeline company, subject ■ to the provisions of section 20 of the 14. In § 357.5, paragraphs (b), (c) and (d) are removed, the paragraph (e) Deny or grant, in whole or in part, Interstate Commerce Act, must prepare requests for waiver of the reporting and file with the Commission FERC designation for paragraph (a) is removed, and the section heading is revised to read requirements for the forms under Form No. 6–Q. §§ 141.400, 260.300, and 357.400 of this (2) When to file and what to file. This as set forth below: chapter and the filing of these forms on quarterly financial report form must be § 357.5 Cash management programs. electronic media under § 385.2011 of filed as follows: this chapter. (i) The quarterly financial report for PART 375—THE COMMISSION the period January 1 through March 31, Note: The following appendices will not be 2004, must be filed on or before July 23, ■ 15. The authority citation for part 375 published in the Code of Federal Regulations. 2004. continues to read as follows:
APPENDIX A: LIST OF COMMENTERS
Company name Abbreviation
1 ...... American Electric Power Company, Inc ...... AEP. 2 ...... American Gas Association ...... AGA. 3 ...... American Public Gas Association ...... APGA. 4 ...... Arizona Public Service Company ...... Arizona. 5 ...... Association of Oil Pipe Lines ...... AOPL. 6 ...... BP Pipelines (North America), Inc ...... BP. 7 ...... Chevron Texaco Pipelines ...... Chevron. 8 ...... Cinergy Companies ...... Cinergy. 9 ...... Colonial Pipeline Company ...... Colonial. 10 ...... ConocoPhilips Company ...... Conoco. 11 ...... Connexus Energy and Walton Electric Membership ...... Connexus. 12 ...... Consolidated Edison Inc ...... ConEd. 13 ...... Consumers Energy Company ...... CE. 14 ...... Deloitte & Touche ...... D&T. 15 ...... Detroit Edison Company ...... Detroit Ed. 16 ...... Dominion Resources Inc ...... Dominion. 17 ...... Duke Energy Corporation ...... Duke. 18 ...... Dynegy NGL Pipeline Company LLC ...... Dynegy. 19 ...... Edison Electric Institute ...... EEI. 20 ...... El Paso Corporation’s Pipeline Group ...... El Paso. 21 ...... Empire District Electric Company ...... Empire. 22 ...... Entergy Corporation ...... Entergy. 23 ...... Enterprise Products Operating L.P ...... EPO. 24 ...... ExxonMobil Pipeline Company ...... Exxon. 25 ...... FirstEnergy Corp ...... FirstEnergy. 26 ...... Florida Power & Light ...... FP&L. 27 ...... Genesis Pipeline USA L.P ...... Genesis. 28 ...... Graham County Electric Cooperative, Inc ...... Graham. 29 ...... Gulfterra Energy Partners, L.P ...... Gulfterra. 30 ...... Gulf South Pipeline Company LP ...... Gulf South. 31 ...... Hampshire Gas Company ...... Hampshire. 32 ...... Independent System Operator/Regional Transmission Organizational Council ...... ISO/RTO Council. 33 ...... Industry Coalition ...... IC. 34 ...... Inland Power & Light ...... Inland.
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APPENDIX A: LIST OF COMMENTERS—Continued
Company name Abbreviation
35 ...... International Transmission Company ...... ITC. 36 ...... Interstate Natural Gas Associations America ...... INGAA. 37 ...... Iroquois Gas Transmission System, L.P ...... Iroquois. 38 ...... Kelso Beaver Pipeline Company ...... Kelso. 39 ...... KeySpan Corporation ...... KeySpan. 40 ...... Kinder Morgan Liquids Pipeline ...... Kinder Morgan. 41 ...... Koch Pipeline Company, L.P ...... Koch. 42 ...... Maine Public Service Company ...... MPSC. 43 ...... MidAmerican Energy Company ...... MidAmerica. 44 ...... Missouri Public Service Commission ...... Missouri PSC. 45 ...... National Association of Regulatory Utility Commissioners ...... NARUC. 46 ...... National Grid USA ...... National Grid. 47 ...... National Rural Electric Cooperative Association ...... NRECA. 48 ...... National Rural Utilities Cooperative Finance Corp ...... NRUCFC. 49 ...... NiSource Inc ...... Nisource. 50 ...... Northeast Utilities ...... NU. 51 ...... Northern Natural Gas Company ...... Northern Natural. 52 ...... Old Dominion Electric Cooperative ...... Old Dominion. 53 ...... Otter Tail Power Company ...... Otter Tail. 54 ...... PacificCorp ...... PacificCorp. 55 ...... Pepco Holdings Inc ...... Pepco. 56 ...... Plains All American Pipeline LP ...... Plains. 57 ...... Portland General Electric Company ...... Portland General. 58 ...... PricewaterhouseCoopers LLP ...... PWC. 59 ...... PSEG Companies ...... PSEG. 60 ...... Rayburn County Electric Cooperative Inc ...... Rayburn. 61 ...... San Diego Gas & Electric Company ...... San Diego. 62 ...... SCANA Corp ...... SCANA. 63 ...... Shell Gas Transmission LLC ...... Shell Gas. 64 ...... Shell Pipeline Company LP’s ...... Shell Pipeline. 65 ...... Southern California Edison ...... SCE. 66 ...... Southern Company ...... Southern. 67 ...... Sunoco Pipeline L.P...... Sunoco. 68 ...... Texas Gas Transmission, LLC ...... Texas Gas. 69 ...... Tucson Electric Power Company ...... Tucson. 70 ...... Unocal Pipeline Company ...... Unocal. 71 ...... USG Pipeline Company ...... USG. 72 ...... Williams Pipe Line Company, LLC ...... Williams. 73 ...... Williston Basin Interstate Pipeline ...... Williston Basin. 74 ...... Wolverine Power Supply Corporative ...... Wolverine.
BILLING CODE 6717–01–P
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[FR Doc. 04–3876 Filed 2–25–04; 8:45 am] BILLING CODE 6717–01–C
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Part III
Department of Health and Human Services Food and Drug Administration
21 CFR Parts 201, 606, et al. Bar Code Label Requirements for Human Drug Products and Biological Products; Final Rule
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DEPARTMENT OF HEALTH AND 1. Should Prescription Drug Samples 1. Introduction HUMAN SERVICES Be Excluded From the Rule? 2. Costs to Manufacturers and 2. Which OTC Drug Products Must Packagers of Affected Products Food and Drug Administration Have a Bar Code? 3. Costs to Retailers and Distributors 3. Must Vaccines Have a Bar Code? 4. Costs to Hospitals 21 CFR Parts 201, 606, and 610 4. What Other Types of Drugs Should 5. Costs to the Food and Drug Administration [Docket No. 2002N–0204] Be Subject to a Bar Code Requirement? 6. Total Regulatory Costs Bar Code Label Requirement for 5. Should Medical Devices Be G. Other Anticipated Expenditures Human Drug Products and Biological Excluded From the Rule? H. Reduction in Preventable Adverse Products C. What Must the Bar Code Contain? Drug Events and Preventable Acute (§ 201.25(c)(1)) Hemolytic Transfusion Reactions AGENCY: Food and Drug Administration, 1. Should We Require the Bar Code to I. Value of Avoided ADEs and AHTRs HHS. Contain the NDC Number? 1. Value of Avoided ADEs ACTION: Final rule. 2. Should the Bar Code Contain Lot 2. Value of Avoided AHTRs Number and Expiration Date J. Aggregate Benefit of Avoiding ADEs SUMMARY: The Food and Drug Information? and AHTRs Administration (FDA) is issuing a new 3. Can Information Be Omitted from K. Cost Effectiveness of Bar Coding rule to require certain human drug and the Label to Accommodate the Bar L. Other Benefits of Bar Code biological product labels to have bar Code? Technology codes. The bar code for human drug D. Does the Rule Require a Specific M. Distributional Effects of Bar Code products and biological products (other Type of Bar Code? (§ 201.25(c)(1)) Technology than blood, blood components, and 1. Should the Rule Require Linear Bar N. Comparison of Costs, devices regulated by the Center for Codes? Expenditures, and Benefits Biologics Evaluation and Research) 2. Should the Rule Impose Any O. Uncertainty and Sensitivity must contain the National Drug Code Conditions on the Bar Code? 1. Voluntary Share of Labeling Costs (NDC) number in a linear bar code. The E. Where Does the Bar Code Go? 2. Packaging Decisions rule will help reduce the number of (§ 201.25(c)(2)) 3. Implementation Period medication errors in hospitals and other F. Must Blood and Blood Components 4. Value of Mortality Associated with health care settings by allowing health Bear ‘‘Machine-Readable’’ ADEs care professionals to use bar code Information? (§ 606.121(c)(13)) 5. Value per QALY scanning equipment to verify that the G. Must Biological Products Have a 6. Boundary Analysis right drug (in the right dose and right Bar Code? (§ 610.67) 7. Hospital Response Rates route of administration) is being given H. What Other Comments Did We 8. Hospital Intercept Rates with to the right patient at the right time. The Receive? Machine-Readable Technology rule also requires the use of machine- 1. Comments Seeking More Action by 9. Productivity Losses in Hospital readable information on blood and FDA Wards blood component container labels to 2. Comments Relating to Bar Code 10. Investments by Hospital Size help reduce medication errors. Problems or Quality P. Small Business Analysis and Discussion of Alternatives DATES: Effective Date: This rule is 3. Comments Regarding FDA’s Future 1. Affected Sectors and Nature of effective on April 26, 2004. Involvement with Bar Codes Impacts Compliance Dates: Drug products that 4. Miscellaneous Comments 2. Alternatives receive approval on or after the rule’s I. How Will We Implement the Rule? 3. Outreach effective date must comply with the bar III. Legal Authority 4. What Comments Did We Receive code requirement within 60 days after IV. Environmental Impact on Our Economic Analysis? the drug’s approval date. Drug products V. Paperwork Reduction Act of 1995 A. What Is the Estimated Information Q. Conclusion that received approval before the final R. References rule’s effective date must comply with Collection Burden? the bar code requirement within 2 years B. What Comments Did We Receive I. Introduction on Our Estimates? after the final rule’s effective date. In the Federal Register of March 14, Specific information on how the rule VI. Federalism VII. Analysis of Impacts 2003 (68 FR 12500), FDA (we) will be implemented can be found in A. Introduction published a proposed rule that would section II.I of this document. B. Objective of the Rule require certain human drug and FOR FURTHER INFORMATION CONTACT: C. Estimate of Preventable Adverse biological product labels to have a linear Philip L. Chao, Office of Policy and Drug Events and Acute Hemolytic bar code (the March 2003 proposal). The Planning (HF–23), Food and Drug Transfusion Reactions proposal would require the bar code to Administration, 5600 Fishers Lane, D. The Final Rule contain the drug’s NDC number. For Rockville, MD 20857, 301–827–0587. E. Description of Affected Sectors blood and blood components, the SUPPLEMENTARY INFORMATION: 1. Current Machine-Readable proposal would require the use of Technologies machine-readable information on the Table of Contents 2. Manufacturers and Packagers of container label. Our intent was to help I. Introduction Affected Products reduce the number of medication errors II. Comments on the Proposed Rule and 3. Retail Outlets in hospitals and health care settings by FDA’s Responses 4. Hospitals allowing health care professionals to use A. Who Is Subject to the Bar Code 5. Nursing Homes and Long-Term bar code scanning equipment to verify Requirement? (§ 201.25(a)) Care Facilities that the right drug, in the right dose and B. What Products Must Have a Bar 6. FDA Oversight and Responsibilities right route of administration, is being Code? (§ 201.25(b)) F. Regulatory Costs of the Final Rule given to the right patient at the right
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time. For blood and blood components, • Each drug would have a bar code. Label Requirements.’’ (For biological the machine-readable information The bar code would provide unique, products other than blood and blood would perform a similar function and identifying information about the drug components, the bar code requirement help prevent errors such as transfusion that is to be dispensed to the patient. would exist through a cross-reference at errors. • In hospitals, health care a new § 610.67 (21 CFR 610.67.) The The preamble to the March 2003 professionals, such as pharmacists and proposal also would amend the proposal described the events that led nurses, would use bar code scanners preexisting, voluntary provision us to issue the proposal (see 68 FR (also called bar code readers) to read the regarding ‘‘machine-readable’’ symbols 12500 through 12503), and we refer bar code on the drug before dispensing on blood and blood component readers to that preamble if they wish to the drug to the patient and to read a bar container labels at § 606.121(c)(13) (21 obtain details on the events, coded wristband on the patient before CFR 606.121(c)(13) to require the use of recommendations, meetings, and giving the drug to the patient. In an machine-readable information. literature that shaped the proposed rule. outpatient setting, the health care professional (such as a pharmacist) We received approximately 190 In brief, medication errors are a serious comments on the proposal, and almost public health problem, and putting bar could scan the bar code on the drug and compare the scanned information all comments supported the rule in codes on drug products is expected to whole or in part. For example, one significantly reduce medication errors. against the patient’s electronic prescription information before giving comment said that ‘‘FDA is to be highly Medication errors can occur at several commended for both the proposed points from the time the physician the drug to the patient. • The bar code scanner’s information regulation and the process leading to it’’ prescribes the drug to a patient to the while another said that the rule was an time when the patient receives the drug. would go to the computer where it would be compared against the patient’s ‘‘excellent step toward reducing For example, the physician may write a medication errors.’’ Other comments prescription for the right drug, but in drug regimen information to check whether the right patient is receiving reported favorably on their own the wrong dose. The pharmacist might experiences with bar codes on drugs. misread the prescription and provide the right drug (including the right dose of that drug in the right route of One comment from a hospital said that the wrong drug, or read the prescription the hospital had recently begun bedside correctly and dispense the wrong drug. administration). The system could also be designed to check whether the verification of medications, using bar The health care professional patient is receiving the drug at the right codes, and that the bar codes were a administering the drug might give it to time. valuable tool for reducing medication the wrong patient or give it to the right • If the identity of the health care errors. A comment from a health patient, but at the wrong time or in the professional administering the drug professional noted that his health care wrong dose. Although most medication were desired, each health care system used bar codes to dispense errors do not result in harm to patients, professional could also have a bar code. patient medications and those using medication errors can result and have The health care professional would scan robots to dispense medications reduced resulted in serious injury or death. his or her own bar code before giving the manual error dispensing rate by 50 Medication errors also represent a the drug to the patient. percent. significant economic cost to the United Bar codes can also complement other A few comments, however, were States; one article published in 2001 efforts to reduce medication errors, such (Ref. 30) estimated the direct cost to be skeptical about the value of bar coding as computer physician order entry drugs. For example, one comment $177.4 billion, while another (Ref. 31) (CPOE) systems (where a physician described problems associated with estimated the cost of preventable enters orders into a computer instead of installing new technology in old adverse drug events in hospitalized writing them on paper, and the order buildings. The comment also feared that patients to be $5,857 for each adverse can be checked against the patient’s our rule would cause hospitals to lose drug event, with the estimated annual records for possible drug interactions, their accreditation if they did not adopt costs for preventable adverse drug overdoses, and patient allergies) and bar coding technology. Another events for a 700-bed hospital to be $2.8 pharmacy-based computer systems that comment expressed concern about the million. use a bar-coded NDC number to verify impact on nurses’ workloads. The Bar codes can help reduce or detect that a consumer’s prescription is being comment said bar codes on drugs could potential medication errors by enabling dispensed with the correct drug. health care professionals to check We (FDA) held a public meeting on cause nurses to spend more time whether they are giving the right drug July 26, 2002, to discuss a possible rule administering medications because of via the right dose and right route of to require bar codes on human drug scanning errors or problems with the bar administration to the right patient at the products, blood, and blood components code, but concluded that ‘‘the ultimate right time. The bar codes would be part (see 67 FR 41360, June 18, 2002). Nearly outcomes will be worth the investment of a system, along with bar code 400 individuals attended that public for the manufacturers, the providers, scanners and computerized databases, meeting, and many submitted comments and ultimately the patients.’’ where: to us. We then published the March After reviewing the comments, FDA • A patient would have his or her 2003 proposal. The March 2003 made several changes to the rule. The drug regimen information entered into a proposal would create a new § 201.25 principal changes between the proposed computerized database. (21 CFR 201.25) entitled ‘‘Bar Code and final rule are as follows:
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Proposed Rule Final Rule
Would apply to prescription drugs (except for samples) and to over-the- Applies to most prescription drugs (except for samples, allergenic ex- counter drugs commonly used in hospitals and dispensed pursuant tracts, intrauterine contraceptive devices that are regulated as drugs, to an order medical gases, radiopharmaceuticals, low-density polyethylene form fill and seal containers, and prescription drugs sold directly to pa- tients) and to over-the-counter drugs commonly used in hospitals and dispensed under an order. We explain the reasons for exempt- ing certain prescription drugs in section II.B.4 of this document.
Did not contain a general exemption provision Contains a limited, general exemption provision. We explain the rea- sons for creating a general exemption provision in section II.B.4.c of this document.
Would require a linear bar code that meets Uniform Code Council Requires a linear bar code that meets Uniform Code Council standards standards or Health Industry Business Communications Council standards. We explain the reasons for this change at section II.D.1 of this docu- ment.
Would create a 3-year implementation period Establishes different compliance dates depending on when a drug was approved. In general, the rule is effective 60 days after date of publi- cation in the Federal Register. If a drug receives approval on or after the effective date, it must comply with the bar code requirement within 60 days of the drug’s approval date. If the drug received ap- proval before the rule’s effective date, it must comply with the bar code requirement within 2 years of the final rule’s effective date. For blood and blood components, a 2 year compliance date exists. We explain the implementation of this rule at section II.I of this docu- ment.
We describe and respond to the requiring manufacturers, repackers, pediatric use and that omitting such comments in section II of this relabelers, and private label distributors compounded drugs from the rule would document. To make it easier to identify to bar code their own products should leave ‘‘infants and children without the comments and our responses, the word be more efficient and result in better protections that bar codes are intended ‘‘Comment,’’ in parentheses, will appear quality bar codes because to provide.’’ before the comment’s description, and manufacturers, repackers, relabelers, Another comment argued that we the word ‘‘Response,’’ in parentheses, and private label distributors generally should exempt nuclear pharmacies from will appear before our response. We have sophisticated manufacturing the rule. The comment claimed that a have also numbered each comment to processes, labeling machinery, and bar code requirement would subject help distinguish between different quality control systems that hospitals hospital personnel and employees to comments. The number assigned to each cannot afford. We added that bar coding additional radiation (because they comment is purely for organizational by third parties (such as hospitals) would have to scan the bar codes). purposes and does not signify the could increase the possibility of a label (Response) Section 510(g)(1) of the act comment’s value or importance or the error through the attachment of the states that pharmacies order in which it was received. wrong bar code and could lead to which maintain establishments in inconsistent bar code quality; in fact, conformance with any applicable local laws II. Comments on the Proposed Rule and one organization that submitted a regulating the practice of pharmacy and FDA’s Responses comment at our public meeting on July medicine and which are regularly engaged in A. Who Is Subject to the Bar Code 26, 2002, estimated the error rate in dispensing prescription drugs or devices, hospital labeling to be approximately 17 upon prescriptions of practitioners licensed Requirement? (§ 201.25(a)) to administer such drugs or devices to percent nationwide. patients under the care of practitioners in the Under proposed § 201.25(a), We also stated that requiring manufacturers, repackers, relabelers, course of their professional practice, and manufacturers, repackers, relabelers, which do not manufacture, prepare, and private label distributors of human and private label distributors to bar code propagate, compound, or process drugs or prescription drug products and over- their own products and to use the same devices for sale other than in the regular the-counter (OTC) drug products bar coding standard would result in a course of their business of dispensing or regulated under the Federal Food, Drug, more uniform bar coding system that selling drugs or devices at retail and Cosmetic Act (the act) or the Public could be used regardless of a patient’s do not have to register their Health Service Act (PHS Act) would be or hospital’s location in the United establishments or list their products subject to the bar code requirement States, and that this uniformity would with FDA. Thus, if a pharmacy is unless they are exempt from the also make it easier for health care exempt, under section 510(g)(1) of the establishment registration and drug professionals to train themselves on bar act, from our establishment registration listing requirements in section 510 of coding procedures and technique and and drug listing requirements, the the act (21 U.S.C. 360). make it easier and less expensive for pharmacy is not subject to the bar code In the preamble to the proposed rule hospitals to buy bar coding equipment. requirements. (68 FR 12500 at 12503), we (Comment 1) One comment stated We also note that drugs compounded acknowledged that some hospitals place that hospital pharmacies should be at pharmacies generally would not have bar codes on drugs themselves and have subject to the bar code requirements. NDC numbers. NDC numbers are reduced their medication error rates The comment explained that hospitals assigned to drugs that are listed under significantly, but we stated that frequently compound drugs for section 510(j) of the act, but, as we
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explained earlier, section 510(g)(1) of proposed § 201.25(a)) are not subject to recommendations for safely deploying the act would exempt a pharmacy from the bar code requirements. Hospitals, wireless technology in hospitals and the registration and listing clinics, and public health agencies that health care facilities. requirements. Consequently, a ‘‘maintain establishments in As for entities that repack or relabel compounded drug would not be listed, conformance with any applicable local drugs, if a repacker, relabeler, or private would not be assigned an NDC number, laws regulating the practices of label distributor is subject to the and would therefore lack the pharmacy or medicine and that establishment registration requirement information required to be in the bar regularly engage in dispensing at section 510 of the act, then that code. prescription drugs * * * upon person would also be subject to the bar Regarding the comment claiming that prescription of practitioners licensed by code requirements. We would expect a bar code requirement would lead to law to administer these drugs to patients that repacker, relabeler, or private label greater radiation exposure for nuclear under their professional care’’ are distributor to use its own NDC numbers pharmacy employees, the comment did exempt from the establishment on its products. In other words, a not provide any evidence or data to registration requirements (see manufacturer, repacker, relabeler, or show that using a bar code scanner § 207.10(b) (21 CFR 207.10(b)); as a private label distributor must not use an would constitute a significant or even result, such hospitals, clinics, and NDC number that is not assigned to it. appreciable risk or that bar code public health agencies are also exempt Use of another establishment’s NDC scanners would undermine or from the bar code requirements. number in the bar code would cause the compromise any existing measures The rule also does not require product to be misbranded under section taken to protect such employees from hospitals to use or adopt bar code 502(a) of the act (21 U.S.C. 352(a)) radiation exposure. Nevertheless, as we technology. Hospitals are free to decide because the drug’s label would be explain in our response to comment 24 whether to take advantage of the bar misleading. in section II.B.4.b. of this document, we codes on human drug and biological have decided to exempt products. Our legal authority, in this B. What Products Must Have a Bar radiopharmaceuticals from the bar code case, extends to the products and not to Code? (§ 201.25(b)) requirement. hospitals. Nevertheless, we advise Proposed § 201.25(b) would require (Comment 2) One comment said we hospitals and other potential bar code bar codes on the labels of: should exempt hospitals, institutional users that we are aware of • All human prescription drug providers, and large clinics from the electromagnetic interference (EMI) products, excluding samples; rule. The comment interpreted the rule’s problems associated with the use of • Biological products; and • reference to repackers and relabelers as wireless technology products, such as OTC drug products that are covering hospitals and other providers cell phones, local area networks (LANs), commonly used in hospitals and and said that hospitals and other and personal digital assistants (PDAs), dispensed pursuant to an order. providers would still have to repack and in the vicinity of electrically-powered We proposed to exclude prescription relabel drugs (such as intravenous medical devices. EMI problems are a drug samples because most samples are solutions and mixes). The comment particular concern in health care given to patients at physicians’ offices, declared it would be ‘‘unrealistic’’ to facilities as well as home care settings. and we did not believe that physicians expect hospitals and other providers to We caution that wireless bar code or patients would have or be inclined to obtain NDC labeler codes and scanning technologies may present buy bar code scanners for their own use ‘‘participate in the NDC system.’’ similar concerns about their in the immediate future. We invited In contrast, several comments said we electromagnetic compatibility (EMC) comment as to whether we should should extend the rule to hospitals or with other hospital equipment. We require bar codes on prescription drug expressed disappointment that the rule encourage hospitals and other potential samples and sought cost and benefit did not require hospitals to use bar bar code users to consider EMC with data associated with placing bar codes codes. For example, one comment said medical devices when developing their on such samples (see 68 FR 12500 at the Federal Government should policies and implementing a bar code 12505 and 12529). establish requirements so that hospitals scanning system. Additional As for OTC drug products, the phrase would have to adopt technologies to use information about EMC with medical ‘‘commonly used in hospitals’’ reflected the bar codes. Another comment said devices is available at http:// our primary focus of helping to reduce that we should ‘‘encourage,’’ but not www.fda.gov/cdrh/emc. the number of medication errors require, hospitals to use bar code We recommend that interested parties occurring in hospitals. We added the technology. The comment said that most gather information and conduct research phrase, ‘‘dispensed pursuant to an hospitals would find it difficult to adopt about wireless bar code scanners (or order,’’ because we knew that some bar code technology due to the age of other scanning or reading equipment) products that are regulated as OTC drug their buildings and their construction. and their EMI potential on other products, such as mouth rinses and Another comment asked us to clarify medical devices. We also encourage toothpastes, are not likely to contribute that relabeled, repackaged, or privately voluntary standards development to medication errors, and are not labeled drugs must have their own NDC organizations, such as the Association dispensed in hospitals pursuant to a numbers. The comment said that for the Advancement of Medical physician’s or health care professional’s hospitals and pharmacies must not use Instrumentation, the Joint Commission order. Thus, the phrase, ‘‘dispensed the same NDC number that the drug’s on Accreditation of Healthcare pursuant to an order,’’ was designed to manufacturer used. Organizations (JCAHO), the American capture those OTC drug products that (Response) Some comments appear to National Standards Institute (ANSI), and are likely to contribute to medication have misinterpreted the rule. Repackers, the International Electrotechnical errors. The preamble to the proposed relabelers, and private label distributors Commission (IEC) to work with us rule invited comment as to whether that are exempt from the establishment toward the goal of coordinated policies, there was a better way to describe the registration and drug listing research, and standards development to types of OTC drug products that should requirements in section 510 of the act ensure a base level of EMC in all health have a bar code (see 68 FR 12500 at (see 68 FR 12500 at 12503; see also care facilities. This would include 12506 and 12529).
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The preamble to the March 2003 subject of a future rulemaking. Another identify solid oral dosage forms, proposal also invited comment on comment agreed that bar coding particularly in emergency situations, whether any specific product or class of prescription drug samples would not and to help consumers and health care products should be exempt from the enhance patient safety, but said that one professionals identify drugs (see 58 FR rule and the reasons for an exemption possible benefit would be that 47958, September 13, 1993; part 206). (see 68 FR 12500 at 12511 through manufacturers could monitor Thus, drug imprinting already exists to 12512 and 12529). disbursement of prescription drug help emergency departments, and samples. pharmacists can also use the imprint 1. Should Prescription Drug Samples Be Other comments suggested that bar codes to help identify samples Excluded From the Rule? codes on samples could be voluntary or presented to them by patients. (Comment 3) Several comments said noted that bar codes can fit easily on As for the voluntary use of bar codes we should require bar codes on prescription drug samples because their on prescription drug samples, we do not prescription drug samples. One packaging is often larger than unit-dose object to such use. comment stated that bar codes on packaging (so that it is technologically 2. Which OTC Drug Products Must Have samples would make it easier to monitor feasible to put bar codes on prescription a Bar Code? inventory or distribution to patients. drug packaging) and that the Uniform Another comment said that prescription Code Council (UCC) system requires bar (Comment 4) Several comments drug samples are ‘‘commonly dispensed codes on promotional products such as focused on OTC drug products. One in numerous hospital settings,’’ such as samples. comment agreed that only OTC drug emergency departments, and that ‘‘the (Response) We decline to require bar products commonly used in hospitals very nature of treatment and medication codes on prescription drug samples. The and dispensed pursuant to an order administration (in an emergency comments did not offer any data to should be required to have bar codes. In department) presents unique challenges contradict our position that most contrast, an OTC drug firm stated that for which bar coding would prove prescription drug samples are dispensed the rule’s description of OTC drug instrumental.’’ The comment also stated by physicians in their offices and that products might be clear to hospitals, but that JCAHO requires institutions to have physicians and patients will not be was unclear to OTC drug manufacturers. policies and procedures in place to inclined to buy or use bar code The comment said that, instead of control drug samples and requires quick scanners. We realize that bar codes describing the OTC drug products that retrieval of recalled drugs, so hospitals could help with inventory control and must have a bar code, we should list must keep detailed records, ‘‘often help monitor distribution of samples, OTC drug products, categories of OTC including lot and expiration date, of but those objectives have no bearing on drug products, and/or ingredients that drug samples dispensed to patients.’’ medication errors or drug safety and are do not require bar codes. The comment Another comment suggested that, rather outside the scope of this rule. said such a list would give ‘‘clear than require bar codes on all Although one comment did claim that direction’’ as to those OTC drug prescription drug sample labels, we prescription drug samples are products that are subject to a bar code could simply require bar codes on the commonly dispensed in hospitals, requirement. outer package because patients receive particularly in emergency departments, Two other comments expressed the entire package rather than a portion we could not determine whether the similar views on listing OTC drugs. One of a drug sample. comment meant to say that hospitals comment said we should list categories Other comments also wanted bar administer samples to patients or of OTC drug products that would not codes on prescription drug samples for whether they simply provide samples to have to have a bar code, whereas reasons unrelated to medication errors. patients to take home. We also could not another comment said we should list For example, one comment said that bar determine whether such practices are the types of OTC drugs that would or codes on prescription drug samples common in hospitals, but note that, should be subject to a bar code would reduce the amount of time spent under section 503(d) of the act (21 requirement. tracking samples. Another comment U.S.C. 353(d), hospitals may distribute (Response) We decline to revise the said that bar codes could help prescription drug samples at the rule to describe the OTC drug products pharmacists identify samples that direction of a practitioner who is that would be subject to §§ 201.25 and patients present to them; the comment licensed to prescribe such drugs and 610.67 in terms of specific drugs, said that patients sometimes bring who received such samples. (However, categories, or ingredients. The prescription drug samples to sections 301(t) (21 U.S.C. 331(t)) and comments’ suggestion that we list OTC pharmacists because they wish to 503(c) of the act prohibit the sale and drug products, categories, and/or continue receiving the same drug. A purchase of drug samples.) If we assume ingredients would effectively force us to third comment said clinicians might be that the comment pertained to engage in case-by-case analyses to confused if they had to follow one distribution of samples in hospitals, decide whether a particular OTC drug, procedure for bar coded prescription then we reiterate that the physicians category, and/or ingredient should or drugs and a different procedure for directing the distribution of the samples should not have a bar code and force us nonbar coded prescription drug and the patients receiving such samples to engage in repeated rulemakings each samples. will not be inclined to buy or use bar time we wanted to modify the list. Conversely, several comments agreed code scanners. Consequently, requiring Additionally, parties that objected to with our decision to exclude bar codes on prescription drug samples listing a particular OTC drug product or prescription drug samples from the bar would have little benefit insofar as class could attempt to challenge our code requirement. The comments said medication errors are concerned. decisions, creating an added burden on there would be no benefit to bar coding As for the possible use of bar codes in our resources. The result would be a such products, although one comment helping pharmacists identify drugs cumbersome, time-consuming, resource- suggested that we conduct a study to see presented by patients, we note that part intensive, and inefficient administrative how prescription drug samples are used 206 (21 CFR part 206) requires process that would detract from, rather in institutional settings and to imprinting on solid oral dosage forms. than contribute to, efforts to improve determine whether they should be the The code imprint was designed to help patient safety. The original proposal’s
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formulation makes the distinction we a common sense interpretation of the package is arguably not ‘‘designed’’ are trying to draw and places the burden § 201.25(b). For example, a for institutional use. on manufacturers, repackers, relabelers, manufacturer who labels an OTC drug (Comment 6) Two comments stated and private label distributors of OTC ‘‘for institutional use only’’ and sells that the phrase, ‘‘dispensed pursuant to drug products to determine whether that OTC drug to hospitals should an order,’’ is inappropriate because their products are commonly used in comply with the bar code requirement some institutions do not have orders hospitals and dispensed under an order. notwithstanding the fact that it labeled provided by physicians or because some We have, however, re-worded the drug ‘‘for institutional use only’’ institutions allow nurses to request OTC § 201.25(a) to refer to ‘‘over-the-counter instead of ‘‘for hospital use only.’’ In drugs. Another comment suggested that (OTC) drug products’’ and to use the other words, we do not consider the we refer to OTC drugs that are shorter term of ‘‘OTC drug products’’ in OTC drug label’s use of the word ‘‘dispensed upon a prescription of a the remainder of § 201.25. This change ‘‘institution’’ or its avoidance of the practitioner licensed by law to corrects an oversight in the proposed word ‘‘hospital’’ as being the administer a drug;’’ the comment said rule because it referred to ‘‘OTC drug determining factor in whether an OTC this language would be clearer and products’’ without explaining what drug must comply with the bar code eliminate any confusion as to what ‘‘OTC’’ meant. requirement. constitutes an ‘‘order.’’ (Comment 5) Proposed § 201.25(b) As for defining what constitutes a Several comments suggested that we had explained that an OTC drug is ‘‘hospital,’’ the preamble to the refer to ‘‘non-prescription drugs used ‘‘commonly used in hospitals’’ if it is proposed rule interpreted the word therapeutically pursuant to a ‘‘packaged for institutional use, labeled ‘‘hospital’’ as ‘‘a facility that provides prescriber’s order,’’ although one for institutional use, or marketed, medical, diagnostic, and treatment comment used the phrase ‘‘pursuant to promoted, or sold to hospitals.’’ One services that include physician, nursing, a rescuer’s order.’’ The comments comment stated that the rule’s reference and other health services to inpatients explained that the word to OTC drug products packaged and and the specialized accommodation ‘‘therapeutically’’ would exclude OTC labeled for ‘‘institutional’’ use was services required by inpatients’’ (see 68 drugs such as toothpastes and mouth confusing because the rule also referred FR 12500 at 12517, footnote 4 of table rinses. Another comment suggested that to ‘‘hospitals.’’ Thus, the comment said 2). We consider this interpretation to be the rule state that OTC drug products we should clearly define the sites to sufficient for the final rule, but decline which bar coded products must be ‘‘are excluded from the bar coding to codify this interpretation in the final distributed and define ‘‘hospital’’ and requirements except for those OTC rule. A codified interpretation of ‘‘institution.’’ therapeutic drugs that are packaged for Two other comments suggested that ‘‘hospital’’ would invite arguments as to institutional use or specifically we interpret ‘‘commonly used in whether a particular facility purchasing marketed for use in an institution for hospitals’’ as ‘‘packaged for hospital OTC drug products was or was not a therapeutic purposes.’’ use, labeled for hospital use, or ‘‘hospital,’’ whether the majority of (Response) The word ‘‘order,’’ in marketed, promoted, or sold to purchasing institutions were or were not § 201.25(b), is not confined to any hospitals.’’ Another comment said the ‘‘hospitals,’’ and, as a result, would particular manner, document, or format interpretation of the phrase, ‘‘commonly likely lead to further arguments about for requesting a drug, nor is it confined used in hospitals,’’ should depend on a whether a particular OTC drug product to any particular type of health care combination of two or more sold to such facilities was subject to the professional. The phrase ‘‘dispensed ‘‘indicators,’’ such as ‘‘packaging bar code requirements. Engaging in such pursuant to an order’’ should be designed for institutional use, package arguments would neither enhance interpreted as applying to an OTC drug labeling for institutional use, or patient safety, nor would it be an that is to be administered to a patient as marketing or promotion (including efficient use of our resources. directed by a health care professional, through sales catalogues) to hospitals.’’ We also decline to interpret regardless of whether he or she is a The comment explained that our rule ‘‘commonly used in hospitals’’ as physician, nurse, or other professional. would ‘‘inadvertently sweep a far larger requiring two or more ‘‘indicators.’’ If Consequently, we decline to revise the range of OTC medicines into the rule’s we were to make the change as rule to refer to a ‘‘prescription of a coverage.’’ It also asked us to clarify that suggested by the comment, fewer OTC practitioner licensed by law to an OTC drug manufacturer would not be drug products would be subject to the administer a drug’’ because those terms responsible for bar coding the drug if it bar code rule despite their use in would be more restrictive and would was ‘‘marketed, promoted, or sold to hospitals and despite their potential for create more, rather than less, hospitals’’ by someone else. causing medication errors. For example, uncertainty over the rule’s applicability (Response) The proposed rule referred if we interpreted the rule to apply only to OTC drug products. For example, the to ‘‘institutional use’’ because we knew to those OTC drug manufacturers who word, ‘‘prescription’’ could be that some OTC drug packages and labels directly sold their products to hospitals, interpreted as requiring the practitioner state that the drug is ‘‘for institutional then an OTC drug manufacturer could to write a prescription for the OTC drug use’’ or ‘‘for institutional use only’’ (see avoid the bar code requirement simply product before it could be administered 68 FR 12500 at 12505). We did not by selling the OTC drug products, to the patient. In contrast, an ‘‘order’’ intend to imply that the rule would complete with labeling for ‘‘hospital could be an instruction written on a cover OTC drug products that were use,’’ to wholesalers or middlemen for patient’s medical chart, and could even commonly used in ‘‘institutions’’ other resale to hospitals. Similarly, if we were be entered into the chart at the same than hospitals, and we have revised to adopt the comment’s suggestion to time when the OTC drug is § 201.25(b) to replace ‘‘institutional use’’ change ‘‘packaged for institutional use’’ administered. As another example, the with ‘‘hospital use.’’ However, we also to ‘‘packaging designed for institutional phrase, ‘‘practitioner licensed by law to have added the parenthetical phrase, use,’’ a firm could avoid the bar code administer a drug’’ could create ‘‘or uses similar terms’’ after ‘‘labeled requirement by making no distinction uncertainty or disagreement as to for hospital use’’ to indicate that between its packages for retail sale and whether a person was a ‘‘practitioner,’’ persons subject to the rule should adopt its packages for hospital use, because whether he or she was ‘‘licensed by
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law,’’ and whether that license included OTC drugs that are ‘‘commonly used in (Comment 10) One comment asked us the ability to ‘‘administer a drug.’’ hospitals’’ and ‘‘dispensed pursuant to to clarify that the phrases relating to Similarly, we decline to revise the an order.’’ OTC drug samples would fall hospital use and to institutional use rule to refer to ‘‘non-prescription drugs outside this bar code requirement pertained only to OTC drug products. used therapeutically pursuant to a because OTC drug samples are not (Response) The comment understands prescriber’s order.’’ There is no apparent ‘‘commonly used in hospitals’’ and are the rule correctly. The rule applies to all distinction between a ‘‘non-prescription not ‘‘dispensed pursuant to an order.’’ prescription drug products (except for drug’’ and ‘‘OTC drug product,’’ and (Comment 9) One comment from an prescription drug samples, allergenic requiring such drugs to be used OTC drug manufacturer asked if the rule extracts, intrauterine contraceptive ‘‘therapeutically’’ could result in applied to all packages of a specific OTC devices regulated as drugs, medical disagreements as to whether a particular drug. The comment explained that the gases, radiopharmaceuticals, low- use was ‘‘therapeutic.’’ For example, a firm uses a ‘‘modified open stock density polyethylene form fill and seal person might interpret ‘‘therapeutic’’ as catalogue’’ that includes all retail and containers, drug products shipped by meaning that the OTC drug product some hospital-specific OTC drug manufacturers, repackers, relabelers, must have curative or healing properties products and that hospitals can buy and private label distributors directly to and distinguish such drugs from those products from the catalogue. The patients, and blood and blood whose purpose is prophylactic or comment asked if the rule would components). We explain the reasons intended to prevent disease. Another require the firm to put bar codes on all for excluding these drugs later in this person might distinguish between OTC OTC drug products in the catalogue or section. drug products that provide symptomatic whether the firm could put a bar code Insofar as OTC drug products are relief and ‘‘therapeutic’’ OTC drug on one or more OTC drug products and concerned, the rule applies to those products by arguing that providing still offer OTC drug products without OTC drugs that are commonly used in symptomatic relief does not address the bar codes in the same catalogue. The hospitals and dispensed under an order. underlying cause of a disease or comment appeared to suggest that (Comment 11) One comment stated condition and, therefore, is not hospitals could then decide which that we should require bar codes on ‘‘therapeutic.’’ We can avoid such version (i.e., bar coded vs. nonbar Betadine. The comment did not explain potential arguments by not referring to coded) to buy, and the OTC drug why it singled out this particular OTC ‘‘therapeutic’’ use. manufacturer would still be in drug, but stated that including drugs We did not understand the comment compliance with the rule. such as Betadine would allow that referred to a ‘‘rescuer’s order’’ and computerized databases to check for (Response) We interpret the comment did not believe the use of the word to potential allergic reactions. be an appropriate substitute for an as meaning that an OTC drug (Response) Betadine is an iodine ‘‘order.’’ manufacturer may make two versions of solution and an OTC drug product that (Comment 7) One comment suggested the same OTC drug product. Both is commonly used in hospitals, but only that the rule cover OTC drug products versions would use the same drug (in some versions are dispensed under an that are intended to be dispensed intact the same dosage form and strength); order. Thus, under the final rule, only and in the original container as they would differ only with respect to those versions that are both commonly provided by the manufacturer, for use the presence of a bar code on the used in hospitals and dispensed under by inpatients. The comment explained product labels. Under such a scenario, an order would be subject to the bar that this description would cover we agree that the OTC drug code requirement. various OTC drug products and also manufacturer could, indeed, offer both While Betadine has the potential to cover OTC drug products that are the bar coded and nonbar coded cause allergic reactions, it would be ‘‘comfort medications’’ that nurses can versions of the OTC drug product in the impractical to revise this rule to impose request without a physician’s order. same catalogue for hospital and retail a bar code requirement based on a (Response) We decline to adopt the sales, and we would consider the firm drug’s potential for allergic reactions. comment’s suggestion. The comment’s to be in compliance with the rule. For example, an individual might be suggested definition would encompass However, if the OTC drug allergic to a color additive used in a some OTC drug products, such as manufacturer had several different drug; another individual might be mouth rinses and toothpastes, that are versions of an OTC drug product that is allergic to a different drug component. not likely to contribute to medication commonly used in hospitals and Accounting for all potential allergens errors but are nevertheless dispensed dispensed under an order, and the OTC would require additional data to be intact and in the original container to drug manufacturer decided to put the encoded, and it may be difficult to inpatients. bar code only on one product, we might accommodate more data on product (Comment 8) One comment asked us consider the OTC drug manufacturer to labels. to exclude OTC drug samples from the be in violation of the rule. To illustrate, rule. The comment noted that we had assume that the OTC drug manufacturer 3. Must Vaccines Have a Bar Code? excluded prescription drug samples makes three different dosages of a drug: In the preamble to the March 2003 because prescription drug samples are A 50 milligram (mg) tablet, a 100 mg proposal, we invited comment on the usually dispensed in physicians’ offices tablet, and a 200 mg tablet, and it sells risks and benefits of including vaccines and because we did not believe that all three products to hospitals. If the in the rule (see 68 FR 12500 at 12505 physicians or patients would be OTC drug manufacturer placed the bar and 12529). We explained that we were inclined to buy or use bar code code on the 50 mg tablet labels, but not sensitive to possible adverse impacts on scanners. The comment claimed that the on the 100 mg and 200 mg tablet labels, vaccine production and availability. same rationale applied to OTC drug we would not consider the OTC drug (Comment 12) Most comments, samples. manufacturer to be in compliance with including comments submitted by (Response) We decline to amend the the rule. In this scenario, we would individual vaccine manufacturers and a rule as suggested by the comment expect the OTC drug manufacturer to pharmaceutical industry trade because an amendment is unnecessary. put bar codes on the 100 mg and 200 mg association, said vaccines should be The rule requires bar codes only for versions of its product as well. subject to a bar code requirement. Some
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comments also stated that we should participate on bar coding matters, so active ingredient rather than a placebo. require lot number and expiration date there is no public health need to create If the placebo used a different bar code information to be encoded for vaccines, a separate regulatory process for vaccine compared to the investigational new too, because such information is needed bar codes. drug, the different bar code would for accurate medical records. reveal the difference between the 4. What Other Types of Drugs Should Be In contrast, several comments placebo and the investigational new Subject to a Bar Code Requirement? suggested that we consider carefully the drug and introduce bias into the clinical impact of bar coding on vaccines. a. Comments seeking to cover more study. Consequently, we decline to Although these comments did not drug products. (Comment 13) Many require bar codes on investigational new recommend exempting vaccines from comments stated that we should require drugs. the rule, neither did they appear to fully bar codes on all human drugs. Health b. Comments seeking to exclude support bar codes on vaccines. For care professionals and hospitals specific drug products. Although nearly example, one comment said that bar submitted most of these comments, but all comments supported the rule, many codes on vaccines will have minimal the comments frequently gave no comments sought to exempt or exclude impact because most vaccines are rationale for covering all human drugs particular products or classes of administered in physicians’ offices, and or argued that failure to require bar products from a bar code requirement or bar code scanners will not be readily codes on all human drugs would force asked us to create a provision allowing available at those offices. Several hospitals to repack drugs and apply bar case-by-case exemptions. In contrast, comments, submitted by health codes themselves, thereby increasing many comments, submitted mostly by professional societies or organizations, the risk that hospitals might apply the hospitals and individuals, opposed any urged ‘‘caution,’’ stating that a bar code wrong bar code. exemptions or opposed exemptions for requirement could disrupt vaccine (Response) We decline to require bar specific products. supplies and create a burden that codes on all human drugs. By focusing (Comment 15) Several comments exceeded the benefits of bar-coded on prescription drugs and certain OTC asked us to exclude allergenic extracts vaccines. Another comment suggested drug products, the rule covers those from the rule. The comments argued that we create a separate regulatory drugs that are most likely to be involved that allergenic extracts encompass process for vaccines and that we in medication errors. We also note that hundreds of different antigens, are sold ‘‘engage’’ the vaccine industry to the rule should reduce the need for directly to physicians, physician group address data encoding issues. hospitals to put bar codes on drugs. practices, and clinics (or are not (Response) Vaccines are subject to the If we required bar codes on all human commonly used in hospitals) where bar final rule’s bar code requirements by drugs, then some drugs (such as code scanning equipment would not be virtue of being prescription drugs. The samples) would have bar codes even used or where physicians and patients comments did not show that the costs though they are used outside the would have no incentive to buy bar of bar coding vaccines exceeded the hospital setting and in situations where code scanners, and that allergenic benefits, and we note that vaccine the patient is unlikely to have access to, extracts do not always have NDC manufacturers themselves did not or be willing to buy, scanning or reading numbers. Another comment said that indicate that a bar code requirement equipment to read the bar code. Other allergenic extracts are unique and would adversely affect vaccine drugs, such as certain toothpastes, tailored to each patient, so a production or supplies. mouth rinses, and even homeopathic manufacturer that had to comply with We decline, however, to require drugs (which are ‘‘drugs’’ under section the bar code requirement would have to inclusion of lot number and expiration 201(g) of the act (21 U.S.C. 321(g)) obtain NDC numbers for each extract, date information in a vaccine’s bar code. would also have to have bar codes even and this process would increase the As we stated in the preamble to the though they are not associated with likelihood of labeling errors. The March 2003 proposal, the costs medication errors. Thus, bar coding all comment also stated that a bar code associated with encoding lot number human drugs is unnecessary and would requirement for allergenic extracts and expiration date information appear not contribute significantly to an overall would be ‘‘unduly burdensome’’ and to exceed the benefits (see 68 FR 12500 improvement in patient safety. expensive; the comment estimated the at 12507–12508). The comments did not (Comment 14) Two comments asked cost of putting bar codes on allergenic provide evidence that would alter the us to require bar codes on extracts to be more than $120,000 for cost-benefit analysis regarding lot investigational new drugs or asked if one firm alone. number and expiration date investigational new drugs are subject to (Response) We agree that allergenic information, so the final rule does not the rule. extracts are used primarily in require such information in the bar (Response) Investigational new drugs physicians’ offices and that physicians code. Nevertheless, as we stated in the have not been assigned NDC numbers and patients are not likely to buy or use preamble to the March 2003 proposal, because the number of investigational bar code scanners. Consequently, we we will not object if firms voluntarily new drugs is constantly changing, and have excluded allergenic extracts from encode lot number and expiration date that constant change would exhaust the the final rule. information (see 68 FR 12500 at 12508). number of available NDC numbers Because we have decided to exempt We also decline to establish a separate quickly. allergenic extracts, we do not find it regulatory process for vaccines. We In addition, bar codes on necessary to address the comments’ presented our concerns regarding bar investigational new drugs also could claims regarding burdens and costs. codes and vaccines in a notice of a result in misleading information or (Comment 16) Some comments asked public meeting (see 67 FR 41360, June compromise the clinical study. For us to exempt products that are packaged 18, 2002) and in the preamble to the example, if the clinical trial involved together (‘‘copackaged products’’). One March 2003 proposal (see 68 FR 12500 placebo controls, and the placebo used comment gave examples of products at 12504 and 12505). This rulemaking the same bar code as the investigational sold with titration packages or sold with process, therefore, has given vaccine new drug, the bar code could mislead different strengths or types in a package manufacturers and other interested the computerized database into or carton that are used together. The parties ample notice and opportunity to believing that the patient received an comment explained that each
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component could have its own NDC rather, are used to administer medical Current Good Manufacturing Practice number, and asked what NDC number gas to multiple patients. Because of for Medical Gases’’ (68 FR 24005, May would be used for the copackaged these factors, which are unique to the 6, 2003), as well as a ‘‘Compressed product. administration of medical gases, we Medical Gases Guideline’’ (February (Response) Even if two products are believe that bar codes are not the best 1989). We intend to continue to evaluate packaged together, and each product has way to address medication errors medication errors associated with its own NDC number, the copackaged associated with medical gases. medical gases, and, as necessary, we product would have its own distinct We disagree with the arguments may propose a regulation to reduce or NDC number. Thus, in the comment’s regarding the number of medical gas prevent those errors. example, the NDC number in the bar medication errors and the existence of (Comment 18) Two comments focused code would reflect the copackaged adequate safeguards against such errors. on contraceptives. One comment asked product and be distinct from the NDC The comments state that there have us to exempt oral contraceptives. The numbers for the individual products, been very few medical gas medication comment stated that it will be difficult and so there is no reason to exclude errors. Low numbers of medication to put bar codes on oral contraceptives copackaged products from the rule. errors, alone, cannot justify an because the tablets are contained in (Comment 17) Many comments asked exemption. For example, if the type of individual blister cells. The comment us to exclude medical gases from the medication error is serious (such as an noted that oral contraceptives also have rule. The comments explained that error that results in death), then it information regarding drug regimen compressed and liquid medical gases would be difficult to justify an compliance and placebos built into the should be exempt from the rule because: exemption on the grounds that a ‘‘low’’ package. The comment added that oral • Gas cylinders are located at a central number of deaths occur. Moreover, we contraceptives are used outside the supply point away from patients (so bar have no basis to establish a threshold or hospital setting. codes cannot be scanned easily); baseline number of medication errors The other comment asked us to • There is no easy way to affix a bar that would determine whether a exclude the Copper T intrauterine code at the quick-connect patient usage particular drug had to comply with the contraceptive and other intrauterine area that would discriminate between bar code requirement. Even if we could devices that are regulated as drugs. The gas manufacturers; establish such a threshold or baseline comment asserted that these products • It is not technologically or figure, that figure would be subject to are inserted into patients by physicians, financially feasible to have bar codes or challenge because health care are used outside hospital settings, and to expect paramedics (who may be professionals are not required to submit present no potential dosage error or administering a medical gas) to use adverse event reports to us; in other administration error. scanners; words, the adverse event reporting (Response) We decline to exclude oral • Cylinders and/or connectors are system can signal the possible existence contraceptives from the rule. Although specific for gases; of a problem, but it cannot reliably oral contraceptives are contained in • Cylinders are color-coded to reduce predict the frequency with which such individual blister cells, those cells are the potential for error; problems may occur. usually placed in a single package with • Gases, unlike other drugs, have We also disagree with the comments’ a single label, so the bar code would go dosages that vary per patient; and claim that current provisions for the on the label rather than on each • There are no known adverse events color-coding of high-pressure cylinders individual blister cell. As for their use, linked to medical gases. sufficiently protect against medication we agree that oral contraceptives are Other comments asked us to exempt errors. At this time, color-coding of used outside hospital settings, but do oxygen and medical gases for home use, high-pressure cylinders is an industry not believe that they are never used in stating that patients are unlikely to have recommendation rather than a hospitals. bar code scanners in their homes, or requirement, so we cannot assume that As for the Copper T intrauterine that, for oxygen, the comment knew of all affected parties will choose to follow contraceptive and other intrauterine no adverse reactions between oxygen the recommendation. Additionally, products, we agree that such products, and other drugs. injuries and deaths have resulted from when used as specified, do not present (Response) We agree that medical administering medical gas from medication error risks in the same gases should be exempt from the bar incorrectly colored high-pressure manner as other prescription drug code requirement. We do not, however, cylinders. products, and we have excluded them agree with all of the comments’ We also disagree with the comments’ from the rule. (These intrauterine arguments for exempting medical gases. claim that medical gas containers have contraceptive products are devices, but We are exempting medical gases from ‘‘unique connectors and valves’’ that are regulated as drugs.) We also note the bar code requirement because we decrease the potential for medication that some hospitals may have additional conclude that bar codes on medical errors. Like color-coding, the use of procedures, such as requiring informed gases are not the best way to address unique connectors and valves is an consent, before these intrauterine medication errors associated with such industry recommendation and not a products are inserted, and those drug products. We agree that, because requirement. Our experience indicates procedures may further reduce the risk medical gas cylinders are most that these connectors and valves can be of error. frequently located at a central supply and have been compromised such that (Comment 19) One comment asked us point away from patients, bar codes incorrect gas has been administered, to exclude cosmetic-drug products would not be scanned easily or in resulting in deaths and injuries. which the comment characterized as not sufficiently close proximity to patients. Although we do not believe that bar being subject to dosage limitations, such We also agree that there is no easy codes are the best way to reduce as anti-dandruff shampoo, deodorants, way to affix a bar code at the quick- medication errors in the administration skin protectants, soaps, and sanitizers. connect patient usage area that would of medical gases, we recognize the need (Response) We decline to amend the differentiate among gas manufacturers, for preventing such errors and have rule as requested by the comment. Most and that the majority of medical gas issued guidance on the matter, products described by the comment cylinders are not patient-specific, but, including a ‘‘Draft Guidance on the would be OTC drug products and
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probably would not be dispensed under verify that a diluent’s amount was produce two different versions of the an order. As a result, such products correct. same product; the version sold directly would not be subject to the bar code • Use of a diluent alone. We have to patients would not have to have a bar requirements. (It is also possible that reports where diluents were code, but the version that is intended for some products, such as soaps, would be administered without the active sale to hospitals will be subject to the considered to be cosmetics rather than ingredient. This error appears more bar code requirement. By requiring the OTC drug products and would also be likely to occur when the diluent and latter version to be bar coded, we will outside this rule.) We reiterate that only drug are removed from their package. In help prevent or reduce medication OTC drug products that are commonly one case where a patient was supposed errors in the hospital. used in hospitals and dispensed under to receive an antibiotic oral suspension (Comment 22) Several comments an order are subject to the bar code which was supplied as a lyophilized asked us to exclude nebules from the requirements. powder in a small bottle and milky rule. (A nebule is a vial or container that (Comment 20) Several comments white diluent in a larger bottle, the holds a drug, usually in liquid form, sought an exemption for diluents. (A patient received the diluent only and before the drug is administered or diluent is an agent, usually a liquid, that not the antibiotic itself. A bar code dispensed in a device called a dilutes a substance (a drug, in this case) could alert a health care professional nebulizer.) The comments explained or makes it less potent or less irritating.) that he or she is administering a diluent that we have been reluctant to approve only. One comment claimed that diluents are • nebules with a label due to concerns not drugs, but acknowledged that some Incorrectly packaged or labeled that labeling components could leach diluents do have NDC numbers. diluents. There have been cases where into the nebule and contaminate the Another comment would not put bar a package was supposed to contain a drug. One comment added that, even if codes on diluents that are packaged diluent and active drug ingredient, but we were to approve a label on a nebule, with another drug product because, the the product was incorrectly packaged so it was unclear how a manufacturer comment asserted, misidentification that it contained two vials of diluent. A could print the bar code. bar code could alert a health care could occur after the diluent has been Another comment asked whether the professional that the package contains reconstituted with the other drug rule should apply to pharmaceuticals only diluents. product. Another comment declared If, as one comment indicated, a packaged with low-density polyethylene that bar codes on diluents should be diluent does not have an NDC number, (LDPE) form fill and seal containers. voluntary and driven by the market an NDC number should be obtained for The comment explained that placing a rather than by regulation. Several other that product. If a diluent is packaged bar code on such products would comments mentioned diluents or drug/ with another drug, then, as we stated in present a drug stability issue. The diluent kits in a list of small products our response to comment 16 of this comment said that if the rule applied to that, in the comments’ view, warranted document, the diluent, the drug, and the these products, then drug manufacturers a waiver from the bar code requirement. copackaged product would each have its would need additional time to comply (Response) We decline to exclude own distinct bar code. Thus, if the with the rule because they would need diluents from the rule. Diluents are diluent were separated from the drug in to conduct stability tests. drugs under section 201(g)(1)(D) of the a copackaged product, the diluent (Response) The comments are correct act if they are intended to be would still have its own distinct bar that printing a bar code on such components of a drug. We are aware of code, and that bar code could be products could introduce volatile medication errors involving diluents, so scanned. impurities into the drug (because the bar codes on diluents might help reduce (Comment 21) One comment asked ink from the bar code could leach into or eliminate such errors. For example, that we exclude drug products that are the drug). We have provided guidance bar codes on diluents could help shipped directly to patients. The on LDPE container closure systems in prevent the following types of comment gave an example of peritoneal ‘‘Guidance for Industry on Inhalation medication errors involving diluents: dialysis solutions and said that an Drug Products Packaged in • Use of the incorrect or improper exclusion would be appropriate because Semipermeable Container Closure diluent. Certain drug products are patients would not be inclined to buy Systems’’ (July 2002). compatible with specific diluents, so and use bar code scanners within their However, we also know that some using the incorrect diluent can homes. The comment also claimed that products may be packaged with a foil compromise patient safety, especially if the product it shipped is not typically overwrap. Consequently, we are the incorrect diluent causes a used in hospitals. granting a limited exemption. We will precipitate to form that is not (Response) We agree, in part, with the not require a bar code on LDPE form fill recognized when the drug is comment. If a prescription drug product and seal containers that are not administered. Some precipitates are not is shipped directly from a manufacturer, packaged with an overwrap, due to the recognizable by the human eye. An repacker, relabeler, or private label potential leaching and contamination incorrect diluent can also be a problem distributor to a patient, then we will not problem. (We do not need to mention if the patient has a particular medical require that product to be bar coded. We nebules in this limited exemption condition (e.g., a diabetic patient agree that patients will not have or be because nebules are LDPE form fill and receiving a diluent consisting of inclined to buy scanners for use within seal containers.) If the product is dextrose in water rather than normal their homes. packaged with an overwrap, then we saline). A bar code could alert a health However, similiar to our response to will expect the bar code to be displayed care professional to the presence of an comment 9 in section II.B.2 of this on the overwrap. A bar code on the foil incorrect or improper diluent. document, if the same prescription drug overwrap (the secondary protective • Use of the incorrect amount of product is marketed to hospitals, then packaging) for individual or multiple diluent. This can cause an incorrect we will expect that drug to have a bar LDPE units will not be in direct contact final concentration of a drug, resulting code. In other words, to use the with the drug product, and the foil in either an overdose or underdose of comment’s example of a peritoneal overwrap will prevent the ink and other the prescribed drug. A bar code could dialysis solution, a manufacturer could impurities from contaminating the drug.
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(Comment 23) One comment asked us example, NRC regulations require, in and nonbar coded versions of Drug X to exclude prescription dental drugs many cases, that radiopharmaceuticals would exist in the marketplace. If Drug from the rule. The comment claimed be administered under a written X’s medication error rate was 5.1 that prescription dental drugs are not directive that ensures verification of a percent in Year C, the drug would, used in hospitals and are applied by patient’s identity before each again, be subject to the bar code dentists in their offices or prescribed for administration (see 10 CFR 35.40(a) requirement. In such circumstances, the home use, so bar codes would not be through (b), and 35.41(a) through (b)). bar code would lose its value and helpful. We believe that NRC regulations reliability, insofar as medication errors (Response) We decline to exclude pertaining to the use of radiation are concerned, because hospitals would prescription dental drugs from the rule. byproducts provide sufficient confront a constantly changing We believe that prescription dental safeguards in preventing medication environment of drugs that have or lack drugs are used in hospitals, so bar codes errors involving radiopharmaceuticals, bar codes, and hospitals would either on prescription dental drugs would help and, because of this alternative not rely on such codes or lose prevent medication errors. regulatory program for these products, confidence in the bar code system. (Comment 24) One comment said we the benefits associated with a bar code (Comment 26) One comment asked should exempt radionuclear drugs from would not justify the costs. whether pharmacy-compounded the rule. The comment explained that Because we have decided to exempt prescription drugs would be subject to the outside containers of radiopharmaceuticals from the bar code the bar code requirement. radiopharmaceuticals are lead ‘‘pigs’’ requirement, we do not need to address (Response) As we noted in the that encase syringes and vials and are the comment’s other claims regarding response to comment 1 of this used to ship radioactive materials. The labeling, packaging, and financial document, under section 510(g) of the lead pigs are recycled, so any bar codes burdens. act, pharmacies: on the pigs would have to be removable. (Comment 25) One comment, which maintain establishments in However, the comment claimed, a submitted by an OTC drug conformance with any applicable local laws removable bar code on the lead pigs manufacturer, asked us to exempt its regulating the practice of pharmacy and would require new labeling or shrink OTC drug products due to their medicine and which are regularly engaged in wrapping equipment, thus leading to a ‘‘distinctive form’’ and ‘‘clear labeling.’’ dispensing prescription drugs or devices, significant financial burden on nuclear The comment said that medication upon prescriptions of such practitioners pharmacies. The comment added that errors for its products (such as ready-to- licensed to administer such drugs or devices radiopharmaceuticals have a low use enemas, suppositories, and to patients under the care of such practitioners in the course of their ‘‘misadministration’’ rate of 30–40 medicated topical creams) are professional practice, and which do not reportable ‘‘events’’ annually compared ‘‘exceedingly rare.’’ manufacture, prepare, propagate, compound, against more than 14 million nuclear (Response) We decline to exclude or process drugs or devices for sale other medicine procedures in 2002. The OTC drug products that purport to have than in the regular course of their business comment also claimed that a bar code a ‘‘distinctive form’’ and ‘‘clear of dispensing or selling drugs or devices at would require nuclear pharmacies to labeling.’’ A product’s ‘‘distinctive retail amend their Nuclear Regulatory form’’ and labeling do not preclude the do not have to register their Commission (NRC) Agreement State possibility of drug interactions, wrong establishments or list their products licenses because the licensing authority drug, wrong dose, wrong route of with FDA. Thus, a pharmacy that would have to approve all labeling administration, or other types of compounds drugs in accordance with changes. medication errors. this provision would probably fall (Response) We agree that We also decline to exclude OTC drug outside § 201.25(a) and compounded radiopharmaceuticals prepared at products, or even prescription drug drugs made by that pharmacy would not nuclear pharmacies should be exempt products, from the rule even if their have to bear a bar code. from the bar code requirement. The potential for medication errors is We also note that pharmacy- comment correctly stated that ‘‘exceedingly rare’’ (as the comment compounded drugs do not have NDC radiopharmaceuticals have a low claimed). We have no basis to establish numbers. misadministration rate. According to a threshold or baseline medication error (Comment 27) Several comments NRC data, the number of reportable rate that would determine whether a focused on drugs in small vials or medical misadministrations of product should have a bar code, and containers. Comments from several drug radiopharmaceuticals has been in the even a ‘‘low’’ medication error rate manufacturers and a trade association range of 32 to 42 out of more than 14 could result in death or harm to suggested that we exempt small vials million administrations per year for the patients. Furthermore, if we linked the and/or small containers from the rule, last 5 years. The highest number of bar code to a drug’s medication error and several of these comments reportable misadministrations occurred rate, the result could be that a drug mentioned 5 milliliter (mL) vials, in 1998, when there were 42 reportable might be bar coded at one time if its suppositories, small ophthalmic events; this represented the highest total medication error rate exceeded the containers, prefilled syringes, and since the NRC began collecting data threshold, but not bar coded once the blister packs as examples of products under the Government Performance and medication error rate fell below that that need an exemption. The comments Results Act of 1992. threshold, and this could create stated that some vials or containers Low medication error rates are not, confusion. For example, assume that the would be too small for a bar code. One however, sufficient to warrant an rule based the bar code requirement on comment suggested exempting vaccine exemption from the bar code a medication error rate of 5 percent. If unit-of-use containers if a manufacturer requirement. Instead, our principal Drug X had a medication error rate of demonstrated an inability to apply a bar reason for exempting 5.2 percent in Year A, it would be bar code due to space limitations. radiopharmaceuticals is that NRC coded. If Drug X had a medication error In contrast, several comments strongly regulations pertaining to the medical rate of 4.9 percent in Year B, then it opposed exemptions for small vials and use of radiation byproducts render bar would not be bar coded. However, in all ampules. These comments explained codes unnecessary for patient safety. For likelihood, in Year B, both bar coded that many of these products are high-
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risk medications or that most injectable problems with an exemption provision, document why an alternative regulatory products come in small vials or such as potential arguments as to program or method of product use ampules. Other comments said that whether it was ‘‘feasible’’ to affix a bar renders the bar code unnecessary for liquid medications are more often code and the resources that would be patient safety. For example, as linked to medication errors than solid needed to deal with exemption requests explained earlier in our response to dosage forms, so creating an exemption (id.). Nevertheless, the preamble to the comment 24 of this document, we for vials and ampules would undermine March 2003 proposal invited comment exempted radiopharmaceuticals from the rule’s effectiveness. Other comments on whether we needed to create a the bar code requirement because opposed exemptions for small vials waiver provision and how we could existing NRC regulations on the medical because the absence of a bar code would create a provision that would minimize use of radiation byproducts render the force hospitals to apply bar codes to the the potential for misuse (see 68 FR bar code unnecessary for patient safety. products themselves, and this would 12500 at 12529 (question 8)). Section 201.25(d)(2) provides the create the potential for labeling errors by Most comments opposed a general address to which exemption requests the hospital. exemption or waiver provision. The should be sent. For human drug One comment, submitted by the UCC, comments said we would find ourselves products, the request should be sent to stated that, ‘‘No [UCC] pharmaceutical expending resources to deal with the Office of New Drugs (HFD–020), member has presented the UCC with a exemption requests and that exemptions Center for Drug Evaluation and healthcare product too small for a would cause more harm than good. Research, Food and Drug [Reduced Space Symbology] symbol.’’ Some comments opposed creating an Administration, 5600 Fishers Lane, However, the UCC could not preclude exemption mechanism because they Rockville, MD 20857. For biological the possibility that some small product would prefer to have manufacturers products, the request should be sent to could not be bar coded, although it did repack their products or develop the Office of Compliance and Biologics note that one firm had put bar codes on packaging that would support a bar Quality (HFM–600), Center for Biologics vials as small as 1 mL. The UCC code. Other comments noted that, if we Evaluation and Research, Food and comment also contained attachments exempt various products from the rule, Drug Administration, 1401 Rockville describing how several pharmaceutical hospitals will be forced to bar code Pike, Rockville, MD 20852. manufacturers (Abbott Laboratories, those products themselves, and this We reiterate that we have created this Baxter Healthcare Corp., Pfizer, Inc., could result in labeling errors and general exemption provision to allow us and Aventis Behring) had decided to require hospitals to rely on two different to efficiently and justly address put bar codes on injectable data systems (one for bar codes with products or classes of products that we pharmaceuticals, intravenous solutions, NDC numbers and another for drugs that have not already considered. We and other drug products. the hospital has bar coded itself). (Response) We decline to exempt A few comments suggested that we emphasize that almost all drug products small vials or containers (including create an exemption provision that are capable of bearing, and should in suppositories, prefilled syringes, and would consider requests on a case-by- fact bear, a bar code. We will not other small products for which case basis or would be ‘‘limited.’’ The consider written requests that are based comments sought exemptions). We comments did not suggest how we on other reasons (such as financial agree that the risk of medication errors might prevent misuse of an exemption reasons, a claimed low rate of for these products cannot be ignored, provision. Another comment asked that medication errors, or a claim that the and we also find the UCC’s comments we define an exemption review process. product is somehow unique such that persuasive. If several pharmaceutical (Response) Given the number of medication errors do not occur or rarely companies have already shown their comments we received requesting an occur). Similarly, we will not entertain ability to place a bar code on a 1 mL exemption for a specific product or class written requests seeking an exemption vial, we cannot justify a blanket of products, the fact that the final rule for a particular drug, class of drugs, or exemption for comparatively larger contains certain categorical exemptions group of products when we have products, such as 5 mL vials, and requested by some comments, and our already refused to grant an exemption prefilled syringes. inability to predict every future product for the same drug, class of drugs, or Furthermore, we note that § 201.25(c) or class of products for which an group of products in this final rule. The requires the bar code to appear on the exemption might be justified, we felt it general exemption provision is intended drug’s label. For some products would be prudent to add a general to be used in rare cases. described by the comments, the drug’s exemption provision to the rule. If we refuse to grant an exemption in label appears on an overwrap or Consequently, we have added a new response to a written request, our packaging. Alternatively, it may be § 201.25(d) which states that we may, on decision can be reviewed under our possible to modify the drug’s immediate our own initiative or in response to a existing regulation at 21 CFR 10.75, container to accommodate a label written request from a manufacturer, ‘‘Internal agency review of decisions.’’ repacker, relabeler, or private label bearing a bar code. 5. Should Medical Devices Be Excluded c. Comments seeking a general distributor, exempt a drug from the bar From the Rule? exemption provision. (Comment 28) In code requirement. The exemption the preamble to the March 2003 request, under § 201.25(d)(1)(i), must The preamble to the March 2003 proposal, we explained our reasons for document why compliance with the bar proposal explained that we did not not including a general exemption code requirement would adversely intend to issue any bar code provision (see 68 FR 12500 at 12511 affect the drug’s safety, effectiveness, requirement for medical devices at this through 12512). We noted that industry- purity, or potency or not be time (see 68 FR 12500 at 12506). The conducted pilot studies had placed technologically feasible. The request preamble to the March 2003 proposal reduced space symbology (RSS) bar must also explain why the problem stated that devices present different codes on small vials and that those cannot be reasonably remedied by issues compared to human drug and studies suggested that almost all measures such as package redesign or biological products and that we would products are capable of bearing a bar use of overwraps. Alternatively, under continue to study whether to develop a code. We also pointed out practical § 201.25(d)(1)(ii), the request must proposed rule to require bar codes on
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medical devices to prevent or reduce requirements can be quite detailed. For drugs and create logistical medication errors (id.). example, under § 821.25(a)(2)(iii), a complications for retailers (because (Comment 29) Two comments said we device manufacturer must have a retailers use the UPC codes). Two should reject the device industry’s method of tracking each device that it comments said that requiring OTC drug request for further study and require bar distributes that enables the bar codes to contain the NDC number codes on devices. The comments said manufacturer to give FDA, within 10 would increase the demand on NDC that implantable devices are made to working days of a request from FDA, numbers, increase FDA’s workload, or detailed specifications and sometimes information regarding the name, exhaust the number of available NDC fail, so one could presume that a device address, telephone number, and social numbers. One comment said it should manufacturer would recall defective security number (if available) of the be feasible for a database to handle both devices. The comments added that bar patient receiving the device. NDC and UPC numbers, whereas codes on devices would help create As for voluntary use of UPNs on another comment said that allowing patient records that could be easily medical devices and the use of OTC drug products to continue using searched so that hospitals could EAN.UCC or HIBCC standards, we UPC numbers would make more NDC determine an appropriate course of recognize that some devices already numbers available for other drug action if a patient received an bear a bar code for reasons relating to products and thus benefit the NDC implantable device that was recalled. purchasing or inventory control, and we number system. Other comments argued that we have not objected to their use nor to the Another comment supported the use should examine the benefits of bar code bar code standards used. of the NDC number with four extra labeling on devices or that bar codes digits. The comment said this 15-digit would be helpful on certain devices. For C. What Must the Bar Code Contain? number, called ‘‘NDC Plus Four,’’ would example, one comment said that patient (§ 201.25(c)(1)) identify individual doses and vital safety would be further enhanced by 1. Should We Require the Bar Code to information about the drug, including, applying bar codes to devices such as Contain the NDC Number? among other things, the drug’s lot blood bags, filters, and apheresis kits. number, expiration date, and recall Conversely, one comment agreed with Proposed § 201.25(c)(1) would require status. our decision to omit devices from the the bar code to contain, at a minimum, Another comment asked us to change rule. The comment said that devices the drug’s NDC number. The NDC the NDC number so that it contained a present ‘‘unique’’ issues, such as number identifies each drug product drug’s expiration date. product diversity, evolving coding that is listed under section 510 of the act (Response) We decline to amend the technology, and unique product or section 351 of the PHS Act. rule as suggested by the comments. The identification needs that are often (Comment 30) Two comments UPC code does not necessarily identify negotiated between customers and claimed that their products, allergenic a unique drug product. For example, if device manufacturers. The comment extracts, do not have NDC numbers. The an OTC drug manufacturer made and recommended that we allow for comments stated, as part of a request to sold a particular drug product, that drug voluntary use of Universal Product have allergenic extracts excluded from product would have a UPC code, and it Numbers (UPNs) on devices in either the rule, that FDA has allowed generic would also have a unique NDC number. the European Article Number/Uniform groupings for allergens under one NDC If the OTC drug manufacturer Code Council (EAN/UCC) or Health number. The comments added that they reformulated the product (such as Industry Business Communications market nearly 200 to 300 allergens in changing an ingredient), the Council (HIBCC) standard. The four different package configurations manufacturer could use the same UPC comment explained that the UPN each, so, if allergenic extracts had to code for the reformulated product, but system is established and provides carry bar codes, the firms would need the reformulated drug would have a greater consistency with global from 800 to 1,200 new NDC numbers different, unique NDC number. This identification trends compared to the respectively, and this would have could be significant to a patient’s health NDC number. ‘‘enormous’’ implications for the firms if, for example, the reformulated (Response) We decline to include and FDA. product contained an ingredient that devices in the final rule. Unlike drugs, (Response) As we stated in our caused allergic reactions or drug medical devices do not have a response to comment 15 in section interactions. Thus, requiring the use of standardized, unique identifying system II.B.4.b of this document, we have NDC numbers, rather than UPC comparable to the NDC number. (There excluded allergenic extracts from the numbers, will help ensure that the drug is a National Health Related Items Code rule. As a result, issues regarding NDC is identified correctly. (NHRIC) system for identifying and numbers for allergenic extracts are Additionally, as we stated in the numbering marketed medical device moot. preamble to the March 2003 proposal packages, but participation in the (Comment 31) Several comments (see 68 FR 12500 at 12507), we intend, NHRIC system is voluntary, and the focused on the NDC number itself. One through a separate rulemaking, to database may contain out-of-date comment said that the NDC number change the NDC number so that it information due to industry acquisitions contains the necessary information for becomes a unique identifying number and mergers.) The absence of a standard, bar code purposes. However, several for listed drugs. If we were to allow the numerical identification system comments argued that OTC drug use of other coding systems, such as comparable to the NDC number is one products should be allowed to use the UPC numbers that did not contain the of several issues that complicate efforts Universal Product Code (UPC) number drug’s NDC number or an NDC number to put bar codes on medical devices for either instead of or in addition to the with additional digits, persons who purposes of preventing or reducing NDC number. Some comments said that wanted to decipher a drug’s bar code medication errors. OTC drug manufacturers would incur would need to consult multiple We also note that permanently thousands of dollars of ‘‘unnecessary information sources, and this would implantable devices are subject to our extra ‘new item’ costs’’ because different increase the likelihood that some device tracking requirements at part 821 NDC numbers would be necessary for information and databases might not be (21 CFR part 821), and those new, minor formulation changes to their updated as frequently as others, that
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some information might be unavailable, different NDC numbers. One comment number. Another comment said that we or that the information would be said that the proposed rule failed to did not need to redefine the NDC presented in different or incompatible explain how repackers will distinguish number because the GTIN would ways. Although we understand the OTC a repacked product from the original provide ‘‘sufficient direction.’’ drug industry’s reservations about manufacturer’s package. The comment (Response) As we stated in the changing UPC codes to include NDC suggested that manufacturers use certain preamble to the March 2003 proposal, numbers because of a possible cost digits to signal the presence of an we intend to revise our drug impact, § 201.25(b) only requires bar original manufacturer’s package and establishment registration and listing codes on OTC drug products that are that repackers use other digits to regulations to make the NDC number dispensed under an order and are identify repackaged products. The unique and more useful to informational commonly used in hospitals. comment said we should require databases, whether those databases are Furthermore, as we stated in our repackers to have a manufacturer’s created to prevent medication errors, to response to comment 9 of this identification number. obtain the latest information about a document, we will allow OTC drug The other comment asked that we drug, or to track drug use and manufacturers to create bar coded and ensure that hospitals do not use the distribution. We are still preparing the nonbar coded versions of the same OTC manufacturer’s NDC codes when proposed rule, and when we publish it drug product; the bar coded versions, repacking a drug. in the Federal Register, we will invite which would be intended for hospital (Response) As we stated in our comment on our proposed NDC number sale and use, would carry the NDC response to comment 2 of this changes. Until we revise our drug number in the bar code. The versions document, if a repacker, relabeler, or establishment registration and listing intended for retail sale could continue private label distributor is subject to the regulations, the current requirements at to use the UPC code. establishment registration requirement § 207.35 continue to apply to the NDC We also decline to revise the NDC at section 510 of the act, then that number. number to include expiration dates or to person is also subject to the bar code We also must point out that, even add more digits to the NDC number. requirements and must use its own NDC under a proposed drug establishment Revising the NDC number is outside the numbers on its products. In other registration and listing rule, assuming scope of this rule. Furthermore, words, a manufacturer, repacker, there is no change in the product or expiration dates vary with each new relabeler, or private label distributor packaging, we do not intend to replace batch or production run, so if we were cannot and should not use an NDC currently-used NDC numbers. For to revise the NDC number to include number that is not assigned to it. Use of existing NDC numbers, we would expiration dates, we would quickly another establishment’s NDC number in consider issuing a new number to an exhaust the number of available NDC the bar code would cause the product to existing drug product only if there were numbers and be forced either to redefine be misbranded under section 502(a) of two drugs that had the same NDC the NDC number or develop an the act because the drug’s label would number. alternative system relatively quickly, be misleading. (Comment 34) One comment and other databases that relied on the Hospitals, though, are exempt from criticized the NDC number, stating that NDC number would also be forced to the establishment registration it cannot tell whether the right dose is adapt or develop new systems requirements. Consequently, hospitals being administered because the actual themselves. Restructuring the NDC themselves are not subject to the bar dose may be a partial dose or multiple number in this manner would, code requirement, and we consider drug doses of the drug identified by the bar therefore, be impractical and costly. repacking and dispensing operations code. The comment said this reflected a Similarly, adding more digits to the inside hospitals to be within the technological limitation with NDC NDC number might be disruptive for practice of pharmacy. numbers, so the comment suggested that those databases that already use or rely (Comment 33) Several comments the computer systems used to document upon the NDC number. Those databases addressed possible changes to the NDC drug administration alert users and would either have to reconfigure number. The preamble to the proposed require manual intervention by health themselves to handle 14-digit numbers rule stated that we intended to redefine care professionals to verify doses. (assuming all preexisting NDC numbers the NDC number through a proposed (Response) The comment is correct were modified to contain 14 digits) or rule on drug establishment registration that the NDC number may have certain reconfigure themselves to handle 10- and listing (see 68 FR 12500 at 12506). limitations when different dosages are and 14-digit NDC numbers (assuming Most comments opposed any administered from a single package or that preexisting NDC numbers remained redefinition of the NDC number. One when partial dosages are administered. the same, but new drugs would receive comment said that redefining the NDC For example, assume that a drug’s a 14-digit number). Such number would create confusion, package contains 20 tablets. The drug’s reconfigurations could be expensive for possibly harm patients (although the NDC number will reflect the fact that those who maintain the databases and comment did not explain how such the package contains 20 tablets. If the those who use them. A 14-digit number harm would occur), and undermine the drug administered to the patient could also be either redundant or bar code rule. Other comments said that consists only of one tablet, then confusing in comparison to the Global redefining the NDC number would be scanning the NDC number for the Trade Item Number (GTIN). As the costly and disruptive to various package alone will not show the correct preamble to the March 2003 proposal databases that rely on or use NDC dose given to the patient. The NDC mentioned, the GTIN is a 14-digit numbers. One comment said that we number’s principal value, in this number which, when used in a bar code should not make a final bar code rule scenario, is verifying that the correct on drug products, contains the NDC effective until the drug industry has had drug in the correct dosage form is being number in conjunction with a code that the opportunity to understand and administered. As another example, identifies the product’s packing level comment on any changes to the NDC some drug product labels do not state (see 68 FR 12500 at 12506). number. A different comment said we pediatric dosages, so a physician might (Comment 32) Two comments asked should consult various ‘‘stakeholders’’ prescribe a partial dose for a pediatric us to ensure that different parties use before we make changes to the NDC patient. In this scenario, the NDC
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number’s principal value is verifying time to encode such information. at production line speeds of 250 to 300 that the correct drug, in the correct Another comment urged firms to encode units per minute. A different comment dosage form, is being administered. lot number and expiration date listed various problems associated with Regarding the comment’s suggestions information, but only if the costs were online printing of lot number and concerning computer systems, we agree not passed on to hospitals. expiration date information, such as that it could be helpful if a Other comments advanced different adverse impacts on line speed and print computerized database alerted health arguments for requiring lot number and quality, the need to develop unique bar care professionals to check dosages expiration date information as part of a codes for each packaging run, and given to patients. However, we do not bar code. For example, one comment limiting packaging options until intend to create, maintain, or regulate stated that the American Society of printing and packaging technology the databases that scanning equipment Hospital Pharmacists and others want becomes capable of supporting online would consult to decode NDC numbers, lot number and expiration date product speeds and adequate print so we advise parties to consider this information encoded, and so we should quality. issue when they develop computer defer to them. Several comments said Another comment said we were systems associated with scanners to manufacturers should encode such correct to omit lot number and decode the NDC numbers. information because they could do so at expiration date information from the less cost compared to hospitals. rule because it would make bar coding 2. Should the Bar Code Contain Lot Several comments advocating the more complex and perhaps discourage Number and Expiration Date inclusion of lot number and expiration manufacturers from making unit-dose Information? date information in a bar code argued packages. The comment, along with The March 2003 proposal would not that technology could encode such other comments opposed to requiring require the bar code to contain the information. For example, one comment lot numbers and expiration dates in a drug’s lot number or expiration date. In claimed that the information can be bar code, shared our view that the the preamble to the March 2003 easily encoded using two-dimensional market would determine whether proposal, we explained that we were symbologies and noted that some manufacturers and others encode lot unable to show that the benefits manufacturers plan to encode such number and expiration date information associated with encoding lot number information voluntarily. Another voluntarily. and expiration date information comment noted that the GTIN, rather One comment suggested that, if we exceeded the costs, so we proposed to than the NDC number alone, could be decide to require lot number and omit lot number and expiration date used to provide additional patient safety expiration date information to be information from the bar code (see 68 information. Another comment declared encoded, the information should only FR 12500 at 12507). However, we also that encoding lot number and expiration go on shipping cartons and not on said that we would not object if drug date information could be inexpensive individual packages because this would manufacturers, repackers, relabelers, because, the comment noted, firms reduce the manufacturer’s costs. and private label distributors decided to already print the same information, in The comments also disagreed on how encode lot number and expiration date human-readable form, on packages. to interpret our recall data. The information voluntarily (id. at 12508). In contrast, other comments preamble to the proposed rule stated We stated that industry representatives supported our decision to omit lot that we had examined the number of had suggested that they might add such number and expiration date information recalled drugs from fiscal year 1997 information if a demand existed for it from the rule. Several comments through fiscal year 2002 and that, while (id.), but we did not know whether conceded that the information could there were 1,230 recalls during that time hospitals and other health care facilities help trace recalled drugs and help with period, there were few reports of would be willing to pay more for drugs product inventory, but said that the adverse experiences associated with the that had lot number and expiration date information would not significantly administration of a recalled drug (see 68 information encoded in the bar code. reduce medication errors and that the FR 12500 at 12507). One comment said We invited comment on the costs and costs of encoding the information would this data supported inclusion of lot benefits associated with putting lot exceed the benefits. For example, one number and expiration date information number and expiration date information comment estimated that encoding lot in the bar code because Class I recalls in the bar code. number and expiration date information represent a reasonable probability that (Comment 35) Many comments urged would cost $7,500 to $20,000 per the use or exposure to the drug will us to require lot number and expiration manufacturer’s line, excluding costs to cause serious adverse health date information in the bar code, but did verify the information. Several consequences or death, and 97 of the not provide evidence to support their comments expressed concerns about the 1,230 recalls were Class I recalls. In views. Instead, most comments declared impact on production line speed. For contrast, a comment that opposed that lot number and expiration date example, one comment said that the inclusion of lot number and expiration information would make it easier to online printing equipment that would date information in the bar code said the identify recalled, contaminated, and be needed for encoding lot number and data were not sufficient to show any expired drugs, would improve entries expiration date information is ‘‘highly public health problem resulting from into medical records, or would provide ineffective and unreliable’’ at the administration of recalled or expired greater patient safety. Other comments production speeds above 120 units per drugs. said we should phase-in a requirement minute and that alternatives, such as (Response) The final rule does not to encode lot number and expiration preprinting labels, would present require lot number or expiration date date information over an extended time serious good manufacturing practice information to be included in the bar period, but did not discuss why a (GMP) concerns in verifying that the code. As we stated in the preamble to phased-in approach would alter the right label with the correct lot number the March 2003 proposal, the data cost-benefit problem that we identified and expiration date is used on the available to us do not indicate the in the preamble to the proposed rule. correct product. Another comment said magnitude of the public health problem Some comments would extend the that online printing and verification associated with administering expired rule’s effective date to give firms more technology has not been demonstrated or recalled drugs, and we cannot
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quantify the patient safety benefit brand name and number of units in a number or control number and associated with requiring lot number vial. The comment recognized that manufacturer’s, packer’s, labeler’s, or and expiration date information in the encoding the number of units in a vial distributor’s name) if the packaging size bar code (see 68 FR 12500 at 12507). might be difficult, but said that persons is such that the required information is The potential burden of encoding lot with hemophilia and other bleeding not easily readable. number and expiration date information disorders often carry vials, but not One comment sought clarification appears to outweigh the potential package boxes that contained the vials, regarding a label requirement imposed benefit of encoding such information. with them. It added that the additional by another Federal agency. The We emphasize that we do not dispute information would provide better comment claimed that the Consumer whether encoded lot number and information about the product’s Product Safety Commission (CPSC) has expiration date information would be efficacy, i.e., whether the patient a regulation that requires drug products helpful in certain contexts that are achieved the expected hemostatic labeled for hospital use only to also bear unrelated to medication errors. We also response given the units administered. a statement regarding use in households do not dispute that the technology exists Several comments asked that we without young children. to encode such information or that require the bar code to indicate the Several comments focused on small certain firms have expressed their intent drug’s waste disposal status under the labels. One comment stated that to encode such information. Resource Conservation and Recovery excluding ‘‘some’’ label information Nevertheless, while we recognize the Act (RCRA). The comments explained would help print high quality bar codes; strong desires expressed by some that medical personnel might not know the comment identified the regarding lot number and expiration that a particular drug, when it becomes manufacturer’s or distributor’s name date information, we must also a waste product, is regulated under and address as information that it would recognize the potential impact on RCRA. Some comments suggested that exclude from a label. Similarly, another manufacturers, repackers, relabelers, the drug’s waste disposal status could comment would remove the and private label distributors if we be identified by adding another digit to manufacturer’s name from the label required them to encode lot number and the NDC number. One comment because, the comment explained, the expiration date information. The suggested that we coordinate with the manufacturer’s name is on the outer evidence before us indicates that the Environmental Protection Agency to package and is part of the NDC number. costs associated with encoding lot capture a drug’s hazardous waste Another comment stated that the only number and expiration date disposal status. way to create room for a bar code on a information, insofar as medication (Response) We decline to revise the small label would be to reduce font size, errors are concerned, exceed the rule as suggested by the comments. The but the resulting print would be difficult benefits, so we decline to require such NDC number, under a bar code system, to read. information as part of the bar code. is a link to information held in a (Response) We decline to amend the We reiterate that we will not prevent database. For example, assume that the rule as suggested by the comments. In or prohibit firms from encoding lot bar code contains the drug’s NDC most cases, the information that the number and expiration date information number. The scanner reading the bar comments would remove from the label if they wish to do so, and we note that code would transmit the NDC number to is required by Federal law, so we are some drug manufacturers are encoding a computerized database, and that unable to provide the relief sought by or intend to encode such information. database could be designed to generate the comments. For example, section We also remind hospitals and other information regarding the drug’s names, 502(b)(1) of the act considers a drug to potential bar code users that lot number dose, concentration, route of be misbranded if it is in package form and expiration date information may be administration, waste disposal status, and its label does not contain ‘‘the name encoded in two-dimensional or other etc. In other words, the information and place of business of the technologies, so if they intend to sought by the comments could be built manufacturer, packer, or distributor.’’ purchase drug products with lot number into a database and does not have to be Section 502(b) of the act does not and expiration date information encoded in the bar code itself and does authorize any exemptions from this encoded, they should consider carefully not require changes to the NDC number. requirement, so we cannot delete such their scanning or reading equipment information from the label simply to 3. Can Information Be Omitted From the purchases (see 68 FR 12500 at 12507). accommodate a bar code. Similarly, (Comment 36) Several comments Label to Accommodate the Bar Code? section 502(e)(1)(A)(i) of the act would require other information to be (Comment 37) Several comments considers a drug to be misbranded if its encoded. For example, one comment suggested that we allow firms to exclude label does not bear the drug’s said we should require the bar code to certain information from their labels so established name, so we cannot allow contain information regarding the drug’s that they could affix a bar code. Some firms to exclude the drug’s established concentration, amount, and route of comments sought relief from the name from the label. Additionally, administration. The comment explained labeling requirements at § 201.10(i) (21 section 351(a)(1)(B) of the PHS Act that information on the drug’s CFR 201.10(i)); that provision requires requires the package of a biological concentration and amount could drug labels to contain the drug’s product to be marked with the product’s prevent errors involving concentration proprietary name, established name (if proper name, the name, address, and or overdose. It explained that one exists), an identifying lot or control applicable license number of the information regarding the drug’s route number, and the manufacturer’s, product’s manufacturer, and the of administration could be helpful packer’s, labeler’s, or distributor’s name. product’s expiration date. because, the comment claimed, some One comment suggested amending Furthermore, because the rule does drugs are not to be administered § 201.25(c), regarding the bar code’s not require lot number and expiration intravenously or as major nerve placement on a label, to state that any date information to be encoded, we anesthetics. Another comment focused drug complying with the bar code decline to allow firms to remove the on clotting factor products and wanted requirement is exempt from human-readable lot number and the bar code for these products to § 201.10(i)(1)(iii) and (i)(1)(iv) expiration date information from the contain (among other things) the drug’s (provisions regarding the identifying lot label.
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As for the comment seeking to read and scan the bar codes,’’ and it or to symbols that would be marketed in clarification of CPSC requirements, such urged us to evaluate and promote new addition to the two-dimensional matters are outside the scope of this rule and emerging technologies ‘‘only as they symbology. Other comments suggested and outside FDA’s jurisdiction. become more readily available, and using two-dimensional symbologies in easily embraced by end users.’’ conjunction with linear bar codes, with D. Does the Rule Require a Specific Another comment said we should the two-dimensional symbology Type of Bar Code? (§ 201.25(c)(1)) require the bar code to meet certain encoding lot number and expiration 1. Should the Rule Require Linear Bar ‘‘attributes;’’ the comment explained date information. Codes? that this would provide some flexibility • The EAN/UCC system generally, on Proposed § 201.25(c)(1) would require (although it did not explain what the the grounds that the EAN/UCC system attributes would be or what that the bar code to be a linear bar code that is widely used for drug products, has flexibility was) while still ensuring a meets EAN/UCC standards. The defined data structures, is used minimum standard. The comment preamble to the March 2003 proposal internationally, and would be less added that the standard should be one discussed, in some detail, how we expensive compared to a regulatory that does not require hospitals to spend decided to propose the use of linear bar approach that imposed no standard. significant amounts of money to replace codes and described the tension However, other comments opposed the scanning equipment that would between trying to create a bar code EAN/UCC system, declaring it to be otherwise be acceptable for use. Two requirement that would enable hospitals ‘‘obsolete,’’ or declaring that selecting comments submitted by drug to buy scanning equipment with the the EAN/UCC would serve no purpose, manufacturers expressed a similar confidence that their purchased would violate unspecified Federal laws, opinion, stating that we should allow or would create a ‘‘monopoly’’ for the equipment would not be rendered firms to use any linear bar code obsolete by new technology and trying UCC. (We discuss comments on the symbology so that firms could pick the EAN/UCC standard and HIBCC to create a bar code requirement that symbology that best fits their needs. offered some room for technological standards in more detail in comment 41 One comment agreed with our of this document.) innovation (see 68 FR 12500 at 12508 proposal to require linear bar codes, but • Radio frequency identification through 12510). We also invited asked whether this included chips. Some comments advocated the comment on whether we should multidimensional codes. The comment consider the use of another symbol, claimed that multidimensional codes use of these chips and claimed that such standard, or technology, either with or are several thinly-stacked linear codes. chips could be an alternative to or used in place of a linear bar code, the It added that, while older bar code with the bar code and can be ‘‘highly acceptance of that other symbol, scanners might not be able to read effective’’ at identifying individuals and standard, or technology among parties multidimensional codes, we should not animals in a cost-effective manner. One that would be subject to the rule, and be concerned about older scanners comment noted that we had mentioned the ability of hospitals to read or use because most hospitals would not have the comparatively high costs associated other symbols, standards, or scanners (and therefore would not need with radio frequency identification technologies (id. at 12510 and 12529). upgrades) or that hospitals with older chips, but said we should not reject the (Comment 38) Many comments scanners could upgrade those scanners. chips on cost grounds alone. It said the addressed the subject of linear bar Most comments, however, argued pharmaceutical industry and health care codes. Several comments indicated the against the use of linear bar codes or providers should have the flexibility to rule should require the use of linear bar asked us to encompass other choose identification techniques that are codes because of their widespread use technologies or to eliminate any the most suited to a product or clinical and because hospitals that are currently reference to linear bar codes in the final setting. The comment added that if we printing and scanning bar codes might rule. Many comments claimed that the required the use of a particular be unable to upgrade their technology to rule would discourage or inhibit technology, we would create a conflict support nonlinear technologies. One technological innovation, although they with our GMP principles because our comment stated that our decision to differed as to their preferred alternatives GMP regulations do not require use of require linear bar codes was ‘‘brilliant’’ to a linear bar code. For example, one a particular piece of equipment, and we and that our logic was ‘‘impeccable.’’ comment said laws and regulations would be creating a disincentive for Another comment said that linear bar should encourage technological industry to develop more cost-effective codes could be used as an initial innovation, but did not explain why our identification systems. requirement and that technology particular rule had to do so. Comments • No standard or symbology at all. currently installed in most hospitals opposed to a linear bar code These comments advocated the use of cannot be upgraded to support requirement generally advocated the ‘‘open’’ or ‘‘machine-readable’’ nonlinear technologies. The comment following alternatives: requirements so that market forces added that if we required nonlinear bar • Two-dimensional symbologies, on would decide which technologies codes, hospitals could face significant the grounds that such symbologies can would be used. One comment added costs, and those hospitals that had be used on small packages, require less that the use of nonlinear codes would already implemented linear bar code space compared to linear bar codes, can make linear bar codes technologically systems would be penalized. Another encode more data than a linear bar code obsolete by the time the final rule comment said that many applications of (although the comments usually did not became effective. Another comment said currently-used linear bar code systems explain why more data capacity was we should require ‘‘automatic are appropriate for suppliers and end needed), or can be placed on solid identification’’ instead of bar codes. users. The comment, which was dosage forms themselves. Some Another comment suggested that submitted by a supply company for two comments specifically mentioned manufacturers, repackers, and relabelers large, not-for-profit hospital alliances, DataMatrix as a recommended be allowed to customize symbols to added that it shared our concern that symbology, whereas others referred to meet customer needs, although the ‘‘technologies/standards not be so symbols or systems created or marketed comment did agree that the NDC advanced that hospitals are then unable by the firm who submitted the comment number should be present.
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Comments were also divided on Each theme has its advantages, mature and established. Our decision to scanner technology. Most comments disadvantages, and assumptions. For retain the linear bar code requirement that addressed scanner technology example, linear bar codes have the rests largely on the following declared scanner technology to be a advantage of being a proven, established considerations: ‘‘non-issue’’ because, they claimed, technology that is easily recognized and • Linear bar codes are an established scanners can automatically discriminate easily used. They may also be less and proven technology. They are widely between linear bar codes and can be expensive than newer, emerging used in many sectors, and we are reprogrammed or updated to read technologies, and are capable of unaware of any significant problems specific codes and even complex codes. encoding the NDC number. However, associated with linear bar codes and One comment stated that the adoption linear bar codes have several their scanners. In contrast, new rate of two-dimensional image readers is disadvantages, too, as they offer limited technologies, such as the radio increasing and that such readers are opportunity for innovation and may frequency identification chip, are still becoming popular and less expensive. take up more label space than newer being developed or refined, and we do Others declared that high-resolution technologies. They also may encode less not know, at this time, whether or when scanners can read both one- and two- data compared to other technologies. those new technologies have or will dimensional symbologies and predicted Thus, if we were to require more data have widespread acceptance or become that scanner manufacturers and to be encoded on the packaging or standardized, or whether the equipment suppliers would become very attentive labeling for any other reason (such as to used to detect or read those new to customer needs, so that scanner allow tracking and tracing of drug technologies will present any safety or prices would fall. One comment said we products through the drug distribution regulatory issues. For example, we do should not be concerned about hospital system), a linear bar code might prove not know whether the equipment costs at all or not consider such costs as too limiting. needed to detect radio frequency limiting the industry’s technological In contrast, a position that advocates identification chips will present EMI or options; the comment argued that our innovation, with or without identifying EMC issues for other devices that are consumer safety mandate precludes a particular technology, has the used inside hospitals. financial considerations, and claimed potential advantages of encoding more • Linear bar codes are easily that the OTC drug industry ‘‘rises to the data in a smaller space and perhaps recognized and easily used or applied. financial challenges presented by accommodating new technologies as Most individuals can identify a linear government regulations.’’ The comment they arise without any additional bar code quickly and can scan it without noted that the rule does not require rulemaking. The disadvantages, much training. For example, various hospitals to buy scanners, so the however, would include the grocery store chains have installed ‘‘self- comment said, ‘‘it seems irrational to possibilities that new, emerging scan’’ stations where consumers scan tailor these requirements based upon technologies may be unproven, not the bar codes on their purchases what hospitals may or may not do to widely accepted, or present unknown themselves; the consumers are able to ensure the safety of their patients.’’ risks. For example, current radio do this with little or no training. In In contrast, two comments indicated frequency identification chips may have contrast, two-dimensional symbologies that technological limitations do exist. less reliable read rates than a linear bar come in different shapes and sizes, and One comment agreed that scanners can code, and we do not know whether the they can be smaller than linear bar read different symbologies, but said that equipment needed to detect such chips codes. As a result, individuals might not printing technology, particularly with will present EMI issues for other recognize two-dimensional symbologies respect to variable information (such as medical devices in the hospital as quickly and might not even recognize lot number and expiration date), does environment. As another example, them as encoding data. If the rule not exist for high-speed, online printing. failure to prescribe a specific technology allowed any ‘‘automatic identification’’ Another comment said that technology might deter hospitals and other technology, then the risk that currently installed in most hospitals potential users from buying scanning or individuals might not recognize the cannot be upgraded to support reading equipment because there would technology or lack the proper nonlinear symbologies; the comment be no assurance that drug manufacturers equipment to read that technology said that if we required nonlinear bar would use the same or compatible would increase. codes, hospitals could incur significant technologies. As yet another example, • Although most comments opposed costs, and those who had adopted bar requiring ‘‘automatic identification’’ of the proposed linear bar code code systems earlier would be the NDC number could lead some requirement, they failed to agree on ‘‘penalized.’’ manufacturers to develop their own, alternative technologies. For example, (Response) The comments reflect the exclusive identifiers, and individuals some comments supported two- same array of differing opinions that we might not recognize those identifiers, dimensional codes, particularly encountered at the public meeting and particularly if those identifiers are very DataMatrix, but others supported radio described in the preamble to the March small, not widely used, or placed under frequency identification chips. Some 2003 proposal (see 68 FR 12500 at the product’s label. Thus, if we were to comments endorsed products that a 12508 and 12509). As we noted in the revise the rule to promote innovation, specific company had created, while preamble to the March 2003 proposal, with or without identifying a particular others suggested that we simply require there are two principal, yet technology, hospitals and other ‘‘automatic identification’’ technology. contradictory, themes. One theme potential users might be reluctant to We believe that if the rule is to result advocates a specific technology or purchase scanning or reading in any significant benefits, it must standard to promote uniformity and to equipment, and the rule’s benefits specify a technology so that hospitals create the conditions under which would not be fully realized. and other interested parties can hospitals could invest confidently in After reviewing the comments, we purchase the correct scanning or reading their bar code scanning equipment. The have decided to retain the linear bar equipment. We do not agree with the other theme advocates innovation so code requirement, but will consider comment that claimed it would be that newer and perhaps better revising the rule to accommodate newer ‘‘irrational to tailor these requirements technologies might be adopted easily. technologies as they become more based upon what hospitals may or may
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not do.’’ The rule’s expected benefits are rule does not affect the development or that a particular type of thin, one- realized only if hospitals accept and use adoption of such ‘‘track and trace dimensional codes that are stacked bar code technology. Therefore, we technologies.’’ Moreover, the final rule’s upon each other is still a ‘‘linear bar consider it prudent to consider what underlying purpose (prevention of code’’ and intends to use that stacked hospitals may or may not do when medication errors) is distinct from the code, that stacked code must be capable prescribing a regulation that is intended purposes underlying anti-counterfeiting of being read clearly by scanning or to benefit hospitals and their patients. efforts (preventing the introduction of reading equipment in the same manner We also disagree that the rule counterfeit drugs, facilitating as conventional linear bar codes to fall prevents or otherwise hinders identification of counterfeit drugs, within § 201.25(c). innovation. Automatic identification minimizing consumer risk and exposure Finally, regarding one comment’s technologies are useful in other to counterfeit drugs, and avoidance of claim that a linear bar code requirement contexts, such as retail environments, unnecessary costs on the prescription would create a conflict with our GMP and are used on many different drug system). For example, in the principles and will create a disincentive consumer goods. In other words, the fact medication error prevention context, the for industry development of other that the final rule requires the use of goal is to ensure that the right drug, in identification systems, we disagree. The linear bar codes does not mean that all the right dose and right route of linear bar code is not a manufacturing progress on other automatic administration, is given to the right process; it is instead the visual identification technologies must stop, patient at the right time, so requiring a representation of information. To use an nor does it mean that innovative bar code on a unit-dose product is both analogy, we require labels to use the automatic identification technologies necessary and appropriate, but English language except where the cannot be used on other products. information regarding the drug’s origin article is to be distributed solely in the We recognize that other technologies (i.e., place of manufacture) is not Commonwealth of Puerto Rico or in a may be able to encode more data in less essential. In contrast, for track and trace U.S. Territory where the predominant space compared to linear bar codes. purposes, the goal is to ensure that language is not English (see 21 CFR These arguments do not address the fact individual products can be followed 201.15(c)(1)). The English word is the that this rule only requires firms to through the drug distribution system visual representation of the information. encode one piece of datum (the NDC from the point of manufacture, but this If we had to accept any language on number). A linear bar code is capable of goal does not necessarily extend down product labels (using the comment’s encoding the 10-digit NDC number. to the unit-dose package level. GMP theory), then those using the Furthermore, such arguments do not Nevertheless, we reiterate that we will product might not understand the address the principles of regulation that consider revising the rule to information if they did not know the we must observe pursuant to Executive accommodate new technologies. As we language used on the label. Order 12866; under section 1(b)(5), we explain in more detail in section II.I of Furthermore, as we stated earlier in this are to design our regulations ‘‘in the this document, we expect compliance response, the linear bar code most cost-effective manner to achieve with the bar code requirement within 2 requirement does not prevent anyone the regulatory objective’’ and to years after the final rule’s effective date. from developing innovative automatic consider ‘‘incentives for innovation, At that time, we will begin examining identification technologies for any other consistency, predictability, the costs of other automatic identification industry for any other reason, and we enforcement and compliance * * * technologies to determine whether we will consider whether to accept other flexibility, distributive impacts, and should amend the rule to allow the use automatic identification technologies as equity.’’ Applying that principle to this of such technologies. We intend to they become more mature and accepted. rule, we believe that a linear bar code conduct our examination in a public (Comment 39) One comment claimed is the most ‘‘cost-effective’’ device for and transparent manner, with it would be ‘‘legally indefensible’’ for encoding the NDC number particularly opportunity for public participation and hospitals to not choose two-dimensional when, as the comments suggest, the comment. This could be done, for systems if firms encoded lot number alternative would be to specify no example, through a public meeting, a and expiration date information; the technology at all or encompass document inviting comment, an same comment also declared that some technologies whose data encoding advance notice of proposed rulemaking, hospitals have their suppliers use two- capacities far exceed the information or other public forum. We will decide dimensional codes so requiring linear required. A linear bar code requirement on the appropriate public forum at a bar codes would ‘‘force’’ those hospitals offers consistency, predictability, and future time. to ‘‘abandon’’ their systems because lower costs of enforcement and Regarding the EAN/UCC system, the their suppliers would have to convert to compliance compared to technologies final rule allows the use of either EAN/ linear bar codes. whose acceptance and reliability may be UCC or HIBCC standards. We discuss (Response) We disagree with the uncertain, or compared to a requirement the reasons behind this change at comment. The only required piece of that offered no criteria upon which comment 41 of this document. encoded data is the NDC number; hospitals could rely. As for the comment concerning hospitals are free to decide which We realize that, in October 2003, we multidimensional codes, we note that scanning systems are best for them and issued a report entitled ‘‘FDA there is disagreement whether certain are also free to decide whether to take Counterfeit Drug Task Force Interim symbologies are two-dimensional or advantage of any voluntarily-encoded Report’’ (see Food and Drug simply a series of thin, one-dimensional lot number and expiration date Administration Press Release, ‘‘FDA codes stacked upon each other. information. We reiterate that we were Anti-Counterfeiting Task Force Interim Therefore, we cannot say, as a general unable to demonstrate that the benefits Report Focuses on High-Tech Weapons matter, whether multidimensional codes of encoding lot number and expiration and Other New Promising Measures,’’ are ‘‘linear bar codes’’ within this final date information would exceed the costs dated October 2, 2003). This report rule because we cannot be sure that all (see 68 FR 12500 at 12528 and 12529). discussed, among other things, anti- parties share the same interpretation as Therefore, we disagree that it would be counterfeiting technologies, including to what constitutes a multidimensional ‘‘legally indefensible’’ for hospitals to ‘‘track and trace technologies.’’ The final code. Nevertheless, if a firm believes choose linear bar code scanners that are
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perfectly capable of reading the NDC HIBCC standards. The comment manner in which the NDC number is number contained in a linear bar code. explained that most medical device visually presented must be a linear bar We also disagree that the final rule manufacturers who are voluntarily code. We have decided to give firms the ‘‘forces’’ hospitals to abandon systems labeling their products use the UPN option of using HIBCC data formats that they may have adopted before this system, and the EAN.UCC and HIBCC because HIBCC is a widely-recognized, rulemaking. If a two-dimensional standards comprise the UPN system. nonprofit standards development scanning system is capable of reading HIBCC also recommended that the final organization whose standards, like both one- and two-dimensional rule not rely solely on EAN.UCC EAN.UCC standards, are accredited by symbologies, then the system should standards; it acknowledged that ANSI, and, as the comments suggested, still be able to read the NDC number EAN.UCC standards are ‘‘by far the most allowing the use of either EAN.UCC or contained in the one-dimensional, prevalent in pharmaceutical labeling,’’ HIBCC standards may encourage further linear bar code. We acknowledge, but suggested that alphanumeric coding development and adoption of other however, that if a hospital had insisted (which HIBCC standards use) ‘‘allows automatic identification technologies. that its suppliers use only two- for literally-encoded information that is We also cannot preclude the possibility dimensional codes, the final rule’s inherently safer’’ (than numeric coding that some firms may prefer using linear bar code requirement means that alone). alphanumeric code formats, which those suppliers must use a linear bar HIBCC, as well as another comment, HIBCC uses, although we do not express code to encode the NDC number. If the also stated that requiring EAN.UCC any opinion as to whether alphanumeric supplier wishes, it can encode lot standards would create a monopolistic codes are ‘‘safer’’ than numeric ones. number and expiration date information environment that might inhibit the Allowing the use of HIBCC standards voluntarily using any symbology or development and implementation of will also prevent the creation of the automatic identification technology, so technologies outside the EAN.UCC’s ‘‘monopolistic’’ environment that some if the hospital insisted that the supplier purview. The other comment claimed comments feared. Although one use two-dimensional symbologies to that the UCC is not a standards body, comment claimed that the UCC is not a encode lot number and expiration date has proprietary interests, provides standards organization and implied that information, the hospital’s two- sponsored bar codes to members as part the UCC will benefit financially if we dimensional scanning system would of a variable annual fee, and that the require bar codes to use EAN.UCC still be useful. linear bar codes that would be used on standards, our information is that the (Comment 40) One comment asked hospital patient identification bands are UCC is a not-for-profit standards whether ‘‘linear bar code’’ meant to not EAN.UCC codes, so that there would organization. include a specific symbology called be no benefit in selecting EAN.UCC ‘‘RSS–14 stacked.’’ The comment standards. The comment protested that We strongly recommend that explained that RSS–14 stacked ‘‘is the EAN.UCC standard requirement manufacturers, repackers, relabelers, essentially the same thing as RSS–14, would compel manufacturers to join the and private label distributors who are except that it is printed in two rows in UCC even though adequate bar codes subject to the bar code requirement order to make it narrower at the expense are available in the public domain, and carefully consider their linear bar code of height.’’ The comment said that a declared that the rule would violate symbology and standard choices. (The scanner can easily decode an RSS–14 unnamed Federal laws by referring to EAN.UCC or HIBCC standard may also stacked symbol, but added that, ‘‘I hope EAN.UCC standards. determine the type of linear bar code you get input from Scanner Another comment advocated use of symbology that is used.) The bar code’s manufacturers on this point.’’ both EAN.UCC and HIBCC standards. It ability to affect medication error rates (Response) The comment is correct suggested that this would encourage the depends largely on the ability of that RSS–14 stacked is a variant of the adoption of automatic identification hospitals to scan and interpret the data RSS–14 linear bar code and that it technologies as they develop, although in the bar code. So, for example, consists of two rows of two segments the comment also recommended that choosing a commonly-used linear bar each. A ‘‘separator pattern’’ is printed linear bar codes be the initial code symbology in a standard that between the two rows to eliminate technological requirement so that scanners can easily read will have a cross-row scanning errors. hospitals that have bar code systems are greater impact on patient safety We believe that RSS–14 stacked not disadvantaged. compared to a unique bar code symbology can be read by linear bar (Response) Proposed § 201.25(c)(1)’s symbology that few (if any) scanners are code scanners, although the scanners reference to UCC.EAN ‘‘standards’’ was programmed to read. would have to be programmed to read intended to mean that the linear bar 2. Should the Rule Impose Any RSS–14 codes and, depending on the code had to be one that the UCC Conditions on the Bar Code? scanner, may require more time to read recognized and the data standard had to a stacked code. Thus, we would be in a UCC.EAN format (see 68 FR Proposed § 201.25(c)(1)(i) and consider RSS–14 stacked to be a linear 12500 at 12509). (c)(1)(ii) would require the bar code to bar code within the rule. However, after considering the be surrounded by sufficient blank space (Comment 41) Some comments comments, we will interpret so that the bar code can be scanned questioned or criticized the proposed § 201.25(c)(1) as meaning that the linear correctly and require the bar code to rule’s reference to UCC standards. One bar code can be in any format, and the remain intact under normal conditions comment said that ‘‘standards’’ refers to final rule gives firms the option of using of use. The preamble to the March 2003 the data structure and not to EAN.UCC or HIBCC data standards. (We proposal explained that some symbologies. The comment asked if we have revised the rule to refer to manufacturers had placed bar codes at meant that the linear bar code had to be ‘‘EAN.UCC’’ standards, rather than locations where the bar codes are one used by the UCC and that the NDC ‘‘UCC/EAN’’ standards, in order to use destroyed, damaged, or otherwise number had to be in a UCC data format. the commonly-recognized abbreviation.) rendered useless (see 68 FR 12500 at One comment, submitted by a In other words, the manner in which the 12510), so the proposal was intended to medical device trade association, NDC number is encoded may be in an help ensure that the bar codes could be supported use of either the EAN.UCC or EAN.UCC or HIBCC format, and the read correctly.
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(Comment 42) One comment asked with the written description of the oriented on the label in such a way as whether our reference to ‘‘blank space’’ product,’’ and it said that we should to promote visual reading of the drug, referred to ‘‘quiet zones’’ in a bar code. continue to require the bar code to strength, etc. while scanning the bar A ‘‘quiet zone’’ in a bar code usually remain intact under normal conditions code.’’ The comment explained that refers to a blank space that appears of use, particularly with respect to unit- positioning the bar code in any other before the first bar and after the last bar. dose packages. way would make users dependent on (Response) Section 201.25(c)(1)(i)’s (Response) Section 201.25(c)(1)(ii) the scanning process instead of reading reference to ‘‘blank space’’ means that requires the bar code to remain intact the drug’s label. The comment said the the linear bar code must be surrounded, under normal conditions of use. Our only exception to its suggested on all four sides, by an area where no fundamental goal is to reduce or prevent placement restriction should be when print occurs. This is slightly different medication errors, and that goal is best the label does not support the bar code from the ‘‘quiet zone’’ in a bar code served when the bar code remains intact format, ‘‘with the burden on the because § 201.25(c)(1)(i)’s ‘‘blank space’’ under normal conditions of use. As we manufacturer to justify the decision not would include areas that are above and stated in the preamble to the March to orient the label contents in this below the bars. 2003 proposal, partial or incomplete bar fashion.’’ We note, however, that we have codes can provide misleading (Response) We decline to revise the previously indicated that we would not information or not be read at all by rule as suggested by the comment. By object if firms voluntarily encoded lot scanners (see 68 FR 12500 at 12510); not specifying how or where the bar number and expiration date information these potential problems are avoided if code must appear, the rule gives firms (see 68 FR 12500 at 12508) and that the bar code remains intact under considerable flexibility in designing such voluntarily-encoded information normal conditions of use. their labels to include the bar code and might appear in another machine- We realize that label space can be any other information required by law readable format with the linear bar code. limited due to other information that or FDA regulations. For example, a firm might decide to use our statutes or regulations require to be Although we recognize the comment’s a composite code, where the NDC on a drug’s label, but there may be concern about relying too much on number is encoded in a linear bar code alternatives to printing the bar code technology, we disagree with the and the lot number and expiration date across perforations. For example, the comment’s assumption that users will information is encoded in a two- final rule does not require the bar code become dependent on the bar code and dimensional code, with the two- to appear on the same surface as other will stop reading drug labels. The dimensional component placed label information. Likewise, the final human-readable information on a drug’s immediately above the linear bar code. rule does not prevent a manufacturer, label goes far beyond the drug’s NDC If a firm elects to encode lot number and repacker, relabeler, or private label number. For example, under expiration date information voluntarily, distributor from revising its packaging § 201.100(d)(1), a drug’s labeling, and the voluntarily-encoded to accommodate more label information. whether or not it is on or within a information is immediately adjacent to Thus, there may be other approaches package from which the drug is to be the required linear bar code, we will that would ensure that the bar code dispensed, must contain adequate interpret the ‘‘blank space’’ requirement remains intact under normal conditions information for the drug’s use, including as applying to the entire composite of use. any relevant warnings, hazards, code. In other words, we would not contraindications, side effects, and interpret the ‘‘blank space’’ requirement E. Where Does the Bar Code Go? precautions; the drug’s NDC number as preventing firms from using (§ 201.25(c)(2)) will not provide such information. As composite codes. Proposed § 201.25(c)(2) would have another example, section 502(b)(1) of (Comment 43) One comment the bar code appear on the drug’s label the act declares a drug to be misbranded disagreed with proposed as defined by section 201(k) of the act. if its label does not contain the name § 201.25(c)(1)(ii) insofar as it would The preamble to the March 2003 and place of business of the require the bar code to remain intact proposal explained that section 201(k) manufacturer, packer, or distributor, under normal conditions of use. The of the act defines ‘‘label’’ as: while section 502(e)(1)(A) declares a comment said manufacturers should be a display of written, printed, or graphic product to be misbranded if its label allowed to print bar codes across matter upon the immediate container of any does not contain the drug’s established perforations on blister packs as long as article; and a requirement made by or under name, quantity or proportion of each this did not affect the ability of the bar authority of this Act that any word, active ingredient. In short, the bar code, code to be scanned correctly. The statement, or other information appear on the and the NDC number contained in the comment said that printing the bar code label shall not be considered to be complied bar code, act more as a link between the across perforations would leave more with unless such word, statement, or other information also appears on the outside drug, the patient, and the patient’s drug space on the drug’s label for other container or wrapper, if any there be, of the regimen and do not act as a surrogate for required information. retail package of such article, or is easily the drug’s label. In contrast, another comment, legible through the outside container or (Comment 45) One comment focused submitted by a hospital, stated that the wrapper. on products that are individually hospital’s use of manufacturers’ bar Thus, by proposing to require the bar packaged in a tray or pouch and are codes suggests that those codes code to be on the drug’s label, proposed considered sterile within the tray or sometimes fail to maintain their § 201.25(c)(2) would result in bar codes pouch. The comment said we should integrity. The comment said that linear on the drug’s immediate container label allow the bar code to be placed on the lines become jagged, the markings as well as the outside container or tray or pouch because the drug is degrade on the medium on which they wrapper, unless the bar code is easily supposed to remain sterile and not be are placed, or the bar code is placed in legible and machine-readable through removed from the tray or pouch until such a manner that it becomes unusable the outside container or wrapper (see 68 the time the drug is administered. at the unit-dose level. The comment FR 12500 at 12511). (Response) We decline to revise the added that ‘‘it has been our experience (Comment 44) One comment asked rule as suggested by the comment. By that the bar code does not always agree that we require the bar code to ‘‘be requiring the bar code to appear on the
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product’s ‘‘label,’’ § 201.25(c)(2) should reduction in hospital over-packaging situations, and to help consumers and result in a bar code on the immediate could increase market demand for unit- health care professionals identify drugs container label and the outer wrapper dose products despite the cost (see 58 FR 47948; 21 CFR part 206). If label. We are aware that, despite difference’’ (see 68 FR 12500 at 12526). we allowed the bar code to be imprinted labeling instructions to the contrary, In other words, our industry contacts directly on a pill, the bar code might individuals might remove the outer suggest that unit-of-use or unit-dose interfere with that drug’s imprint and wrapper and administer the drug packaging decisions depend more on could force health care professionals product at a later time. Therefore, a bar market demand than on bar code costs. and hospitals to consult two different code on the immediate container label We also decline to require bar codes databases (one on drug imprint codes may help prevent product mixups and on ‘‘all packaging.’’ The preamble to the and another on bar codes) to determine medication errors that may occur when March 2003 proposal explained that which drug they had before them. the drug product is removed from the requiring every package to bear a bar Imprinting a bar code on a drug may outer wrapper and not used code would result in too many packages also raise drug stability issues or affect immediately. being bar coded regardless of the a drug’s dissolution rate. Imprinting bar As for the comment’s drug sterility potential impact—or absence of codes on tablets has other practical concern, we are not aware of any reason impact—on medication errors. For limitations; for example, the same why including a bar code on the example, we explained that requiring imprinting approach cannot be used for immediate container label as well as on bar codes on every package would mean drugs that are in liquid, gaseous, or the outer wrapper would adversely that a shipping container would have a semi-solid form. impact drug product sterility. bar code, yet no hospital would As for covert marking systems and (Comment 46) Some comments dispense a drug directly from a shipping counterfeiting concerns, such matters focused on drug packaging. Some container to a patient (see 68 FR 12500 are outside the scope of this rule. comments asked us to require bar codes at 12511). We maintain that requiring on every unit-of-use package so that bar codes on all packages would not be F. Must Blood and Blood Components hospitals do not need to repack drugs. helpful insofar as medication errors are Bear ‘‘Machine-Readable’’ Information? Several comments said we should concerned. (§ 606.121(c)(13)) require single dose packaging to make (Comment 47) One comment said that Current FDA regulations, at 21 CFR bar coding easier and accurate dosages medicated creams and ointments can 606.121(c)(13), state that the container more feasible. A different comment said now be reduced from multidose tubes to label for blood and blood components that we should require manufacturers to single dose units and that some drugs ‘‘may bear encoded information in the have unit-dose packaging before they have specific dosage requirements that form of machine-readable symbols can market a drug. Other comments further support the use of single dose approved for use by the Director, Center expressed concern that a bar code packaging to mitigate dosing errors. The for Biologics Evaluation and Research.’’ requirement might lead manufacturers comment asked what is being done to The proposed rule would amend to stop unit-dose or unit-of-use convert packaging of semi-solids into § 606.121(c)(13) to require the use of packaging or insisted that manufacturers ‘‘the needed single dose units.’’ ‘‘machine-readable information’’ in a use such packaging. Another comment (Response) Issues regarding the format approved by the Director of the asked us to require bar codes on ‘‘all production of unit-dose packaging, Center for Biologics Evaluation and packaging’’ as soon as possible, but a regardless of whether the drug is a Research (CBER) (the CBER Director). different comment agreed that we liquid, cream, or solid, are outside the The CBER Director would review the should require bar codes on unit-dose scope of this rule. machine-readable information packages. (Comment 48) One comment technology to ensure that the minimum (Response) Regarding unit-of-use discussed how bar codes can be requirements are met regarding the packages, the rule does require bar imprinted on pills. It described a system accuracy of the required labeling codes on such packages because that uses images of the drug on information, spacing, and conditions of § 201.25(c)(2) states that the bar code medication schedules, prints bar codes use. must appear on the drug’s label. Section on the drugs themselves, and uses two- Proposed § 606.121(c)(13) also would: 201(k) of the act defines ‘‘label,’’ in part, dimensional bar codes with a ‘‘human • Explain that all blood as ‘‘a display of written, printed, or recognizable icon or symbol’’ that establishments that manufacture, graphic matter upon the immediate identifies the ‘‘general type of pill.’’ process, repackage, or relabel blood or container of any article.’’ Thus, because Another comment said we should blood components intended for a unit-of-use package would be the consider technologies that allow one- or transfusion and regulated under the act immediate container for a drug, the two-dimensional bar codes to be printed or the PHS Act are subject to the unit-of-use package must bear a label on color film coated tablets and other machine-readable information and, under § 201.25(c)(2), have a bar solid oral dosage forms. It added that requirement; code. covert marking systems could also be • State that blood and blood We decline to require manufacturers used to address drug counterfeiting components intended for transfusion are to use unit-dose or unit-of-use concerns, and printing codes on the subject to the machine-readable packaging. We recognize that concerns drugs themselves could reduce unit- information requirement; may exist over the rule’s impact on such dose packaging requirements. • Describe the minimum contents of packaging, and we even raised the issue (Response) We decline to allow the the machine-readable information as a ourselves in our public meeting (see 67 bar codes to be printed on tablets and unique facility identifier, lot number FR 41360 at 41361). However, as we other solid oral dosage forms. As we relating to the donor, product code, and noted in the preamble to the March stated in our response to comment 3 in the donor’s ABO blood group and Rh 2003 proposal, our industry contacts section II.B.1 of this document, 21 CFR type; suggest that the costs associated with a part 206 requires imprinting on solid • Specify that the machine-readable bar code requirement ‘‘would not be oral dosage forms. The imprint was information must be unique to the blood great enough to significantly impact the designed to help identify solid oral or blood component, be surrounded by market’’ and that ‘‘the expected dosage forms, particularly in emergency sufficient blank space so that the
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machine-readable information can be the EAN.UCC system. The comment standard were implemented, it would read correctly, and remain intact under added that Japan uses the EAN.UCC require an overhaul of the United States normal conditions of use; and system for its blood components. blood industry and the international • State that the machine-readable Similarly, another comment said that blood industry (because the resulting information must appear on the label of the bar codes for blood components standard would depart from ISBT 128). the blood or blood component which is should be the same as those used on We believe such an impact to be or can be transfused to a patient or from prescription and OTC drug products unnecessary given our understanding which the blood or blood component because pharmacies distribute blood that bar code scanners can be can be taken and transfused to a patient. components and nurses administer programmed to recognize different The proposal would not specify them. symbologies. where the machine-readable (Response) The final rule retains the Additionally, on our own initiative, information must appear on the label. ‘‘machine-readable information’’ we have revised § 606.121(c)(13)(i) to As the preamble to the proposed rule language with a clarification that the replace the word ‘‘repackage’’ with explained, unlike the situation for other format, and not the actual information, ’’repack.’’ ‘‘Repack’’ is the preferred drugs, there is already substantial use of must be approved by the CBER Director. term to describe the act of putting a bar codes, notably ABC Codabar and This will enable § 606.121(c)(13) to product into a different container. ISBT 128, for blood and blood accommodate changes in machine- (Comment 50) One comment said that components (see 68 FR 12500 at 12512). readable technologies. For example, the type of bar code was not as The preamble to the proposed rule FDA recognized the use of Codabar (a important as the underlying information invited comment on whether we should specific bar code symbology) in 1985, contained in the code. The comment specify the use of ABC Codabar, ISBT and, in 2000, accepted the use of ISBT wanted to be able to track lot or 128, a different symbology or standard, 128, version 1.2.0. More importantly, donation numbers, the manufacturer’s or simply require the use of ‘‘machine- unlike the situation for other license number, country code, readable information’’ approved by the prescription drugs, there is already information about the blood group, CBER Director (id.). We also invited substantial consensus on the use of product type, any modifications or comment on whether a ‘‘machine- machine-readable symbols on blood and special information, and dosage. readable information’’ approach was blood component labels. If we were to (Response) Section 606.121(c)(13)(iii) feasible or whether we should require amend the rule to require the use of requires the machine-readable the use of EAN.UCC standards for blood ISBT 128, we would ensure a uniform information for blood and blood and blood components. bar coding standard for blood and blood components to contain, at a minimum, (Comment 49) Many comments urged components and be consistent with the • A unique facility identifier; us to require the use of ISBT 128 rather existing international standard, but we • lot number relating to the donor; than ‘‘machine-readable information.’’ would also have to engage in new • product code; and The comments referred to ISBT 128’s rulemaking if the international • ABO and Rh of the donor. international acceptance, ‘‘negligible’’ consensus standard changed to adopt a Thus, some information sought by the licensing and registration costs, new symbology, standard, or comment would already be required. superiority to Codabar, and acceptance technology. We believe that relying on Other pieces of information are also by FDA, community blood centers, an international consensus standard and covered under ISBT 128. For example, hospital blood banks, and other parties. requiring ‘‘machine-readable’’ ISBT 128 contains a ‘‘donation Some comments pointed out that ISBT information in a format approved by the identification number;’’ this number can 128 is a data standard rather than a CBER Director allows us to maintain identify the country/collection facility, specific bar code; thus, to these uniformity in the symbologies or the year the donation was made, and a comments, requiring ISBT 128 would technologies used and accommodate serial number associated with the cover newer machine-readable new technologies in the future. We will donation. ISBT 128 also has an optional technologies, including two- announce, through guidance ‘‘special testing’’ field to convey the dimensional symbols and radio documents, our thinking and results of special or additional testing. frequency identification chips. One recommendations about acceptable Although the comment also comment said that a failure to require technologies. In deciding whether a mentioned ‘‘dosage’’ information, ISBT 128 would hinder software particular technology is acceptable for dosage is not normally an issue for development because software could blood and blood component container blood and blood components, so we use the identifiers and check digits in labels, we will review the technology to decline to require dosage information as ISBT 128. ensure that the minimum requirements part of the machine-readable Other comments opposed requiring are met regarding the accuracy of the information for blood and blood the use of ISBT 128 or suggested a required labeling information, spacing, components. different standard. One comment said and conditions of use. We anticipate (Comment 51) The preamble to the that requiring ISBT 128 would force that the blood industry will standardize proposed rule asked how the rule might FDA to engage in new rulemaking if we encoded machine-readable information affect hospitals where patients receive decided that a new technology should and reading equipment, using our blood or blood components, particularly be adopted. The comment did state, guidances to minimize, to the greatest with respect to a hospital’s decision to however, that if a single standard must extent possible, the need for ‘‘country- purchase a machine reader for blood be developed, it would support ISBT specific’’ software and the high cost and blood component codes and the 128. Another comment, submitted by associated with software development linear bar codes on drugs and certain the UCC, said that EAN.UCC standards and maintenance. OTC drug products (see 68 FR 12500 at are used in commercial packages for We also decline to require the use of 12529). shipping and receiving blood products; EAN.UCC standards on blood and blood We received several different the comment said that if the blood component container labels. The blood opinions on this subject. One comment products community requested it, the industry currently uses a machine- said that if hospitals had to change their UCC would support creating bar code readable code that does not meet blood and blood component coding guidelines for blood products based on EAN.UCC standards. If an EAN.UCC systems to use EAN.UCC standards, it
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would take ‘‘years’’ to develop data label requirements for blood and blood 1. Comments Seeking More Action by structures, change transfusion software, components are not applicable to FDA and implement the changes, and this Source Plasma. The machine-readable (Comment 55) The preamble to the would be a setback for industry requirements apply only to blood and proposed rule stated that firms whose standardization. In contrast, another blood components intended for drug products are already approved or comment, submitted by the UCC, said transfusion (see § 606.121(c)(13)). marketed could notify us about the there would be little or no effect on Because Source Plasma is intended as addition of a bar code to their product hospitals because scanners can read source material for further labels through an annual report (see 68 multiple codes, and so use of the manufacturing use (see § 640.60 (21 CFR FR 12500 at 12512). EAN.UCC system on all products would 640.60)) and is not intended for One comment disagreed, stating that simplify software development and transfusion, Source Plasma does not fall we should apply standard reporting maintenance. It added that we should within the bar code requirement. requirements for such label changes. It examine the cost of maintaining two said that annual reports are not standards (EAN.UCC and ISBT 128) (Comment 54) Two comments sufficient to provide the maximum within the global marketplace and any suggested that we require bar codes on benefit to those using the bar codes. It potential disruption if ISBT 128 were certain medical devices such as blood suggested that certain third-party abandoned in favor of the EAN.UCC bags, filters, and apheresis kits. databases might be able to create new system. (Response) We decline to adopt the data fields that provide information on Three comments said that ISBT 128 comments’ suggestion. As we stated in drugs and drug packaging on a ‘‘very could be easily compatible with any bar our response to comment 29 above, frequent’’ basis. code system. The comments said that medical devices present different software systems developed for blood (Response) The comment regulatory issues and challenges misunderstood our position. When we centers and many hospital blood banks compared to drugs, and, unlike drugs, are already ‘‘ISBT 128 ready.’’ referred to the annual report, we meant medical devices do not have a unique, that firms whose drug products have (Response) As we stated in our reliable identifying number. response to comment 49 in section II. F already been approved would simply Consequently, we continue to omit notify us that they had added a bar code of this document, we decline to require medical devices from the final rule. the use of EAN.UCC standards on blood to their package labels; that notification and blood component container labels. G. Must Biological Products Have a Bar to FDA could occur on an annual basis. We agree with those comments stating Code? (§ 610.67) Annual reports are commonly used to that bar code scanners can be report minor label changes to us. programmed to recognize ISBT 128 in The proposed rule would require As for transferring information addition to other symbologies, and biological products (other than devices, regarding NDC numbers to databases requiring the blood industry to convert blood, and blood components intended (which bar code scanners and hospital to EAN.UCC standards would affect for transfusion) to comply with the bar computers might consult in order to efforts to adopt uniform standards code requirements at § 201.25. decipher the bar code), we routinely within the United States and the We received no comments that were make such information available. international blood industry. specific to § 610.67. However, on our Moreover, as we stated in the preamble (Comment 52) One comment asked if own initiative, we have revised § 610.67 to the proposed rule, we are ‘‘blood component‘‘included to clarify that the bar code requirement collaborating with the National Library intravenous immune globulin (IGIV) at § 201.25 does not apply to devices of Medicine and the Department of and albumin. The comment felt that that are regulated by CBER (such as Veterans Affairs to create a collection of ISBT 128 and the data that would be devices that are the subject to the up-to-date, computer-readable encoded for blood components are biologics licensing application (BLA), electronic labels for marketed drug inappropriate for IGIV and albumin. The premarket approval (PMA) application, products (see 68 FR 12500 at 12511). comment added that IGIV and albumin or 510(k) requirements), or to blood and This collaboration contemplates daily are distributed by pharmacies and blood components intended for updates of information and, as a result, constant updates of new NDC numbers. administered by nurses, so they should transfusion. As we explained in section In short, we intend to make NDC be treated like other drugs. II.B.5 of this document, devices are number information available to (Response) IGIV and albumin are exempt from the bar code requirements, databases constantly. We do not intend therapeutic products that would be whereas blood and blood components to release NDC number information only subject to the bar code requirement for intended for transfusion are subject to drug products through § 610.67. In other once per year. the ‘‘machine-readable’’ information (Comment 56) Several comments words, IGIV and albumin are not subject requirements at § 606.121(c)(13). to the bar code requirements for blood asked us to draft additional documents. and blood components, but they are H. What Other Comments Did We For example, one comment said we subject to the bar code requirements for Receive? should issue a guidance document to drug products. instruct hospitals and others to use the (Comment 53) One comment asked us Many comments were not directed at same bar coding methods and principles to clarify whether source plasma used to any particular provision but instead that manufacturers use if hospitals and manufacture plasma-derived therapies asked procedural questions (such as other entities decide to bar code or to is subject to a bar code requirement. The how bar code information should be repack drugs. Another comment comment said that Source Plasma, when reported to us), asked us to create more suggested that we should issue a not intended for use as a final dosage documents (particularly with respect to guidance document advising firms on product, should not be subject to the bar bar code quality), or discussed whether how to encode lot number and code requirement. we should keep these regulations in expiration date information if they (Response) Source Plasma is not effect after bar coding, for medication choose to do so voluntarily. subject to the bar code requirements. As error purposes, became widespread. We (Response) We decline to create the stated in § 606.121(a), the container discuss these comments in this section. guidance documents that the comments
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sought. In general, hospitals are exempt We do not believe that expedited such scanning problems can be reported from the bar code requirements, and so review will be necessary for several to FDA through the Drug Quality we believe that our resources are better reasons. First, most packaging changes Reporting System. The Drug Quality spent developing regulatory materials, that would be done to accommodate a Reporting System encourages health when appropriate, for regulated entities. bar code should not require prior FDA care professionals to voluntarily report Additionally, we lack sufficient approval. Packaging changes can be observed or suspected defects or quality expertise to advise interested parties on reported to us in various ways, through problems with marketed drug products. bar coding methods and equipment, but a supplement of changes being effected The agency receives reports through the we believe there are sufficient (see 21 CFR 314.70(c)), a supplement of MedWatch Program. documents and standards issued by changes being effected in 30 days (see For biological products, third parties such that, at this time, we § 314.70(g)(2)), and an annual report manufacturers can report scanning do not need to generate such documents (see § 314.70(g)(3)); none of these problems as biological product or standards ourselves. supplements or reports require prior deviations under existing reporting (Comment 57) One comment asked us FDA approval. procedures (see 21 CFR 600.14 and to provide expedited review of pre- Second, for drugs that have already 606.171). market submissions for blood received FDA approval by the time of (Comment 60) Some comments asked establishment computer software. The the final rule’s effective date, we are us to audit or monitor bar code quality. comment said that software users must giving such drugs 2 years to comply One comment said we should require validate software upgrades before such with the bar code requirement. If a firm the bar code to maintain a passing grade improvements are applied to patient believes that its packaging change is of of C or better to ensure its quality. care, but said that validation would a type that needs prior FDA approval, (Response) As we noted in the require extensive time. this 2-year period should give the firm preamble to the proposed rule, various (Response) We decline, in this and FDA sufficient time to prepare and bar code standards exist, as do standard rulemaking, to provide for expedited review the supplement. procedures for bar code verification (see review of premarket submissions for If a firm still believes that it needs 68 FR 12500 at 12510–12511). Given blood establishment computer software. expedited review of a packaging change, these standards and other documents, as The current rulemaking is aimed at we would consider such requests under well as the comparatively greater describing the bar coding requirements our existing regulations and procedures expertise of standards organizations for drugs and similar ‘‘machine- (see § 314.70(b); Center for Drug such as the American Society for readable’’ information requirements for Evaluation and Research, ‘‘Requests for Testing and Materials and the blood and blood components. In the Expedited Review of Supplements to International Organization for absence of any submissions, it would be Approved ANDA’s and AADA’s,’’ Standardization, we do not intend to both premature and beyond the scope of Manual of Policies and Procedures audit or monitor bar code quality the current effort to address requests for (MAPP) 5240.1 (dated November 1, aggressively. We also believe that our expedited PMA reviews for blood 1995)); Center for Drug Evaluation and GMP requirements and the Drug Quality establishment software. However, in Research, ‘‘Requests for Expedited Reporting System provide additional this regard, we have made available a Review of NDA Chemistry safeguards to ensure bar code quality. ‘‘Reviewer Guidance for a Premarket Supplements,’’ MAPP 5310.3 (dated 3. Comments Regarding FDA’s Future Notification Submission for Blood June 11, 1999)). Under § 314.70(b), Involvement With Bar Codes Establishment Computer Software’’ on applicants may ask for expedited review January 13, 1997, and comments on of a supplement if a delay in making the (Comment 61) Two comments FDA guidance may be submitted at any change would impose an ‘‘extraordinary discussed our future involvement with time to the contact listed in that hardship’’ on the applicant, and we a bar code requirement. One comment guidance. consider expedited review requests on a said that if the rule referred to EAN.UCC (Comment 58) One comment asked us case-by-case basis and undertake such standards, without specifying the use of to create an expedited submission expedited reviews if adequate review linear bar codes, we would not need an category for packaging changes that resources are available. ‘‘exit strategy’’ to allow for future would be needed to comply with a bar For packaging changes involving a technologies and innovation. code requirement. The comment biological product, see 21 CFR 601.12 In contrast, another comment said predicted that many firms would submit and 314.70. that the proposed rule had gained the supplemental applications to us so that pharmaceutical industry’s attention and we might approve packaging changes, 2. Comments Relating to Bar Code that there is ‘‘considerable momentum’’ and the comment predicted that a large Problems or Quality towards putting bar codes on drugs. The number of supplemental applications (Comment 59) One comment asked comment said this voluntary effort would prevent us from approving how people might report bar coding and would continue even if we did not issue packaging changes quickly. scanning errors. a final rule and said that the market (Response) We decline to adopt the (Response) As we stated in the would decide which automatic comment’s suggestion. We interpret the preamble to the proposed rule (see 68 identifiers meet health care needs so comment as suggesting that we may FR 12500 at 12510), the bar code would that we no longer had to be involved. need to expedite review of be part of the drug’s label, so errors in The comment said our continued supplemental applications regarding applying the bar code to the label involvement in this area would not be packaging changes and that the should be handled like any other ‘‘efficient;’’ it said we could monitor comment’s use of the word, packaging or labeling operation problem progress towards the use of automatic ‘‘expedited,’’ means that we should take under GMPs (see 21 CFR 211.122, identifiers, but should not manage it. It such supplemental applications out of 211.125, 211.130, 211.180, and also suggested that we include a the normal review process and review 211.184)). ‘‘sunset’’ date in the final rule because them first, regardless of the order in If an individual encounters a problem it claimed the rule created ‘‘enormous which they arrived relative to other scanning the bar code, and the problem uncertainty’’ for hospitals because the types of applications. is due to the bar code’s quality, then rule permitted inclusion of other
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information in other formats. Thus, if a such as lot number and expiration date (Response) Issues concerning scanner ‘‘sunset‘‘date existed, manufacturers information, and could agree on the design and capability are outside the would be able to use any one- or two- automatic identifier(s) for encoding that scope of this rule. Given the abundance dimensional code after that date, and information and the equipment for and variety of scanners (i.e., whether the this would give all parties ‘‘a fair reading or interpreting the encoded scanner is ‘‘tethered’’ to another device opportunity to invest in the technology information. If parties could develop or ‘‘wireless’’ or whether the scanner is that will meet the future needs of their consensus mechanisms that enjoy ‘‘heavy duty’’ to withstand impact in institutions.’’ widespread or unanimous support case it is dropped), we believe that (Response) As we stated earlier in our among those who would apply, use, and hospitals should be free to choose the response to comment 38 in section develop automatic identification scanners or reading equipment that is II.D.1 of this document, we intend to technologies, then we could possibly best suited to their needs. revisit technological issues in the future, reduce our involvement. Similarly, issues concerning label size but we believe that linear bar codes, as We disagree, however, with the are outside the scope of this rule. an initial requirement, will help prevent comment’s claim that the rule creates However, with respect to reading bar or reduce medication errors. ‘‘enormous uncertainty’’ for hospitals. codes on drug labels, the bar code’s We agree, in part, with the comment The linear bar code establishes a ‘‘readability’’ would be subject to GMPs, that suggested that market forces could minimum, technological ‘‘floor’’ that and, under 21 CFR 211.122, any labeling reduce the need for continued FDA hospitals will be able to rely upon when material (which would include the involvement. We note that, for blood deciding on equipment purchases. product label) that does not meet and blood components, interested Although the comment is correct that appropriate written specifications ‘‘shall parties have been able to agree on we will not object if firms encode lot be rejected to prevent their use in domestic and international standards for number and expiration date information operations for which they are encoding certain information. For voluntarily, we reiterate that the unsuitable.’’ example, ABC Codabar is a bar coding inclusion of such information is (Comment 64) One comment said that system that the health care industry voluntary, and so we will not dictate the rule could advance other public adopted for blood and blood how such voluntarily-provided health objectives or issues, such as components and is still commonly used information is presented. Moreover, product traceability, authentication, in the United States. ISBT 128 is the creating a ‘‘sunset’’ date as the comment counterfeiting, and terrorism. It said we product of a consensus conference held suggested could increase the possibility should not ignore such issues during the by the International Council for that hospitals will not invest in rulemaking process. Commonality in Blood Bank equipment until the sunset date is (Response) We know that various Automation and is now preferred over reached. Hospitals might decide to defer public health initiatives might benefit ABC Codabar. The use and acceptance their investments because, when the from technological solutions. However, of ABC Codabar and ISBT 128 sunset date arrives, drug manufacturers consideration of other public health demonstrates that interested parties can could decide to switch to two- agree on specific data standards and dimensional symbologies, thereby initiatives should occur in a different formats and, more importantly, use making one-dimensional scanners either forum where all interested parties have those standards and formats. obsolete or in need of upgrades. So, the opportunity to consider the Unfortunately, as the comments to the under a ‘‘sunset’’ scenario, hospitals initiative or issue and explore options July 26, 2002, public meeting and the could decide to wait until after the (see, e.g., 68 FR 52773, September 5, proposed rule demonstrate, consensus is sunset date to see whether 2003) (announcing a public meeting on either absent or, at best, is still manufacturers, repackers, relabelers, FDA’s efforts to combat counterfeit developing when it comes to bar codes and private label distributors agree on a drugs)). It would be inappropriate for or automatic identifiers for drugs. We particular technology, and this would this final rule to invoke other reasons continue to encourage manufacturers, reduce the rule’s benefits. for a bar code requirement when the repackers, relabelers, private label (Comment 62) One comment said we administrative record has focused distributors, hospitals, scanning or should review the bar code almost exclusively on the need to reading equipment manufacturers, and requirements on a regular basis to prevent or reduce medication errors. other interested parties to explore determine whether they are preventing (Comment 65) One comment said that avenues for greater cooperation and or reducing medication errors. the rule could have a negative impact on consensus. We believe that all parties (Response) We intend to monitor hospital pharmacies if the bar code may benefit by reducing medication medication error reports and published technology does not recognize generic errors through the use of bar codes or literature to assess the rule’s impact on drug products. The comment also stated other automatic identification medication error rates. As more drugs that, if a pharmacy stocks one brand, technologies. For example, are bar coded and as more hospitals and then stocks a different brand the manufacturers and hospitals may see become capable of scanning and next week, drugs from both brands fewer medication errors and, as a result, interpreting those bar codes, we will be might still be located in automated reduced liability. Patient safety would interested to hear from hospitals about dispensing machines; in such a be enhanced as patients would their experiences using bar coded drugs scenario, the comment asked how bar experience fewer medication errors. and the impact on medication errors. coding would work. Scanning or reading equipment (Response) The comment may have manufacturers would benefit by 4. Miscellaneous Comments misunderstood the rule. Regarding knowing how to develop or program (Comment 63) One comment said that generic drug products, the final rule their equipment more effectively and scanning devices must be ergonomically requires the bar code to contain the efficiently (based on the bar codes or designed and the labels must be small drug’s NDC number. Generic drug identifiers used by manufacturers and enough to fit on drug products. The products have their own NDC numbers accepted by hospitals). Parties could comment added that scanners must be that are distinct from those used by also agree to encode information that we able to read labels that are on curved other manufacturers. Thus, there should do not require as part of the bar code, surfaces. be no technological barrier to using the
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bar code to identify generic drug regulate large databases on drug use and greater impact on patient safety products. drug safety. compared to a unique bar code As for automated dispensing (Response) Issues concerning the symbology that few (if any) scanners are machines, this rule is neither intended creation, financing, and maintenance of programmed to read. nor designed to assist in inventory databases are outside the scope of this control matters. Thus, a hospital rule. Aside from our MedWatch I. How Will We Implement the Rule? pharmacy that mixes drugs from program, we have no plans to control or The preamble to the proposed rule different sources in its automated regulate large databases on drug use and suggested that we would give affected dispensing machines (and presumably drug safety. parties 3 years to comply with the bar removes those drugs from their packages (Comment 69) One comment said we code requirement for human and accompanying labels) may not be should cover ‘‘non-standard’’ items at prescription drugs and OTC drugs able to use bar code technology to minimal cost to the pharmacy. The commonly used in hospitals and differentiate between different drugs comment listed ointments, lipids, crash dispensed pursuant to an order (see 68 inside the automated dispensing cart supplies, and total parenteral FR 12500 at 12512). It suggested a machine. nutrition as examples of ‘‘non-standard’’ similar implementation period for blood (Comment 66) One comment said we items, but it did not explain why such and blood components (see 68 FR 12500 should address the subject of products needed bar codes. at 12514). The preamble to the proposed prescribers’ handwriting because (Response) We decline to revise the rule also invited comment on whether misread or illegible handwriting may rule as suggested by the comment. the implementation period should be lead to medication errors. It added that Requiring bar codes on prescription shortened (see 68 FR 12500 at 12529, we should address drug names that drugs, OTC drugs that are commonly question 9). sound alike and copies of ‘‘NCR paper’’ used in hospitals and dispensed (Comment 71) Many comments said that are difficult to read. The comment pursuant to an order, blood, and blood that a 3-year implementation period is did not explain what it meant by NCR components will cover the majority of sufficient or acceptable, although some paper or why copies of such paper are products that could present a risk of expressed a desire to have the final rule difficult to read. medication error. Thus, to the extent effective at the earliest possible date. (Response) Issues regarding that any of the comment’s ‘‘non- One comment agreed that a 3-year handwriting and paper quality are standard’’ items are prescription drugs implementation period is sufficient, but outside the scope of this rule and may or OTC drugs that are commonly used cautioned that packaging issues could also be outside our jurisdiction. in hospitals and dispensed pursuant to complicate implementation. (Comment 67) One comment said we an order, they would be subject to the In contrast, many other comments should do ‘‘whatever it takes’’ to bar code requirement unless otherwise advocated a shorter implementation decrease medication errors and increase exempted. period. These comments recommended the productivity of nursing staff. As for a product’s cost to pharmacies, different implementation periods, such Another comment said that nurses need we do not regulate the costs that firms as: a trustworthy, correct, and speedy may charge to pharmacies. Thus, • 2004 or December 31, 2004. Several system that reduces workload and is product cost issues are beyond the comments sought implementation by more efficient than manual systems. It scope of this rule, although we consider 2004 because they believed that urged that nursing staff be involved and the rule’s economic impacts in section manufacturers, repackers, relabelers, adequately trained in bar coding VII of this document. and private label distributors could processes. (Comment 70) One comment asked for comply earlier or because, in one case, (Response) The final rule should help our guidance regarding scanners on the entity submitting the comment detect potential medication errors before certain intravenous infusion pump explained that its contracts with drug they can result in harm to patients and, systems. The comment said that two suppliers require bar codes at the unit- as a result, decrease medication errors. manufacturers have infusion pump of-use package level by 2004. However, insofar as nursing staff systems that are equipped with • 2 years. One comment noted that productivity is concerned, we believe scanners, but the scanners only read bar some drug manufacturers are already that there may be an initial small codes used by the same manufacturer. placing bar codes on their products, so productivity loss due to the use of new The comment said that this practice the comment felt the industry could technology (see 68 FR 12500 at 12527), forces hospitals to buy drugs from the meet a 2-year implementation period. but that, overall, the rule’s benefits same manufacturer who made the Another comment, from a drug greatly exceed productivity loss. infusion pump system and creates a manufacturer, endorsed a 2-year As for involving nursing staff in bar financial hardship on hospitals. The implementation period because the rule code systems development and training, comment acknowledged that hospitals only required the NDC number to be such matters are outside the scope of can relabel drugs themselves, but said encoded in the bar code. A different this rule and may also be outside our that hospital relabeling would eliminate comment said that manufacturers jurisdiction. the rule’s benefits. should obtain FDA approval of label (Comment 68) One comment said that (Response) Issues concerning scanner changes (due to the bar code) within 2 the pharmaceutical industry could capabilities in existing infusion pump years, but added that the support the necessary hardware and systems are outside the scope of this implementation period could be software to maintain databases on drug rule. However, as we stated in our reduced to 18 months if manufacturers sample use and to alert pharmaceutical response to comment 41, the bar code’s supported such a reduction. manufacturers when drug inventories ability to affect medication error rates • a tiered implementation strategy are low. The comment suggested other depends largely on the ability of whereby drugs that we approve after the data uses and database possibilities, hospitals to scan and interpret the data final rule’s effective date must comply such as making data available for in the bar code. So, for example, with a bar code requirement at an earlier physicians and the pharmaceutical choosing a commonly-used linear bar time. Five comments suggested a 2- industry (but protecting patients’ code symbology in a standard that month period for drugs approved after identities) and having FDA control or scanners can easily read will have a the final rule’s effective date, and some
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comments suggested that drugs Therefore, if a manufacturer, repacker, noted in our response to comment 27, approved before the final rule’s effective relabeler, or private label distributor can firms have placed linear bar codes on date should have no more than 3 years demonstrate to us that, for technological products as small as 1 mL vials, and the to comply. reasons, it cannot comply within 2 years UCC itself stated that no pharmaceutical One comment requested that we after the final rule’s effective date, it member to the UCC had presented a shorten the implementation period should contact us. If we agree that the case of a product that was too small to without specifying a different firm cannot comply within 2 years, we bear an RSS bar code. Thus, existing bar implementation period. may give the firm an additional year to code symbologies may be satisfactory One comment declared that comply with the rule. We will not for small packages. We also remind shortening the implementation period entertain any requests for additional parties that there may be other options, would be useless because hospitals time based on non-technological such as changing packaging, to would not be ready to use bar codes and considerations; for example, if a firm is accommodate the bar code. because manufacturers have not unable to decide on which linear bar (Comment 72) One comment focused analyzed possible changes to the NDC code symbologies to use, that indecision on blood and blood components. The number. would not justify an additional year to comment said the implementation One comment asked whether comply with the rule. As another period should be 1 year. The comment products that are already on the market example, if a firm decided to encode explained that ISBT 128 has been without a bar code can remain on the more information (other than the NDC approved by CBER and the American market through their expiration date. number) voluntarily, but was Association of Blood Banks (AABB) Only one comment advocated a longer experiencing difficulties encoding that since 2000 and that a 1988 AABB implementation period. The comment additional information, we would not implementation task force had said the implementation period should agree to an additional year to comply recommended an 18-month be 5 years if we refuse to create a with the rule. implementation plan. general exemptions provision. The Firms who believe that technological (Response) For uniformity among comment stated that the additional time reasons prevent them from complying products we believe that a 2-year would allow for further development of within 2 years of the rule’s effective date implementation period is appropriate new technologies to address space should contact the center responsible for human drug products, biological limitations on small products. for their particular product. For human products, and blood and blood (Response) We have decided to drug products, the contact office is the components. Blood banks are, of course, amend the implementation scheme as Office of New Drugs Compliance (HFD– free to implement the requirements of follows. First, for drugs that are 020), Center for Drug Evaluation and the rule on a shorter time schedule. approved on or after the effective date Research, Food and Drug (Comment 73) One comment asked if of this rule, we would expect Administration, 5600 Fishers Lane, we could offer any incentives to compliance within 60 days after the Rockville, MD 20857. manufacturers to get them to comply drug’s approval date. Early For biological products, including quickly with a bar code requirement. implementation of a bar code blood and blood components, the (Response) We have given requirement for newly-approved drugs contact office is the Office of manufacturers, repackers, relabelers, is appropriate because such drugs will Compliance and Biologics Quality and private label distributors not present the same label redesign (HFM–600), Center for Biologics considerable flexibility in selecting their issues as previously-approved drugs. Evaluation and Research, Food and own linear bar code symbologies, their Additionally, early implementation of Drug Administration, 1401 Rockville data standards (i.e., EAN.UCC or a bar code requirement for newly- Pike, Rockville, MD 20852. HIBCC), and the bar code’s placement approved drugs will create an incentive As for those comments that would on the label. We have even simplified, for all parties to develop and use bar defer implementation until any to the maximum extent we can, the codes, and this should have a beneficial regulatory changes to the NDC number manner in which manufacturers, impact on patient safety. occur or would seek a 5-year repackers, relabelers, and private label Second, for drugs approved before the implementation period if we refuse to distributors would report their bar code effective date of this rule, we would create a general exemption provision, label changes to us (i.e., through annual expect compliance within 2 years after we decline to adopt their suggestions. reports rather than supplements that that date. We agree with the comments Because we have not yet issued a drug require our approval). These efforts that companies have already establishment registration and listing should minimize the regulatory burden demonstrated their ability to put bar proposal (which would include on manufacturers (and others who are codes on their drug products quickly provisions regarding possible regulatory subject to the bar code requirements) and agree that requiring only the NDC changes to the NDC number), we cannot and make it easier for them to comply number in the bar code should facilitate predict how the NDC number will with the rule at the earliest opportunity. implementation. A 2-year change or whether it will change at all. implementation period will also enable We can predict that the NDC numbers III. Legal Authority firms to exhaust existing stock. If a drug for drugs approved after the final rule’s We believe we have the authority to has an expiration date that exceeds 2 effective date should be unique (because impose a bar coding requirement for the years, and the drug was not subject to we have devoted more attention to NDC efficient enforcement of various sections the bar code requirement at the time it numbers recently to ensure that they are of the act. These include sections was marketed, we will allow that drug unique), will remain unchanged even if 201(n), 201(p), 501, 502, 503, 505, and to remain on the market without a bar we revise the NDC number system, and 701(a)) of the act (21 U.S.C. 321(n), code. will be capable of being encoded in bar 321(p), 351, 352, 353, 355, and 371(a)), However, we recognize that we codes. and sections 351 and 361 of the PHS Act cannot preclude the possibility that Additionally, we decline to extend (21 U.S.C. 262 and 264). some drug products may be difficult to the implementation period to 5 years to A bar coding requirement for drugs, bar code, either because of their allow for possible technological including biological products, would containers, size, or other complications. developments for small products. As we permit the efficient enforcement of the
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misbranding provisions in section information would go to the computer has the identity and strength its labeling 502(a) and (f) of the act, as well as the where it could be compared against the represents it to have, and meets the safety and effectiveness provisions of patient’s drug regimen and medical quality and purity characteristics which sections 201(p) and 505 of the act. Bar record, the person administering the the drug purports or is represented to coding is expected to significantly drug will be able to determine whether possess. advance: (1) The provision of adequate the right patient is receiving the right Requiring that the bar code be directions for use to persons drug (including the right dose of that surrounded by sufficient blank space, prescribing, dispensing, and drug in the right route of and remain intact under normal administering the drug; (2) the provision administration) at the right time. The conditions of use, would also further the of adequate warnings against use by person administering the drug will also efficient enforcement of section 502(c) patients where a drug’s use may be be able to avoid giving products to a of the act. Section 502(c) of the act dangerous to health; and (3) the patient who might be allergic to, or provides that a drug product is prevention of unsafe use of prescription otherwise unable to take, a particular misbranded if: any word, statement, or drugs. drug. Because the bar code will facilitate other information required by or under Section 502(a) of the act prohibits access to information including authority of the act to appear on the false or misleading labeling of drugs. adequate directions for use and label or labeling is not prominently This prohibition includes, under section adequate warnings, the bar code placed thereon with such 201(n) of the act, failure to reveal requirements are justified under section conspicuousness (as compared with material facts relating to potential 502(f) of the act. other labeling) and in such terms as to consequences under customary In addition to the misbranding render it likely to be read and conditions of use. Information in a provisions, the premarket approval understood by the ordinary individual database that could be readily accessed provisions of the act authorize FDA to under customary conditions of purchase through the use of a bar code, such as require that prescription drug labeling and use. The requirement that the bar the drug’s strength, dosage form, route provide the practitioner with adequate code be surrounded by sufficient blank of administration, and active ingredient information to permit safe and effective space and remain intact under normal and drug interactions is material with use of the drug product. Under section conditions of use would help ensure respect to consequences which might 505 of the act, we will approve a new that the bar code can be read easily and result from use of the drug under such drug application (NDA) only if the drug accurately so that its safety benefits may conditions of use. Because all of the is shown to be safe and effective for its be realized. drugs (prescription drugs and the subset intended use under the conditions set Because licensed biological products, of covered OTC drugs) covered by this forth in the drug’s labeling. Bar coding including blood, are also prescription final rule may be used in the hospital would allow health care professionals to drug products, the sections of the act setting, such use in hospitals can be use bar code scanning equipment to discussed elsewhere in the legal considered the ‘‘conditions of use as are verify that the right drug (in the right authority section provide ample legal customary or usual.’’ Bar coding can be dose and right route of administration) authority for issuance of this regulation. expected to reduce the incidence of the is given to the right patient at the right However, there is also additional legal following types of medication errors: time. Thus, bar coding will ensure the authority for the rule’s requirements as • Administering the wrong dose to a safe and effective use of drugs by to biological products regulated under patient; reducing the number of medication the PHS Act. Section 351(a) of the PHS • administering a drug to a patient errors in hospitals and other health care Act provides for the approval, as well as who is known to be allergic; settings. the suspension and revocation, of • administering the wrong drug to a Section 505(b)(1)(D) of the act biologics license applications. The bar patient or administering a drug to the requires an NDA to contain a full code requirement for biological drugs, wrong patient; description of the methods used in, and and the machine-readable information • administering the drug incorrectly; the facilities and controls used for, the requirement for blood and blood • administering the drug at the wrong manufacture, processing, and packing of components, are designed to ensure the time; and such drug. The same requirement exists continued safe and effective use of • missing or duplicating doses. for abbreviated new drug applications licensed biological products. Thus, we Because information accessed through (see section 505(j)(2)(A)(vi) of the act) may refuse to approve biologics license use of the bar code will reveal material and for biological products (see applications (BLAs), or may revoke facts relating to potential consequences 351(a)(2)(B)(i)(II) of the PHS Act). already approved licenses, for biological under customary conditions of use, the Information in the bar code would products or blood and blood bar code requirements are justified reflect the facilities and controls used to components that do not have such codes under section 502(a) of the act. manufacture the product. As described or information. Section 502(f) of the act requires drug in section II.C.1 of the preamble, the Additionally, section 361 of the PHS labeling to have adequate directions for NDC number would identify the Act authorizes regulations necessary to use, adequate warnings against use of a manufacturer, product, and package. prevent the introduction, transmission, drug product by patients where its use A bar coding requirement also would or spread of communicable diseases. may be dangerous to health, as well as permit the efficient enforcement of the With specific regard to blood and blood adequate warnings against unsafe adulteration provisions of the act. A components, the requirement for dosage or methods or duration of regulation requiring the bar coding of machine-readable information will aid administration, in such manner and products should avert unintentional mix in the control of units that are at risk of form, as necessary to protect users. The up and mislabeling of drugs during spreading communicable diseases. bar code would make it easier for the labeling, packaging, relabeling, and After the effective date of any final person administering the drug to have repacking. A bar coding requirement rule, if a product required by the final full access to all of the drug’s labeling therefore helps prevent adulteration rule to bear a bar code does not have information, including directions for under section 501(a)(2)(B) of the act. It such a bar code, the product may be use, warnings, and contraindications. is a manufacturing method or control considered adulterated or misbranded Moreover, because the bar code’s necessary to ensure that a drug product under the act and would be subject to
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regulatory action. Our enforcement and on OTC drug products that are approved the collection of information actions under the act include, but are dispensed pursuant to an order and until March 31, 2005, under OMB not limited to, seizure, injunction, and commonly used in health care facilities. control number 0910–0001. We are not prosecution, and violation may result in The rule also requires machine-readable re-estimating these approved burdens in withdrawal of approval of a product’s information on blood and blood this rulemaking; we are only estimating marketing application. components. For human prescription the additional reporting burdens drug products and OTC drug products associated with the submission of label IV. Environmental Impact that are dispensed pursuant to an order changes under § 314.81(b)(2)(iii). We have determined under 21 CFR and commonly used in health care Minor label changes for blood and 25.30(h) and (k) that this action is of a facilities, the bar code would contain blood components may be reported as type that does not individually or the NDC number for the product. For part of an annual report, as described in cumulatively have a significant effect on blood and blood components, the rule 21 CFR 601.12(f)(3), and we would the human environment. Therefore, specifies the minimum contents of the consider the machine-readable neither an environmental assessment machine-readable information in a information on blood and blood nor an environmental impact statement format approved by the CBER Director component labels to be a minor change. is required. as blood centers have generally agreed We have previously estimated the upon the information to be encoded on V. Paperwork Reduction Act of 1995 reporting burden for submitting labels the label. The rule will help reduce the as currently required under A. What Is the Estimated Information number of medication errors in § 601.12(f)(3), and OMB has approved Collection Burden? hospitals and other health care settings the collection of information until by allowing health care professionals to This final rule contains information August 31, 2005, under OMB control use bar code scanning equipment to number 0910–0338. We are not re- collection requirements that are subject verify that the right drug (in the right to public comment and review by the estimating these approved burdens in dose and right route of administration) this rulemaking; we are only estimating Office of Management and Budget is being given to the right patient at the (OMB) under the Paperwork Reduction the additional reporting burdens right time. associated with the submission of label Act of 1995 (44 U.S.C. 3501–3520). We Because bar code information for changes under § 601.12(f)(3). describe the provisions below in this drugs subject to an NDA or ANDA will section of the document with an be reported through an annual report, Parties may also seek an exemption estimate of the annual reporting burden. this rule affects the reporting burden from the bar code requirement under Our estimate includes the time for associated with 21 CFR 314.81(b)(2)(iii). certain, limited circumstances. Section reviewing instructions, searching Section 314.81(b)(2)(iii) requires the 201.25(d) requires submission of a existing data sources, gathering and submission of an annual report written request for an exemption and maintaining the data needed, and containing a representative sample of describes the contents of such requests. completing and reviewing each package labels and a summary of Description of Respondents: collection of information. labeling changes (or, if no changes have Manufacturers, repackers, relabelers, Title: Bar Code Label Requirement for been made, a statement to that effect) and private label distributors of Human Drug and Biological Products since the previous report. Here, the bar prescription drug products, including Description: We are issuing a new rule code would result in a labeling change. biological products, or OTC drugs that that would require human drug product We have previously estimated the are dispensed pursuant to an order and and biological product labels to have bar reporting burden for submitting labels commonly used in hospitals. codes. The rule requires bar codes on as currently required under We estimate the burden of this most human prescription drug products § 314.81(b)(2)(iii), and OMB has collection of information as follows:
TABLE 1.—ESTIMATED ANNUAL REPORTING BURDEN1
Annual Fre- 21 CFR Section No. of Respondents quency of Re- Total Annual Hours per Total Hours sponses Responses Response
201.25 and 610.67 1,447 31.1 45,000 24 hours 1,080,000
§ 201.25(d) 40 1 40 24 hours 960
314.81(b)(2)(iii) 1,447 5.9 8,576 10.5 minutes 1,497
601.12(f)(3) 211 1 211 1 minute 3.5
606.121(c)(13) 981 42,507.7 41.7 million 1 minute 695,000
Total 1,777,550.5 1 There are no capital costs or operating and maintenance costs associated with this collection of information.
Our estimates are based on the there are approximately 1,447 registered packages account for 8,576 separate and following assumptions: establishments that would be reporting. distinct products (each product is • For prescription drugs whose label Information on listed drugs indicates marketed in an average of 10.47 changes would be reported in an annual there are 89,800 separate, identifiable packaging variations). This means that report pursuant to § 314.81 or product packages that will comply with the annual frequency of reports would § 601.12(f)(3) for biological products), the bar code requirement. These be 5.9 (8,576 products subject to annual
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reports/1,453 registered establishments the larger time estimate of one minute would simply declare that the bar code = 5.92 products per registered per machine-readable information for has been added to the label. So, for establishment, which we have rounded blood, thus resulting in an annual example, if the statement in the annual down to 5.9). Section 314.81(b)(2)(iii) reporting burden of 695,000 hours ((41.7 report was, ‘‘We added a bar code to the requires firms to submit an annual million reports x 1 minute per report) label pursuant to 21 CFR 201.25,’’ it is report that includes a summary of any /60 minutes per hour = 695,000 hours). difficult to see why such a statement changes in labeling since the last annual However, we reiterate that facilities requires 10 or 15 minutes to prepare or report. Similarly, § 601.12(f)(3)(i)(A) using on-demand printers would face insert into an annual report, and even requires manufacturers of biologics to lower burdens. In addition, blood more difficult to see why such a include in their annual reports editorial collection centers are currently allowed statement results in a 400-hour burden or similar minor labeling changes. We and encouraged to apply machine- for a firm. The comments did not expect that the addition of a bar code to readable information to collections. This explain how it arrived at its estimate of a label would necessitate a simple burden estimate accounts for requiring 10 and 15 minutes per report, so, statement in the annual report declaring an activity that is currently voluntary because we have no basis to evaluate the that the bar code has been added, so we and does not reflect an additional accuracy of the comments’ larger time have assigned an estimate of one minute activity. estimates, we decline to adopt them. for such statements per label. Each • For exemption requests under (Comment 75) One comment from a product’s annual report would include § 201.25(d), we believe that few medical gas firm said that we labels for all packaging variations. Thus, products would warrant an exemption underestimated the number of firms the total reporting burden would be from the bar code requirement. subject to the rule. The comment said 1,496.67 hours ((8,576 reports x 10.47 Consequently, based on our experience that there are over 3,000 medical gas labels (or one label per packaging with other exemption provisions, we sites alone. variation) per report x 1 minute per estimate that there may be 40 exemption (Response) Our estimate was based on report)/60 minutes per hour = 1,496.67 requests per year and that each the number of firms that have registered hours), which we have rounded up to exemption request will require 24 hours with FDA, and one should remember 1,497 hours. to complete. This should result in an that the final rule applies to • For minor labeling changes for blood annual reporting burden of 960 hours manufacturers, repackers, relabelers, and blood components included in an (40 requests per year x 24 hours per and private label distributors who are annual report under § 601.12(f)(3)(i)(A), request = 960 hours). subject to the drug establishment FDA’s database indicates there are 211 registration requirements (see B. What Comments Did We Receive on licensed manufacturers of transfusable § 201.25(a)). We do not know whether Our Estimates? blood and blood components. We the comment’s claim of over 3,000 expect that the addition of machine- Several comments disagreed with our medical gas ‘‘sites’’ includes firms that readable information to the label of estimates, and one comment even are not subject to our drug blood and blood components would disagreed that the rule would have establishment registration requirements, necessitate a simple statement in the practical utility insofar as its products but if a firm is not subject to the drug annual report declaring that the were concerned. establishment registration requirement, machine-readable information has been (Comment 74) Specifically, two then it would not be subject to the bar added, so we have assigned an estimate comments from allergenic extract firms code requirement. of one minute for such statements. disagreed with our claim that reporting Yet, even if we were to accept the Thus, the total reporting burden would label changes would take only 1 minute. comment’s estimate of 3,000 medical be 3.5 hours ((211 reports x 1 minute One comment claimed that the estimate gas establishments and assumed that all per report)/60 minutes per hour = 3.516 would be 400 hours for its firm, based were subject to the drug establishment hours), which we have rounded down to on 15 minutes per label report and 30 registration requirements, we do not 3.5 hours. product labels per report. It declared the need to change our Paperwork • For the requirement in burden to be ‘‘onerous and Reduction Act estimates because the § 601.121(c)(13) to include machine- unnecessary.’’ The comment declared final rule exempts medical gases from readable information on blood and that the rule would not enhance our the bar code requirement. blood components, FDA’s registration oversight of the allergenic extract The information collection provisions database indicates there are 981 blood industry and would not reduce in this final rule have been approved and plasma establishments. The AABB medication errors because allergenic byOMB. (OMB control number: 0910– estimates that approximately 13.9 extracts are administered in physician’s 0537; expiration date 2/28/07). million blood donations are collected offices and clinics where ‘‘mistakes do An agency may not conduct or annually. We estimate that each blood not normally occur.’’ The second sponsor, and a person is not required to donation yields approximately three comment stated that its firm would have respond to, a collection of information blood components. This means that the to submit label changes for 1,200 labels unless it displays a currently valid OMB frequency of responses is approximately and 1,200 packages at 10 minutes per control number. 41.7 million occurrences (13.9 million report, for a total burden of over 400 blood donations x 3 blood components hours, and declared this would be an VI. Federalism per donation) divided by 981 ‘‘unnecessary hardship’’ on a small firm. We have analyzed this final rule in establishments or 42,507.645 (Response) The final rule exempts accordance with the principles set forth occurrences per establishment, which allergenic extracts from the bar code in Executive Order 13132. We have we have rounded up to 42,507.7. We requirement, so the comments’ claims determined that the rule does not estimate that it takes one minute to are moot. However, we reiterate that we contain policies that have substantial apply a machine-readable code expect that the addition of a bar code to direct effects on the States, on the manually; if a blood collection facility a label would necessitate only a simple relationship between National uses an on-demand printer, the time statement in the annual report, which is Government and the States, or on the would range between 15–30 seconds. already a required document (see 68 FR distribution of power and For purposes of this estimate, we adopt 12516; 21 CFR 314.81). This statement responsibilities among the various
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levels of government. Accordingly, we Regulatory Enforcement Fairness Act), if a substantial number of small entities. have concluded that the rule does not a regulation has a significant economic The expected impact of this regulation contain policies that have federalism impact on a substantial number of small is greater than $110 million in a single implications as defined in the Executive entities, we must analyze regulatory year and therefore is considered a major order and, consequently, a federalism options that would minimize the impact regulatory action as defined by the summary impact statement is not on small entities. Section 202(a) of the Unfunded Mandates Reform Act. The required. Unfunded Mandates Reform Act Office of Information and Regulatory requires that agencies prepare a written Affairs (OIRA) in the Office of VII. Analysis of Impacts statement of anticipated costs and Management and Budget (OMB) has A. Introduction benefits before proposing any regulation determined this regulation to be major that may result in expenditure by State, under the Congressional Review Act. We have examined the rule under local, and tribal governments, or by the We estimate that the rule provides net Executive Order 12866, the Regulatory private sector of $100 million in any one benefits to society of $3.4 billion to $3.6 Flexibility Act as amended by the Small year (adjusted annually for inflation). billion annually, depending on whether Business Regulatory Enforcement Currently, such a statement is required a discount rate of 3 percent or 7 percent Fairness Act, the Unfunded Mandates if costs exceed about $110 million for is used. This estimate relies on work by Reform Act, and the Congressional any one year. The Congressional Review the Eastern Research Group, Inc. (ERG), Review Act. Executive Order 12866 Act requires that regulations determined which we contracted to collect data, directs agencies to assess all costs and to be major must be submitted to interview industry experts, and analyze benefits of available regulatory Congress before taking effect. the costs and benefits of the rule. The alternatives and, when regulation is The regulation is consistent with the detailed analysis and references in necessary, to select regulatory principles set forth in Executive Order support of the impacts summarized in approaches that maximize net benefits 12866 and the three statutes. We have Table 2 is included in the docket as (including potential economic, identified the regulation as an Reference 46 and is available on FDA’s environmental, public health and safety, economically significant regulatory Web site. In section VII.O below, we distributive impacts and equity). Under action, as defined in Executive Order present our analysis of the substantial the Regulatory Flexibility Act (as 12866. We believe the regulation is uncertainty in the estimates presented amended by the Small Business unlikely to have a significant impact on in Table 2.
TABLE 2.—ESTIMATED IMPACTS OF THE FINAL RULE IN MILLIONS OF DOLLARS ANNUALIZED OVER 20 YEARS
Anticipated Discount Rate Regulatory Hospital Societal Net Benefits (benefits Potential Hospital Costs Costs* Benefits** minus costs) Efficiencies***
7 Percent $8 $660 $5,200 $4,500 $380 to $600
3 Percent $7 $600 $4,900 $4,300 $360 to $570 Note: These estimates may not sum because of rounding. *Costs due to voluntary accelerated purchase and utilization of bar coding systems **Benefits to public health due to avoidance of adverse drug events ***Potential additional benefits from efficiencies in reports, records, inventory, and other hospital activities.
Table 2 presents the total expected in present value terms, if calculated at these additional gains, but have not regulatory costs to manufacturers, 7 percent and 3 percent discount rates claimed them as direct benefits of this repackers, relabelers, retail outlets, and respectively. These estimates, however, final rule. FDA. Most of these costs will occur account for neither expected potential We also note that reductions in during the first several years after hospital efficiencies, nor income income transfers from the potential implementation. Table 2 also shows the transfers following fewer awards for reduction in medical malpractice estimated opportunity costs of the medical malpractice. awards and reductions in medical expected accelerated investment in bar While efficiency gains in hospital liability insurance that may occur with coding systems by the hospitals. These recordkeeping and reporting procedures reductions in adverse drug events are investment expenditures are necessary produce societal benefits, we are not considered societal benefits because to achieve the societal benefits expected extremely uncertain that hospitals they do not represent resource or from the rule. Table 2 also shows our would make the additional investments opportunity savings. These effects are estimated range of possible efficiencies to achieve them. This final rule focuses discussed later in this section, but do in hospital activities associated with on the use of bar code technology only not contribute to the estimated net accelerated adoption of technology. in hospital pharmacies and patient care benefits shown in Table 3. Both anticipated hospital costs and the wards. Such systems could provide the B. Objective of the Rule societal benefits would occur after opportunity and incentive for hospitals hospitals purchase and install the to expand bar code technology into The objective of the rule is to enable necessary equipment to take advantage other areas of operation, such as billing the health care sector to utilize of bar codes. The net benefit of the rule or supply ordering. The installation of technological solutions to reduce is the societal benefit minus the induced bedside systems may make such an preventable adverse drug events expenditures minus the regulatory costs. expansion more likely, but we believe it (ADEs)1 and acute hemolytic The net benefits of the rule, which are would not be a direct effect of this final $3.6 billion and $3.4 billion per year if rule. In addition, the estimated 1 For this analysis an adverse drug event (ADE) is an injury from a medicine (or a lack of an annualized at 7 percent and at 3 efficiency gains are extremely uncertain. intended medicine) (source: American Society of percent, are $38 billion and $51 billion However, we have noted the potential of Continued
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transfusion reactions (AHTRs) hospital admissions with ADEs ranged Another study (Ref. 7) has estimated associated with medication errors2 and from 2.4 percent to 6.5 percent with a that two-thirds of all incompatible transfusion errors in hospitals.3 mean rate of 4.3 percent. According to transfusions were the result of AHRQ, there were 29.1 million non- preventable errors. Using this figure, the C. Estimate of Preventable Adverse Drug obstetric hospital admissions during current number of annual preventable Events and Acute Hemolytic 2000 4. We multiplied these admissions erroneous blood transfusions that result Transfusion Reactions by 0.043 and found that approximately in AHTRs is 276. In addition, the In 1999, the Institute of Medicine 1.25 million ADEs occur annually in literature reports that potential blood (IOM) issued a report that drew public United States hospitals. The same four transfusions that could have resulted in attention to the number of deaths that studies reported that between 15 adverse outcomes but did not account occur each year in the United States percent and 49 percent of all ADEs are have a frequency five times actual errors from preventable medication errors in preventable. We used the mean of these (Ref. 8). Thus, we have estimated 276 hospitals. A significant proportion of studies to estimate that about 373,000 preventable and 1,380 potential AHTRs the reported deaths, as well as the (30 percent) of these ADEs were occur in hospitals each year. The additional illnesses and morbidities, preventable. Based on published reports NBDRC has estimated an annual growth were associated with errors involving (Refs. 2 and 6), we also estimated that rate of transfusions of 6 percent. FDA-regulated products, especially 1,048,000 potential ADEs5 are either Discussions with hospital personnel medications. This section briefly intercepted before reaching the patient believe this may be an overestimate, so describes our efforts to estimate the or do not cause an injury. According to we have used a 3 percent annual growth current number of preventable ADEs projected increases in hospital in transfusions to forecast preventable and AHTRs. expenditures and population AHTRs over time. Therefore, within 20 The public health literature includes demographics that imply future years we expect 498 preventable and many attempts to determine the rate of increases in hospital admissions, the 2,492 potential AHTRs in the absence of preventable ADEs in United States annual number of preventable ADEs this regulation. hospitals, although these studies would total 478,000 within 20 years. typically employed varying ERG searched the public health D. The Final Rule methodologies and definitions. Our literature to identify stages in the With certain exceptions, we are methodology begins by multiplying hospital medication process in which requiring linear bar codes on almost all estimated hospital admissions by errors occur and concluded that the prescription drug and biological reported rates of ADEs per admission. medication stages of prescribing, products (including vaccines) and all We combined the resulting number of transcribing, dispensing, and over-the-counter (OTC) drug products ADEs per hospital per year with the administration provide a useful analytic commonly used in hospitals and reported ratio of preventable to total structure. The most common reported dispensed pursuant to an order. We are ADEs to estimate the number of ADE symptom was cardiac arrhythmia also requiring the use of machine- preventable ADEs per hospital per year. followed by itching and/or nausea. readable information on all human We first developed these calculations Relatively few fatalities have been blood and blood components intended for various hospital size classes and documented as preventable ADEs, but for transfusion. For drug products, this then aggregated the data to present several published studies conclude that information will include National Drug national estimates. We relied on 2.8 percent of all preventable ADEs Code (NDC) number identifying the published literature to derive ADE rates probably result in fatalities. Another dosage, strength, nature, and form of for each major stage of the medication study has asserted that as many as 2.7 each administered product and be process in hospitals. We then projected percent of all ‘‘negligent’’ (as defined in portrayed in a linear bar code6 and preventable ADEs for the entire the study) ADEs resulted in permanent include product-specific and package- evaluation period based on expected disability. We used these estimates in specific NDC numbers. We will future increases in hospital admissions. our analysis. maintain a database of all unique NDC We used a similar methodology to AHTRs resulting from erroneous numbers and ensure these data are estimate preventable AHTRs. blood transfusions have been available for use in commercial ERG identified four comparable extensively studied and widely published studies that reported rates of computerized systems that can provide reported. Based on data provided by the bedside bar code identification. The bar ADEs per hospital admissions (Refs. 2 to National Blood Data Resource Center 5). The reported incidence rates of code requirement would be effective (NBDRC), ERG estimated that United within 2 years. For blood and blood States hospitals currently transfuse components, the machine-readable Hospital Pharmacists, 1998). The definition used for approximately 15.7 million units of the analysis in the proposed rule included AHTRs, information will include information which are shown separately for the final rule’s whole blood and red blood cells to 5.2 identifying the facility, the lot number analysis. million patients per year. According to relating to the donor, a product code, 2 For this analysis a medication error is a recent studies (Ref. 27) the frequency of preventable event that may cause or lead to blood type, and Rh. erroneous ABO-incompatible We are issuing this rule because inappropriate medication use or patient harm while transfusion errors is approximately 1 the medication is in the control of the health care private markets have failed to establish professional, patient, or consumer (source: per 38,000, or 414 errors per year. the standardized bar codes that are NCCMERP, 2002). needed to motivate hospitals to adopt an 3 For this analysis a hospital is a facility that 4 Obstetric admissions are rarely associated with provides medical, diagnostic and treatment services ADEs. The referenced articles have eliminated these important health-saving technology. In that include physician, nursing and other health admissions in their analyses. Reasons for the low particular, we believe that the private services to inpatients and the specialized probability of ADEs include the relatively healthy market’s failure to develop standardized accommodation services required by inpatients state of most admissions as well as the low number bar codes has impeded the growth of the (source: NAICS, 2002). We have excluded of medications. psychiatric, alcohol and chemical dependency, 5 A potential ADE is a medication error that could technological investment necessary to rehabilitation, and other specialty hospitals. We have caused an ADE, but did not. Potential ADEs have included general medical and surgical include medication errors that were intercepted 6 A bar code is a graphic representation, in the hospitals in which the average stay is less than 30 before reaching the patient. Potential ADEs include form of bars and spaces of varying width of numeric days. any errors that do not involve patients. or alphanumeric data.
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reduce the number of ADEs and AHTRs and two-dimensional symbologies). The information. For example, scanners at in the nation’s hospitals. We find that a advantage of two-dimensional and bedside point of care may only need to regulatory intervention to establish a composite codes is that they can include capture limited identifying information standardized system of bar codes is additional information in the same area. while the central dispensing pharmacies needed to address this market failure. Potential disadvantages of two- may require full database capabilities. The final rule will increase costs to dimensional and composite symbologies At this time, the scanning industry is the manufacturers, repackers, relabelers, are the higher costs for readers and confident that linear standards8 will be and private label distributors of the scanners and the additional risk of readily accessible, whereas other affected products by requiring changes uncertain data recovery by standards may require additional market in manufacturing, packaging, and misinterpreting coded information. research. We believe that scanners will labeling processes. It will also increase While these organizations’ bar codes work in conjunction with hand-held costs to some hospitals by requiring a are widely used, their use for the personal digital assistants (PDAs) in change in some bar code readers prevention of ADEs remains limited. hospital wards due to their portability associated with these products. The Most pharmaceutical and OTC and multi-functional characteristics. final rule will also require FDA manufacturers use bar codes to move resources to ensure industry compliance shipping cases through their 2. Manufacturers and Packagers of with the bar coding requirement and distribution chain, but relatively few Affected Products additional resources to maintain a pharmaceuticals are sold with the A large majority of exterior computerized database of NDC specific bar codes required by this rule. pharmaceutical packages already numbers. Once bar codes are Some hospitals use computer-controlled include the NDC number in a bar code, standardized, the final rule will enable technology to add their own bar codes according to discussions with staff at hospitals to take advantage of the coded to incoming products. two large Veteran Health information that would permit hospitals Bar code systems require printers, Administration Comprehensive Mail to reduce ADEs, while achieving other scanners, and software to ensure that Order Pharmacies. The final rule, operational cost efficiencies. The final correct information is communicated. however, by requiring this bar coded rule will also enable other sectors to use According to discussions with information on the drug’s label, may machine-readable technology in ways consultants, pharmaceutical result in a bar code on both exterior and that would benefit public health (for manufacturers prefer to label products interior packaging. In addition, some example, accessing up to date labeling as late as possible in the manufacturing prescription and OTC drug products are information from home computers or process in order to maximize flexibility. already sold in blister packs, where identifying drugs subject to recalls). Printing technology advancements have individual pills or capsules are enclosed allowed more printing options to be in a bubble. Prescription products are E. Description of Affected Sectors available. Manufacturers currently use often repackaged into blister cards for 1. Current Machine-Readable contract label printers or packagers more convenient use in hospitals. While Technologies along with in-house operations. some blister cards may now be labeled Prior to developing the rule, we Contract printers are commonly used for with bar codes for specified concerns, contracted with ERG to examine the preprinted labels that do not carry many are not. OTC drug products in current machine-readable technologies customized data. Currently, ink jet and blister packs rarely have bar coded available for use by the health care thermal printers may be appropriate for information. Moreover, many bar coded sector and report on trends. The production line printing of bar codes, exterior packages cannot be read by resulting report is included in the although ink jet printers may cause hospital or retail scanners, because docket (Ref. 9), and summarized here. difficulties in media compatibility, print manufacturers use bar codes for sales Bar coding is currently the most speed, and resolution. Water-based inks promotions and other special offers that widely used machine-readable can streak or blur, but non-water soluble have separate and distinct NDC technology and is also the technology inks produce a shine that reflects to the numbers that do not appear in all most likely to see increased acceptance scanner and affects how the bar code is customer databases. in the near future. Health care read. Laser printers are subject to toner There are currently about 1,218 companies have sponsored two flaking, which makes them unreliable establishments in the Pharmaceutical organizations that have each developed for long-term bar code printing. and Biologic Preparation industries different bar code symbologies;7 the Production line speeds may also create (NAICS 325412 and 325414). Based on Uniform Code Council’s Universal problems for bar code resolution levels. the size distribution of industry Product Code (UPC) and the Health The complexities of bar code scanners establishments, we estimate a total of Industry Business Communication have evolved as the codes have become about 3,513 in-house packaging Council’s Health Industry Bar Code more data intensive. Most scanners in production lines. In addition, an (HIBCC). UPC codes are more widely current use are laser-based systems estimated 229 establishments in the used in retail stores while HIBCC is designed to read linear bar codes. In Packaging and Labeling Services specially designed to safeguard against health care settings, scanners are industry (NAICS 561910) are dedicated errors. However, although HIBCC codes routinely programmed to discriminate to serving the pharmaceutical industry, have been effectively used in the among the symbologies they are likely accounting for an additional 482 medical device industry, they have not to encounter. Some laser scanners can packaging lines. Overall, we estimate won wide acceptance within also read composite or two-dimensional that 3,995 packaging lines are used in pharmaceutical markets. Within these codes, if properly programmed. These 1,447 establishments for these products. symbologies, the groups have defined scanners are more costly, and some In addition, we estimate there are 981 acceptable linear (or one-dimensional) consultants have cautioned that blood collection centers in the United codes, two-dimensional codes, and multiple data systems may introduce States (NAICS 621991). Each of these composite codes (a combination of one- potential misreading at hospital collection centers acts as a separate bedsides. Moreover, in certain 7 A symbology refers to a distinct technological, situations, health care scanners may not 8 A standard refers to a general description of a machine-readable language. need to use all of the available system of machine-readable languages.
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packaging line. Consultants have frequently, but there is evidence that that currently have installed bar code estimated that about 25 percent of these numerous labeling changes occur. We readers would have to upgrade or blood collection centers are included in examined selected NDA files and found replace some scanners. According data published industry counts. We added that changes to prescription drug from the National Center for Health blood collection centers to the industry product labels occur, on average, more Statistics (NCHS), there are 5,040 packaging lines for a total of 4,976 than once per year. While marketing of hospitals in the United States (NAICS affected packaging lines in 2,428 prescription drug products may not be 622) with a total of about 850,000 beds separate establishments. as sensitive to labeling graphics and that will be likely to use bar code The number of separate trade and package design as OTC products, there technology. Estimates of personnel in generic named affected products is are many other reasons why these hospitals include 48,500 about 17,000, an increase greater than manufacturers change their product pharmacists, 44,500 pharmacy 500 percent since 1990. Each of these labels. For this analysis, we have assistants, and almost 1.2 million named products may be marketed in nevertheless assumed that the final rule nurses. Overall, a nurse is responsible varying strengths or dosage forms. Using will result in significant involuntary for 3 beds per shift. An average hospital data from the current NDC number list, relabeling by the industry. includes 170 beds and employs about 10 we have estimated there are 78,000 pharmacists, 9 pharmacy assistants, and 3. Retail Outlets separate prescription unit-of-sale 237 nurses. packages, 98,000 OTC drug packages, Retail pharmacies currently have the Hospitals are currently adopting bar and 2,000 blood/vaccine packages. Over capability to read linear standardized code technology to better control the time, the number of distinct packaging bar codes at their in-house scanners. entire medication process and improve units is expected to continue to According to the National Association the delivery of care to patients. Virtually increase. The OTC drug industry has of Chain Drug Stores, there are 55,000 all hospital pharmacies use bar code suggested that as many as 10 percent of community and chain pharmacies scanners for inventory and stock OTC packages (9,800 packages) are (NAICS 446110), and pharmacies in keeping activities, but only commonly used in hospital settings and supermarkets and mass merchandisers approximately 1 percent of all hospitals would be subject to the bar code rule. (NAICS 445110) that utilize over have installed bedside, point-of-care For example, OTC analgesics that may 515,000 scanners. The expected useful systems that use bar coded information. be dispensed to a patient pursuant to an life of a retail scanner is 5 years. An additional 3 percent of hospitals use order would be subject to the final rule, The current stock of scanners in retail some form of computerized system in but shampoos or toothpastes that may outlets may require upgrades or the medication process, but not all use be provided would not. The Consumer replacement if the bar code rule were to bar codes. Overall, an estimated 2 Healthcare Products Association mandate reduced space symbology percent of all hospitals (101 hospitals) (CHPA) estimated that as many as 10 (RSS). These upgrades would not be a currently use bar codes in everyday percent of their member’s products were direct requirement of the alternative, but operations. Even in the absence of the regularly dispensed from hospital would have been necessary for these regulation, we expect the remaining pharmacies or packaged specifically for entities to continue with bar coded 4,939 hospitals to gradually implement sale to hospitals. Other responses activity. The retail sector currently computerized tracking systems. include a report from a hospital that relies on UPC or other symbologies and Discussions with industry consultants only 200 OTC products are routinely adopting such a standard would not and the American Hospital Association dispensed. However, discussions with require scanner replacements or (AHA), however, suggest that without OTC manufacturers and hospital upgrades. The final rule covers only standardization, hospitals would need pharmacists have indicated larger those OTC drug products commonly an estimated 20 years to adopt and use potential coverage. Hospital pharmacists used in hospitals and dispensed systems with bar code readers and to periodically order wide arrays of pursuant to an order. Although small use in-house overpackaging and self- products from catalogs. While some vials or bottles may require specific RSS generation of bar code identifiers. ERG categories of OTC products are unlikely symbology, these items are available to discussed with several consultants to be affected by the regulation, ERG has consumers in larger packages that whether 20 years is a realistic horizon estimated that as many as 75 percent of accommodate current standards for for acceptance of this technology. While OTC shelf-keeping units (SKUs) could retail outlets. The regulation is not they recognized the uncertainty of potentially be used in hospitals and expected to impact this sector, but, in future projections in this area, industry subject to the requirement of this developing this rule, we have experts felt that 20 years was not an regulation. For purposes of this analysis, considered alternatives that would unreasonable expectation. We examined because we do not know the specific affect retail outlets. the impact of alternative future SKUs that will be ‘‘commonly used in acceptance rates as a sensitivity 4. Hospitals hospitals,’’ we have assumed that 75 analysis. percent of all OTC drug products The final rule does not require We requested comments on the (73,500 SKUs) would be required to hospitals to introduce the new potential uses of bar code information provide bar coded information. Overall, automated technologies, but the on drug products at a public meeting 153,500 separate unit-of-sale packages development of consistent bar codes on held on July 26, 2002. Comments from are expected to be subject to the final drugs and consistent machine-readable that public meeting indicated that while rule. information on blood and blood patient safety reasons were the primary OTC drug manufacturers frequently components will greatly encourage goals for installation of scanning redesign labels. Based on discussions hospitals to implement bar code based systems, there are other potential uses. with manufacturers, the majority of OTC systems to reduce ADEs associated with Industry groups and individual labels are redesigned within a 6-year medication errors. Moreover, unit-dose hospitals noted that installation of cycle for marketing reasons. Many blister packs and other vials and small scanning systems may lead to more products have redesigned labels every 2 bottles would probably need bar codes efficient inventory control, purchasing or 3 years. Prescription drug product using the RSS symbology. In order to and supply utilization, and other labels may be redesigned less properly scan these products, hospitals potential risk management activities.
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Other groups noted that an integrated affected products to have bar coded $4.7 million over the 11th and 12th computerized network would assist information (or machine-readable evaluation years for this replacement billing and laboratory systems as well. information in the case of blood and and upgrade. In addition, the packaging The AHA stated that bar codes would blood components). Although the exact production process would result in improve patient care and safety, impact on our compliance resources is additional annual operating and increase workforce productivity and not quantified, we recognize that the maintenance costs reaching $0.4 million satisfaction, streamline payment, creation of new regulatory requirements by the second evaluation year. In total, billing, and administrative systems, lead will need additional resources to ensure we estimate that the costs incurred by to efficient management of assets and compliance. the prescription drug manufacturers, resources, and meet consumer repackers, and relabelers to comply with expectations for service and access to F. Regulatory Costs of the Final Rule the final rule over the 20-year period information. We believe these 1. Introduction would be $3.2 million per year if comments indicate that internal annualized using a 7 percent annual We estimated costs for a 20-year investment decisions concerning the discount rate, and $2.5 million if evaluation period to reflect the time that acquisition of computerized systems annualized using a 3 percent discount hospitals would take to invest in bar entail additional returns that are in rate. code technology in the absence of the addition to ADE and AHTR avoidance. b. Over-the-Counter drugs. The OTC regulation. This summary describes While some of these returns to hospitals drug industry has estimated that fewer these costs and presents both the (such as reduced liability awards and than 10 percent of their products are present value (PV) and the annualized malpractice liability insurance commonly used in hospitals (CHPA, premiums) may be partly transfers, we value of the cost streams. We analyzed 2002). However, suppliers and hospitals believe such additional efficiencies are costs to the affected sectors over the have asserted that as many as 75 percent likely. entire evaluation period using both 7 of OTC SKUs would at least percent and 3 percent annual discount occasionally be ordered for hospitals. 5. Nursing Homes and Long-Term Care rates. We assume that costs and For this analysis, we assume that 75 Facilities expenditures accrue at the beginning of percent of all OTC drug products could We analyzed the potential impact of each year. The detailed calculations and be required by the rule to include bar bar code technology for the prevention references that support the following coded NDC numbers. It is likely the of preventable ADEs in nursing homes analysis are available as Reference 1. industry would either assign internal and other long-term care facilities 2. Costs to Manufacturers and Packagers production processes that could allow (NAICS 623110). According to the of Affected Products labeling differentiation for these American Health Care Association products, or repackers and relabelers (AHCA), there are 16,456 nursing homes The pharmaceutical industry would would provide the required labeling. We in the United States, 11 percent of face compliance costs from this believe that the packaging changes which are hospital-based. These regulation, because we would require required to install bar coding equipment facilities account for about 1.8 million manufacturers, repackers, relabelers, are so large they would result in beds with an occupancy rate of over 85 and private label distributors to include manufacturer decisions to bar code percent. The AHCA estimates there are NDC numbers in bar code format, using entire product lines rather than 561.7 million patient-days in nursing linear bar code symbology for all unit of incremental, specific products. We homes each year, with 1.5 million dosing products. The final rule requires estimate that the initial investment for annual admissions. Most nursing homes this information within 2 years of the OTC drug manufacturers, repackers, and are serviced by long-term care (LTC) implementation date. The final rule also relabelers would total $19.9 million pharmacies. There are approximately affects the production processes of the over 2 years, with additional capital 3,000 of these pharmacies, including pharmaceutical and biological product investments of $1.5 million during the those that only service nursing homes. industries. Although manufacturers 11th and 12th evaluation years. The appear to initiate labeling changes fairly estimated annual operating costs to 6. FDA Oversight and Responsibilities often for internal purposes, the final provide bar codes to the affected We would be affected in three areas. rule could lead to large-scale production proportion of the OTC drug market are For successful bar code use, hospitals line alterations that could affect a expected to reach $0.3 million by the need access to the unique NDC numbers manufacturer’s entire product line. second year. Overall, the estimated that identify specific active ingredients, a. Prescription drugs. Based on ERG’s annualized costs to the OTC drug packages, dosage forms, and units. We analysis, we expect the overall industry, using a 7 percent annual would maintain the database containing investment costs to the prescription discount rate over the 20-year these unique identifiers and arrange drug industry to total $28.1 million over evaluation period, are $2.2 million. access to it for the private sector. the first 2 years of the evaluation period. With a 3 percent annual discount rate, We would also develop and maintain Among the major components of these the annualized costs to OTC a process of reviewing and granting investment costs are $17.4 million manufacturing firms are $1.6 million. exemptions to these regulatory resulting from modifications of unit- c. Blood and blood components requirements for specific products. dose interior packaging to include a intended for transfusion. Manufacturers Although we estimate that we will unique NDC number in a linear bar code of blood and blood components receive approximately 40 annual format for every product. Exterior intended for transfusion could also be exemption requests, we cannot packaging modifications that include minimally affected by the rule, but we accurately predict the resources NDC information would cost $6.1 could not identify a manufacturer of required to process these exemption million over the 2-year period. Because blood and blood components intended requests. the capital equipment installed for these for transfusion that does not currently The third area in which our activities packaging modifications would require apply bar coded information that would be impacted by the final rule upgrading and replacement after an includes information required by this would be our use of compliance average 10 years of productive life, the final rule. The final rule does not resources. The final rule requires industry would invest an additional specify a particular bar code standard
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for this market segment. Therefore, we hospitals (101 hospitals) that currently products were halved (so that the do not believe this final rule will pose utilize bar codes in everyday practice by number of available products increased any incremental costs to this industry. repackaging medications in unit-dose by 500 percent in 20 years), there would d. Total cost to manufactures, form and applying internally printed be 890,000 new NDC codes over 20 repackers, relabelers, and private label and generated bar codes. According to years, or 44,500 per year for the distributors. The annualized costs to published reports and discussions with evaluation period. manufacturers, repackers, relabelers, industry experts, ERG estimated that We expect that the requirement for and private label distributors of such hospitals now incur costs to notification of unique NDC numbers prescription products, OTC products, repackage and apply bar codes to about would require the development and and human blood and blood 95percent of dispensed medications. maintenance of an accessible agency components are $5.4 million using a 7 These 101 hospitals would avoid some percent discount rate. Using a 3 percent database. We have assumed 0.5 hours of these expenditures (because 25 per notification to represent the cost to discount rate, the annualized costs to percent of all medications will have manufacturers, repackers, relabelers, input and encode a specific NDC useable bar codes) under the rule. number and to maintain an accessible and private label distributors are $4.1 The final rule would result in the million. database containing all NDC numbers. premature replacement of scanners used This implies an annual resource 3. Costs to Retailers and Distributors in hospital pharmacies and treatment requirement of 22,250 hours, or wards. ERG has estimated that the approximately 10 full-time equivalents We do not expect increased costs to annualized, incremental costs to (FTEs). These direct resources require retailers, wholesalers, and distributors. hospitals of accelerating scanner Currently installed scanners and readers supervision, administration, and replacement or upgrades to read RSS are able to read the proposed linear support. To account for these indirect symbology is $0.8 million (at a 7 percent standard bar codes. However, if we resources, we multiplied direct discount rate) or $0.6 million (at a 3 issued an alternative regulation resources by 2, resulting in 20 annual percent discount rate). requiring specific RSS symbology, FTEs. The most recent FDA budget According to literature reports, it independent community pharmacies, documents have used a value of costs as much as $0.03 per unit-dose to chain pharmacies, and pharmacies in approximately $120,000 per FTE. apply a bar code in hospital pharmacies. chain merchandisers or supermarkets Therefore, we expect the annual costs of Currently, 25 percent of dispensed would have had to upgrade scanners in maintaining a system of unique NDC medication must have bar codes applied order to take advantage of the proposed numbers to be $2.4 million. Although standardized information. Given the by in-house pharmacy in unit-of-use packages. Avoidance of this activity additional regulatory requirements, widespread reliance on bar code such as developing and operating a information in the retail sector, the under the final rule will reduce costs by about $0.2 million per year. exemption waiver process or requiring currently installed stock of bar code readable bar code information on scanners will not be affected by the rule. Overall, we estimate the average annualized costs of the final rule less product labels, would increase our 4. Costs to Hospitals the cost savings to hospitals to be $0.6 administrative and compliance burdens, we have not quantified these impacts. The final rule requires NDC numbers million using a 7 percent annual in linear bar codes on the labels of the discount rate and $0.4 million using a 6. Total Regulatory Costs affected products. However, because we 3 percent annual discount rate. expect that manufacturers, repackers, The total direct annualized regulatory 5. Costs to the Food and Drug costs of the final regulation over the 20- relabelers, and private label distributors Administration may find it necessary to use RSS year period amounts to $8.4 million symbology on small unit-dose packages According to a recent study, the using a 7 percent annual discount rate or vials and bottles, hospital scanners number of available pharmaceutical and $6.9 million using a 3 percent and readers must have the ability to products has increased by 500 percent discount rate. These costs differ from capture this information in RSS format. in 10 years and now totals over 17,000 the costs estimated for the proposed rule As a result, in order for hospitals with separate trade and generic names. With because of our analyses of the currently installed bar code reading the multitude of dose strengths and proportion of affected OTC drug systems to maintain current operating packages, the total number of unique products, the human blood and blood practice, some scanners must be packaging units is now 178,000 separate component industry, hospital responses replaced with scanners that are RSS- identifiable products. Of this total, we to bar codes, and a 2-year capable. Replacement of these scanners expect 153,500 of these packaging units implementation period. Table 3 shows is necessary to maintain current to require bar coded NDC numbers future projections for the increased operations. because we estimate that 75 percent of investments and operating and These costs are somewhat mitigated all OTC drug products will be affected. maintenance costs expected from the for the approximately 2 percent of all Even if the recent growth rate in new regulation.
TABLE 3.—REGULATORY COSTS BY YEAR IN MILLIONS
Evaluation Year Investment During Year Operating and Maintenance Cost
1 $32.6 $2.6
2 $24.0 $2.9
3 0 $2.9
4 0 $2.9
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TABLE 3.—REGULATORY COSTS BY YEAR IN MILLIONS—Continued
Evaluation Year Investment During Year Operating and Maintenance Cost
5 0 $2.9
6 0 $2.9
7 0 $2.9
8 0 $2.9
9 0 $2.9
10 0 $2.9
11 $3.2 $2.9
12 $3.0 $2.9
13 0 $2.9
14 0 $2.9
15 0 $2.9
16 0 $2.9
17 0 $2.9
18 0 $2.9
19 0 $2.9
20 0 $2.9
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G. Other Anticipated Expenditures productivity effects are likely after facilities to accelerate these We anticipate that the final rule will installation of a bar code reading investments. affect facilities defined as hospitals and system. These contacts noted that using Based on ERG’s discussions with included in the NCHS report on Health scanners could result in reductions in industry consultants, we predict that the 2002.9 The final rule would impact patient ward productivity because rule could double the rate of hospital hospitals (NAICS 622) by encouraging current scanners and administration investment in this technology, thereby them to accelerate the efficient use of procedures would have to be revised to achieving the installation of complete systems within 10 years. For example, bar code reading technology in bedside accommodate the technology. for those hospitals that now expect to point of care settings. The expected Difficulties could arise, for example, acquire bar code systems within 10 increased investment would lead to a when multiple doses of medication are years, we assume the availability of significant reduction in the number of required at the same time for different standardized bar codes on medications ADEs and AHTRs among hospital patients; or when current administrative would accelerate the purchase to within patients. We assume that hospital practices, such as pre-preparing certain 5 years. The cost to the hospital of this investments in this technology occur at medication, could not be accommodated accelerated investment expenditure is the beginning of each year. with the bar code reading systems. Also, the opportunity cost of the investment Hospitals have long considered the moving the scanner and reader from capital for 5 years (the difference application of bar code reading room to room, not adequately reading between making the investment in year technology for their facilities. According the bar code on one swipe, and other 5 as opposed to year 10) as well as the to the American Hospital Association procedural changes might result in 5 additional years of maintenance (AHA), almost half of United States operational inefficiencies. It is possible expenses and productivity losses. In hospitals have explored the possibility (and hopeful) that long-term process addition, industry experts suggest that of independently installing this changes would moderate or eliminate systems of bar code readers and technology. A few (about 4 percent of all these potential inefficiencies. While scanners would require software and United States hospitals) are currently some consultants believed that bar code equipment upgrades within 10 years of using some form of computerized systems would ultimately be resource neutral, the most detailed analysis of the installation. For the example facility, systems in their medication processes, the installed system would require and half of them use bar codes in VA system (Ref. 10) estimated a 10 percent loss of nursing productivity upgrades during the 15th project year everyday practice. However, because under the accelerated investment, hospitals currently have no after implementing a bar code system. Our analysis assumes that hospital ward whereas upgrades would not occur until standardized bar coded information for the 20th year in the absence of all therapeutic products, each hospital productivity levels would fall by 3 percent annually over the evaluation regulation. We acknowledge that precise must generate and internally affix bar estimates of the rate of acceleration of codes that are applicable only within period. We examine the effects of alternative assumptions in section VII.O technology acceptance are uncertain. that specific facility. In some cases, However, industry experts indicated hospitals overpackage drug products in below. The annual opportunity costs of these productivity losses, together with that doubling the rate of technology order to make current scanning systems acceptance was not an unreasonable usable. This extra effort reduces the the operation and maintenance expenses, amount to $556,000 per year assumption. Alternative rates of expected efficiency of the bar code acceptance were compared and for the average sized hospital. reading systems, introduces potential discussed as a sensitivity analysis. (Operating costs are slightly higher if errors, and has been a barrier to the ERG used a probit pattern of adopting general acceptance of readable installed systems are unable to take bar code reading technology. That is, the technology. Standardized universal advantage of required bar codes on percentage of hospitals adopting the codes would remove this impediment labels). Some of these expected technology is modeled as a standard and encourage health care facilities to productivity losses would be mitigated normal cumulative distribution with 0 invest and use technology to reduce by efficiency gains in other hospital percent adoption in year 0 and 100 patient ADEs and AHTRs. procedures as discussed later. percent adoption in year 20. The Hospital facilities will face significant Despite these costs, interviews with standard deviation of the distribution is capital investments and significant consultants in the field of health care chosen to ensure at least 1 adoption process changes in order to implement technology indicate that hospitals are during the first year. This function has bar code reading and scanning gradually making this commitment. been used to describe rates of technology. ERG estimated that the Experts have predicted that even in the technology acceptance for other new average initial cost to a typical hospital absence of this regulation, hospitals products. In the hospital sector, for for the installation of scanners, readers, would likely install bar code readable example, a study of medical technology software, initial training etc. is technology within 20 years. Therefore, infusion noted that complete unit dose $448,000.10 In addition, although there we believe that while only about 101 systems, complete IV (intravenous) is considerable uncertainty, hospital hospitals currently use bar codes in admixture systems, and computerized industry executives and consultants everyday operations, the remaining prescribed order entry (CPOE) systems contacted by ERG agree that negative 4,939 hospitals would ultimately invest have been accepted in this manner (Ref. in this technology. These experts have 11). Consequently, for the 20-year 9 We have tried to quantify impacts on nursing also predicted, however, that if period, FDA estimates the PV of the and residential care facilities (NAICS 623) in standardized bar code information on costs of the accelerated investment in response to comments on the proposed rule, but the relatively high costs of installing integrated bar medications were available to allow bar coding technology by hospitals, code scanning systems and the relatively low rate scanning systems to capture information including the annual operating expenses of reported ADEs make it unlikely that the rule will without requiring in-facility labeling and productivity losses, to be $7.0 affect this sector. systems, many hospitals would be billion (7 percent) or $9.0 billion (3 10 Per hospital expenditures and benefits are based on an average sized hospital based on bed swayed to make these investments percent). The estimated annualized cost capacity. The average United States hospital has much earlier. Thus, we believe that the is $657.2 million (7 percent) or $602.9 170 beds (NCHS, 2002). regulation would effectively prompt million (3 percent). As discussed in
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section VII.F.4, the regulation would potential range of efficiency gains. Any intercept 75 percent of these errors reduce hospital operating costs because ADEs avoided during a year are based on published case studies of pharmacies would not apply in-house analyzed as if they occur at the end of interception rates that vary between 50 bar codes. In baseline, hospitals the year. and 100 percent. Therefore, installation installing bar code systems would incur ERG determined that under current of bar code systems in hospitals is these expenses. Therefore, we expect conditions, about 1.25 million ADEs expected to prevent 114 AHTRs (276 x that by the 17th year, annual operating occur each year in the United States, of 0.55 x 0.75), or 0.023 per hospital. costs for this industry will be lower than which 373,000 are preventable. As During the 20th evaluation year, bar those that would occur in the absence discussed above, the regulation would code systems are expected to prevent of the regulation. Table 4 shows the substantially reduce the number of 206 AHTRs (0.041 per hospital). annual incremental expenditures for ADEs caused by errors originating in the We estimate that the final rule, by adopting hospitals expected under the dispensing and administration of stimulating earlier hospital investment final regulation. pharmaceutical or blood products in in bar code scanning systems, will hospitals. Studies of medication errors reduce ADEs and AHTRs. To project the TABLE 4.—EXPECTED INCREMENTAL in hospitals that have installed bedside aggregate number of ADEs and AHTRs HOSPITAL EXPENDITURES BY YEAR bar coding and use internally applied avoided due to the final rule, ERG IN MILLIONS labels show error interception rates of calculated the number of ADEs and from 70 percent to 85 percent (Refs. 12 AHTRs per hospital that would be Evaluation Incremental Cost to Hospitals to 15 and 28). Other industry experts, avoided by bar coding systems and Year Adopting Bar Codes however, suggest that those published multiplied that number by the interception rates would not be as high additional number of hospitals that 1$0.8 if the technology were widely dispersed, would use bar coding reading systems 2 $13.5 because of the likelihood of events such during each year of the evaluation as lost wristbands, erroneous bar codes, period. For example, during the 10th 3 $102.8 or intentional system bypasses. evaluation year, our model predicts that Therefore, FDA and ERG have assumed 2,469 more hospitals would have 4 $426.8 that bar code system use would produce installed bar code reading systems than no reduction in prescribing and 5 $1,039.3 would have installed them in the transcribing errors, but that its use absence of the rule. The additional 6 $1,624.0 would intercept one-half of the 45.1 hospitals using bar codes during the percent of all preventable ADEs that 10th year would intercept an estimated 7 $1,852.3 now originate in the dispensing and 52,600 errors, taking into account administration stages of the medication expected increases in admissions as 8 $1,751.9 process. Thus, ERG assumed that, if all well (21.3 ADEs per hospital x 2,469 hospitals adopted bar code systems, the 9 $1,478.0 hospitals), that would otherwise have number of preventable ADEs would fall resulted in ADEs during that year. In 10 $1,129.6 by 22.6 percent (45.1 x 0.5), which addition, there would be 75 fewer would currently prevent about 84,300 AHTRs because of the increased use of 11 $772.4 ADEs per year (373,000 x 0.226). This bar code systems during that year. Over equals a reduction of 16.7 preventable 12 $466.6 the entire evaluation period, this ADEs per year for an average hospital. methodology predicts that the 13 $243.0 Section VII.O below addresses the effect accelerated investment would avoid of alternative assumptions. Given over 501,300 ADEs and 700 AHTRs. 14 $104.9 projected increases in hospital admissions, within 20 years, we expect I. Value of Avoided ADEs and AHTRs 15 $32.6 543,000 preventable ADEs in the 1. Value of Avoided ADEs absence of this regulation. This analysis 16 $0.5 suggests that this regulation would Estimating benefits requires estimating the value of the avoided 17 ($11.6) prevent 123,000 ADEs, or 24.5 per hospital during the 20th evaluation ADEs and AHTRs. FDA and ERG 18 ($17.0) year. We believe the assumption that bar estimated two values of avoided code readers could intercept one-half of preventable ADEs. First, ERG estimated 19 ($17.5) dispensing and administration errors is the avoided direct hospital costs needed reasonable and conservative, but to cover additional tests, longer patient 20 ($17.7) specifically tested this assumption as a stays, and other direct expenses. Based ( ) indicates cost reduction from baseline to sensitivity analysis. on published studies, the estimated account for decreased in-house packaging. Errors occur during any of the average direct cost of an ADE not attributable to prescribing error is H. Reduction in Preventable Adverse numerous steps in the production and $2,257 (Refs. 3, 5 and 29). This figure Drug Events and Preventable Acute delivery of blood and blood represents a weighted average of direct Hemolytic Transfusion Reactions components. Several studies (Refs. 8, 16, and 27) have estimated that hospital costs over all degrees of ADE The benefits of the rule are focused on approximately 55 percent of transfusion severity and does not include patient the reductions in ADEs and AHTRs that errors occur in patient areas and pain and suffering or liability. Second, would follow the earlier use of bar code originate from phlebotomy errors or ERG and FDA estimated the monetized reading technology and bar coded drug incorrect patient identification. The value of avoiding decreases in quality- products. We have not quantified all the machine readable information required adjusted life years (QALYs) due to other institutional benefits of on human blood products will be ADEs. This latter approach attempts to computerized systems and medical readable by installed systems. We value a patient’s subjective ADE informatics, but have estimated a expect bedside bar code systems to experience, including inconvenience,
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pain and suffering, foregone earnings, $213,000. Thus, in the example above, J. Aggregate Benefit of Avoiding ADEs and other out-of-pocket costs. the value of the decrease in QALYs due and AHTRs ERG examined the literature to to minor drug toxicity would be $102 (7 determine the probability distribution of percent) or $64 (3 percent). FDA and ERG estimated the benefit of specific symptoms associated with ERG examined the literature and avoiding ADEs and AHTRs due to the ADEs. These reported symptoms range found that by combining several use of bar code reading systems by from rashes and itching to cardiac published accounts, 36.1 percent of the multiplying the value of each avoided arrhythmia, renal failure, and mortality. outcomes associated with preventable preventable ADE and AHTR by the The duration of each symptom ADEs were deemed significant, 41.7 expected number of ADEs and AHTRs (additional length of hospital stays) percent were deemed serious, 19.4 avoided. As stated earlier, an average ranged from about 0.7 days to 5.5 days percent were deemed life threatening (of hospital is expected to have fewer (except for mortality). ERG then which 10 percent [or 1.9 percent of the preventable ADEs and fewer examined reported preference scores total] resulted in permanent conditions), preventable AHTRs each year under from the Harvard Center for Risk and 2.8 percent resulted in fatalities. current conditions after installing bar Analysis’ (HCRA) Catalog of Preference Overall, these assumptions indicate that code reading technology. Within 20 Scores, which includes a survey of the the weighted average preference value years, these systems are expected to health economics literature and presents for each avoided preventable ADE is avoid 24.5 ADEs and 0.041 AHTRs per published estimates of preferences for $183,500 with a 7 percent annual hospital because of increased defined symptoms. The preference discount rate. A 3 percent annual admissions. The direct cost savings by scores ranged from 0.95 (for significant discount rate would indicate a weighted avoiding treatment ($2,257 per ADE or but not serious ADEs) to 0.00 for death. average preference value of $181,600. Typical symptoms encountered with The derived values are similar because AHTR) and the weighted preference serious ADEs had a preference score of the contribution of avoided mortality. values ($183,500 per ADE and $101,200 0.8, while life-threatening ADEs had a We note that these values are very per AHTR) indicate a societal value of derived preference score of 0.6. We note sensitive to the number of fatal $185,800 per average ADE avoided and that the reported preference scores vary preventable ADEs. $103,500 per average AHTR avoided widely by definition and methodology (using 7 percent discount rate), and a 2. Value of Avoided AHTRs and must be interpreted with great societal benefit of about $3.48 million caution. As for ADEs, AHTRs caused by per facility during the first evaluation ERG calculated the change in QALYs erroneous transfusions might lead to year. We multiplied this derived value expected from an avoided ADE as 1 additional laboratory tests, extended per hospital by the expected difference minus the preference score multiplied hospital stays, and other direct costs. in the number of hospitals with by the duration of the event. For ERG judged that these direct additional installed bar code technology under the example, minor drug toxicity (such as a hospital costs would be equivalent to rule. For example, during the 10th rash) has a derived preference score of those for ADEs and estimated them to evaluation year, an estimated 2,469 0.95 and a reported duration of 2 days equal $2,257 per AHTR. additional hospitals would have (0.005 years). The change in QALYs To estimate the monetary value of a installed bar code reading systems due expected for such an event is 0.05 (1 change in QALYs resulting from to the rule. We would expect the erroneous transfusions, ERG examined minus 0.95) x 0.005, or 0.0003 QALYs. increased use of these systems to result the range of potential reactions There is no consensus on the best means in 51,500 fewer ADEs and 71 fewer experienced by patients that receive of valuing QALYs or the best estimates AHTRs than in the absence of the of willingness-to-pay for QALYs. One ABO-incompatible blood. As reported in regulation. The estimated PV of approach is to derive the value from two studies (Refs. 7 and 27), almost half avoiding these ADEs and AHTRs during studies that estimate the willingness-to- (47 percent) of patients suffer no ill the 10th year is $4.9 billion (7 percent) pay to avoid a statistical mortality risk. effects, and 3 percent of patients may For example, values derived from die due to an underlying condition. or $7.1 billion (3 percent). The PV of the occupational wage-premiums to accept Most of the remaining half of patients societal benefits that would result from measurable work-place risk are about $2 may experience fever, chills, chest pain, reductions in ADEs and AHTRs over the million to $10 million per statistical nausea or other relatively mild entire 20-year evaluation period is $54.8 death avoided, with a typical estimate of symptoms for short durations. However, billion (7 percent). The annualized about $5 million. Apportioning this an AHTR may occasionally lead to acute societal benefit of the reduced number value over the remaining life expectancy renal failure or death. The weighted of ADEs and AHTRs is $5.2 billion at 7 of the average workforce member and average preference value for each percent annual discount rate. Table 5 adjusting for future disability implies (at avoided AHTR is $101,200 using either illustrates the expected reduction in 7 percent discount rate) a value per 7 percent or 3 percent discount rate. As ADEs and AHTRs for the entire QALY of about $373,000. If using a 3 for ADEs, this estimate is dominated by evaluation period. The PV for AHTR percent discount rate, the adjusted value the high value placed on mortality avoidance alone is $42.2 million and per QALY is estimated at about avoidance. annualized at $4.0 million at 7 percent.
TABLE 5.—EXPECTED REDUCTION IN ADES AND AHTRSBYYEAR WITH BAR CODE SOCIETAL BENEFITS IN MILLIONS (7 PERCENT)
Additional ADEs Additional AHTRS Monetized Benefit of Evaluation Year Avoided Avoided Gain in QALYS Avoided ADEs/AHTRs
1 37 0 57.7 $6.8
2 595 1 928.4 $110.6
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TABLE 5.—EXPECTED REDUCTION IN ADES AND AHTRSBYYEAR WITH BAR CODE SOCIETAL BENEFITS IN MILLIONS (7 PERCENT)—Continued
Additional ADEs Additional AHTRS Monetized Benefit of Evaluation Year Avoided Avoided Gain in QALYS Avoided ADEs/AHTRs
3 4,566 6 7,129.2 $849.2
4 18,171 25 28,369.0 $3,378.8
5 46,364 64 72,384.5 $8,621.1
6 72,898 101 113,808.7 $13,554.8
7 83,230 115 129,938.8 $15,476.0
8 79,083 110 123,464.9 $14,704.9
9 66,933 93 104,495.8 $12,445.7
10 51,528 71 80,445.8 $9,581.3
11 35,521 49 55,455.9 $6,604.9
12 21,828 30 34,078.4 $4,058.8
13 11,732 16 18,316.0 $2,181.5
14 5,493 8 8,575.2 $1,021.3
15 2,232 3 3,484.2 $414.9
16 774 1 1,208.6 $143.9
17 239 0 373.5 $44.4
18 58 0 90.3 $10.7
19 12 0 18.3 $2.2
20 0 0 0 $0
Total 501,294 693 782,623.2 $93,211.8
Using a 3 percent discount rate, the expected from each event. As discussed these QALYs gained equals 460,508 PV of avoided ADEs and AHTRs totals in section VII.I.1, each ADE or AHTR using a 7 percent discount rate and $73.0 billion with an average avoided represents a weighted average 618,861 using a 3 percent discount rate. annualized equivalent of $4.9 billion. of potential outcomes. The weighted Table 6 shows the cost-effectiveness The benefit attributable to avoided average decrease in QALYs for an ADE per QALY gained at various discount AHTRs alone has a PV of $56.8 million was 1.56 QALYs and 0.87 for each rates. The costs used to estimate the and an annualized value of $3.8 million AHTR. These estimates imply that each effectiveness include the direct using 3 percent annual discount rate. avoided ADE would contribute 1.56 regulatory costs as well as increased QALYs to the public. As shown in Table expenditures by hospitals. Cost- K. Cost Effectiveness of Bar Coding 5, over the entire course of the effectiveness shows that the regulation In order to estimate the value of each evaluation period, the number of will require costs of between $9,000 and ADE or AHTR avoided, ERG estimated avoided ADEs and AHTRs account for $15,000 for each additional QALY the decrease in QALYs that would be 782,623.2 QALYs gained. The PV of gained.
TABLE 6.—COST EFFECTIVENESS PER QALY GAINED
Cost-Effectiveness at 7 percent Cost-Effectiveness at 3 percent
Undiscounted QALYs $9,009 $11,595
QALYs Discounted at 7 percent $15,311 N/A
QALYs Discounted at 3 percent N/A $14,663 Note: Present value of costs are divided by the gain in QALYs. For example, the present value of costs using a 7 percent discount rate is ap- proximately $7.05 billion. This amount, when divided by approximately 782,600 QALYs, results in $9,009 per QALY ($9,008.43, rounded up to $9,009).
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L. Other Benefits of Bar Code The final rule could also increase the definition of ‘‘preventability’’ used to Technology use of medical informatics in locations analyze ADEs in hospitals may not other than hospitals. Health care transfer to these settings, which may The availability of standardized bar facilities such as physician offices, severely under estimate the potential codes would result in additional nursing homes, long-term care facilities benefit. However, we cannot project benefits to patients and the health care and home health delivery systems impacts of this rule for this industry at sector. As bar codes are an enabling would be more likely to adopt bar this time. technology, their adoption for hospital coding and scanning systems to M. Distributional Effects of Bar Code patient care would foster their use in safeguard the use of patient medications Technology other hospital and non-hospital settings. and achieve additional efficiencies. With automated systems, hospitals However, ERG’s analysis of the adoption Bar code usage would likely result in would no longer need to repackage and of bar code technology in nursing homes distributional transfers between sectors self-generate bar codes. Hospital and long-term care facilities does not of society. For example, bar code use pharmacies and wards would likewise indicate a rapid adoption at this time. could reduce hospital payments due to take advantage of the availability of bar According to the AHCA, there are punitive damage awards from potential coded products to generate new 16,456 nursing homes in the United lawsuits. According to legal data bases production efficiencies for activities States. ERG estimates the initial (Ref. 19), there were approximately such as reporting, record keeping, investment for an average nursing home 35,000 personal-injury and malpractice purchasing, and inventory controls. For to install a bar code system to be claims per year between 1995 and 2000 example, integrated scanning systems $221,400 and to have annual operating, in the health care sector. Approximately may allow for electronic versions of maintenance, and net efficiency costs of half of these claims were for daily Medication Administration $67,000. Most costs are for purchasing pregnancies with the remainder Records (MARs) and pharmacy laptop computers for nursing wards as including surgical claims, misdiagnosis, reconciliation reports. According to well as training costs. The major study and medication errors. If these claims industry experts, if these activities of preventable ADEs in nursing homes are distributed equally by type (surgical, could be avoided by automatically (Ref. 17) has estimated that there are diagnosis, or medication errors) and generating the records, an average sized only 10,373 preventable ADEs per year sector (inpatient or outpatient), we hospital could save as many as 397 in nursing homes attributable to estimate that about 600 legal claims per hours of pharmacist resources and 5,694 dispensing or administration, or less year are potentially associated with preventable ADEs in hospitals. This hours of nursing resources each year. than 0.67 preventable ADEs per facility. implies that only 0.2 percent of all The estimated annual efficiency savings If the use of a bar code system could preventable ADEs are likely subject to of avoiding these opportunity costs intercept 50 percent of these ADEs, the legal claims (600 divided by 373,000). equals $218,300 for an average hospital. benefit per facility per year would equal The average jury award for damages Moreover, ERG and FDA believe the 0.32 ADEs. There are strong indications that these estimates of prevented ADEs from medication errors was $636,800 in identified potential gains from are conservative because the study is 2000, although only 40 percent of cases electronic MAR and reconciliation based on voluntary reporting. were decided for plaintiffs. Estimated reports may account for only between Comparisons between the drug classes average pre-trial settlements for 50 and 80 percent of the potential gains associated with ADEs in nursing homes malpractice claims in 2000 totaled in these areas. Discussions with several (Refs 17 and 18) and those in hospitals $318,400. We do not have data on the hospital administrators indicate that resulted in a distribution of expected proportion of settlements, but have integrated bar code systems could result outcomes of ADEs different than those assumed 80 percent of claims are settled in reduced ‘‘hallway’’ time and in hospitals. For example, Bates (Ref. 2) prior to trial. If so, the average likely improved communication. For example, found that 38 percent of all preventable award per preventable ADE is $492. nurses will spend less time walking ADEs were associated with analgesics Current bar code systems are expected between a patient and the nursing and antibiotics, while in nursing homes, to avoid 16.7 ADEs per year in an station to resolve discrepancies, and a only 13 percent of all ADEs were average hospital. This implies an bar code system would require complete associated with these drug classes. average reduction in annual legal consistency of medication orders Using the distribution of drug classes awards of $8,200 per hospital and $41.4 between pharmacy and nursing staffs. In associated with preventable ADEs in million for all hospitals. Fewer awards addition, bar code technology may nursing homes, the weighted average would result in lower malpractice achieve efficiencies in other laboratories value of a prevented nursing home ADE insurance premiums, which would as well. If so, the total estimated annual was $43,200 (7 percent) and $63,700 (3 reduce other hospital expenditures. The efficiency gains to an average hospital percent). These estimated values are General Accounting Office (Ref. 20) would range from $272,900 to $436,600 based on very limited analyses reported hospital malpractice insurance from use of bar code scanners in conducted to date in nursing homes. rates ranging between $511 and $7,734 pharmacies and patient care wards. If Forecasted adoption rates for nursing per bed depending on location. Recent such gains were obtainable, the PV of homes resulted in PV of costs of $3.8 reports have suggested that annual these gains for the sector as a whole billion and PV of benefits of only $0.5 premiums have increased to about would be between $4.0 billion and $6.4 billion (7 percent). At 3 percent the PV $4,228 to $11,435 per bed (Ref. 21). billion with a 7 percent annual discount of costs to nursing homes was $4.9 Although only a weak relationship has rate. The PV of this potential gain would billion while the PV of ADE avoidance been established between negligent acts be between $5.3 billion and $8.5 billion was only $0.6 billion. With profit and the incidence of malpractice claims if a 3 percent discount rate is used in margins so slight in this industry, we do (Refs. 22 to 24), we attempted to the calculation. The average annualized not believe the technology will be estimate the potential size of any impact gains of these potential efficiencies are rapidly adopted at this time in spite of on premiums. Rothchild et al (Ref. 25) between $376.3 million and $602.0 the accessibility of bar coded products. estimated that only 6.3 percent of all million (at 7 percent), or $359.0 million We emphasize the current scarcity of malpractice claims were the result of and $574.2 million (at 3 percent). data on ADEs in nursing homes. The ADEs. Given the distribution of ADEs in
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the medication process, we expect a 50 are transfers from patients and third- continue current operating practices (7 percent reduction in ADEs caused by party payers to hospitals rather than percent) or $0.4 million (3 percent). distribution and administration errors to reduced opportunity costs, this practice FDA’s resource costs to support the reduce premiums by 0.55 percent, or illustrates the potential use of bar code regulation equal an estimated $2.4 $49 per bed to the average hospital. The scanning systems in increasing the million per year. Thus, we estimate the total expected saving would be $8,330 efficient allocation of resources by annualized regulatory cost of the per hospital and $42.0 million for all sector. Other potential transfers may regulation to be $8.4 million (7 percent) hospitals. While reductions in legal include avoidance of certain billing and $6.9 million (3 percent). In settlements or liability insurance errors or increased timeliness of addition, we expect the rule to spur premiums represent transfers between payment. earlier investment by hospitals in hospitals, third-party payers, attorneys, N. Comparison of Costs, Expenditures, bedside point-of-care systems that read and patients and are not opportunity and Benefits bar coded labels. The annualized gains or losses, such reductions could opportunity cost of this accelerated increase the efficient allocation of The increase of over 780,000 QALYs over the evaluation period as a result of investment in technology is $660 resources by sector. avoiding over 500,000 ADEs and AHTRs million (7 percent) for the entire Bar code systems may also increase has a monetized present value of $54.8 industry, or $600 million with a 3 hospital revenues by improving the billion (discounting at 7 percent) and percent discount rate. Table 7 presents, ‘‘cost capture rate.’’ One published $73.0 billion (discounting at 3 percent). by sector, the present value of the study (Ref. 26) reported the cost capture This section compares the expected estimated regulatory costs, the annual rate (the ratio of billed uncontrolled benefits of the regulation to the costs costs expected at the end of the 20-year pharmaceuticals to all pharmaceuticals and expected expenditures discussed evaluation period, and the annualized used) increased from 63 percent to 97 earlier. costs over the entire evaluation period percent after installation of The annualized costs of the final rule for both discount rates. The estimated computerized systems in nursing wards. to the manufacturing, packaging, and reduction in hospital operating According to the authors, this would labeling sectors totals $5.4 million (7 expenses results from the assumption imply an increase in revenues of about percent) or $4.1 million (3 percent). that hospitals could eliminate in-house $65,000 per year for an average hospital. Hospitals would be required to incur an labeling operations once products have While such accounting improvements annualized cost of $0.6 million to uniform bar code information.
TABLE 7.—COSTS AND OTHER EXPECTED EXPENDITURES OF THE FINAL RULE
Present Value Annual Operating Costs Annualized Industry Sector of Costs at End of Period Costs
(in millions of dollars; 20-year evaluation period; 7-percent discount rate)
Prescription Drugs $33.6 $0.4 $3.2
OTC Drugs $23.3 $0.3 $2.2
Blood Products N/A N/A N/A
Sub-Total Manufacturers $56.9 $0.7 $5.4
Hospital Regulatory $6.4 (-$0.2)** $0.6
Sub-Total Private Sector Regulatory Costs $62.3 $0.5 $6.0
FDA Oversight $25.4 $2.4 $2.4
TOTAL REGULATORY COSTS $87.7 $2.9 $8.4
EXPECTED EXPENDITURES FROM HEALTH CARE SECTOR $6,961.6 (-$17.7)** $657.2
(in millions of dollars; 20-year evaluation period; 3-percent discount rate)
Prescription Drugs $37.0 $0.4 $2.5
OTC Drugs $23.8 $0.3 $1.6
Blood Products N/A N/A N/A
Sub-Total Manufacturers $60.8 $0.7 $4.1
Hospital Regulatory $5.5 (-$0.2)** $0.4
Sub-Total Private Sector Regulatory Costs $66.3 $0.5 $4.5
FDA Oversight $35.7 $2.4 $2.4
TOTAL REGULATORY COSTS $102.0 $2.9 $6.9
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TABLE 7.—COSTS AND OTHER EXPECTED EXPENDITURES OF THE FINAL RULE—Continued
Present Value Annual Operating Costs Annualized Industry Sector of Costs at End of Period Costs
EXPECTED EXPENDITURES FROM HEALTH CARE SECTOR $8,971.4 (-$17.7)** $602.9 *Less that $0.05 million **Hospital operating costs decrease due to fewer in-house packaging and bar coding operations
As discussed above, we estimate the $359.0 and $574.2 million (3 percent). $15,300 for each QALY gained, annualized public health benefit to be The likely distributional effects of depending on the discount rate used. $5.2 billion (7 percent) and $4.9 billion revenue enhancement, other cost Moreover, this calculation does not (3 percent). This estimate includes the capture measures, or reduced legal costs account for the potential efficiency societal value of the avoided ADEs and are not included in this comparison. gains as described above. AHTRs as well as the reduced hospital If all costs and expenditures are stays expected due to the earlier use of combined, the annualized outlays total O. Uncertainty and Sensitivity bar code reading technology. We $665.6 million (7 percent) and $609.8 We recognize that the expected estimate other indirect potential million (3 percent). The expected benefits, such as efficient inventory annualized public safety benefit of over impacts of the regulation are based on control, patient tracking, electronic $5.2 billion (7 percent) and $4.9 billion a large number of uncertain generation of daily reconciliation and (3 percent) far outweighs these outlays. assumptions. We attempted to account medication reports, or other Thus, the annual net benefits for the for this uncertainty by examining the administrative gains, to contribute an entire evaluation period are between key assumptions in the analysis. Table annualized amount of between $376.3 $4.5 billion (7 percent) and $4.3 billion 8 summarizes the results of our and $602.0 million in efficiency gains to (3 percent). The expected cost analyses. hospitals (7 percent) and between effectiveness varies between $9,000 and
TABLE 8.—SUMMARY OF UNCERTAINTY AND SENSITIVITY ANALYSES
Base Case As- Alternative As- Effect on Annualized Net Benefits Total Annualized Net Benefit (mil- Variable sumption sumption (7 percent) lions)
Voluntary Share of Labeling 50 percent None -$2.1 million $4,498.00 Costs
50 percent 100 percent +$2.1 million $4,502.00
Impact of Regulation On N/A N/A No Impact Expected $4,500.00 Unit of Use Package
Implementation Period 2 Years 1 Year -$0.1 million $4,500.00
2 Years 3 Years +$0.1 million $4,500.00
Mortality Probability With 2.8 percent 1.0 percent -$2.6 billion $1,900.00 ADE
2.8 percent 0.1 percent -$3.8 billion $700.00
Value of QALY/VSL $373,000/QALY $100,000/QALY -$3.2 billion $1,300.00 $5 million/VSL $2 million/VSL
Boundary Analysis N/A N/A Breakeven point requires gain of N/A 103 years of hospital use of bar code technology as compared to baseline
Hospital Rate of Adoption of 20 year baseline 30 year baseline -$1.3 billion $3,200.00 Bar Code Systems 10 year with regu- 20 year with regu- lation lation
20 year baseline 20 year baseline -$2.9 billion $1,600.00 10 year with regu- 15 year with regu- lation lation
Increase in Interception 50 percent 20 percent -$3.1 billion $1,400.00 Rate Attributable to Bar Codes
50 percent 80 percent +$3.1 billion $7,600.00
Loss of Nursing Productivity 3 percent 1 percent +$420 million $4,900.00
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TABLE 8.—SUMMARY OF UNCERTAINTY AND SENSITIVITY ANALYSES—Continued
Base Case As- Alternative As- Effect on Annualized Net Benefits Total Annualized Net Benefit (mil- Variable sumption sumption (7 percent) lions)
3 percent 5 percent -$520 million $4,000.00
Small Hospital Adoption N/A N/A Annual net benefits of adoption of N/A bar code systems for hospitals with 50 or fewer beds estimated at $47,000 per hospital.
1. Voluntary Share of Labeling Costs lose market share if they abandon this noted earlier, discussions with hospital The costs attributable to the final rule format. Also, many hospitals require administrators and budget planners are the incremental costs above what the drug purchases to be in unit-dose form. have not indicated that a shorter industry would incur in the normal ERG concluded that although a bar implementation period would have an course of business. As briefly discussed code requirement would increase the effect on these investment decisions. relative cost of the unit-dose version of earlier, many drug products change 4. Value of Mortality Associated with a product, the cost increment would not labels, on average, as often as once a ADEs year for marketing or design reasons. be great enough to significantly impact The ERG estimate, however, assumes the market. In fact, ERG found that the ERG estimated that 2.8 percent of that 50 percent of the required labeling expected reduction in hospital over- preventable ADEs and 2 percent of all costs would be attributable to the final packaging could increase market AHTRs are fatal. This was derived by rule, due to the production process demand for unit-dose products despite averaging results from several medical changes that would be required to use the cost difference. Thus, we expect that studies. These studies relied on bar coding equipment. In addition, we the final rule will not have a significant relatively small samples and varying believe that market driven label changes impact on product packaging choices. methodologies. Due to the uncertainty attached to this estimate and the major are not completely comparable to 3. Implementation Period regulatory required changes. We impact this assumption has on valuing reviewed the sensitivity of this We were interested in the effects of public health benefits, we tested two assumption by examining the impact shortening or lengthening the additional mortality rates: 1 percent and that would occur if no required re- implementation of the regulation. 0.1 percent. These rates reduce the labeling costs were attributable to the However, discussions with hospital expected value of an avoided ADE from regulation or all re-labeling costs were administrators indicated that the $185,800 to $93,700 and $48,400, attributable to the final rule. ERG found adoption rate of bar codes would not be respectively, by changing the that these scenarios altered the current noticeably accelerated with shorter probability distribution of the expected estimate of $5.4 million in annualized implementation period. They felt that it outcomes of ADEs. The impact on the costs for manufacturers, repackers, was unlikely that investments would be expected annualized benefits of ADE relabelers, and private label distributors made earlier. Therefore, benefits would avoidance falls from $5.2 billion to $2.6 (7 percent) to a range of from $3.3 be unlikely to change whether the billion and $1.4 billion respectively. million (if all costs are considered implementation period was longer or These estimated benefits continue to voluntary) to $7.5 million (if no shorter. The regulatory costs of exceed the costs. compliance would increase with shorter additional labeling costs are considered 5. Value per QALY voluntary). Using a 3 percent discount implementation periods. At a 7-percent rate, the annual labeling costs to annual discount rate, the average There is no precise measure of value manufacturers could vary from between annualized regulatory cost would for a quality-adjusted life-year. We have $2.6 million and $6.1 million. increase from $8.4 million with a 2-year used average published estimates of implementation period to $8.5 million society’s implied value of a statistical 2. Packaging Decisions with a one-year implementation period life (VSL) of $5 million derived from We are sensitive to industry and decrease to $8.3 million with a 3- wage premiums required to attract packaging decisions and asked our year period. employment to higher risk occupations. contractor to specifically assess the If a 1-year implementation date The life expectancy of a 35 year-old impact of the regulation on the future of persuaded one hospital to invest 1 year blue-collar male employee (the basis for unit-dose packaging (e.g. blister packs) earlier, 16.7 ADEs could be avoided. most of the wage premium data) was trends. The concern was whether bar The value of avoiding these events is adjusted for expected future bed and code printing would reduce the use of $3.1 million. In comparison, if a non-bed disability. When the implied unit-dose packaging, because it would hospital invested in a bar code reading VSL is amortized over the 41.3 years of add more to its cost than to other system a year earlier than it otherwise adjusted life-expectancy using a 7 formats. In general, ERG found that would have, it would have increased percent discount rate, the resulting although the overall demand for the costs of about $620,000 based on value ($373,000) implies societal product is inelastic, the demand for a amortization of investment and one willingness-to-pay for a QALY. Cost- particular package type is more elastic, additional year of operating costs. The effectiveness studies have claimed that in that it is affected by relative prices to net benefit ($2.5 million), when lower values, as low as $100,000, may a greater degree. Industry contacts, amortized over 20 years, would result in better represent QALYs. In addition, the however, noted that this impact is average annualized benefits of over $0.2 VSL value is based on research moderated because consumers of some million. This is greater than the average conducted in the early 1990’s and relies OTC drug product are accustomed to annualized cost of the shorter on relative risk and relative wages. blister packs, and manufacturers could implementation period. However, as Other estimates of VSL have ranged
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from as low as $2 million to as high as health benefits of the rule would still 10. Investments by Hospital Size $10 million. exceed costs and expenditures with We analyzed the societal benefit of these slower diffusion rates. The internal decision to acquire and the regulation using $100,000 as the use new bar code reading technology QALY value and the low VSL estimate 8. Hospital Intercept Rates with could be affected by the size of the ($2 million) as the representative of Machine-Readable Technology purchasing hospital. Hospitals that have societal willingness to pay (WTP) to Avoidance of patient ADEs depends already installed this equipment are, for avoid the probability of a fatality. The on the expected rate of error the most part, fairly large or part of a WTP to avoid an ADE decreased from interception. For this analysis, ERG large network of hospitals. Because the $185,800 to $71,600 using these found that about 45 percent of the errors benefits of error interception are parameters. Overall, the annualized that lead to preventable ADEs originate dependent on the number of annual benefit of the proposed regulation fell in the dispensing and administration admissions, we were concerned about from $5.2 billion to $2.0 billion. stages of the medication process and the likelihood of technology adoption that the use of bar coded information by small hospitals. 6. Boundary Analysis and installed systems would intercept We analyzed the minimum number of about 50 percent of these errors. According to the most recent census, hospital-years of bar code adoption Because of the direct relationship there are 1,218 hospitals in the United necessary for estimated benefits to between expected interception rates and States with capacities fewer than 50 exceed costs. The regulatory costs of the avoided ADEs, we tested the impact of beds. These hospitals account for only regulation account for only 0.2 percent the assumed rates. Although the about 3 percent of the estimated of the net societal benefits. This implies literature has implied that interception annualized opportunity cost of that the regulation would need to rates as high as 85 percent are investment from this rule, because the encourage early adoption of bar code obtainable, ERG assumed a 50 percent potential productivity losses are not as technology by at least 0.2 percent in rate to account for potential non-optimal great as for larger hospitals. The order for benefits to exceed costs. In use of technology. If the true increase in annualized opportunity costs per baseline, we expect 51,410 hospital- interception rates were between 80 facility with fewer than 50 beds is about years of installed bar codes. (The 101 percent and 20 percent, the total $69,200. However, because of the fewer current user of bar code systems will number of avoided ADEs would be admissions to hospitals of this size, we use it for all 20 years, the remaining between 805,700 and 198,500. The estimate that the interception rate of the 4,939 hospitals will have installed monetized annualized value of these bar code technology is expected to systems for an average of 10 years each.) avoided ADEs would vary from the result in an average of 2.2 avoided ADEs The regulation would have to encourage current estimate of $5.2 billion to the per year per facility. The estimated 103 additional hospital-years (0.02 lower and higher values of $2.1 billion societal benefit of avoiding 2.2 ADEs is percent). This could occur by 103 (with a 20 percent improvement in $408,800. If these small hospitals adopt hospitals investing 1 year earlier than interception rates) or $8.3 billion (with technology at the same accelerated rate they would in baseline. an 80 percent improvement in as all hospitals, the annualized benefit interception rates). From a societal 7. Hospital Response Rates per hospital is $116,900, or more than perspective, therefore, the accelerated The expected benefits rely on a faster technology investment appears the investment. rate of hospital acceptance of bar code reasonable even with significantly lower We are aware that the estimated direct technology than the rate expected in the interception rates. annual hospital cost savings of avoiding absence of the regulation. The current ADEs alone ($2,257 per avoided ADE) 9. Productivity Losses in Hospital estimate of public health benefits is may not cover the costs of the expected Wards based on all hospitals acquiring bar earlier investment pattern. For example, coding systems within 10 years as The decision by hospitals to make the average facility with fewer than 50 compared to 20 years without the rule. significant investments in bar code beds would experience direct annual However, because we are not requiring reading technology is highly dependent cost savings of $4,965 (2.2 ADEs hospitals to make this investment, we on expected productivity changes in the avoided x $2,257) and annualized costs examined the impact of different delivery of bedside care by nurses. Our of $69,200. As noted, the investment diffusion rates. ERG examined 2 current analysis assumes a 3 percent decision to install bar code reading additional scenarios; one in which the productivity loss of ward nurses due to technology is voluntary and would technology is accepted within 20 years the use of this new technology (see include consideration of patient safety with a rule as compared to 30 years section VII.G). We examined the and other cost-savings. We have without a rule as well as one in which sensitivity of this estimate and found technology is accepted within 15 years that if long-term productivity loss estimated that potential reductions in as compared to 20 with the rule. Both approximated only 1 percent of the resources needed to generate reports cases decrease costs and benefits. The current workload, the average and keep track of records may likely first case reduced expected annualized annualized cost of accelerated hospital vary between $27,400 and $43,700 per net benefits from $4.5 billion to $3.2 investments would decrease from year for a small hospital. Other billion. Annualized hospital $657.2 million to $238.4 million. institutional gains, including transfers expenditures declined from $657 However, if the productivity loss of such as increased revenue capture rates million to $493 million and benefits nursing resources were as great as 5 and reduced malpractice awards, may decreased from $5.2 billion to $3.7 percent, the annualized expenditures by also affect internal decisions. Many billion. The second case reduced hospitals would increase to $1.2 billion. industry representatives have indicated annualized net benefits to $1.6 billion. In order for the productivity losses to their willingness to invest in this Annualized hospital expenditures outweigh the expected benefits, technology. Nonetheless, even if some declined from $657 million to $320 however, there would have to be an hospitals choose to delay or not to million and benefits decreased from almost 700 percent estimated invest, this rule would still produce $5.2 billion to $1.9 billion. The public productivity loss. substantial societal benefits.
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P. Small Business Analysis and of biological products would be facility, which is equal to less than 0.1 Discussion of Alternatives required to label products with bar percent of their annual revenues. We We believe the final rule is unlikely coded information. We estimate the believe this does not constitute a have a significant impact on a annual compliance costs for small significant impact on a substantial substantial number of small entities. entities in this industry at $600 per number of small entities in this Despite this, in the proposed rule, we entity. This is less that 0.1 percent of industry. their annual revenues. We believe this prepared an initial Regulatory 2. Alternatives Flexibility Analysis (IRFA) and invited does not constitute a significant impact on a substantial number of small entities We considered several alternatives to comment from affected entities. In in this industry. the regulation. Each is discussed below. addition, the final rule is considered a c. Packagers (NAICS 5619190). The a. Do nothing. This alternative would significant economic impact under SBA has defined as small any entity in not result in any change in current UMRA and alternatives are examined this industry that has less than $6 labeling or packaging practices. We and briefly discussed here. million in annual revenues. On this believe that in the absence of agency 1. Affected Sectors and Nature of basis, almost 75 percent of the industry action, hospitals would gradually Impacts is considered small. The average annual purchase and utilize independent bar revenue for small entities is $1.7 million code reading systems, but that it would We described the affected industry per entity. Small packagers would be take 20 years before they were installed sectors earlier in this section. The final required to apply bar coded information in all facilities. We rejected this rule directly affects manufacturers of to all affected products. This would alternative because of the expected pharmaceutical and biological products require printing and process positive net benefits of the rule. Also, (NAICS 325412 and NAICS 325414), improvements to packaging operations. we believe that standardizing bar codes packaging services (NAICS 561910), and We estimated the annualized would generate additional health and indirectly affect hospitals (NAICS 622). compliance costs for small entities in production efficiencies for a variety of The regulation does not affect blood and this industry at $240 per entity. This is different health care sectors. organ banks (NAICS 621991). We less than 0.1 percent of their annual b. Requiring variable information. We accessed data on these industries from revenues. We believe this does not considered requiring additional the 1997 Economic Censuses and constitute a significant impact on a information in bar codes, such as estimated revenues per establishment. substantial number of small entities in expiration dates and lot numbers. The Although other economic measures, this industry. incremental benefit of this data would such as profitability, may provide d. Blood and organ banks (NAICS include improved inventory control and preferable alternatives to revenues as a 621991). The SBA has defined as small ease of recalls. In addition, we are aware basis for estimating the significance of any entity in this industry that has less that some firms are voluntarily applying regulatory impacts in some cases, any than $8.5 million in annual revenues. this information. However, we were reasonable estimate of profits would not On this basis, 40 percent of the industry unable to quantify the potential public change the results of this analysis. is considered small. The average annual health benefits of this additional These revenues were updated to 2000 revenue for small entities is $1.4 million information and the estimated values by using the Consumer or per entity. Small blood banks and additional annualized cost of this Producer Price Index as appropriate. collection centers currently apply bar alternative was $59.1 million. We did a. Pharmaceutical manufacturers coded information to all blood products not select this alternative because we (NAICS 325412). The Small Business and would not be affected by this could not demonstrate that the added Administration (SBA) has defined as regulation. benefits would exceed the added costs. small any entity in this industry with e. Hospitals (NAICS 622). The SBA c. Covering all OTC drug products. fewer than 750 employees. According to has defined as small any entity in this We considered requiring all OTC drug census data, 84 percent of the industry industry with less than $29.0 million in products to include bar coded is considered small. The average annual annual revenues. According to census information. This alternative is rejected revenue for these small entities is $26.6 data, 35 percent of the industry is because the additional costs do not million per entity. Small manufacturers considered small. The average annual appear to be justified by the expected of prescription and OTC drug products revenue for small entities is $12.6 benefits. At this time, most non- dispensed pursuant to an order and million per entity. There is no specific institutional settings are unlikely to commonly used in hospitals would be regulatory requirement for hospitals to have access to bar code reading systems. required to generate and label products respond to this regulation. We Therefore, we could not identify any with bar coded information. We anticipate that the rule would make the significant reductions in ADEs due to estimate the annualized compliance investment in bar code technology more this alternative. Including all OTC drug costs for small entities in this industry attractive to hospitals, but the final rule products would create estimated at $1,800 per entity. This is less than 0.1 does not require hospitals to make such additional annualized costs to the percent of their annual revenues. We investments. Hospitals that have already manufacturing sector of $0.7 million. believe this does not constitute a installed bar code reading systems and The expected annualized regulatory significant impact on a substantial internally affix self-generated costs of the regulation therefore would number of small entities in this information might find it necessary to increase from the current estimate of industry. prematurely upgrade or replace $8.4 million to $9.1 million with no b. Biological product manufacturers currently installed scanners in order to additional quantifiable benefit. (NAICS 325414). The SBA has defined capture bar coded information on small d. Exemption for small entities. We as small any entity in this industry with vials or bottles. These hospitals would considered exempting small entities, but fewer than 500 employees. According to also achieve productivity gains by rejected the alternative due to the census data, 68 percent of the industry avoiding the resources now used to self- modest projected impact of this is considered small. The average annual generate bar code readable information. initiative on small businesses and the revenue for these small entities is $4.7 The total annual net cost of the lack of label standardization that would million per entity. Small manufacturers regulation is estimated at $3,300 per result. We will consider exemptions on
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a product basis, not on the size of the affect more than 1,000 members of the high quality bar codes. One comment affected entity. gases and welding distributors said that manufacturers would have to e. FDA selecting a specific symbology. association and that 600 members upgrade existing packaging equipment We considered requiring bar coded package or distribute medical gases. The or buy new equipment, and those information with a specific symbology. comment said there are approximately purchases would result in substantial The rationale for considering this option 10 major manufacturers of medical gas investments that would exceed FDA’s was to minimize uncertainty to products in the United States, and many initial cost estimates. hospitals in selecting systems that either own or control approximately 200 (Response) We agree that specific would be able to confidently read the locations that repackage or distribute firms will experience higher compliance specific language. We decided, however, medical gas. costs than the average costs presented in that identifying a specific symbology (Response) We agree that the the proposal and discussed in Reference might adversely impact future proposed rule did not take this industry 1 in the docket. However, ERG innovations in other machine-readable into account. However, because the final interviewed many companies, vendors, technologies. The selected alternative rule exempts medical gases from the bar and industry consultants to arrive at would allow individual facilities and code requirement, we do not need to their estimates of the incremental suppliers to devise systems that would adjust our analysis. compliance costs for the affected maximize their own internal (Comment 77) The preamble to the industry. We agree that costs to medical efficiencies, as long as the standardized proposed rule estimated the present gas and allergenic extract manufacturers information could be accessed. The lack value of the total costs to manufacturers, were not explicitly accounted for in the of consistent universal standards has repackers, relabelers, and private label proposal and that these industries are been a major impediment to the use of distributors as $33.2 million and exempted from the final rule. We this technology. As long as symbologies average annualized costs of $3.2 million believe the methodology described in could be read within a single standard, (68 FR 12520 through 12521). Reference 1 results in reasonable however, the identified market failure Several comments claimed this incremental costs of the final rule to would be overcome. In addition, the estimate was too low. One comment industry. Our interviews with industry expected costs of this alternative would from a medical gas firm said consultants have noted that many be much greater than the selected implementing the rule would cost $5 pharmaceutical manufacturers either alternative. Annualized costs to million for one firm and that annual currently use bar codes in their labels or manufacturers would increase to $19.0 maintenance and material costs cannot are in the process of voluntarily million and significant costs would be accurately determined. The comment applying bar codes. The costs occur to the retail sector due to the need said that the cost to the medical gas attributable to the final rule are only for accelerated upgrade or replacement industry alone would be over $100 those costs incurred in addition to of currently installed scanners. Retail million. voluntary costs. We disagree that the pharmacies would incur annualized Two comments from allergenic extract cost estimates to manufacturers, costs of $27.6 million. Consequently, we firms also claimed high costs. One repackers, relabelers, and private label rejected the alternative of identifying a comment said that the firm would need distributors do not reflect typical costs specific symbology. to add 800 new NDC numbers and to typical firms. create new labels for its products. The (Comment 78) The preamble to the 3. Outreach comment claimed that the new labels proposed rule estimated the regulatory We conducted a public meeting on would have to be printed by another costs to hospitals as being $6.1 million, July 26, 2002, to solicit comments from company and it projected those costs as with an average annualized cost of $0.6 the affected sectors. Interested parties being $37,000 for required equipment million (68 FR 12521). One comment from the health care sector, and artwork, $39,000 for 640 hours of disagreed with this estimate, claiming manufacturing sector, retail sector, and computer programming time to test and that the rule would be very expensive equipment suppliers provided comment validate the new label format, $17,000 for small State mental hospitals because and insight to the agency. In addition, for inventory control, purchasing, and manufacturers will pass on their costs to we met with various industry groups in regulatory personnel time for internal customers, and because wireless order to ensure viewpoints were control of each label and package equipment (for reading the bar codes) appropriately considered. These change (based on an estimate of more will be even more expensive. The insights affected the regulatory than 530 hours at $31 per hour), $18,000 comment added that increases in considerations, and additional outreach for changes in their standard operating package size will mean that automated is planned during the regulatory procedure, and ‘‘unknown, but drug dispensing machines will have to process. substantial’’ costs for locating a new be stocked more frequently or small We also received over 190 comments vendor to prepare the new labels. The hospitals will have to carry more floor on the proposed rule. comment said these costs would be stock that is not controlled by such three or four times the firm’s current machines, which will reduce patient 4. What Comments Did We Receive on $4,000 label costs and estimated its total safety. Our Economic Analysis? costs as approximately $120,000. (Response) We disagree that the final Several comments focused on the Another firm estimated its total cost as rule will be very expensive for small proposed rule’s ‘‘Analysis of Impacts’’ $166,500, excluding ‘‘unknown, but hospitals. The final rule does not discussion. The analysis summarized substantial hidden costs required due to require small hospitals to invest in bar the rule’s costs and benefits. the small nature of some of our final code technology, and we recognize that (Comment 76) The preamble to the containers.’’ any such decision will be affected by proposed rule estimated that 4,229 Three comments from pharmaceutical individual circumstances. ERG did not packaging lines are used in 1,447 companies and a trade association also find definitive evidence that regulatory establishments (68 FR at 12519). One claimed the industry cost estimate was costs are automatically passed on to comment disagreed with this estimate. low. The comments said that customers, and we have analyzed these The comment, submitted by a medical manufacturers would have to purchase costs at the manufacturer level. In gas firm, claimed that the rule would new or upgraded equipment to print addition, we found no indication that
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package sizes would definitely change useful life remaining and could be used than a linear bar code. We discuss as a result of this regulation. RSS for other purposes. issues regarding linear bar codes and symbology could be used so that no (Response) We agree with this other technologies, including changes would occur in package size. comment. The estimate of expected DataMatrix, at comment 38, and we We examined the impact of bar code costs of replacing scanners in hospitals refer to our response there to explain technology on small hospitals as a uses the expected useful life of scanners why the final rule continues to require sensitivity analysis. and the costs of upgrading current a linear bar code. scanners. ERG estimated that scanners (Comment 79) The preamble to the Q. Conclusion proposed rule mentioned that the are replaced within 5 years. After the American Hospital Association had implementation period, scanners that do We have examined the regulation and stated that bar codes would help not have the capability to read RSS find that the expected benefits outweigh streamline payment, billing, and symbology that have not been replaced the costs and that the regulation would administrative systems and lead to must be either replaced or upgraded. improve public health. Reference 1 efficient management of assets and This was explained in Reference 1. provides a detailed analysis that resources (68 FR 12520). (Comment 81) One comment from a includes references and support for the One comment said that most inpatient pharmaceutical manufacturer said that assumptions and estimates of this reimbursement involves a high the health care system would not benefit section. if hospitals are forced to pay more for proportion of Medicare and Medicaid R. References patients under a prospective payment or bar-coded products before they have The following references have been per diem basis, so increased accuracy of systems in place to use those bar codes. placed on display in the Division of charge does not necessarily result in The comment argued that hospitals Dockets Management (see ADDRESSES) increased revenue. The comment said should be able to keep buying OTC and may be seen by interested persons that costs associated with implementing drugs at the lowest cost (usually the between 9 a.m. and 4 p.m., Monday bar code scanning would not be offset largest package size and without a bar through Friday. (FDA has verified the by increased reimbursement. code). The comment said this would let Web site address, but FDA is not (Response) The comment may have hospitals keep their costs down while responsible for any subsequent changes misinterpreted the preamble to the they invest in bar code technology. (Response) The comment to the Web sites after this document proposed rule. We did not claim that bar misinterpreted the proposed rule. publishes in the Federal Register.) codes would increase hospital revenue Neither the proposed rule nor the final 1. Eastern Research Group, ‘‘Impact of due to increased accuracy in billing. rule requires hospitals to purchase only Final Bar Code Regulations for Drug and While we did present results that bar-coded OTC drugs. Hospitals will Biological Products,’’ Contract Number 223– indicated the possibility of increased continue to be free to make purchasing 03–8500, Task Order Number 2, December cost capture rates in the preamble, those 11, 2003. decisions based on criteria that are best distributive effects did not indicate 2. Bates, D. W. et al., ‘‘Incidence of Adverse for individual facilities. reimbursement. Instead, the preamble to Drug Events and Potential Adverse Drug (Comment 82) One comment said that Events,’’ Journal of the American Medical the proposed rule focused on cost there was little analysis of the savings in avoiding adverse drug events Association, 274:29–34, July 5, 1995. implementation costs on those who 3. Classen, D. C. et al., ‘‘Adverse Drug (68 FR at 12527), and we recognized would use the bar codes other than to Events in Hospitalized Patients,’’ Journal of that the estimated direct annual hospital estimate that the speed of adoption will the American Medical Association, 277:301– cost saving of avoiding unnecessary double. The comment said we should 306, January 22 and 29, 1997. treatment might not cover the costs of evaluate the implementation costs. 4. Jha, A. K. et al., ‘‘Identifying Adverse earlier investments. We stated that a (Response) We disagree with this Drug Events,’’ Journal of the American hospital’s decision to acquire and use comment. ERG and FDA have Medical Informatics Association, 5(3):305– bar code technology could be affected 314, May/June 1998. conducted detailed analyses to estimate 5. Senst, B. L. et al., ‘‘Practical Approach by the hospital’s size. We only noted implementation costs to users. These that increased reimbursement might be to Determining Costs and Frequency of analyses are available in Reference 1, in Adverse Drug Events in a Health Care an additional benefit of the technology. the docket for the proposed rule, and Network,’’ American Journal of Health- (Comment 80) The preamble to the summarized in the Analysis of Impacts. System Phamacy, 58:1126–1132, June 15, proposed rule stated that the rule would (Comment 83) The preamble to the 2001. result in premature replacement of proposed rule considered various 6. Leape, L. L. et al., ‘‘Systems Analysis of scanners currently used in hospital regulatory alternatives, including Adverse Drug Events,’’ Journal of the pharmacies and treatment wards (68 FR selection of a specific symbology (68 FR American Medical Association, 274:35–43, at 12521). We estimated that the present 12529). July 5, 1995. 7. Sazama, K., ‘‘Reports of 355 Transfusion- value of the incremental costs of One comment supported requiring the accelerated scanner replacement or Associated Deaths: 1976 Through 1985,’’ use of DataMatrix, claiming that Transfusion, 30:583–590, July 1990. upgrade to be approximately $13.7 DataMatrix has a minimal cost 8. Callum, J. L. et al., ‘‘Reporting of Near- million, with an average annualized cost difference to implement when Miss Events for Transfusion Medicine: to hospitals of early replacement of $1.3 compared with linear bar coding Improving Transfusion Safety,’’ Transfusion, million. symbologies, and that such costs will 41:1204–1211, October 2001. One comment claimed that the ‘‘half- continue to decline. The comment 9. Eastern Research Group, ‘‘Profile of life’’ of scanners is less that the claimed that 70 percent of packaging Machine-Readable Technologies for Medical proposed rule’s 3-year implementation lines are already DataMatrix capable, Applications,’’ Contract Number 223–94– window. The comment claimed ‘‘at least 8031, in partial fulfillment of Task Order and this would allow implementation at Number 8, November 29, 2001. half of all scanners currently in use will the lowest cost and in the shortest time. 10. Coyle, G. A., ‘‘Bar Code Medication have been retired or replaced’’ by the (Response) Although the comment Administration: 5 Deal Breakers, Pearls, and time we would require all drugs to have discussed DataMatrix in the context of Perils’’ Proceedings, Bar Code Medication a bar code. The comment said the our economic analysis, the comment’s Administration Conference (P. J. Schneider, remaining scanners would have some focus is the use of DataMatrix rather ed.), Alaris@ Center for Medication Safety
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and Clinical Improvement, San Diego CA, Experience,’’ Transfusion, 40:1207–1213, (i) The bar code requirement does not April 21-22, 2003. October 2000. apply to the following entities: 11. Schneider, P. J., ‘‘Framing the 28. Malcolm B. et al., ‘‘Veteran’s Affairs: (A) Prescription drug samples; Opportunity for Bar Code Medication Eliminating Medication Errors Through (B) Allergenic extracts; Administration,’’ Proceedings, Bar Code Point-of-Care Devices,’’ Technical Paper for (C) Intrauterine contraceptive devices Medication Administration Conference (P. J. 2000 Annual HIMSS Conference, November Schneider, ed.), Alaris@ Center for 30, 1999. regulated as drugs; Medication Safety and Clinical Improvement, 29. Bates, D. W. et al., ‘‘The Cost of (D) Medical gases; San Diego CA, April 4–5, 2003. Adverse Drug Events in Hospitalized (E) Radiopharmaceuticals; and 12. Yang, M. et al., ‘‘The Effect of Barcode Patients,’’ Journal of the American Medical (F) Low-density polyethylene form fill Enabled Point of Care Technology on Association, 277:307–311, January 22 and 29, and seal containers that are not Medication Administration Errors,’’ Bridge 1997. packaged with an overwrap. Medical, Inc., April 2001. 30. Ernst, F. R. and A. J. Grizzle, ‘‘Drug (ii) The bar code requirement does not 13. Brown, M. M., personal communication Related Morbidity and Mortality: Updating apply to prescription drugs sold by a between M. M. Brown, Senior Clinical the Cost-of-Illness Model,’’ Journal of the manufacturer, repacker, relabeler, or Consultant Bridge Medical, Inc., and C. Franz American Pharmaceutical Association, of Eastern Research Group, April 16 and 19, 41:192-199, March/April 2001. private label distributor directly to 2002. 31. Bates, D. W. et al., ‘‘The Cost of patients, but versions of the same drug 14. Rough, S., personal communication Adverse Drug Events in Hospitalized product that are sold to or used in between S. Rough, Pharmacy Service Patients,’’ Journal of the American Medical hospitals are subject to the bar code Organization, University of Wisconsin Association, 277:301–311, January 22 and 29, requirements. Hospital and Clinics, and C. Franz of Eastern 1997. (2) Biological products; and Research Group, April 22 and 23, 2002. List of Subjects (3) OTC drug products that are 15. Churchill, W. W., site visit with W. W. dispensed pursuant to an order and are Churchill, Director of Pharmacy Services, 21 CFR Part 201 Brigham and Women’s Hospital, Boston MA commonly used in hospitals. For by J. Eyraud and C. Franz both of the Eastern Drugs, Labeling, Reporting and purposes of this section, an OTC drug Research Group, April 7, 2002. recordkeeping requirements. product is ‘‘commonly used in 16. Linden, J. V. et al., ‘‘A Report of 104 hospitals’’ if it is packaged for hospital Transfusion Errors in New York State,’’ 21 CFR Part 606 use, labeled for hospital use (or uses Transfusion, 32:601–606, July 1992. Blood, Labeling, Laboratories, similar terms), or marketed, promoted, 17. Gurwitz, J. H. et al., ‘‘Incidence and Reporting and recordkeeping or sold to hospitals. Preventability of Adverse Drug Events in requirements. (c) What does the bar code look like? Nursing Homes,’’ The American Journal of Medicine, 109:87–94, August 1, 2000. 21 CFR Part 610 Where does the bar code go? 18. Barker, K. N. et al., ‘‘Medication Errors (1) Each drug product described in Observed in 36 Health Care Facilities,’’ Biologics, Labeling, Reporting and paragraph (b) of this section must have Archives of Internal Medicine, 162:1897– recordkeeping requirements. a bar code that contains, at a minimum, 1903, September 9, 2002. ■ Therefore, under the Federal Food, the appropriate National Drug Code 19. Jury Verdict Research, ‘‘Medical Drug, and Cosmetic Act and under (NDC) number in a linear bar code that Malpractice Verdict and Settlement Study authority delegated to the Commissioner meets European Article Number/ Released,’’ www.juryverdictresearch.com, of Food and Drugs, 21 CFR parts 201, Uniform Code Council (EAN.UCC) or accessed February 27, 2003. 606, and 610 are amended as follows: 20. U. S. General Accounting Office, Health Industry Business Communications Council (HIBCC) ‘‘Impact on Hospital and Physician Costs PART 201—LABELING Extends Beyond Insurance,’’ GAO/AIMD–95– standards. Additionally, the bar code 169, September 1995. ■ 1. The authority citation for 21 CFR must: 21. American Hospital Association, part 201 continues to read as follows: (i) Be surrounded by sufficient blank ‘‘Medical Liability Crisis Affects space so that the bar code can be Authority: 21 U.S.C. 321, 331, 351, 352, Communities Access to Care,’’ scanned correctly; and www.hospitalconnect.com/aha, accessed 353, 355, 358, 360, 360b, 360gg-360ss, 371, 374, 379e; 42 U.S.C. 216, 241, 262, 264. (ii) Remain intact under normal April 28, 2003. conditions of use. 22. U. S. Department of Health and Human ■ 2. Section 201.25 is added to read as (2) The bar code must appear on the Services, ‘‘Update on the Medical Litigation follows: Crisis: Not the Result of the ‘Insurance drug’s label as defined by section 201(k) Cycle,’ ’’ Office of the Assistant Secretary for § 201.25 Bar code label requirements. of the Federal Food, Drug, and Cosmetic Planning and Evaluation, September 25, (a) Who is subject to these bar code Act. 2002. requirements? Manufacturers, repackers, (d) Can a drug be exempted from the 23. Mello, M., personal communication relabelers, and private label distributors bar code requirement? between M. Mello, Assistant Professor of of a human prescription drug product or (1) On our own initiative, or in Health Policy and Law, Harvard University an over-the-counter (OTC) drug product response to a written request from a and R. Motwane of the Eastern Research manufacturer, repacker, relabeler or Group, September 19, 2003. that is regulated under the Federal 24. Wu, A. W., ‘‘Handling Hospital Errors: Food, Drug, and Cosmetic Act or the private label distributor, we may exempt Is Disclosure the Best Defense?’’ Annals of Public Health Service Act are subject to a drug product from the bar code label Internal Medicine, 131:970–972, December these bar code requirements unless they requirements set forth in this section. 21, 1999. are exempt from the registration and The exemption request must document 25. Rothchild, J. M. et al., ‘‘Analysis of drug listing requirements in section 510 why: Medication-Related Malpractice Claims,’’ of the Federal Food, Drug, and Cosmetic (i) compliance with the bar code Archives of Internal Medicine, 162:2414– Act. requirement would adversely affect the 2420, November 25, 2002. (b) What drugs are subject to these bar safety, effectiveness, purity or potency 26. Lee, L. W. et al., ‘‘Use of Automated of the drug or not be technologically Medication Storage and Distribution code requirements? The following drug System,’’ American Journal of Hospital products are subject to the bar code feasible, and the concerns underlying Pharmacistis, 49:851–855, April 1992. label requirements: the request could not reasonably be 27. Linden, J.V. et al., ‘‘Transfusion Errors (1) Prescription drug products, addressed by measures such as package in New York State: An Analysis of 10 Years’ however: redesign or use of overwraps; or
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(ii) an alternative regulatory program (i) Who is subject to this machine- which the blood or blood component or method of product use renders the readable requirement? All blood can be taken and transfused to a patient. bar code unnecessary for patient safety. establishments that manufacture, * * * * * (2) Requests for an exemption should process, repack, or relabel blood or be sent to the Office of New Drugs blood components intended for PART 610—GENERAL BIOLOGICAL (HFD-020), Center for Drug Evaluation transfusion and regulated under the PRODUCTS STANDARDS and Research, Food and Drug Federal Food, Drug, and Cosmetic Act Administration, 5600 Fishers Lane, or the Public Health Service Act. ■ 5. The authority citation for part 610 Rockville, MD 20857 (requests involving (ii) What blood products are subject to continues to read as follows: a drug product) or to the Office of this machine-readable requirement? All Authority: 21 U.S.C. 321, 331, 351, 352, Compliance and Biologics Quality blood and blood components intended 353, 355, 360, 360c, 360d, 360h, 360i, 371, (HFM-600), Center for Biologics for transfusion are subject to the 372, 374, 381; 42 U.S.C. 216, 262, 263, 263a, Evaluation and Research, Food and machine-readable information label 264. Drug Administration, 1401 Rockville requirement in this section. ■ 6. Section 610.67 is added to read as Pike, Rockville, MD 20852 (requests (iii) What information must be follows: involving a biological product). machine-readable? Each label must have machine-readable information that § 610.67 Bar code label requirements. PART 606—CURRENT GOOD contains, at a minimum: Biological products must comply with MANUFACTURING PRACTICE FOR (A) A unique facility identifier; the bar code requirements at § 201.25 of BLOOD AND BLOOD COMPONENTS (B) Lot number relating to the donor; this chapter. However, the bar code (C) Product code; and requirements do not apply to devices ■ 3. The authority citation for part 606 (D) ABO and Rh of the donor. regulated by the Center for Biologics continues to read as follows: (iv) How must the machine-readable Evaluation and Research or to blood and information appear? The machine- Authority: 21 U.S.C. 321, 331, 351, 352, blood components intended for 355, 360, 360j, 371, 374; 42 U.S.C. 216, 262, readable information must: transfusion. For blood and blood 263a, 264. (A) Be unique to the blood or blood components intended for transfusion, ■ component; 4. Section 606.121 is amended by the requirements at § 606.121(c)(13) of (B) Be surrounded by sufficient blank revising paragraph (c)(13) to read as this chapter apply instead. follows: space so that the machine-readable information can be scanned correctly; Dated: January 6, 2004. § 606.121 Container label. and Mark B. McClellan, * * * * * (C) Remain intact under normal Commissioner of Food and Drugs. (c) * * * conditions of use. (13) The container label must bear (v) Where does the machine-readable Dated: February 4, 2004. encoded information in a format that is information go? The machine-readable Tommy G. Thompson, machine-readable and approved for use information must appear on the label of Secretary of Health and Human Services. by the Director, Center for Biologics any blood or blood component which is [FR Doc. 04–4249 Filed 2–25–04; 8:45 am] Evaluation and Research. or can be transfused to a patient or from BILLING CODE 4160–01–S
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Part IV
Department of Education Office of Innovation and Improvement; Overview Information; Excellence in Economic Education Program; Notice Inviting Applications for New Awards for Fiscal Year (FY) 2004; Notice
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DEPARTMENT OF EDUCATION 34 CFR 75.105(c)(3) we consider only (3) Conducting evaluations of the applications that meet both of these impact of economic and financial Office of Innovation and Improvement; priorities. literacy education on students. Overview Information; Excellence in These priorities are: (4) Conducting economic and Economic Education Program; Notice financial literacy education research. Inviting Applications for New Awards Absolute Priority 1—Direct Activities (5) Creating and conducting school- for Fiscal Year (FY) 2004 A project must indicate how it would based student activities to promote consumer, economic, and personal Catalog of Federal Domestic use 25 percent of the funds available finance education (such as saving, Assistance (CFDA) Number: 84.215B. each year to do all of the following investing, and entrepreneurial Dates: activities: education) and to encourage awareness Applications Available: February 26, (a) Strengthen and expand the and student academic achievement in 2004. grantee’s relationships with State and Deadline for Transmittal of local personal finance, entrepreneurial, economics. (6) Encouraging replication of best Applications: April 16, 2004. and economic education organizations. practices to promote economic and Deadline for Intergovernmental (b) Support and promote training of Review: June 15, 2004. financial literacy. teachers who teach a grade from (b) Eligible partners for subgrantees Eligible Applicants: Any national kindergarten through grade 12 regarding nonprofit educational organization that under Absolute Priority 2. Applications economics, including the dissemination must indicate that subgrants will be has as its primary purpose the of information on effective practices and improvement of the quality of student made to an eligible subgrantee to work research findings regarding the teaching in partnership with one or more of the understanding of personal finance and of economics. economics through effective teaching of following entities: (c) Support research on effective (1) A private-sector entity. economics in grades K–12 in the teaching practices and the development (2) A State educational agency. Nation’s classrooms. of assessment instruments to document (3) A local educational agency. Applicants are required to submit student understanding of personal (4) An institution of higher education. evidence of their organization’s finance and economics. (5) An organization promoting eligibility. (d) Develop and disseminate economic development. Estimated Available Funds: (6) An organization promoting $1,481,150. appropriate materials to foster economic literacy. educational excellence. Maximum Award: We will reject any (7) An organization promoting application that proposes a budget Absolute Priority 2—Subgrant Activities personal finance or entrepreneurial exceeding $1,481,150 for a single budget A project must indicate how it would education. period of twelve (12) months. The (c) Subgrant application process Deputy Under Secretary for Innovation use 75 percent of the funds available each year to award subgrants both to (a) under Absolute Priority 2. (1) and Improvement may change the Applications must describe the subgrant maximum amount through a notice State educational agencies (SEAs) or local educational agencies (LEAs), and process the grantee will conduct prior to published in the Federal Register. awarding subgrants. Number of Awards: 1. (b) State or local economic, personal finance, or entrepreneurial education (2) Applications must provide that the Note: The Department is not bound by any organizations. grantee will invite the following types of estimates in this notice. (a) Allowable Subgrantee Activities. individuals to review all applications Applications must indicate that these for subgrants and to make Project Period: Up to 60 months. recommendations to the grantee on the Budget Period: 12 months. subgrants are to be used to pay for the Federal share of the cost of enabling the approval of the applications: Full Text of Announcement subgrantees to work in partnership with (A) Leaders in the fields of economics I. Funding Opportunity Description one or more ‘‘eligible partners’’ as and education. (B) Other individuals as the grantee described elsewhere in this notice, for Purpose of Program: This program determines to be necessary, especially one or more of the following purposes: promotes economic and financial members of the State and local business, literacy among all students in (1) Collaboratively establishing and banking, and finance communities. kindergarten through grade 12 through conducting teacher training programs In addition to the two absolute the award of one grant to a national that use effective and innovative priorities under this competition, we are nonprofit educational organization that approaches to the teaching of particularly interested in applications has as its primary purpose the economics, personal finance, and that address the following priorities. improvement of the quality of student entrepreneurship. The teacher training Invitational Priorities: For FY 2004 understanding of personal finance and programs must—(i) train teachers who these priorities are invitational economics. teach a grade from kindergarten through priorities. Under 34 CFR 75.105(c)(1) we Priorities: This competition includes grade 12; and (ii) encourage teachers do not give an application that meets two absolute priorities and two from disciplines other than economics one or both of these invitational invitational priorities that are explained and financial literacy to participate in priorities a competitive or absolute in the following paragraphs. such teacher training programs, if the preference over other applications. In accordance with 34 CFR training will promote the economic and These priorities are: 75.105(b)(2)(iv), these priorities are from financial literacy of those teachers’ sections 5533(b), 5534(b), and 5535(b) of students. Invitational Priority 1—Involvement of the Elementary and Secondary (2) Providing resources to school Business Community Education Act of 1965, as amended districts that desire to incorporate The grantee and subgrantees are (ESEA) (20 U.S.C. 7267b–7267e). economics and personal finance into the strongly encouraged to— Absolute Priorities: For FY 2004 these curricula of the schools in those (a) Include interactions with the local priorities are absolute priorities. Under districts. business community to the fullest extent
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possible to reinforce the connection offers interested parties the opportunity or in kind. In kind payment, including between economic and financial literacy to comment on selection criteria. plant, equipment, or services, must be and economic development; and Ordinarily, this practice would have fairly evaluated. (20 U.S.C. 7267e(a) and (b) Work with private businesses to applied to the selection criteria in this (b)). obtain matching contributions for notice. Section 437(d)(1) of the General Supplement not supplant. Funds Federal funds and assist subgrantees in Education Provisions Act (GEPA) (20 provided through this grant must be working toward self-sufficiency. U.S.C. 1232(d)(1)), however, allows the used to supplement, and not supplant, Invitational Priority 2—Scientifically Secretary to exempt from rulemaking other Federal, State, and local funds Based Evaluation requirements rules governing the first expended to support activities that grant competition under a new or fulfill the purpose of this program. (20 The grantee is strongly encouraged to substantially revised program authority. U.S.C. 7267f). propose an evaluation plan that is based This is the first Excellence in Economic on rigorous scientifically based research IV. Application and Submission Education program grant competition Information methods to assess the effectiveness of under the ESEA, as amended by the No the project. The purpose of the priority Child Left Behind Act of 2001. In order 1. Address to Request Application is to allow program participants and the to make timely grant awards, the Package: Carolyn J. Warren, U.S. Department to determine whether the Secretary has decided to forego public Department of Education, 555 New project produces meaningful effects on comment on the proposed selection Jersey Avenue, NW., room 502K, student achievement or teacher criteria under section 473(d)(1) of Washington, DC 20208–5645. performance. GEPA. These selection criteria will Telephone: (202) 219–2206 or by e-mail: Evaluation methods using an apply to the FY 2004 grant competition [email protected]. experimental design are best for only. If you use a telecommunications determining project effectiveness. Thus, Program Authority: 20 U.S.C. 7267. device for the deaf (TDD), you may call the project might use an experimental Applicable Regulations: The the Federal Information Relay Service design under which participants—e.g., Education Department General (FIRS) at 1–800–877–8339. students, teachers, classrooms, or Administrative Regulations (EDGAR) in Individuals with disabilities may schools—are randomly assigned to 34 CFR parts 74, 75, 77, 79, 80, 81, 82, obtain a copy of the application package participate in the project activities being 84, 85, 86, 97, 98, and 99. in an alternative format (e.g., Braille, evaluated or to a control group that does large print, audiotape, or computer not participate in the project activities II. Award Information diskette) by contacting the program being evaluated. Type of Award: Discretionary grant. contact person listed in this section. If random assignment is not feasible, Estimated Available Funds: 2. Content and Form of Application the project might use a quasi- $1,481,150. Submission: Requirements concerning experimental design with carefully Maximum Award: We will reject any the content of an application, together matched comparison conditions. This application that proposes a budget with the forms you must submit, are in alternative design attempts to exceeding $1,481,150 for a single budget the application package for this approximate a randomly assigned period of twelve (12) months. The competition. Page Limit: The control group by matching Deputy Under Secretary for Innovation application narrative is where you, the participants—e.g., students, teachers, and Improvement may change the applicant, address the selection criteria classrooms, or schools—with non- maximum amount through a notice that reviewers use to evaluate your participants having similar pre-program published in the Federal Register. application. It is strongly suggested that characteristics. Number of Awards: 1. you limit the narrative of your In cases where random assignment is application to the equivalent of no more not possible and an extended series of Note: The Department is not bound by any than 25 pages, using the following observations of the outcome of interest estimates in this notice. standards: precedes and follows the introduction of Project Period: Up to 60 months. • A ‘‘page’’ is 8.5″ x 11″, on one side a new program or practice, regression Budget Period: 12 months. only, with 1’’ margins at the top, discontinuity designs might be bottom, and both sides. III. Eligibility Information employed. • Double space (no more than three For projects that are focused on 1. Eligible Applicants: Any national lines per vertical inch) all text in the special populations in which sufficient nonprofit educational organization that application narrative, including titles, numbers of participants are not has as its primary purpose the headings, footnotes, quotations, available to support random assignment improvement of the quality of student references, and captions, as well as all or matched comparison group designs, understanding of personal finance and text in charts, tables, figures, and single-subject designs such as multiple economics through effective teaching of graphs. baseline or treatment-reversal or economics in grades K–12 in the • Use a font that is either 12 point or interrupted time series that are capable Nation’s classrooms. larger or no smaller than 10 pitch of demonstrating causal relationships Applicants are required to submit (characters per inch). might be employed. evidence of their organization’s The page limit does not apply to the The proposed evaluation plan should eligibility. cover sheet; the budget section, describe how the project evaluator will 2. Cost Sharing or Matching: Subgrant including the narrative budget collect—before the project intervention Activities. The recipients of each justification; the assurances and commences and after it ends—valid and subgrant are required to match the certifications; or the one-page abstract, reliable data that measure the impact of Federal grant funds with an equal the resumes, the bibliography, the participation in the program or in the amount of non-Federal funding. The evidence of eligibility, or the letters of comparison group. Federal share of each subgrant will be support. However, you must include all Waiver of Proposed Rulemaking: fifty (50) percent of the funded of the information addressing the Under the Administrative Procedure Act activities. The recipient of the subgrant selection criteria and the priorities in (5 U.S.C. 553) the Department generally must pay the other fifty percent in cash the narrative section of the application.
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3. Submission Dates and Times: business with us electronically is a e-Application and solicit suggestions for Applications Available: February 26, major part of our response to these Acts. its improvement. 2004. Deadline for Transmittal of Therefore, we are taking steps to adopt If you participate in e-Application, Applications: April 16, 2004. the Internet as our chief means of please note the following: • Note: We are requiring that applications for conducting transactions in order to When you enter the e-Application grants under this program be submitted improve services to our customers and system, you will find information about electronically using the Electronic Grant to simplify and expedite our business its hours of operation. We strongly Application System (e-Application) available processes. recommend that you do not wait until through the Department’s e-GRANTS system. We are requiring that applications for the application deadline date to initiate For information about how to access the e- grants under Excellence in Economic an e-Application package. GRANTS system or to request a waiver of the Education Program—CFDA Number • You will not receive additional point electronic submission requirement, please 84.215B—be submitted electronically value because you submit a grant refer to Section IV, item 6, Other Submission using the Electronic Grant Application application in electronic format, nor Requirements, in this notice. System (e-Application) available will we penalize you if you submit an The application package for this through the Department’s e-GRANTS application in paper format. • program specifies the hours of operation system. The e-GRANTS system is You must submit all documents of the e-Application Web site. If you are accessible through its portal page at: electronically, including the requesting a waiver of the electronic http://e-grants.ed.gov. Application for Federal Education submission requirement, the dates and If you are unable to submit an Assistance (ED 424), Budget times for the transmittal of applications application through the e-GRANTS Information—Non-Construction by mail or by hand (including a courier system, you may submit a written Programs (ED 524), and all necessary request for a waiver of the electronic assurances and certifications. service or commercial carrier) are also • in the application package. submission requirement. In your Your e-Application must comply We do not consider an application request, you should explain the reason with any page limit requirements or reasons that prevent you from using described in this notice. that does not comply with the deadline • requirements. the Internet to submit your application. After you electronically submit your Deadline for Intergovernmental Address your request to: Carolyn J. application, you will receive an Review: June 15, 2004. Warren, U.S. Department of Education, automatic acknowledgement, which 4. Intergovernmental Review: This 555 New Jersey Avenue, NW., room will include a PR/Award number (an competition is subject to Executive 502K, Washington, DC 20208–5645. identifying number unique to your application). Order 12372 and the regulations in 34 Please submit your request no later than • CFR part 79. Information about two weeks before the application Within three working days after Intergovernmental Review of Federal deadline date. submitting your electronic application, Programs under Executive Order 12372 If, within two weeks of the fax a signed copy of the Application for Federal Education Assistance (ED 424) is in the application package for this application deadline date, you are to the Application Control Center after competition. unable to submit an application 5. Funding Restrictions: Twenty-five electronically, you must submit a paper following these steps: application by the application deadline 1. Print ED 424 from e-Application. (25) percent of the grant funds must be 2. The institution’s Authorizing date in accordance with the transmittal used for Direct Activities as described in Representative must sign this form. Absolute Priority 1. (20 U.S.C. instructions in the application package. 3. Place the PR/Award number in the 7267b(b)(1)). The paper application must include a upper right hand corner of the hard Seventy-five (75) percent of the grant written request for a waiver copy signature page of the ED 424. funds must be used for Subgrant documenting the reasons that prevented 4. Fax the signed ED 424 to the Activities as described in Absolute you from using the Internet to submit Application Control Center at (202) Priority 2. (20 U.S.C. 7267b(b)(2)). your application. 260–1349. The grantee and each subgrantee may • Pilot Project for Electronic Submission We may request that you give us use not more than five (5) percent of of Applications original signatures on other forms at a their grant funds for administrative later date. costs. (20 U.S.C. 7267d(a)). We are continuing to expand our pilot Application Deadline Date Extension We reference regulations outlining project for electronic submission of in Case of System Unavailability: If you other funding restrictions in the applications to include additional are prevented from submitting your Applicable Regulations section of this formula grant programs and additional application on the application deadline notice. discretionary grant competitions. The date because the e-Application system is 6. Other Submission Requirements: Excellence in Economic Education unavailable, we will grant you an Instructions and requirements for the Program—CFDA Number 84.215B—is extension of one business day in order transmittal of applications by mail or by one of the programs included in the to transmit your application hand (including a courier service or pilot project. If you are an applicant electronically, by mail, or by hand commercial carrier) are in the under Excellence in Economic delivery. We will grant this extension application package for this Education Program, you must submit if— competition. your application to us in electronic 1. You are a registered user of e- Application Procedures: The format or receive a waiver. Application and you have initiated an e- Government Paperwork Elimination Act The pilot project involves the use of Application for this competition; and (GPEA) of 1998 (Pub. L. 105–277) and e-Application. If you use e-Application, 2. (a) The e-Application system is the Federal Financial Assistance you will be entering data online while unavailable for 60 minutes or more Management Improvement Act of 1999 completing your application. You may between the hours of 8:30 a.m. and 3:30 (Pub. L. 106–107) encourage us to not e-mail an electronic copy of a grant p.m., Washington, DC, time, on the undertake initiatives to improve our application to us. The data you enter application deadline date; or grant processes. Enhancing the ability of online will be saved into a database. We (b) The e-Application system is individuals and entities to conduct shall continue to evaluate the success of unavailable for any period of time
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during the last hour of operation (that is, 4. Quality of Project Personnel—10 success at the initial site and effective for any period of time between 3:30 p.m. Points strategies for replication in other and 4:30 p.m., Washington, DC, time) on In determining the quality of the settings. the application deadline date. project personnel of the proposed Applicants are encouraged to devote We must acknowledge and confirm project, the Secretary considers the an appropriate level of resources to these periods of unavailability before qualifications, including relevant project evaluation. granting you an extension. To request training and experience, of the project VI. Award Administration Information this extension or to confirm our director and key personnel. acknowledgement of any system 1. Award Notices: If your application unavailability, you may contact either 5. Quality of Project Evaluation—20 is successful, we notify your U.S. (1) the person listed elsewhere in this Points Representative and U.S. Senators and send you a Grant Award Notification notice under FOR FURTHER INFORMATION In determining the quality of the (GAN). We may also notify you CONTACT (see VII. Agency Contact) or (2) evaluation plan of the proposed project, informally. the e-GRANTS help desk at 1–888–336– the Secretary considers the following 8930. If your application is not evaluated or factors: not selected for funding, we notify you. You may access the electronic grant (a) The extent to which the methods application for the Excellence in 2. Administrative and National Policy of evaluation include the use of Requirements: We identify Economic Education Program at http:// objective performance measures that are e-grants.ed.gov. administrative and national policy clearly related to the intended outcomes requirements in the application package V. Application Review Information of the project and will produce and reference these and other quantitative and qualitative data to the Selection Criteria: The selection requirements in the Applicable extent possible. Regulations section of this notice. criteria for this competition are as (b) The extent to which the evaluation follows: We reference the regulations outlining will provide guidance about effective the terms and conditions of an award in 1. Quality of the Project Design—20 strategies suitable for replication or the Applicable Regulations section of Points testing in other settings. this notice and include these and other In determining the quality of the Note: The Department notes that the specific conditions in the GAN. The design of the proposed project, the grantee can, as authorized by section GAN also incorporates your approved Secretary considers the extent to which 5533(a)(2)(C) of the ESEA, award subgrants to application as part of your binding the proposed project represents an conduct evaluations and to collect the commitments under the grant. exceptional approach to the priorities information needed for implementation of 3. Reporting: At the end of your established for the competition. the performance measure discussed project period, you must submit a final elsewhere in this notice. performance report, including financial 2. Quality of Project Services—30 Points Factors Applicants May Wish To information, as directed by the In determining the quality of the Consider in Developing an Evaluation Secretary. If you receive a multi-year project services of the proposed project, Plan. A strong evaluation plan should award, you must submit an annual the Secretary considers the following be included in the application narrative performance report that provides the factors: and should be used, as appropriate, to most current performance and financial (a) The extent to which the training or shape the development of the project expenditure information as specified by professional development services to be from the beginning of the grant period. the Secretary in 34 CFR 75.118. provided by the proposed project are of The plan should include benchmarks to 4. Performance Measures: The sufficient quality, intensity, and monitor progress toward specific project percentage of students of teachers duration to lead to improvements in objectives and also outcome measures to trained under the grant project that practice among the recipients of those assess the impact on teaching and demonstrate an improved services. learning or other important outcomes understanding of personal finance and (b) The likelihood that the services to for project participants. More economics as compared to similar be provided by the proposed project specifically, the plan should, where students whose teachers have not had will lead to improvements in the possible, identify the individual and/or the training provided by this project. achievement of students as measured organization that has agreed to serve as The grantee under this program will be against rigorous academic standards. evaluator for the project and describe required to collect and report these data (c) The extent to which the services to the qualifications of that evaluator. The to the Department, and applicants are be provided by the proposed project plan should describe the evaluation strongly encouraged to design their involve the collaboration of appropriate design, indicating: proposed project evaluations around partners for maximizing the (1) What types of data will be this performance measure. effectiveness of project services. collected. VII. Agency Contact (2) When various types of data will be 3. Quality of the Management Plan—20 collected. FOR FURTHER INFORMATION CONTACT: Points (3) What methods will be used. Carolyn J. Warren, U.S. Department of In determining the quality of the (4) What instruments will be Education, 555 New Jersey Avenue, management plan of the proposed developed and when. NW., room 502K, Washington, DC project, the Secretary considers the (5) How the data will be analyzed. 20208–5645. Telephone: (202) 219–2206 adequacy of the management plan to (6) When reports of results and or by e-mail: [email protected]. achieve the objectives of the proposed outcomes will be available. If you use a telecommunications project on time and within budget, (7) How the applicant will use the device for the deaf (TDD), you may call including clearly defined information collected through the the Federal Information Relay Service responsibilities, timelines, and evaluation to monitor progress of the (FIRS) at 1–800–877–8339. milestones for accomplishing project funded project and to provide Individuals with disabilities may tasks. accountability information both about obtain this document in an alternative
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format (e.g., Braille, large print, following site: www.ed.gov/news/ Register. Free Internet access to the official audiotape, or computer diskette) on fedregister. edition of the Federal Register and the Code of Federal Regulations is available on GPO request to the program contact person To use PDF you must have Adobe listed in this section. Access at www.gpoaccess.gov/nara/ Acrobat Reader, which is available free index.html. VIII. Other Information at this site. If you have questions about Electronic Access to This Document: using PDF, call the U.S. Government Dated: February 20, 2004. You may view this document, as well as Printing Office (GPO), toll free, at 1– Nina Shokraii Rees, all other documents of this Department 888–293–6498; or in the Washington, Deputy Under Secretary for Innovation and published in the Federal Register, in DC, area at (202) 512–1530. Improvement. text or Adobe Portable Document Note: The official version of this document [FR Doc. 04–4298 Filed 2–25–04; 8:45 am] Format (PDF) on the Internet at the is the document published in the Federal BILLING CODE 4000–01–P
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Part V
The President Executive Order 13329—Encouraging Innovation in Manufacturing
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Federal Register Presidential Documents Vol. 69, No. 38
Thursday, February 26, 2004
Title 3— Executive Order 13329 of February 24, 2004
The President Encouraging Innovation in Manufacturing
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Small Business Act, as amended (15 U.S.C. 631 et seq.), and to help ensure that Federal agencies properly and effectively assist the private sector in its manufacturing innova- tion efforts, it is hereby ordered as follows: Section 1. Policy. Continued technological innovation is critical to a strong manufacturing sector in the United States economy. The Federal Government has an important role, including through the Small Business Innovation Research (SBIR) and the Small Business Technology Transfer (STTR) pro- grams, in helping to advance innovation, including innovation in manufac- turing, through small businesses. Sec. 2. Duties of Department and Agency Heads. The head of each executive branch department or agency with one or more SBIR programs or one or more STTR programs shall: (a) to the extent permitted by law and in a manner consistent with the mission of that department or agency, give high priority within such programs to manufacturing-related research and development to advance the policy set forth in section 1 of this order; and (b) submit reports annually to the Administrator of the Small Business Administration and the Director of the Office of Science and Technology Policy concerning the efforts of such department or agency to implement subsection 2(a) of this order. Sec. 3. Duties of Administrator of the Small Business Administration. The Administrator of the Small Business Administration: (a) shall establish, after consultation with the Director of the Office of Science and Technology Policy, formats and schedules for submission of reports by the heads of departments and agencies under subsection 2(b) of this order; and (b) is authorized to issue to departments and agencies guidelines and directives (in addition to the formats and schedules under subsection 3(a)) as the Administrator determines from time to time are necessary to implement subsection 2(a) of this order, after such guidelines and directives are sub- mitted to the President, through the Director of the Office of Science and Technology Policy, for approval and are approved by the President. Sec. 4. Definitions. As used in this order: (a) ‘‘Small Business Innovation Research (SBIR) program’’ means a program to which section 9(e)(4) of the Small Business Act (15 U.S.C. 638(e)(4)) refers; (b) ‘‘Small Business Technology Transfer (STTR) program’’ means a pro- gram to which section 9(e)(6) of the Small Business Act (15 U.S.C. 638(e)(6)) refers; (c) ‘‘research and development’’ means an activity set forth in section 9(e)(5) of the Small Business Act (15 U.S.C. 638(e)(5)); and (d) ‘‘manufacturing-related’’ means relating to: (i) manufacturing processes, equipment and systems; or (ii) manufacturing workforce skills and protection. Sec. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect the authority of the Director of the Office
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of Management and Budget with respect to budget, administrative, or legisla- tive proposals. (b) Nothing in this order shall be construed to require disclosure of informa- tion the disclosure of which is prohibited by law or by Executive Order, including Executive Order 12958 of April 17, 1995, as amended. (c) This order is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, against the United States, its departments, agencies, or other entities, its officers or employees, or any other person. W THE WHITE HOUSE, February 24, 2004.
[FR Doc. 04–4436 Filed 2–25–04; 8:45 am] Billing code 3195–01–P
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Part VI
The President Executive Order 13330—Human Service Transportation Coordination
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Federal Register Presidential Documents Vol. 69, No. 38
Thursday, February 26, 2004
Title 3— Executive Order 13330 of February 24, 2004
The President Human Service Transportation Coordination
By the authority vested in me as President by the Constitution and the laws of the United States of America, and to enhance access to transportation to improve mobility, employment opportunities, and access to community services for persons who are transportation-disadvantaged, it is hereby or- dered as follows: Section 1. This order is issued consistent with the following findings and principles: (a) A strong America depends on citizens who are productive and who actively participate in the life of their communities. (b) Transportation plays a critical role in providing access to employment, medical and health care, education, and other community services and amen- ities. The importance of this role is underscored by the variety of transpor- tation programs that have been created in conjunction with health and human service programs, and by the significant Federal investment in acces- sible public transportation systems throughout the Nation. (c) These transportation resources, however, are often difficult for citizens to understand and access, and are more costly than necessary due to incon- sistent and unnecessary Federal and State program rules and restrictions. (d) A broad range of Federal program funding allows for the purchase or provision of transportation services and resources for persons who are transportation-disadvantaged. Yet, in too many communities, these services and resources are fragmented, unused, or altogether unavailable. (e) Federally assisted community transportation services should be seam- less, comprehensive, and accessible to those who rely on them for their lives and livelihoods. For persons with mobility limitations related to ad- vanced age, persons with disabilities, and persons struggling for self-suffi- ciency, transportation within and between our communities should be as available and affordable as possible. (f) The development, implementation, and maintenance of responsive, comprehensive, coordinated community transportation systems is essential for persons with disabilities, persons with low incomes, and older adults who rely on such transportation to fully participate in their communities. Sec. 2. Definitions. (a) As used in this order, the term ‘‘agency’’ means an executive department or agency of the Federal Government. (b) For the purposes of this order, persons who are transportation-disadvan- taged are persons who qualify for Federally conducted or Federally assisted transportation-related programs or services due to disability, income, or ad- vanced age. Sec. 3. Establishment of the Interagency Transportation Coordinating Council on Access and Mobility. (a) There is hereby established, within the Depart- ment of Transportation for administrative purposes, the ‘‘Interagency Trans- portation Coordinating Council on Access and Mobility’’ (‘‘Interagency Trans- portation Coordinating Council’’ or ‘‘Council’’). The membership of the Inter- agency Transportation Coordinating Council shall consist of: (i) the Secretaries of Transportation, Health and Human Services, Edu- cation, Labor, Veterans Affairs, Agriculture, Housing and Urban De- velopment, and the Interior, the Attorney General, and the Com- missioner of Social Security; and
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(ii) such other Federal officials as the Chairperson of the Council may designate. (b) The Secretary of Transportation, or the Secretary’s designee, shall serve as the Chairperson of the Council. The Chairperson shall convene and preside at meetings of the Council, determine its agenda, direct its work, and, as appropriate to particular subject matters, establish and direct subgroups of the Council, which shall consist exclusively of the Council’s members. (c) A member of the Council may designate any person who is part of the member’s agency and who is an officer appointed by the President or a full-time employee serving in a position with pay equal to or greater than the minimum rate payable for GS–15 of the General Schedule to perform functions of the Council or its subgroups on the member’s behalf. Sec 4. Functions of the Interagency Transportation Coordinating Council. The Interagency Transportation Coordinating Council shall: (a) promote interagency cooperation and the establishment of appropriate mechanisms to minimize duplication and overlap of Federal programs and services so that transportation-disadvantaged persons have access to more transportation services; (b) facilitate access to the most appropriate, cost-effective transportation services within existing resources; (c) encourage enhanced customer access to the variety of transportation and resources available; (d) formulate and implement administrative, policy, and procedural mecha- nisms that enhance transportation services at all levels; and (e) develop and implement a method for monitoring progress on achieving the goals of this order. Sec. 5. Report. In performing its functions, the Interagency Transportation Coordinating Council shall present to me a report not later than 1 calendar year from the date of this order. The report shall: (a) Identify those Federal, State, Tribal and local laws, regulations, proce- dures, and actions that have proven to be most useful and appropriate in coordinating transportation services for the targeted populations; (b) Identify substantive and procedural requirements of transportation- related Federal laws and regulations that are duplicative or restrict the laws’ and regulations’ most efficient operation; (c) Describe the results achieved, on an agency and program basis, in: (i) simplifying access to transportation services for persons with disabilities, persons with low income, and older adults; (ii) providing the most appro- priate, cost-effective transportation services within existing resources; and (iii) reducing duplication to make funds available for more services to more such persons; (d) Provide recommendations to simplify and coordinate applicable sub- stantive, procedural, and administrative requirements; and (e) Provide any other recommendations that would, in the judgment of the Council, advance the principles set forth in section 1 of this order. Sec. 6. General. (a) Agencies shall assist the Interagency Transportation Coordinating Council and provide information to the Council consistent with applicable law as may be necessary to carry out its functions. To the extent permitted by law, and as permitted by available agency resources, the Department of Transportation shall provide funding and administrative support for the Council. (b) Nothing in this order shall be construed to impair or otherwise affect the functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative proposals. (c) This order is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any
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right or benefit, substantive or procedural, enforceable at law or in equity by a party against the United States, its departments, agencies, instrumental- ities or entities, its officers or employees, or any other person. W THE WHITE HOUSE, February 24, 2004.
[FR Doc. 04–4451 Filed 2–25–04; 11:57 am] Billing code 3195–01–P
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Reader Aids Federal Register Vol. 69, No. 38 Thursday, February 26, 2004
CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING FEBRUARY
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 3 CFR 1965...... 5264 Proposed Rules: Executive orders and proclamations 741–6000 Proclamations: The United States Government Manual 741–6000 301...... 7607 7754...... 5457 319...... 5673 Other Services 7755...... 5677 761...... 6056 Electronic and on-line services (voice) 741–6020 7756...... 5903 762...... 6056 Privacy Act Compilation 741–6064 Executive Orders: 763...... 6056 Public Laws Update Service (numbers, dates, etc.) 741–6043 12512 (Revoked by 764...... 6056 TTY for the deaf-and-hard-of-hearing 741–6086 EO 13327)...... 5897 765...... 6056 12958 (See EO 13328, 766...... 6056 13329)...... 6901, 9181 ELECTRONIC RESEARCH 767...... 6056 13327...... 5897 768...... 6056 World Wide Web 13328...... 6901 769...... 6056 13329...... 9181 1205...... 5936 Full text of the daily Federal Register, CFR and other publications 13330...... 9185 is located at: http://www.access.gpo.gov/nara 1423...... 6201 Administrative Orders: 1728...... 6926 Federal Register information and research tools, including Public Presidential Inspection List, indexes, and links to GPO Access are located at: Determinations: 8 CFR http://www.archives.gov/federallregister/ No. 2004-21...... 4843 Proposed Rules: E-mail No. 2004-22 of 103...... 5088 February 5, 2004 ...... 8323 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is Notices: 9 CFR an open e-mail service that provides subscribers with a digital Notice of February 13, 72...... 8328 form of the Federal Register Table of Contents. The digital form 2004 ...... 7677 of the Federal Register Table of Contents includes HTML and 78...... 7863 Notice of February 20, 145...... 7679 PDF links to the full text of each document. 2004 ...... 8543 To join or leave, go to http://listserv.access.gpo.gov and select 10 CFR 5 CFR Online mailing list archives, FEDREGTOC-L, Join or leave the list 50...... 5267 532...... 5257, 7105 (orchange settings); then follow the instructions. 71...... 6139 792...... 8325 PENS (Public Law Electronic Notification Service) is an e-mail 600...... 7865 Proposed Rules: service that notifies subscribers of recently enacted laws. Proposed Rules: Ch. XCVII...... 8030 19...... 8350 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 591...... 6020 20...... 8350 and select Join or leave the list (or change settings); then follow 890...... 5935 50...... 8350 the instructions. 9701...... 8030 170...... 4865 FEDREGTOC-L and PENS are mailing lists only. We cannot 6 CFR 171...... 4865 respond to specific inquiries. 29...... 8074 Reference questions. Send questions and comments about the 11 CFR Federal Register system to: [email protected] 7 CFR 111...... 6525 The Federal Register staff cannot interpret specific documents or 58...... 8797 12 CFR regulations. 300...... 4845 301...... 4845, 8091 222...... 6526 FEDERAL REGISTER PAGES AND DATE, FEBRUARY 318...... 7541 229...... 6917 319 ...... 4845, 5673, 6905 701...... 8545 4843–5004...... 2 762...... 5259 708A ...... 8548 5005–5256...... 3 772...... 7679 741...... 8545 5257–5458...... 4 905...... 5679 745...... 8798 5459–5678...... 5 916...... 8325 Proposed Rules: 5679–5904...... 6 917...... 8325 Ch. VII...... 5300 5905–6138...... 9 930...... 6905 25...... 5729 6139–6524...... 10 932...... 5905 228...... 5729 6525–6904...... 11 984...... 6910 345...... 5729 6905–7104...... 12 989...... 6912 502...... 6201 7105–7346...... 13 1135...... 8327 563e...... 5729 7347–7540...... 17 1724...... 7105 703...... 4886 7541–7678...... 18 1726...... 7105 704...... 4886 7679–7862...... 19 1755...... 7105 708A ...... 8551 7863–8090...... 20 1940...... 5263 8091–8322...... 23 1941...... 5259 13 CFR 8323–8544...... 24 1943...... 5259 107...... 8097 8545–8796...... 25 1951...... 5259, 5264 Proposed Rules: 8797–9188...... 26 1962...... 5264 121...... 5302
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14 CFR 748...... 5686 291...... 7324 147...... 6146 1...... 6531 750...... 5686 990...... 5796 165 .....5277, 5280, 5282, 5284, 752...... 5686 5465, 5467, 5469, 5471, 21...... 6531 25 CFR 23...... 8551 764...... 7867 5473, 6148, 6150, 6152, 25...... 6532 766...... 7867 Proposed Rules: 6154, 6156, 6158, 6559, 39 ...... 5505, 5007, 5459, 5907, 774...... 5927 30...... 8752 7367, 8817 37...... 8752 Proposed Rules: 5909, 5911, 5913, 5914, 16 CFR 5918, 5920, 5922, 5924, 39...... 8752 165 ...... 6219, 6221, 7717 456...... 5451 42...... 8752 5926, 6139, 6532, 6533, 34 CFR 6534, 6536, 6538, 6539, 602...... 6526 44...... 8752 6541, 6542, 6546, 6547, 603...... 8532 47...... 8752 280...... 4995 6549, 6552, 6553, 7111, Proposed Rules: 162...... 6500 345...... 8331 7113, 7548, 7550, 7551, 310...... 7330 26 CFR 36 CFR 7553, 7555, 7556, 7558, 315...... 5440 7560, 7561, 7565, 7680, 456...... 5440 1 ...... 5017, 5248, 5272, 5931, 242...... 5018 8098, 8101, 8103, 8801, 7350, 7567, 7995, 8330 Proposed Rules: 8809 17 CFR 31...... 7567 7...... 5799 61...... 6531 1...... 6140 301...... 5017, 7567 242...... 5105 71 ...... 5008, 5009, 5010, 5011, 200...... 8329 602 ...... 5017, 7350, 7567 1200...... 7881 5012, 5013, 5014, 5461, Proposed Rules: Proposed Rules: 37 CFR 5462, 5463, 7681, 8555, 239...... 6438, 7852 1 ...... 5101, 5797, 5940, 7183, 202...... 8821 8556, 8558, 8559, 8560 7384, 7389, 8885, 8886 240 ...... 6124, 6438, 6928, 7852 262...... 5693, 8822 77...... 5682 31...... 8604 249...... 6928 263...... 5693 91 ...... 6531, 6532, 6555 274 ...... 6438, 6928, 7852 301...... 5101 93...... 6555 Proposed Rules: 97 ...... 5683, 5684, 8811 18 CFR 27 CFR 205...... 8120 119...... 6531, 6555 2...... 5268 9...... 8562 38 CFR 121 .....5388, 6380, 6531, 6532, 4...... 5268 Proposed Rules: 6555, 6556 28 CFR 5...... 5268 3...... 6223 125 ...... 6531, 6532, 6556 9...... 5268 2...... 5273 129...... 6531 16...... 5268 39 CFR 29 CFR 135 .....5388, 6531, 6532, 6555, 141...... 9030 551...... 7688 6556 260...... 9030 1910...... 7351 3001...... 7574 139...... 6380 257...... 9030 4022...... 7119 142...... 6531 Proposed Rules: 375...... 5268, 9030 4044...... 7119 111...... 7887, 8899 145...... 5388 385...... 5268 4904...... 7120 183...... 6555 Proposed Rules: Proposed Rules: 40 CFR 1260...... 5015, 5016 284...... 8587 1926...... 7184, 8352 19...... 7121 1274...... 5016 27...... 7121 Proposed Rules: 20 CFR 30 CFR 52 ...... 4852, 4856, 5036, 5286, Ch. I ...... 8575 404...... 5691 75...... 8107 5289, 5932, 6160, 7096, Ch. III ...... 8575 Proposed Rules: 7127, 7133, 7370, 8822 25...... 5747 21 CFR 57...... 7881 60...... 7135, 7148 36...... 6856 1 ...... 4851, 7347, 8330 701...... 8898 63...... 5038, 7372 39 ...... 5302, 5477, 5756, 5759, 119...... 6788 773...... 8898 81...... 4856 5762, 5765, 5767, 5769, 201...... 7114, 9120 774...... 8898 141...... 7156 5771, 5773, 5775, 5778, 203...... 8105 778...... 8898 147...... 8565, 8824 5780, 5781, 5783, 5785, 522...... 7115 780...... 8899 180 ...... 5289, 6561, 7161, 7596 5787, 5790, 5792, 5794, 529...... 6556 816...... 8899 261...... 8828 5936, 5939, 6214, 6585, 556...... 6556 817...... 8899 268...... 6567 6587, 7170, 7174, 7176, 558...... 6557 843...... 8898 300...... 7873 7179, 7181, 7378, 7380, 606...... 9120 847...... 8898 Proposed Rules: 7382, 7706, 7707, 7710, 610...... 7114, 9120 943...... 5102, 5942 30...... 6592 7878, 8576, 8875, 8878, 1271...... 5272 31...... 6592 8880, 8881 1300...... 7348 31 CFR 33...... 6592 60...... 6216 1313...... 7348 Proposed Rules: 35...... 6592 61...... 6218 40...... 6592 Proposed Rules: 10...... 5304 71 ...... 5093, 5094, 5095, 5097, 51...... 4901, 5944 870...... 8600 5098, 5479, 7713, 7714, 52 ...... 4902, 4903, 4908, 5412, 882...... 8600 32 CFR 7715, 8578, 8579, 8581, 6223, 7098, 7185, 7389, 199...... 6919 8582, 8583, 8585, 8586 8613, 8905 22 CFR 312...... 7366 73...... 5099, 8884 55...... 6928 775...... 8108 77...... 5101 126...... 7349 60...... 7390 Proposed Rules: 91...... 6218 23 CFR 63...... 7397 119...... 6218 153...... 4890 72...... 4901, 5944 121...... 6216, 6218 140...... 7116 1602...... 5797 75...... 4901, 5944 135...... 6218 200...... 7116 1605...... 5797 81...... 4908, 8126 136...... 6218 630...... 7116 1609...... 5797 96...... 4901, 5944 633...... 7116 1656...... 5797 247...... 7612 15 CFR 635...... 7116 260...... 8353 33 CFR 730...... 5686 640...... 7116 261...... 7888, 8353 732...... 5686 106...... 7681 268...... 6593 734...... 5686, 5928 24 CFR 110...... 5274 300 ...... 7613, 7897, 8353 736...... 5686 Proposed Rules: 117 .....5017, 5275, 5276, 5463, 740...... 5686, 5928 200...... 7324 6558, 7682, 7684, 7686, 42 CFR 746...... 5686 203...... 7324 8813, 8815, 8817 71...... 7165
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102...... 7376 25...... 5707, 6578 25...... 8312 222...... 7169 27 ...... 5711, 6920, 8569 225...... 8115 229...... 7169 43 CFR 54...... 5718, 6181 1801...... 8335 538...... 7689 2930...... 5703 64...... 5718, 8331 1804...... 5087 571...... 6583 73 ...... 6192, 6193, 6194, 6582, 1811...... 8335 44 CFR Proposed Rules: 8115, 8332, 8333, 8334, 1823...... 8335 192...... 5305, 5480 64...... 5474, 7166 8833, 8834 1851...... 8335 195...... 5305, 5480 65 ...... 6165, 6166, 6170 Proposed Rules: 1852...... 5087, 8335 571...... 5108, 8160 67 ...... 6172, 6179, 8112, 8113 1...... 7615, 8132 Proposed Rules: 1546...... 8357 Proposed Rules: 2...... 7397 52...... 5480 67 ...... 6224, 8128, 8130 15...... 5945, 7397 201...... 8145 20...... 6595 202...... 8145 50 CFR 45 CFR 22...... 8132 203...... 8146 17...... 8116, 8839 1611...... 8114 24...... 8132 205...... 8148 100...... 5018 2531...... 6181 25...... 4908, 6595 206...... 8149 216...... 5720 2533...... 6181 27...... 8132 209...... 8146, 8150 229...... 6583, 8570 Proposed Rules: 54...... 6229 212...... 8151 600...... 8336 2551...... 6225 61...... 7615 214...... 8152 622...... 5297, 6921 2552...... 6227 64...... 6595 224...... 8152 648...... 4861 2553...... 6228 68...... 6595 226...... 8148 660 ...... 8336, 8572, 8861 69...... 7615 228...... 8153 679 .....5298, 5299, 5934, 6198, 46 CFR 73 ...... 6238, 6239, 8355, 8356, 231...... 8154 6199, 7703, 7704, 7876, 12...... 6575 8357 234...... 8155 8874 16...... 6575 74...... 4908 235 ...... 8148, 8157, 8158 Proposed Rules: 67...... 5390 78...... 4908 242...... 8155 17 ...... 6240, 6600, 8161, 8359, Proposed Rules: 90...... 7397, 8132 251...... 8159 8911 67...... 5403 252 .....8146, 8148, 8150, 8155, 100...... 5105 221...... 5403 48 CFR 8158, 8159 223 ...... 5810, 6621, 7719 515...... 8615 Ch. I ...... 8315 300...... 5481, 8162 2...... 8312 49 CFR 600 ...... 5483, 7411, 8615 47 CFR 10...... 8312 107...... 6195 622 ...... 7185, 7186, 7187, 7898 0...... 7376 12...... 8312 171...... 6195 635...... 6621 1 ...... 5707, 6920, 8569 13...... 8312 176...... 6195 648 .....5307, 6635, 8364, 8367, 2...... 5707 15...... 8312 177...... 6195 8915 20...... 6578 19...... 8312 214...... 8834 660...... 7188
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REMINDERS Golden nematode; Caribbean, Gulf, and South Hearing; comments due by The items in this list were comments due by 3-5-04; Atlantic fisheries— 3-4-04; published 2-11-04 editorially compiled as an aid published 1-5-04 [FR 04- King mackerel and reef [FR 04-02957] to Federal Register users. 00079] fish; meetings; Environmental statements; Inclusion or exclusion from Karnal bunt; comments due comments due by 3-5- availability, etc.: this list has no legal by 3-5-04; published 1-5- 04; published 2-13-04 Coastal nonpoint pollution significance. 04 [FR 04-00078] [FR 04-03282] control program— AGRICULTURE COURT SERVICES AND Minnesota and Texas; DEPARTMENT OFFENDER SUPERVISION Open for comments RULES GOING INTO Natural Resources AGENCY FOR THE until further notice; EFFECT FEBRUARY 26, Conservation Service DISTRICT OF COLUMBIA published 10-16-03 [FR 03-26087] 2004 Loan and purchase programs: Semi-annual agenda; Open for comments until further Pesticides; tolerances in food, Conservation Security notice; published 12-22-03 animal feeds, and raw ENVIRONMENTAL Program; comments due [FR 03-25121] agricultural commodities: PROTECTION AGENCY by 3-2-04; published 1-2- Solid wastes: 04 [FR 03-31916] DEFENSE DEPARTMENT Cyprodinil; comments due by 3-1-04; published 12- Hazardous waste; Acquisition regulations: AGRICULTURE 31-03 [FR 03-32061] identification and listing— DEPARTMENT Unique item identification Pesticides; tolerances in food, Exclusions; published 2- and valuation; comments Rural Utilities Service animal feeds, and raw 26-04 due by 3-1-04; published Program regulations: 12-30-03 [FR 03-31951] agricultural commodities: HOMELAND SECURITY Bonds and notes issued for Unique item identification Fluroxypyr; comments due DEPARTMENT electrification or telephone and valuation; correction; by 3-1-04; published 12- Coast Guard purposes; guarantees; comments due by 3-1-04; 31-03 [FR 03-32007] Drawbridge operations: comments due by 3-1-04; published 1-2-04 [FR C3- Superfund program: Rhode Island; published 2- published 12-30-03 [FR 31951] National oil and hazardous 03-31928] 26-04 ENERGY DEPARTMENT substances contingency INTERIOR DEPARTMENT COMMERCE DEPARTMENT Federal Energy Regulatory plan— Fish and Wildlife Service National Oceanic and Commission National priorities list Atmospheric Administration Electric rate and corporate update; comments due Endangered and threatened by 3-1-04; published 1- species: Fishery conservation and regulation filings: management: 29-04 [FR 04-01543] Critical habitat Virginia Electric & Power Alaska; fisheries of National priorities list designations— Co. et al.; Open for Exclusive Economic comments until further update; comments due Santa Ana sucker; Zone— notice; published 10-1-03 by 3-1-04; published 1- published 2-26-04 General limitations; [FR 03-24818] 29-04 [FR 04-01544] TRANSPORTATION comments due by 3-1- ENVIRONMENTAL FEDERAL DEPARTMENT 04; published 1-29-04 PROTECTION AGENCY COMMUNICATIONS COMMISSION Federal Aviation [FR 04-01810] Air quality implementation Administration Individual Fishing Quota plans; approval and Common carrier services: Airworthiness directives: Program; halibut, promulgation; various Satellite communications— Airbus; published 2-11-04 sablefish, and States; air quality planning Coordination between Boeing; published 2-26-04 groundfish; comments purposes; designation of non-geostationary and due by 3-1-04; areas: geostationary satellite Standard instrument approach published 1-29-04 [FR orbit; comments due by procedures; published 2-26- Ohio; comments due by 3- 04-01938] 3-3-04; published 2-2-04 04 3-04; published 2-2-04 Pollock; comments due by [FR 04-01966] [FR 04-01991] 3-5-04; published 2-19- Air quality implementation HEALTH AND HUMAN COMMENTS DUE NEXT 04 [FR 04-03625] plans; approval and SERVICES DEPARTMENT WEEK Caribbean, Gulf, and South promulgation; various Food and Drug Atlantic fisheries— States: Administration AGRICULTURE Offshore marine California; comments due by Medical devices: DEPARTMENT aquaculture; meetings; 3-5-04; published 2-4-04 Dental devices— comments due by 3-5- [FR 04-02264] Agricultural Marketing Gold based alloys, 04; published 2-13-04 Service Florida; comments due by precious metal alloys [FR 04-03283] Almonds grown in— 3-1-04; published 1-30-04 and base metal alloys; Magnuson-Stevens Act [FR 04-01977] California; comments due by special controls provisions— 3-5-04; published 1-6-04 New Hampshire; comments designation; comments [FR 04-00169] Domestic fisheries; due by 3-3-04; published due by 3-1-04; exempted fishing permit 2-2-04 [FR 04-02067] published 12-1-03 [FR AGRICULTURE applications; comments South Carolina; comments 03-29739] DEPARTMENT due by 3-3-04; due by 3-1-04; published Reports and guidance Animal and Plant Health published 2-17-04 [FR 1-29-04 [FR 04-01818] documents; availability, etc.: Inspection Service 04-03392] Tennessee; comments due Evaluating safety of Plant-related quarantine, Domestic fisheries; by 3-3-04; published 2-2- antimicrobial new animal domestic: exempted fishing permit 04 [FR 04-01970] drugs with regard to their Pine shoot beetle; applications; comments Disadvantaged Business microbiological effects on comments due by 3-5-04; due by 3-3-04; Enterprise Program; bacteria of human health published 1-5-04 [FR 04- published 2-17-04 [FR participation by businesses concern; Open for 00080] 04-03391] in procurement under comments until further Plant-related quarantine, Fishery conservation and financial assistance notice; published 10-27-03 domestic: management: agreements [FR 03-27113]
VerDate jul 14 2003 22:06 Feb 25, 2004 Jkt 203001 PO 00000 Frm 00004 Fmt 4712 Sfmt 4711 E:\FR\FM\26FECU.LOC 26FECU Federal Register / Vol. 69, No. 38 / Thursday, February 26, 2004 / Reader Aids v
HOMELAND SECURITY reclamation plan Fokker; comments due by TREASURY DEPARTMENT DEPARTMENT submissions: 3-4-04; published 2-3-04 Internal Revenue Service Coast Guard Texas; comments due by 3- [FR 04-02106] Income taxes: Anchorage regulations: 4-04; published 2-3-04 General Electric Co.; Maryland; Open for [FR 04-02130] comments due by 3-2-04; Credit for increasing comments until further JUSTICE DEPARTMENT published 1-2-04 [FR 03- research activities; comments due by 3-2-04; notice; published 1-14-04 Executive Office for 31665] published 1-2-04 [FR 03- [FR 04-00749] Immigration Review: Glasflugel; comments due 31819] HOMELAND SECURITY Attorneys and by 3-4-04; published 2-5- DEPARTMENT representatives 04 [FR 04-02484] appearances; comments HPH s.r.o.; comments due Citizenship and Immigration LIST OF PUBLIC LAWS Services Bureau due by 3-1-04; published by 3-4-04; published 2-4- 04 [FR 04-02252] Immigration: 12-30-03 [FR 03-32019] Pratt & Whitney; comments This is a continuing list of Benefit application fee NATIONAL ARCHIVES AND public bills from the current RECORDS ADMINISTRATION due by 3-1-04; published schedule; adjustment; 12-31-03 [FR 03-32156] session of Congress which comments due by 3-4-04; Public availability and use: have become Federal laws. It Class B airspace; comments published 2-3-04 [FR 04- Federal records and may be used in conjunction due by 2-29-04; published 02290] donated historical with ‘‘PLUS’’ (Public Laws 11-17-03 [FR 03-28528] HOMELAND SECURITY materials containing Update Service) on 202–741– Class E airspace; comments DEPARTMENT restricted information; 6043. This list is also access restrictions; due by 3-1-04; published 1- Federal Emergency available online at http:// comments due by 3-5-04; 14-04 [FR 04-00757] Management Agency www.archives.gov/ published 1-5-04 [FR 04- Noise certification standards: federal register/public laws/ National Flood Insurance — — 00174] public laws.html. Program: Subsonic jet airplanes and — NUCLEAR REGULATORY subsonic transport Private sector property COMMISSION category large airplanes; The text of laws is not insurers; assistance; published in the Federal Fee schedules revision; 92% comments due by 3-1-04; comments due by 3-1-04; Register but may be ordered fee recovery (2004 FY); published 12-1-03 [FR 03- published 12-31-03 [FR in ‘‘slip law’’ (individual comments due by 3-3-04; 29147] 03-32198] pamphlet) form from the published 2-2-04 [FR 04- VOR Federal airways; Superintendent of Documents, INTERIOR DEPARTMENT 02019] comments due by 3-1-04; U.S. Government Printing Land Management Bureau published 1-14-04 [FR 04- POSTAL RATE COMMISSION Office, Washington, DC 20402 00754] Environmental statements; Practice and procedure: (phone, 202–512–1808). The availability, etc.: Postal service definition; TRANSPORTATION text will also be made Grazing administration— comments due by 3-1-04; DEPARTMENT available on the Internet from Livestock grazing on published 1-23-04 [FR 04- Federal Railroad GPO Access at http:// public lands exclusive 01389] Administration www.gpoaccess.gov/plaws/ to Alaska; comments SMALL BUSINESS Railroad safety: index.html. Some laws may due by 3-2-04; ADMINISTRATION Rail freight rolling stock not yet be available. published 1-6-04 [FR reflectorization; comments 03-32336] Disaster loan areas: S. 610/P.L. 108–201 Maine; Open for comments due by 3-5-04; published Range management: NASA Flexibility Act of 2004 until further notice; 11-6-03 [FR 03-27649] (Feb. 24, 2004; 118 Stat. 461) Grazing administration— published 2-17-04 [FR 04- TRANSPORTATION Livestock grazing on 03374] DEPARTMENT Last List February 18, 2004 public lands exclusive TRANSPORTATION National Highway Traffic of Alaska; correction; DEPARTMENT Safety Administration comments due by 3-2- 04; published 1-16-04 Federal Aviation Motor vehicle safety Public Laws Electronic [FR 04-01032] Administration standards: Notification Service Airworthiness directives: Small business entities; INTERIOR DEPARTMENT (PENS) Agusta S.p.A.; comments economic impacts; Fish and Wildlife Service due by 3-1-04; published comments due by 3-5-04; Endangered and threatened 12-31-03 [FR 03-31849] published 1-5-04 [FR 04- PENS is a free electronic mail species: Airbus; comments due by 3- 00028] notification service of newly Critical habitat 1-04; published 1-29-04 TRANSPORTATION enacted public laws. To designations— [FR 04-01908] DEPARTMENT subscribe, go to http:// listserv.gsa.gov/archives/ Braun’s Rock-cress; Boeing; comments due by Research and Special publaws-l.html comments due by 3-1- 3-2-04; published 2-6-04 Programs Administration 04; published 1-29-04 [FR 04-02477] Pipeline safety: [FR 04-01625] Note: This service is strictly Bombardier; comments due Gas and hazardous liquid for E-mail notification of new INTERIOR DEPARTMENT by 3-1-04; published 1-29- gathering lines; safety laws. The text of laws is not Surface Mining Reclamation 04 [FR 04-01769] regulation; clarification and available through this service. and Enforcement Office Dassault; comments due by meeting; comments due PENS cannot respond to Permanent program and 3-1-04; published 1-29-04 by 3-4-04; published 2-4- specific inquiries sent to this abandoned mine land [FR 04-01770] 04 [FR 04-02310] address.
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